Funded  through a grant from the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education, under contract number H224B990002. The opinions expressed do not
necessarily reflect the position of the U.S. Department of Education, and no official endorsement by the
U.S. Department of Education of the opinions expressed herein should be inferred.

Copyright 2001 Neighborhood Legal Services, Inc.

In this issue......
State Vocational Rehabilitation Agencies
Eligibility for VR Services
The Individualized Plan for Employment
Available Services
Financial Need Criteria
Maximization of Employment
Comparable Services Requirement
Hearing and Appeal Rights

STATE VOCATIONAL REHABILITATION AGENCIES
An Important Source of Assistive Technology for Individuals with Disabilities Preparing for Work

INTRODUCTION

        State vocational rehabilitation (VR) agencies play a critical role in assisting individuals with disabilities to work and are an important funding source for assistive technology (AT). Since our first VR newsletter in November 1996, there have been many changes to the federal law and regulations. The Workforce Investment Act of 1998 (WIA) included Rehabilitation Act Amendments (Rehab ‘98), reauthorizing the Act through 2003. To implement Rehab’98, proposed regulations were published on February 28, 2000, 65 Fed. Reg. 10620, with final regulations published on January 17, 2001. 66 Fed. Reg. 4380. Additional final regulations were published on January 22, 2001 and went into effect on October 1, 2001, concerning appropriate employment outcomes for VR consumers. Id. at 7250. These changes are all incorporated into this article.

        Title I of the Rehabilitation Act gives states money to provide VR services to persons with disabilities. 29 U.S.C. §§ 701 et seq.; 34 C.F.R. Part 361. Every state must designate a single state agency to administer the VR program unless it designates a second agency to serve individuals who are legally blind. 29 U.S.C. § 722(a)(2). Congress has stated that VR services are to empower individuals to maximize employability, economic self-sufficiency, independence and integration into the work place and community through "comprehensive and coordinated state-of-the-art programs." Id. § 701(b)(1).

        This article reviews VR eligibility criteria, the services available from state VR agencies, and the VR appeals process. For a more thorough review of this topic, see our 28 page booklet, Funding of Assistive Technology: State Vocational Rehabilitation Agencies and Their Obligation to Maximize Employment (available on our website at www.nls.org/vrbooklt.htm). We hope to update this booklet during the coming year.

        To receive services, an individual must be disabled and require VR services "to prepare for, secure, retain or regain employment." 29 U.S.C. § 722(a)(1). All services must be connected to an employment goal.

        Employment outcomes include full or part-time competitive employment in an integrated setting, supported employment, or other integrated employment such as self-employment, telecommuting and business ownership, that is consistent with the individual’s strengths, abilities, interests and informed choice. 34 C.F.R. § 361.5(b)(16). Comments to the regulations note that "homemaker" and "unpaid family worker" are acceptable employment outcomes because individuals with disabilities should be "able to pursue the same type of outcomes that are available to the general public." 66 Fed. Reg. 7255.

        Persons 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 for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits. It must only be a substantial impediment to employment. SSDI or SSI recipients are presumed eligible, as individuals with a significant disability, provided they intend to achieve an employment outcome. Id. § 722(a)(3).

        Although services may be denied to those who cannot benefit from them, applicants are presumed capable of employment, despite the severity of a disability, unless the VR agency shows by "clear and convincing" evidence they cannot benefit. Id. § 722(a)(2); 34 C.F.R. § 361.42(a)(2). Prior to determining inability to benefit, the agency must explore work potential through a variety of trial work experiences, with appropriate supports. These trial experiences must "be of sufficient variety and over a sufficient length of time to determine" eligibility. 29 U.S.C. § 722(a)(2)(B). Individuals determined to be incapable of benefitting must be referred to local extended employment providers (i.e., sheltered workshops). 34 C.F.R. § 361.43. With limited exceptions, the VR agency must determine eligibility within a reasonable time, not to exceed 60 days, after the individual submits an application. 29 U.S.C. § 722(a)(6).

