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 III Issue 6
October/November 1998
Copyright 1998, Neighborhood Legal Services, Inc.
REHABILITATION ACT
REAUTHORIZED:
GREATER ROLE FOR CONSUMERS
IN THE REHABILITATION PROCESS
INTRODUCTION
On August 7, 1998, President Clinton signed the Workforce Investment Act (WIA)of 1998. Included within the WIA are the Rehabilitation Act Amendments of 1998, reauthorizing the Rehabilitation Act through 2003.
The WIA incorporates a myriad of federal job training programs into a coordinated, comprehensive system. States must develop statewide and local plans and must include the vocational rehabilitation (VR) system in those plans. Although Congress had contemplated merging the VR system into the WIA, VR remains a separate program. But, the vocational training opportunities of the state workforce investment system are clearly intended to be available to persons with disabilities. See § 2(b)(1)(A) (references are to the uncodified version of the Rehabilitation Act).
The VR provisions are found in Title I of the Rehabilitation Act. Although Title I’s core provisions remain the same, there are some significant changes. This article will review the major changes to Title I which directly affect VR consumers and their advocates. It will not attempt to analyze the WIA or its new planning mandates. For a more thorough review of the core requirements of Title I and how they can be used to fund assistive technology (AT), see our November 1996 issue of AT Advocate or our article on funding of AT through Medicaid, special education programs and VR agencies, which appeared in the May-June 1997 issue of Clearinghouse Review. Both articles can be found on our web page at www.nls.org.
BASIC ELIGIBILITY CRITERIA
The Rehabilitation Act Amendments of 1998 (Rehab ‘98) change the designation of individual with a "severe" or "most severe" disability to individual with a "significant" or "most significant" disability. § 7(21). Recipients of Social Security Disability Insurance or Supplemental Security Income are presumed to be eligible for VR services, as individuals with a significant disability, provided they intend to achieve an employment outcome. § 102(a)(3).
Potential employment outcomes are also expanded. Employability had been defined as full or part-time competitive employment to the greatest extent practicable, supported employment or other employment consistent with the individual's strengths, abilities, interests and informed choice. 29 U.S.C. § 706(5); 34 C.F.R. § 361.5(b)(15). Rehab ‘98 adds self-employment, telecommuting and business ownership as successful employment outcomes. § 7(11)(C).
In "Order of Selection" states, where not all potentially eligible individuals with disabilities will be able to receive VR services, Rehab ‘98 makes some provision for those who are not served. They are entitled to an appropriate referral to other state and federal programs, including other providers within the state workforce investment system. § 101(a)(5)(D) and (20). The State VR agency must enter into an agreement with other providers within the statewide workforce investment system, which may include a provision to ensure:
the promotion of equal, effective, and meaningful participation by individuals with disabilities in workforce investment activities in the State through the promotion of program accessibility, the use of nondiscriminatory policies and procedures, and the provision of reasonable accommodations, auxiliary aids and services, and rehabilitation technology, for individuals with disabilities ... .
[Most of these requirements will be mandatory for recipients of Federal funds pursuant to section 504 of the Rehabilitation Act and for providers that are covered by the Americans with Disabilities Act.]
THE INDIVIDUALIZED PLAN
FOR EMPLOYMENT
Rehab ‘98 Revolutionizes Informed Choice
VR agencies must assist individuals in their exercise of informed choice throughout the VR process. The consumer’s choice is key in selection of the assessment, an employment outcome, services to be provided and the entity which provides them, the method for procuring services and the setting in which they will be provided. § 102(d)(1) - (5). The VR agency must still approve the individualized plan for employment (IPE), but the individual decides the level of involvement, if any, of the VR counselor in developing the IPE. § 102(b)(1)(A) & (2)(C).
The stated reason for the consumer’s expanded role was Congress’ belief "that a consumer-driven program is most effective in getting people jobs." Congressional Record–House, H6693, July 29, 1998. The legislative history underscores the striking impact of these provisions:
The Conferees expect that these changes will fundamentally change the role of the client-counselor relationship, and that in many cases counselors will serve more as facilitators of plan development. Id.
To foster effective informed choice, the State must "develop and implement flexible procurement policies and methods that facilitate the provision of services, and that afford eligible individuals meaningful choices among the methods used to procure services ... ." § 102(d)(3).
Individualized Plan for Employment
The Individualized Written Rehabilitation Plan (IWRP) has been changed to the Individualized Plan for Employment (IPE). § 102(b). This plan, which will be developed by the consumer, with assistance from the VR counselor, is to be set forth on a form provided by the VR agency. § 102(b)(2)(A).
The IPE should enable the individual to achieve the agreed upon employment objectives and must include [§102(b)(3)]:
1. The specific employment outcome chosen by the individual, consistent with the unique strengths, concerns, abilities and interests of the individual.
