AT ADVOCATE
Newsletter of the National
Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
295 Main Street, Ste. 495 · Buffalo, New York 14203 · (716) 847-0650
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Supported by the National Institute on Disability and Rehabilitation
Research,
U.S. Department of Education, Through a Subcontract with United Cerebral Palsy
Associations.
Volume I Issue 5
November 1996
VOCATIONAL REHABILITATION AGENCIES
USING AT TO MAXIMIZE EMPLOYABILITY
Copyright 1996, Neighborhood Legal Services, Inc.
INTRODUCTION
An important funding source for assistive technology (AT) is available through your state's vocational rehabilitation (VR) agency or agencies. This article reviews VR eligibility criteria, specific goods and services that can be funded, issues to keep in mind when using this system to obtain AT, appeal procedures and the advocacy services available through Client Assistance Programs.
STATE VR AGENCIES --WHAT ARE THEY?
Congress, pursuant to Title I of the Rehabilitation Act (29 U.S.C. § 701 et seq., 34 C.F.R. Part 361), gives money to states to provide VR services for persons with disabilities. To receive funding, a state must submit a plan consistent with the law. 29 U.S.C. § 721. It must designate a single state agency to administer the plan unless it designates a second agency to provide services to individuals who are blind. 29 U.S.C. § 721(a)(1).
VR agencies can fund a wide range of goods and services, including rehabilitation technology (i.e., AT), that are connected to a person's vocational goal. Congress has stated that VR services are to enable individuals to maximize employability, self-sufficiency, independence and integration into the work place and the community through comprehensive and coordinated state-of-the-art programs. 29 U.S.C. § 701(b)(1).
BASIC ELIGIBILITY CRITERIA
To receive services an individual must be disabled [see 29 U.S.C. § 706(8)(A)] and require VR services to prepare for, enter, engage in, or retain gainful employment. 29 U.S.C. § 722(a). Employability is defined as full or part-time employment, including self employment, homemaking, supported employment and integrated employment. 29 U.S.C. § 706(5); 34 C.F.R. § 361.1(c)(2).
Persons who receive Supplemental Security Income (SSI) or Social Security Disability (SSD) benefits automatically meet the disability criteria. All others must show a mental, physical or learning disability that interferes with the ability to work. The disability need not be so severe as to qualify the person for SSD or SSI. The disability must only be a substantial impediment to employment. 29 U.S.C. § 706(8)(A). Although VR services may be denied if a person cannot benefit from them, a person is presumed capable of employment despite the severity of a disability unless the VR agency shows by clear and convincing evidence that he or she cannot benefit from services. 29 U.S.C. § 722(a)(4).
To determine eligibility, the VR agency may use existing information, such as medical reports and educational records and, to the extent necessary, a preliminary assessment. 29 U.S.C. § 722(a)(5)(B). Eligibility must be determined within a reasonable period, not to exceed 60 days, from the date of the application. This time limit may only be exceeded if the individual requires an extended evaluation to determine eligibility or if exceptional and unforeseen circumstances beyond the agency's control prevent compliance and the individual consents. 29 U.S.C. § 722(a)(5)(A).
THE INDIVIDUAL WRITTEN REHABILITATION PROGRAM
After eligibility is established, the individual and the VR counselor must develop an Individual Written Rehabilitation Program (IWRP). 29 U.S.C. § 722(b). To arrive at an IWRP the individual may need additional evaluations to identify skills, abilities and interests which will help in determining possible employment goals. The individual may also need a physical and/or psychological examination to determine how his or her disability impacts on the ability to obtain or maintain employment.
Any service to be provided or funded by the VR agency must be
specified on the IWRP. It is to be jointly developed, agreed upon and signed by the
individual and the counselor. The IWRP should enable the individual to achieve the agreed
upon employment objectives and must include the following [29 U.S.C. § 722(b)(1)(B)]:
The IWRP must be reviewed annually and, if necessary, amended to meet changing needs and abilities. 29 U.S.C. § 722(b)(2).