        After eligibility is established, the next step is to develop a written Individualized Plan for Employment (IPE) on a form provided by the VR agency. Id. § 722(b)(2)(A). Prior to developing the IPE there must be a comprehensive assessment, to the extent necessary to determine the employment outcome, objectives, and nature and scope of services. The assessment is to evaluate the individual’s unique strengths, resources, priorities, abilities and interests. It may also include a referral for rehabilitation technology (i.e., AT) services, "to assess and develop the capacities of the individual to perform in a work environment." Id. § 705(2)(B) & (C).

        VR agencies must ensure that all activities are implemented consistent with principles of "respect for individual dignity, personal responsibility, self-determination, and pursuit of meaningful careers, based on informed choice ...." Id. § 701(c)(1). VR agencies must help individuals exercise informed choice throughout the VR process, including the assessment, selection of an employment goal, the specific services to be provided, the entity which will provide them, the method for procuring services, and the setting in which they will be provided. Id. §§ 720(a)(3)(C), 722(d)(1)-(5). The agency must approve the IPE, but the individual decides the level of involvement, if any, of the VR counselor in developing it. Id. §§ 722(b)(1)(A), (b)(2)(C).

        "Extended employment" (or sheltered workshops) has been eliminated as a final employment outcome. However, consistent with the principle of informed choice, extended employment remains a viable alternative. First, it continues to be a VR service as an interim step toward achieving integrated employment. Second, for those choosing extended employment as a long term option, it remains available "outside the VR program." 66 Fed. Reg. 7254. In such cases, the VR agency must inform the consumer that extended employment can be provided to prepare for employment in an integrated setting and that they may later return for services to prepare for integrated employment.

        `VR agencies must refer SSI and SSDI recipients seeking long term extended employment to the Social Security Administration (SSA) for information about work incentives. 34 C.F.R. § 361.37(b). This referral is to ensure that recipients are "informed of recent reforms that are designed to reduce a key work disincentive by enabling individuals with disabilities to work and continue receiving Social Security benefits." The Rehabilitation Services Administration (RSA) believes "the need for this critical information, and its potential effect on an individual’s interest in pursuing integrated work in the community, justifies" this requirement. 66 Fed. Reg. 7257.

        The IPE must list all services to meet the employment goal, including:

• The employment outcome, chosen by the individual, consistent with his or her unique abilities and interests;
• Specific services to be provided, in the most integrated setting appropriate, including AT and personal assistance services, as appropriate;
• Times for starting services and achieving the employment outcome;
• The entity, chosen by the individual, to provide services;
• Criteria for evaluating progress;
• Responsibilities of the VR agency, the individual and other agencies;
• In states with a financial needs test, any costs for which the individual will be responsible;
• For individuals with the most significant disabilities who will need supported employment, the extended services to be provided; and
• The projected need for post employment services. Id. § 722(b)(3).

        The IPE must be reviewed at least annually and amended if there are changes in the work goal, the services to be provided or the service providers. Changes will not take effect until agreed to by the individual and the VR counselor. Id. § 722(b)(2)(E).

        Before the agency can close a case, the individual must achieve the employment outcome and maintain it for no less than 90 days. Also, the individual and counselor must agree that the outcome is satisfactory and the individual is "performing well." 34 C.F.R. § 361.56. Prior to closing a case, the individual must also be informed of the availability of post-employment services. Id. § 361.56(d).

        Any services necessary to assist an individual in "preparing for, securing, retaining, or regaining an employment outcome" may be covered. 29 U.S.C. § 723(a). The VR agency must ensure that all necessary services are provided. It cannot limit services to save costs. In fact, the "severity of an individual’s disability or the cost of services can have no bearing on the scope of services the individual receives." 66 Fed. Reg. 4426.

        If there are insufficient resources to fully serve all individuals, a state must go to an "Order of Selection." However, the state must ensure that individuals with the most significant disabilities are served first. Those not served are entitled to a referral to other state and federal programs. 29 U.S.C. §§ 721(a)(5), (a)(20).