2. The specific VR services to be provided in the most integrated setting appropriate to achieve the employment outcome, including appropriate assistive technology (AT) and personal assistance services.
3. The time line for initiating services and achieving the employment outcome.
4. The entity, chosen by the individual, to provide the VR services and the method chosen to procure those services.
5. The criteria for evaluating progress toward achieving the employment outcome.
6. The responsibilities of the VR agency, the individual (to obtain comparable benefits) and any other agencies (to provide comparable benefits).
7. For individuals with the most significant disabilities who are expected to need supported employment, the extended services to be provided.
8. The projected need for post employment services.
The IPE must be reviewed at least annually and amended if there are substantive changes in the employment outcome, the VR services to be provided or the service providers. Changes will not take effect until agreed to by the individual and the VR counselor. § 102(b)(2)(E).
AVAILABLE SERVICES
Rehab ‘98 makes no notable changes in the requirement to maximize employment when providing VR services. See 29 U.S.C. § 701(b)(1). Nor does it amend the opportunity for a state to establish financial need criteria. See 34 C.F.R. § 361.54.
There are, however, some modifications in the availability of services, including the provisions for AT. The following list contains both new services available and enhanced descriptions of existing VR services [§103(a)]:
1. The assessment to determine eligibility and needs, including, if appropriate, by someone skilled in rehabilitation technology (i.e., AT).
2. Counseling, guidance and job placement services and, if appropriate, referrals to the services provided by
3. Workforce Investment Act providers.
4. Rehabilitation technology, including tele-communications, sensory, and other technological aids and devices. (This section merely combines two provisions into one.)
5. Transportation, including adequate training in the use of public transportation vehicles and systems, that is provided in connection with the provision of any other service described in this section and needed by the individual to achieve an employment outcome.
6. Physical or mental restoration to reduce or eliminate impediments to employment, to the extent financial support is not available from other sources, including health insurance or other comparable benefits.
7. Technical assistance for those who are pursuing telecommuting, self-employment or small business operation.
8. Transition services for students with disabilities to facilitate the achievement of the employment outcome identified in the IPE, when appropriate.
9. Post-employment services necessary to assist an individual to retain, regain or advance in employment.
COMPARABLE SERVICES REQUIREMENT
VR agencies are the payer of last resort for many services. They will not pay for a service, in many cases, 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 loans. Student loans, which must be repaid, are not similar benefits. U.S. Dept. of Educ., Rehab. Services Admin., Policy Directive RSA-PD-92-02 (11/21/91).
Additionally, a person does not have to exhaust similar benefits in the following circumstances [§ 101(a)(8); 34 C.F.R. § 361.54(b) and (c)]:
(1) If consideration of the similar benefit would interrupt or delay:
(A) The progress of an individual toward achieving the employment outcome;
(B) An immediate job placement; or
(C) Services to an individual at extreme medical risk; or
(2) If diagnostic services, VR counseling, referral to other services, job placement or rehabilitation technology (i.e., AT) is involved. [emphasis added]
States must develop a comprehensive plan with all of the public agencies providing what could be considered VR services, including Medicaid, public colleges and the workforce investment system, to identify responsibility for providing services. § 101(a)(8). The plan must ensure the coordination and timely delivery of services. All public agencies remain responsible for providing services mandated by other state or federal laws. If another agency refuses to fulfill its obligations, the VR agency must provide the services, but may seek reimbursement from that agency. § 101(a)(8).
Purchase of AT for Special Education
Students in Transition: Who Pays?
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq., requires that no later than age 14 school districts include in each student's Individualized Education Program (IEP) a transition plan to aid in the student's move to adult life. 34 C.F.R. § 300.346(b)(1). The plan must identify appropriate adult service providers and foster linkages with those agencies. 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.
IDEA now requires interagency agreements to ensure that all public agencies, including the state Medicaid agency, that are responsible for providing services that are also considered special education services, fulfill their responsibilities. 20 U.S.C. § 1412(a)(12). The financial responsibility of these public agencies must precede that of the school district. If an agency does not fulfill its obligation, the school district must provide the needed services, but has the right to seek reimbursement from the public agency. The agreement must also specify how the various agencies will cooperate to ensure the timely and appropriate delivery of services to the students.
Likewise, the existing VR regulations also require the State Plan to include policies to facilitate the transition from the special education system to the VR system, including the development of an IWRP (now IPE) before the student leaves the school setting. 34 C.F.R. § 361.22(a)(1). The legislative history to the Rehabilitation Act Amendments of 1992 [Pub. L. 102-569, 106 Stat. 4346.] states that school districts remain responsible for ensuring a free appropriate public education to students during the transition years. S. Rep. No. 357, 102d Cong., 2d. Sess., 33 (1992), as quoted at 34 C.F.R. § 361.22, Note. However, the law's intent is to ensure that "there is no gap in services between the education system and the vocational rehabilitation system." Id.