AVAILABLE SERVICES
VR services are defined as "any goods or services to render
an individual with a disability employable." 29 U.S.C. § 723(a). Services must
include, but are not limited to [29 U.S.C. § 723(a); 34 C.F.R. § 361.42(a)]:
FINANCIAL NEED CRITERIA
There is no requirement that a state consider financial need when
providing VR services. 34 C.F.R. § 361.47(a)(1). If a state VR agency chooses to
establish a financial needs test it must establish written policies which govern the
determination of financial need and which identify the specific VR services that will be
subject to the financial needs test. 34 C.F.R. § 361.47(a)(2). The following services
must be provided without regard to financial need [34 C.F.R. § 361.47(a)(3)]:
MAXIMIZATION OF EMPLOYABILITY
The purpose of the Rehabilitation Act is to "develop and implement . . . comprehensive and coordinated programs of vocational rehabilitation and independent living for individuals with handicaps in order to maximize their employability, independence and integration into the work place and the community." 29 U.S.C. § 701 (emphasis added).
This language was added by 1986 amendments. The legislative history emphasizes Congressional intent: "[T]he overall purpose of the Act is to develop and implement comprehensive and coordinated programs of rehabilitation for handicapped individuals which will maximize their employability, independence and integration into the work place and the community. The Committee views [the Act] as a comprehensive set of programs designed to meet the broad range of needs of individuals with handicaps in becoming integrated into the community and in reaching their highest level of achievement." S. Rep. No. 388, 99th Cong., 2d Sess. 5 (1986)(emphasis added), as quoted in Polkabla v. Commission for the Blind, 183 A.D.2nd 575, 576, 583 N.Y.S.2d 464, 465 (1st Dept. 1992).
Several courts have applied this standard to fund VR services which a VR agency had denied. See, Buchanan v. Ives, 793 F.Supp. 361 (D. Me. 1991)(A "cost efficiency analysis" cannot be the major determinant to deny funding of services and the goal of "maximizing employability" cannot be equated with the ability to do any job. Title I requires a highly individualized analysis of the client's goals and, within reason, services to enable the client to reach highest possible level of achievement.); Polkabla, supra (Title I requires services to enable blind paralegal to reach the highest achievable vocational goal, college and law school, and not merely suitable employment.); Chirico v. Office of Vocational and Educational Services for Individuals with Disabilities (VESID), 211 A.D.2d 258, 627 N.Y.S.2d 815 (3rd Dept. 1995)(Funding for voice activated computer for job-related paper work at home to enable individual to reach highest level of achievement. Attainment of position as guidance counselor by working two to four extra hours, six days a week, was not his full potential.). Contra: Romano v. VESID, N.Y. Slip Op 00584 (3rd Dept., January 11, 1996)(Funding for MSW degree, prior to entry into profession, not required to enable individual to reach highest achievable goal of social work in therapeutic counseling, nor did the individual's disability preclude advancement in chosen profession.).
COMPARABLE SERVICES REQUIREMENT
VR agencies are the payer of last resort for many services. This means they will not pay for a service if a similar benefit is available through some other agency or program. 29 U.S.C. § 721(a)(8).
For example, if an applicant qualifies for personal assistance services through Medicaid, the VR agency will not provide those services. By contrast, the VR agency cannot deny payment for college tuition because an individual could obtain student loans. Student loans, which must be repaid, are not similar benefits. Additionally, a person does not have to exhaust similar benefits if the application process for the similar benefit would delay services to an individual at extreme medical risk; if an immediate job placement would be lost due to delay; or if rehabilitation technology, (i.e., AT) is involved. 29 U.S.C. §§ 721(a)(8), 723(a)(12); 34 C.F.R. § 361.47(b)(2)(v).