        The services available from VR agencies are incredibly broad and AT is frequently referred to as an available service. Services must include, but are not limited to, the following [34 C.F.R. § 361.5(b)(42)]:

• Assessments to determine eligibility and needs, including, if appropriate, assessments by someone skilled in rehabilitation technology.
• Counseling, guidance and job placement.
• Vocational and other training, including higher education and the purchase of tools, materials and books.
• Maintenance for additional costs incurred during rehabilitation.
• Transportation, including adequate training, provided in connection with any other service and needed to achieve an employment outcome. This may include vehicle purchase. Id. § 361.5(b)(57)(i), Ex.2.
• Personal assistance services while receiving VR services.
• Interpreters, readers, rehabilitation teaching, and orientation and mobility services.
• Occupational licenses, tools, equipment, initial stocks and supplies.
• Rehabilitation technology, including vehicular modification, telecommunications, sensory, and other technological aids and devices.
• Transition services for students with disabilities.
• Supported employment.
• Post-employment services which are necessary for the individual "to maintain, regain or advance in employment."
• Other goods and services necessary to achieve an employment outcome.

        A state may establish time limits for providing services, but they must not be so short as to effectively deny a service and they must "permit exceptions so individual needs can be addressed." Similarly, state payment rates must not be so low as to effectively deny a necessary service and may not be absolute. Finally, policies must ensure timely authorization of services, "including any conditions under which verbal authorization can be given." Id. § 361.50(c) - (e).

        A state is not required to consider financial need. If it establishes a needs test, it must have written policies governing these determinations and identifying services subject to the test. A needs test must take into account the individual’s disability-related expenses. The level of participation (or cost sharing) must not be so high as to "effectively deny the individual a necessary service." The following must be provided without regard to financial need: diagnostic services; counseling, guidance and referral services; job placement; personal assistance services; and "any auxiliary aid or service," such as interpreters or readers, that the individual needs to participate in the VR program and which would be mandated under section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act (ADA).

        Additionally, individuals "determined eligible for Social Security benefits under Titles II [SSDI] and XVI [SSI] of the Social Security Act" must be exempt from the needs test. 34 C.F.R. § 361.54(b)(3)(ii). This definition should apply to both SSI and SSDI cash beneficiaries and to former SSI cash beneficiaries who continue to receive Medicaid under section 1619(b). Section 1619(b) is located within Title XVI of the Social Security Act and states that for the purposes of Medicaid eligibility, a 1619(b) recipient "shall be considered to be receiving [SSI] benefits under" Title XVI. 42 U.S.C. § 1382h.

        The requirement that VR services are to maximize employment was added in 1986. Legislative history emphasized Congressional intent:

        As currently stated, the purpose of the Act is to:

        This language was added in 1992. It strengthens the 1986 standard, as it requires the VR agency to maximize an individual’s economic self-sufficiency. Presumably, this means that if an individual has the requisite ability, and has the option of either obtaining a bachelor’s degree and becoming a paralegal or going to law school to become an attorney, the agency should approve the latter goal, because the attorney position would more likely "maximize economic self-sufficiency."

        Consistent with these statutory obligations, in 1997 the RSA issued a Policy Directive, RSA-PD-97-04. It requires VR agencies to approve vocational goals and services to enable persons with disabilities to maximize their employment potential. This dramatic policy shift is best expressed in the following quote:

        This directive clarifies that cost or the extent of VR services an individual may need should not be considered in identifying the work goal. The directive also clarifies that a person who is currently employed will, in appropriate cases, be eligible for services to allow for "career advancement" or "upward mobility." It emphasizes that the VR agency must still determine whether a career choice is consistent with a person’s vocational aptitude. To meet these requirements, however, VR agencies are encouraged to make these determinations through a comprehensive assessment (such as a trial placement in a real work setting) or by establishing short-term objectives in the IPE (such as a trial semester in college).

        The comments to the 2001 regulations reaffirm this directive. They note that states must "look beyond options in entry-level employment for VR program participants who are capable of more challenging work." Additionally, "individuals with disabilities who are currently employed should be able to advance in their careers." 66 Fed. Reg. 4419.

