Volume I Issue 6 March 1996
VOCATIONAL REHABILITATION
AGENCIES
USING VR DOLLAR$ TO FUND ASSISTIVE TECHNOLOGY
Copyright 1996, Neighborhood Legal Services, Inc.
INTRODUCTION
Congress, pursuant to the Rehabilitation Act, gives funding to states to provide vocational rehabilitation (VR) services for persons with disabilities. The goal is to develop VR programs for individuals in order to maximize employability, independence and integration into the work place and the community.
Two New York agencies provide VR services. The Commission for the Blind and Visually Handicapped (CBVH) serves persons who are legally blind. The Office of Vocational and Educational Services for Individuals with Disabilities (VESID) serves all others. VESID and CBVH can fund a wide range of goods and services, including rehabilitation technology (i.e., assistive technology), that are connected to a person's vocational goal. This article reviews eligibility criteria for those two agencies, discusses specific goods and services that can be funded, describes appeal procedures and the availability of advocacy services through the Client Assistance Programs.
BASIC ELIGIBILITY CRITERIA
A person seeking services from either VESID or CBVH must file an application. Since both VESID and CBVH are state agencies, you will find the address and phone number for their nearest office in the government section of your phone book.
To be eligible for VR services an individual must be disabled and establish a vocational goal. 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 (or, in the case of CBVH, legal blindness) that interferes with the ability to work.
A vocational goal is defined as full or part-time employment, including self employment, supported employment, sheltered employment and homemaking. 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 VR services. Conversely, 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.
THE INDIVIDUAL WRITTEN REHABILITATION PLAN
After establishing eligibility a counselor is assigned. The individual and the counselor then develop an Individual Written Rehabilitation Program (IWRP). To arrive at an IWRP the individual may be evaluated 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.
The IWRP must be dated and signed by the individual and the counselor. The following are some of the more important provisions that must appear in the IWRP:
· The long term employment goal
· Approved services with projected start-up dates and the duration for each service
· Rehabilitation technology (i.e., assistive technology) services to be provided
· The service provider(s) and the process used to provide or procure the services
· An assessment of the expected need for post-employment services and extended services
The IWRP must be reviewed annually and, if necessary, amended to meet the person's changing needs and abilities.
AVAILABLE SERVICES AND FINANCIAL NEED CRITERIA
There is no application fee for either VESID or CBVH. Likewise, there is no charge for the services of a VR counselor or for services provided to determine eligibility including medical, vocational or other evaluations. Once eligible, some services will be contingent on "financial need," considering the applicant's income and resources including, in some cases, those of a parent or spouse. Recipients of SSD, SSI or public assistance benefits are eligible for all VR services regardless of income and resources.
Among the services available regardless of a person's income or resources are:
· Diagnostic services
· Special transportation for the severely disabled
· Reader services
· Interpreter services for the deaf
· Job placement
Services available subject to financial need criteria include the following:
· Computer equipment and adaptations -- including Braille printers, voice output, touch screens, switches which allow computer access through voluntary movements such as eye blinks, head or neck movements
· Augmentative or alternative communications systems -- including talking computers
· Vehicle modifications -- including wheelchair lifts and hand controls
· Work site modifications -- e.g. adapted office equipment, environmental control devices
· Home modifications -- including widening of doorways and installation of ramps or lifts
· Telecommunication aids
· Occupational licenses, tools, initial stock and supplies for a small business
· Tuition for college, trade or business school
· Books, tools and necessary equipment
· Driver evaluation and training
The first six categories of items listed above would meet the usual definition of assistive technology or what VESID and CBVH refer to as "rehabilitation technology." Many other items can be funded if connected to a vocational goal. If in doubt ask that the item be included in the IWRP.
THE NEED TO SEEK FUNDING FROM OTHER SOURCES
Under "similar benefit" criteria, VR agencies consider themselves to be the payor of last resort for many services. This means that VESID or CBVH will not pay for a service if a similar benefit is available through some other agency or program. For example, if an applicant qualifies for personal assistance services through Medicaid or another funding source, the VR agency will not provide those services.
The VR agency will pay towards the cost of tuition only after TAP and/or PELL grants have been applied. Student loans, however, are not similar benefits. A VR agency cannot require an individual to take out student loans to pay tuition expenses. Similarly, 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 in the provision of similar benefits; or if rehabilitation technology (i.e., assistive technology) is involved.
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. A VESID decision may be appealed within 90 days of receiving the written decision. A CBVH decision may be appealed within 60 days.
Three types of appeal are available: an informal conference with the individual's counselor and the counselor's senior counselor; a formal administrative review with the district manager; and a fair hearing. Disputes are often resolved in an informal conference or administrative review. If not resolved informally, the individual is entitled to a fair hearing before an impartial administrative law judge (ALJ). A written request for a conference or administrative review is also considered a request for a hearing. The hearing must be scheduled within 45 days after it is requested. The individual must be notified of the hearing date no later than 14 days before the hearing.
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 ALJ will send copies of his decision to the individual, his or her representative if there was one, the district manager and the agency Director in Albany.
The ALJ's decision is final and must be implemented by the local office unless the VESID or CBVH Director decides to review it. The Director has 20 days from the postmark date of the ALJ's decision to notify the individual that the he or she will review it. If the Director opts to review, the individual has the right to submit additional evidence to the Director. The Director must render a final decision within 30 days of notice to the individual of the intent to review the ALJ's decision. 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 USC § 722(d)(3)(C)(i)]
An individual may appeal the final decision in state court through an Article 78 proceeding or in some cases through an action in federal court. 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. 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 VESID or CBVH, he or she should contact the appropriate CAP office for assistance. CAP advocates are usually very effective at the informal conference or administrative review level. Should a fair hearing be necessary, CAP advocates are versed in the law and procedures necessary to conduct a hearing.
LAW & POLICY GOVERNING VR AGENCIES
Federal:
· Rehabilitation Act of 1973, 29 USC §§ 701 et seq.
· 34 CFR Part 361
State:
VESID
· NY Education Law §§ 1001-1009
· 8 NYCRR Part 247 · VESID Policy Manual
CBVH
·NY Social Services Law § 38
· NY Unconsolidated Laws Chapter 261
· 18 NYCRR Parts 725, 726, 727
· CBVH Manual
Recently, a caller sought advice concerning prior approval for an "environmental control unit (ECU)." Within minutes we were able to locate a relevant fair hearing decision which approved funding for an ECU and printed the decision. That decision, sent to us by a New York City attorney, was then FAXed to the caller later that day.