Two applications of this requirement warrant further discussion. The first involves the interplay between a public school's obligation to provide a free appropriate public education under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., and the VR agency's responsibilities in the transition process. The second involves the interplay between a college or university's obligation to provide auxiliary aids and services under either Section 504 of the Rehabilitation Act (Section 504), 29 U.S.C. § 794, or the Americans with Disabilities Act (ADA), 42 U.S.C § 12101 et seq., and the VR agency's obligation to provide those services.
Purchase of AT for Students in Transition: Who
Pays?
IDEA requires that no later than age 16 school districts include in each student's Individualized Education Plan (IEP) a transition plan to aid in the student's move to adult life. 34 C.F.R. § 300.346(b)(1). As part of the plan, schools must identify appropriate adult service providers and foster linkages with those agencies. Id. Many VR agencies are unwilling to get involved with students until their right to an appropriate special education is over, citing the comparable benefits requirement. Any such blanket refusal is contrary to the federal VR regulations which provide that there can be no lower age limit which would, "in and of itself, result in a finding of ineligibility for any individual with handicaps who otherwise meets the" other basic eligibility requirements. 34 C.F.R. § 361.31(a)(1).
Where AT is involved, this can be a significant problem. As we noted in the August 1996 issue of AT Advocate, schools do not normally consider AT devices purchased to ensure an appropriate education to be the student's property. If the AT device will also be essential for college or employment, an appropriate part of the transition plan should utilize VR agency funding to obtain AT for the student who is aging out of the special education system. Significant delays will result if the VR process does not begin until after a student leaves school. It also makes little fiscal sense for a school to provide AT, merely to be surrendered upon graduation with the student then seeking another device from the VR agency.
What is the VR agency's responsibility under these circumstances? One possible resolution of this dilemma is to remember that rehabilitation technology is exempt from the comparable benefit requirement. Moreover, in those cases where the student is not the owner of the AT device, its purchase by the school should not be viewed as a comparable benefit. Finally, the regulations contemplate the provision of VR services to special education students and require coordination between the IWRP and the IEP. 34 C.F.R. § 361.41(c).
AT For The College Student: Who Pays?
A similar problem arises when a VR agency refuses to provide AT for a college student, arguing that the college's responsibility under the ADA or Section 504 is a comparable benefit. See "Several Vocational Agencies Stop Paying For Auxiliary Aids," Section 504 Compliance Handbook, Supp. No. 213, p. 1 (Thompson Publishing Group, August 1996).
The regulatory history to the Section 504 regulations governing colleges indicates that the Department of Education envisioned that colleges could normally meet their obligation to provide auxiliary aids "by assisting students in using existing resources for auxiliary aids such as state vocational rehabilitation agencies and private charitable organizations. Indeed, the Department anticipates that the bulk of auxiliary aids will be paid for by state and private agencies, not by colleges or universities." 34 C.F.R. Part 104, App. A, note 31, at 435 (1992)(emphasis added). The purpose of these comments was to highlight that the provision of auxiliary aids would not be an undue burden on the colleges. See, U.S. v. Board of Trustees for U. of Ala., 908 F.2d 740, 745 (11th Cir. 1990).
Addressing this question relative to Section 504, the Seventh Circuit held that the state VR agency has the primary responsibility to provide auxiliary aids in the form of interpreter services. Jones v. Illinois Dept. of Rehabilitation Services, 689 F.2d 724 (7th Cir. 1982). In dicta, the court also noted its approval of the district court's opinion that the similar benefits requirement did not even apply to colleges or universities. Id. at fn. 6. In Schornstein v. N.J. Div. of Voc. Rehab., 519 F. Supp. 773 (D. N.J. 1981), aff'd, 688 F.2d 824 (3d Cir. 1982), the court held that the VR agency's policy of refusing to provide interpreter services to college students violated Title I of the Rehabilitation Act.