        VR agencies are the payer of last resort for many services. This means they will not pay for a service if a similar or comparable benefit is available through another provider. 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 them. But, the agency cannot deny payment for college tuition because an individual could obtain student loans. Loans, which must be repaid, are not similar benefits. RSA-PD-92-02 (11/21/91). Comparable benefits do not include awards and scholarships based on merit. 29 U.S.C. § 721(a)(8)(A)(ii). Comments to the 2001 regulations also make it clear that SSI’s Plan for Achieving Self-Support (PASS) is not a comparable benefit. 66 Fed. Reg. 4419. Additionally, diagnostic services, counseling, referral services, job placement, and rehabilitation technology (i.e., AT) are totally exempt from the comparable benefit requirement. 34 C.F.R. § 361.53(b).

        A person does not have to exhaust similar benefits if it would interrupt or delay: progress toward achieving the employment outcome; an immediate job placement; or services to an individual at extreme medical risk. Id. § 361.53(a). States must develop a comprehensive plan involving all public agencies providing what could be considered VR services, including the state’s Medicaid agency, public colleges and the workforce investment system, to identify who will be responsible for providing what services. 29 U.S.C. § 721(a)(8)(B). The plan must ensure coordination and timely delivery of services. All public agencies remain responsible for providing services mandated by other state laws or policy, or federal laws, including the ADA and section 504. 34 C.F.R. § 361.53 (e).

        The IPE must list all services to be provided to meet the employment goal, whether or not they are the VR agency’s responsibility. It must identify the services the VR agency is responsible for providing, any comparable benefits the individual must apply for or secure, and the responsibilities of any agencies to provide comparable benefits. 29 U.S.C. § 722(b)(3)(E). If another agency refuses to fulfill its obligations, the VR agency must provide the services, but may seek reimbursement from that agency. Id. § 721(a)(8)(C)(ii). Therefore, if another agency refuses to provide a service within its area of responsibility, the individual does not have to wait until that dispute is resolved before obtaining the service. 34 C.F.R. § 361.53(c).

        Anyone dissatisfied with a VR agency’s decision can appeal. A state’s procedures must include the right to mediation and an administrative hearing before an impartial hearing officer. The agency must notify individuals, in writing, of their appeal rights and the availability of the Client Assistance Program (CAP) when the individual applies; when the IPE is developed; and upon the reduction, suspension or cessation of services.

        There is a CAP office in every state, which can provide information to individuals concerning their rights and provide advocacy in resolving disputes, including representation at impartial hearings. 29 U.S.C. § 732(a). Individuals who do not understand the proposed IPE, have questions about their rights, or receive an adverse decision, should consider contacting the CAP for assistance.

        Mediation must be offered, at a minimum, whenever a hearing is requested. However, participation must be voluntary for both the individual and the state. In addition, involvement in mediation cannot be used to deny or delay the right to a hearing. The state bears the costs of mediation. All discussions that occur during mediation are confidential and cannot be used at any subsequent hearing.

        At a hearing, the individual has the right to be represented by an attorney or advocate. The individual can present evidence and cross examine witnesses. The hearing decision is final and must be implemented, unless appealed.

        A state may establish a procedure for a second level of administrative review. The review officer must be the chief official of the designated VR agency or an official from the governor’s office. If the state establishes a second level of review, either party may appeal within 20 days of the hearing 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 VR Plan, federal law, or state law or policy that is consistent with federal law.

        Either party may appeal a final administrative decision to federal court (or to state court if that review is available in your state). However, pending review in court, the final administrative decision must be implemented.

        VR agencies are a crucial resource for individuals with disabilities who are planning to enter the workforce. They can provide a comprehensive set of services to prepare people for work. Over the years, Congress and the federal RSA have strengthened the mandate of VR agencies to provide a range of services to maximize employability and economic self-sufficiency.

        VR-related advocacy has not, historically, been a priority for most Protection and Advocacy (P&A) agencies, unless the P&A also served as the state’s CAP agency. This should change in many states in light of new funding under the P&A for Beneficiaries of Social Security (PABSS) program. PABSS attorneys and advocates should consider collaboration with CAP advocates, as well as PAAT attorneys and advocates, to pursue the rights of SSI and SSDI beneficiaries to VR agency services.

        In T.L. v. Colorado Department of Health Care Policy and Financing, the Colorado Court of Appeals, Division Five, declared illegal the state Medicaid agency's use of a list of items that cannot be approved as durable medical equipment (DME). This appeal was handled by attorneys Joel Hayes, Colorado Legal Services, and Eric Maxfield, the Legal Center for Persons with Disabilities, the state's P&A program. Joel worked for the Legal Center until just recently.