Rehab ‘98 further clarifies the VR agency’s responsibilities. The State Plan must now include procedures to facilitate the transition of students from the special education system to the VR system, including [§ 101(a)(11)(D)]:
Subject to the State Plan, the VR agency is required to provide services to students to facilitate achievement of the employment outcome as spelled out in the IPE. Congressional Record–House, H6693, July 29, 1998. "However, State [VR] agencies should not interpret the ‘interagency agreement’ provisions as shifting the obligation for paying for specific transition services normally provided by those agencies to local school districts. State [VR] agencies still have that responsibility." Id.
AT for the College Student: Who Pays?
What happens 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 (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).
The Seventh Circuit, in Jones v. Illinois Dept. of Rehabilitation Services, 689 F.2d 724 (7th Cir. 1982), held that the state VR agency has the primary responsibility to provide auxiliary aids in the form of interpreter services. 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 and the ADA exempt colleges from providing auxiliary aids and services for personal use or study. 34 C.F.R. § 104.44(d)(2); 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 earlier, AT (i.e., rehabilitation technology) is exempt from the comparable benefit requirement.
Rehab ‘98 clarifies, to some extent, the relative responsibilities in these situations. Public colleges and universities must be included in developing the comprehensive plan to ensure the coordination and timely delivery of services. Section 101(a)(8). They remain responsible for providing services mandated by other state or federal laws, such as the ADA and section 504. § 101(a)(8)(C)(i). If they refuse to provide services, the VR agency must provide the services, but may seek reimbursement from the college or university. § 101(a)(8)(C)(ii). "However, State [VR] agencies should not interpret these ‘interagency agreement’ provisions as shifting the obligation for paying for specific [VR] services to colleges and universities. State [VR] agencies still have that responsibility." Congressional Record–House, H6692, July 29, 1998.
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. Rehab ‘98 makes some significant changes in the appeals process. Each state must establish procedures governing appeals, which must include the right to mediation and an administrative hearing before an impartial hearing officer. § 102(c)(1).
The VR agency must notify individuals, in writing, of their right to mediation, an impartial hearing and the availability of the Client Assistance Program (CAP): when the person applies; when the IPE is developed; and upon the reduction, suspension or cessation of VR services. § 102(c)(2)(A).
Mediation [§ 102(c)(4)]
Mediation is a new means of resolving disputes between consumers and the VR agency. At a minimum, it must be offered to resolve disputes whenever an impartial hearing is requested. Participation must be voluntary and involvement in mediation cannot be used to deny or delay the right to an impartial hearing. The state bears the costs of mediation. All discussions that occur during mediation are confidential and cannot be used at any subsequent hearing.
Impartial Hearing [§ 102(c)(5)]
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. The hearing decision is final and must be implemented unless appealed. 34 C.F.R. § 361.57(b)(3).
Administrative Review [§102(c)(5)(D) - (F)]
Rehab ‘98 also makes significant changes in the availability of a second level of administrative review. A State may establish a procedure for a second level of administrative review. The review officer must be the chief official of the designated state agency or an official from the office of the Governor. Either party may appeal within 20 days of the hearing officer’s decision. The review officer cannot overturn a hearing decision unless, based on clear and convincing evidence, the decision is "clearly erroneous" based on an approved State Plan, federal law or State law or policy that is consistent with federal law.
Court Appeals [§ 102(c)(5)(J)]
Rehab ‘98 adds a private right of action under Title I, which bears striking resemblance to the language under IDEA, 20 U.S.C. § 1415. As a result, all of the case law interpreting IDEA should be applicable when interpreting these provisions. Either party may appeal to state or federal court. However, pending review in court, the final administrative decision shall be implemented. Finally, because the statute is silent on the issue, it can be presumed there is no right to attorneys’ fees. See Smith v. Robinson, 468 U.S. 992 (1984).
CONCLUSION
Title I of the Rehabilitation Act continues to be a major source of funding for AT and other services to allow persons with disabilities to achieve independence through employment. If you have specific questions about the 1998 amendments to Title I or how they interact with recent amendments to IDEA, you may call Ron Hager at the National AT Advocacy Project.
"LET’S GO FOR A RIDE"
By Steve Elliot, Staff Attorney, Minnesota Disability Law Center
We should always buckle kids in car seats and booster seats to ensure their safety when they ride in a car. What if your child has a disability and cannot be properly supported or positioned, or does not fit in a standard car seat? You must use an adaptive car seat, designed for children with disabilities. But, how do you pay for a car seat that costs $500.00 or more? One answer is to access your state's Medicaid program.