The regulations under Section 504 exempt colleges from providing auxiliary aids and services for personal use or study. 34 C.F.R. § 104.44(d)(2). The relevant ADA regulations also exempt personal devices and services. 28 C.F.R. §§ 35.135 and 36.306. Therefore, if a college is under no obligation to provide AT in such circumstances, there is no comparable benefit. Finally, as noted above, AT (rehabilitation technology) is exempt from the comparable benefit requirement. The Department of Education's Rehabilitation Services Administration is preparing a policy on the VR agency's role in providing auxiliary aids for college students. "Several Vocational Agencies Stop Paying For Auxiliary Aids," Section 504 Compliance Handbook, supra, p. 3.
APPEAL AND HEARING RIGHTS
Anyone seeking or receiving VR services who is dissatisfied with a decision by the VR agency has a right to appeal. The agency must notify the individual of the reasons for the decision, the right to appeal and the availability of the Client Assistance Program (see below). 29 U.S.C. § 722(a)(6). The Director of the state VR agency must establish procedures governing appeals, which must include the right to an administrative hearing before an impartial hearing officer (Administrative Law Judge or ALJ). 29 U.S.C. § 722(d)(2).
The individual has the right to be represented at the hearing by
an attorney or other advocate. Both the individual and the agency can present evidence and
cross examine witnesses. 34 C.F.R. § 361.48(c)(2)(ii). The ALJ's decision is final and
must be implemented unless the VR agency Director decides to review it. 34 C.F.R. §
361.48(c)(2)(v). The Director has 20 days from the mailing of the ALJ's decision to notify
the individual that he or she will review the decision. 29 U.S.C. § 722(d)(3)(A).
If the Director opts to review the hearing decision, the individual has the right to submit additional evidence. 34 C.F.R. § 361.48(c)(2)(vii). The Director must render a final decision within 30 days of notice to the individual of the intent to review the ALJ's decision. 34 C.F.R. § 361.48(c)(2)(viii). The Director cannot overturn or modify the ALJ's decision unless there is "clear and convincing evidence" that the decision is "clearly erroneous on the basis of being contrary to Federal or State law, including policy." 29 U.S.C. § 722(d)(3)(C)(i). While a hearing or other appeal is pending, and until the final decision on the appeal, all previously approved benefits under the IWRP must be continued unless the individual requests otherwise. 29 U.S.C. § 722(d)(5).
The majority of courts have found no private right of action directly under Title I of the Rehabilitation Act. Johnson-Lloyd v. Vocational Rehabilitation Office, 813 F. Supp. 1120, 1123-24 (E.D.Pa. 1993); McGuire v. Switzer, 734 F. Supp. 99, 111 & n. 11 (S.D.N.Y. 1990); Ryans v. New Jersey Comm'n for the Blind and Visually Impaired, 542 F. Supp. 841, 845-46 (D.N.J. 1982). However, an individual may appeal the final decision under 42 U.S.C. § 1983. Marshal v. Switzer, 10 F.3d 925 (2nd Cir. 1993); Scott v. Gloekler, 92-CV-6194T (W.D.N.Y. 1993); Ryans, supra. An appeal may also be available in state court, under state laws regarding the review of state administrative agency determinations. See, for example, Article 78 of the New York Civil Practice Laws and Rules, governing appeals from final state agency hearing decisions. An individual dissatisfied with a final agency decision should consult with an attorney as soon as possible because there are strict time limits for filing the court appeal.
CLIENT ASSISTANCE PROGRAM
The Client Assistance Program (CAP) is funded under the Federal
Rehabilitation Act. 29 U.S.C. § 732. CAP is designed to provide information to
individuals concerning their rights in the VR process and to provide advocacy services in
resolving disputes, including representation at fair hearings. Any time an individual does
not understand the proposed IWRP, rights under the Rehabilitation Act, or receives an
adverse decision from the VR agency, he or she should consider contacting the appropriate
CAP office for assistance.
In reality, CAP may not have sufficient resources in your state to handle all of the needed fair hearings and litigation. We hope that our readers from the Protection and Advocacy and Legal Services network will strongly consider taking on these cases, particularly those involving AT.
AT COURT WATCH I
Purpose of Act is to Maximize Employment
The court in Indiana Dept. of Human Services v.