        The October 25, 2001 decision (the state can appeal within 45 days) relies heavily on the September 4, 1998 letter from the Health Care Financing Administration (HCFA)(now renamed the Centers for Medicaid and Medicare Services) to State Medicaid Directors, which stated that pre-approved DME lists are only allowed for administrative convenience and a state's policy must allow for a "reasonable and meaningful procedure for requesting items that do not appear on a State's pre-approved list." The HCFA letter noted that a list that does not allow for a procedure for obtaining items not on the list is inconsistent with 42 U.S.C. § 1396(a)(17) and 42 C.F.R. §§ 440.230(b) and (c).

        At issue was a prior approval request (PAR) for a hot tub to treat an arthritic condition which causes constant hip pain. The facts indicate that T.L. is also HIV positive and has fungal skin viruses as a result. The PAR sought approval as a medically necessary item of DME. The state agency rejected the PAR, without reaching the issue of medical necessity, based on a state regulation that specifically excludes hot tubs.

        The court ruled that, "by expressly excluding [DME] coverage for hot tub or jacuzzi acquisitions under all circumstances and without regard to medical necessity," the state regulation "violates federal law and the objectives of Title XIX and is therefore invalid." The court remanded the case to the ALJ to determine: i) whether the hot tub meets the DME definition; ii) whether hot tub therapy is medically necessary; iii) whether, and at what cost, T.L. could obtain that therapy outside the home (i.e., if the home-based therapy is the least costly alternative); and iv) whether the primary purpose of the hot tub is "to enhance the personal comfort of T.L."

        If you would like a copy of the decision, or the brief filed on appeal call or email Wilma Castro at the National AT Advocacy Project [716-847-0650 ext. 271, wcastro@nls.org].

        Our 6^th annual national AT conference is in the final planning stages. A conference flyer, registration form, and early bird rates should be available by early January. This conference is always a big hit and Austin is a great place to visit. Many of our sessions should be very relevant to those P&A staff now working on the new PABSS programs.

        The following are selected decisions added to our hearing database in recent months: Matter of Anonymous (Washington State): Medicaid hearing decision approved funding for a Pathfinder augmentative and alternative communication (AAC) device. The decision relied heavily on the expert opinion of the AAC evaluator in finding that the AAC device and accessories, costing $8,420, were the least costly alternative to meet the individual’s needs. The appellant was represented by Michael Smith, attorney, Washington State P&A. Matter of Alta B. (Idaho): Medicaid hearing decision approved funding for an airway clearance vest (i.e., therapy vest) to treat a woman with diagnoses that include cerebral palsy, scoliosis and asthma. The vest and a generator, with a total cost of $16,000, allow the use of technology to help the body loosen and dislodge respiratory fluids. The decision is significant in that Idaho, as well as Medicaid programs in other states, have balked at funding the therapy vest for conditions other than cystic fibrosis. Matter of Anonymous (Arizona): Medicare hearing decision approved Part B funding for a low vision aid (Telesensory System), finding that the device meets Medicare definitions as both a prosthetic device and durable medical equipment, and was reasonable and necessary to both treat an illness/injury or improve the functioning of a body part. The administrative law judge ruled for the appellant notwithstanding a Region D Durable Medical Equipment Regional Carrier policy excluded coverage for low vision aids.

        If you would like copies of any of these decisions, contact Wilma Castro at the AT Advocacy Project, at 716-847-0650 ext. 271 or wcastro@nls.org.

        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 400 documents from more than 100 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:
Attn.: Jim Sheldon                                                                                  TEL: (716) 847-0650
Neighborhood Legal Services, Inc.                                                          FAX: (716) 847-0227
Ellicott Square Building                                                                            TDD: (716) 847-1322
295 Main Street, Rm 495                                                                       e-mail: atproject@nls.org
Buffalo, NY 14203                                                                                 Web Page: www.nls.org

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.

Highlights of Successful AT Advocacy
   *    Seven Years of PAAT Accomplishments