This answer may be surprising, because many state officials have stated that Medicaid funds cannot be used for an item which is "primarily a safety device." However, this answer is consistent with policy directives issued by the Health Care Financing Administration (HCFA). On June 14, 1993, the Acting Director of HCFA's Medicaid Bureau responded to an inquiry concerning Medicaid coverage of adaptive care seats:
. . . . When restraint seats are used simply to prevent injury to an infant or toddler while riding in an automobile, they do not have the attributes of prosthetic devices. . . . On the other hand, for a disabled infant or toddler, a restraint seat may be prescribed as medically necessary to support weak or deformed body parts. In such cases, Medicaid coverage may be authorized by the prosthetic device provision of section 1905(a)(12) of the Act and its implementing regulation at 42 CFR 440.120(c)(3), . . . . For children subject to spastic reflexes and motions, restraint seats may be prescribed to control spastic reflexes and motions. In such cases, the restraint seat would probably be necessary for care in the home as well, while bathing, feeding, or otherwise caring for the child. Thus, a State might designate medically necessary restraint seats as "medical supplies, equipment and appliances suitable for use in the home," as set forth in 42 CFR 440.70.
Shortly after this letter was issued, HCFA’s Regional Offices in Chicago, Dallas and New York issued similar policy letters.
Armed with HCFA’s policy letters, the Minnesota Disability Law Center handled three separate administrative appeals challenging the denial of Medicaid reimbursement for an adaptive car seat. In all three cases, Minnesota’s Commissioner of Human Services concluded that adaptive car seats are covered services and that their purchase is an appropriate use of Medicaid funds. In all three cases, the Commissioner ordered Medicaid payment for the adaptive car seat.
The Commissioner’s conclusion in Docket No 52600 will serve as a standard in Minnesota for evaluating future requests for adaptive car seats:
It is the prevailing community standard to provide adaptive car seats to children with orthopedic deformities, to children who lack trunk and head stability, and to children with behavior disorders. It is also the prevailing community standard to provide children with disabilities with opportunities to travel throughout the community as children without disabilities do. [p. 7, conclusion 8]
This conclusion specifically, and these three appeals decisions in general, establish that it is the prevailing community standard to provide adaptive car seats to children with disabilities. The Minnesota Department of Human Services has stated that this standard and the principles underlying these decisions will serve as the base line for evaluating all future requests for adaptive car seats in Minnesota.
Thank you Steve for sharing this information. For a copy of the HCFA policy directive, or for copies of the three Minnesota hearing decisions, call the National AT Advocacy Project.
AMENDMENTS TO § 508 OF THE REHABILITATION ACT
Will New Provisions Make Access to
Electronic and Information
Technology in Federal Agencies a Reality?
Rehab ‘98 adds strong teeth to what had been a relatively benign provision within Title V of the Rehabilitation Act. Formerly, this section required the Secretary of Education to: develop and establish guidelines for Federal agencies for electronic and information technology accessibility designed to ensure, regardless of the type of medium, that individuals with disabilities, can produce information and data, and have access to information and data, comparable to the information and data, and access, respectively, of individuals who are not individuals with disabilities.
29 U.S.C. § 794d(a).
Now, all Federal agencies and departments, including the United States Postal Service, which provide information via electronic information technology to employees or the public must ensure that this information is accessible to people with disabilities, comparable to the accessibility to people who are not disabled. If providing accessibility would pose an undue burden, the agency must provide the information via alternative means. § 508(a)(1).
Each Federal agency is to evaluate the extent to which electronic information technology is currently accessible to people with disabilities and report to the Attorney General by February 7, 1999. § 508(c). By February 7, 2000, the Architectural and Transportation Barriers Compliance Board (Access Board) shall issue guidelines to implement this requirement and, within six months of that date, each Federal agency shall revise its procurement policies to comply with these standards. § 508(a)(2) & (3). By August 7, 2000, individuals may file administrative complaints or court actions for violations of these provisions for any information technology acquired by a Federal agency after that date. § 508(f).
SAVE THESE DATES
MARCH 11-13, 1999
Hyatt Regency — Austin, Texas
Assistive Technology Conference For
Protection and Advocacy Advocates
Presented by the National AT Advocacy Project
a project of Neighborhood Legal Services, Inc.
Buffalo, New York
Update on The National Assistive Technology Resource Library
We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 250 documents from more than 70 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.
Please send information to: TEL: (716) 847-0650 Handsnet: HN0627If you woulive format, please let us know.
The AT Advocacy Project will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.
In future issues.....- AT Funding through the Americans with Disabilities Act (ADA)
- Final IDEA Reauthorization Regulations