Firth, 590 N.E.2d 154, 73 Ed. Law Rep. 769, 2 NDLR P 316 (Ind. Ct. of App., First
Dist. 1992), held that petitioner was entitled to continued VR services while attending
law school. The VR agency found petitioner ineligible, stating that his deafness was not a
substantial handicap to employment as he had the present capacity to work as a writer.
Notwithstanding present writing abilities, the court cited petitioner's need for VR-funded
interpreter services to maximize his employability and become a lawyer.
AT COURT WATCH II
VR Agency Must Follow State
Administrative Procedure Act's Rulemaking Procedures.
Many states have laws mandating
that rules of general application must be enacted pursuant to formal rulemaking
procedures. In Burns v. N.Y. Office for Vocational and Educational Services for
Individuals with Disabilities, Index No. 6042-94, RJI No. 01-94-ST5364 (S.Ct., Albany
Cty. 1995), the court invalidated a VR agency's policy because it violated New York's
State Administrative Procedure Act (SAPA). The court found that the policy in question
violated SAPA, which requires that all policies which are fixed, general principles that
are applied without regard to the facts of individual cases must be formally enacted as
regulations.
WORK GROUP TO DISCUSS MEDICAID AND AUGMENTATIVE COMMUNICATION
The National AT Advocacy Project will convene a work group of P&A advocates who have experienced problems obtaining Medicaid funding for augmentative communication equipment. Our goal is to identify common barriers to funding and find out what kind of strategies are working or may work to overcome those barriers. Maureen O'Connell of Advocacy, Inc. in Texas will be working with Jim Sheldon of the National Project to assist in convening this group. We will meet periodically by telephone conference.
Do you have an idea for a different work group concerning a barrier to AT funding? Call Jim Sheldon at 716-847-0655 ext. 262 with your ideas. A couple potential issues are Medicare funding of AT and AT ownership issues for equipment purchased by a public school.
CONCERNS FROM THE FIELD
Gary Richter of the Indiana P&A contacted the National AT Project requesting copies of the 50 states' statutory definitions of AT. Please provide this information to both Gary Richter and to Teresa Amspacher. He can be reached at (317) 232-1150. Teresa can be reached at (716) 847-0650 ext 253.
The National AT Project will compile and disseminate any definitions which we receive from the field, however, we are open to suggestions on how to keep this information updated.
Administrative Hearings
Did Montana ALJ Misapply the Comparable
Services Requirement?
Attorney Ed Myers of the Montana P&A sent us a 1993 decision, a case that was not handled by his office. In that case, the state VR agency offered to pay $10,000 toward a $26,000 modified van to allow a wheelchair user to independently meet his transportation needs. The administrative law judge (ALJ) upheld denial of the additional $16,000, finding that the consumer failed to seek comparable benefits from the Supplemental Security Income (SSI) program's Plan for Achieving Self Support (PASS)(see September 1996 issue of AT Advocate) or through a separate SSI rule allowing deductions from wages for impairment related work expenses (IRWEs).
Editor's Note: The ALJ failed to acknowledge 1992 amendments that exempted rehabilitation technology from the comparable benefit requirement (see text of article). The ALJ also failed to mention that the value of an IRWE deduction from earned income is only 50 cents on the dollar, meaning that the IRWE helps the SSI recipient recover one-half of the cost of an item. 20 C.F.R. § 416.1112. Thus, an IRWE would not amount to a comparable benefit. Ed Myers informs us that, through his advocacy, Montana's VR agency agreed to amend its regulations to clarify that rehabilitation technology is exempt from the comparable benefits requirement.
To request a copy of this decision,
refer to In Re Anonymous, (Montana 1993).
ACKNOWLEDGMENT
The National AT Advocacy Project thanks :
SAVE THESE DATES !
March 7-8 1997
Hyatt Regency, Austin, Texas
Assistive Technology CONFERENCE FOR P&A
ADVOCATES
Agenda Highlights:
Tentative Conference cost of $375 includes: