Show 03 ^__ Vocational Rehabilitation

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The Southwest ADA Center Podcast, Show Number 3

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Beth Case: Hello, I'm Beth Case, and welcome to the Southwest ADA Center podcast. This podcast brings you highlights from the webcasts offered by the Southwest ADA Center. This week's show is on the Public Vocational Rehabilitation Process and featuresCheryl Bates-Harris and David Rutt from the National Disability Righte Network. They were interviewed by Tajauna Arnold, and you actually get to hear Tajauna a little bit this time around. This webcast origianlly aired on May 24, 2006. Boy, did I have a hard time with this show! Basically, I'm taking webcasts that run between one and two hours and I'm trying to select out what I think are the meatiest 25 minutes or so for you all to listen to. It was extremely hard to choose what to put into this podcast. There's so much great information that I had to leave out. I really, strongly encourage you all to go to the website and listen to the full webcast on this one.

Now you will hear them mention slides. Those slides are available from the Southwest ADA Center web site. All of these links -- to the slides, to the full-length web cast, everything -- will be listed on the podcast website, which is www.ada-podcast.com.

So this show's going to be long enough as it is, let's get directly to Cheryl and David.

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Cheryl Bates-Harris: This program is intended to be an overview of the vocational rehabilitation agency. But first I'm going to give you little bit of background information.

Although vocational rehab services have been around for a long time, the VR program that we know today was the result of a significant overhaul in 1973 to The Rehabilitation Act. So when we refer to The Rehabilitation Act as amended, what we're basically referring to at this point is the 1973 amendments and those since then.

In that piece of legislation, on the preamble includes congressional findings that indicate that work is valuable for everybody. That individuals with disabilities experience staggering levels of unemployment and that individuals with disabilities have demonstrated the ability to achieve gainful employment. And furthermore, that the provision of workforce investment activities and VR can enable individuals with disabilities to pursue meaningful careers.

So as a result of this, in each state and territory as referenced on slide No. 3 has a public VR system, which is designed to assess plans, develop and provide VR services to individuals with disabilities. These services should be consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests and informed choice. What this really means is that the services are supposed to be individualized to meet the individualized needs of the individual. Furthermore, the Rehab Act states as stated in slide No. 4 that it is the policy of the United States that individuals with disabilities be provided the opportunities to obtain gainful employment in integrated settings. Specifically, it says that the goals of the nation include equality of opportunity, full inclusion and integration into society. And it goes on to say -- the Rehab Act goes on to say that individuals are to be active and full partners in the VR process making meaningful and informed choices.

So how does one become involved with this state VR agency? The first step is obviously to make a referral, which we'll talk about on slide No. 5. A referral is defined as any individual who has applied for or been referred to the VR agency by letter, by telephone, by direct contact or by any other means and for whom some minimal information has been furnished. This information necessarily needs to include the name and address of the individual, a statement of disability, the age and sex of the individual, the date of the referral and the source of referral, if there is one. Oftentimes, individuals are able to self-refer to VR and oftentimes I think those can tend to be the more motivated individuals. It is also possible that if they are involved with any other community service organization or hospital or something like that, that perhaps they have a mechanism in place for referral.

So once an individual has been referred for services, VR is actually an eligibility-based program so there needs to be an application for services. Going on to slide No. 6, once the referred individual actually signs a document requesting vocational rehabilitation services, the person moves into an applicant status. It is important to note that there is no residency requirement for VR services. An individual does not have to have lived in the state for any period of time and they only have to be present in the state and that once an application for services is placed, an eligibility determination must be made within 60 days unless there are usual or unforeseen circumstances that would prevent that from happening.

David Hutt: Okay, as Cheryl said, the Rehab Act creates a process. It's VR systems need to follow the state VR agencies need to follow. And after the individual applies for services, the VR agency needs to assess whether or not the individual is eligible for services. VR is not an entitlement system and before that person must be determined eligible for services. So on slide 7 we have outlined basically the three criteria that the VR agency needs to look at in order to determine whether an individual is initially eligible for VR services.

So the first criteria is the individual has to have a physical or mental impairment which is a substantial impediment to employment. And there are really two key parts to this: The physical and mental impairment is the first part of criteria one, and the second key part is the substantial impediment to employment. Now I'll try to give you a couple of examples for what a substantial impediment means. It could be wide ranging. These examples are just to illustrate. There are other possibilities that could be substantial impediments. For an example, an individual may have an accident, have a traumatic brain injury and develop some sort of cognitive problem that would require that person to go into a new field. They may have had one job and because of the traumatic brain injury need a new job. That traumatic brain injury is a physical impairment that substantially impedes that individual's ability to go to work. An individual who uses a wheelchair for mobility might have some mobility issues getting to and from work that might require a van modification. So that could be another impediment to mobility, maybe an impediment to that individual getting employment. And then other physical or mental situations or problems could cause impediments such as someone who has a visual impairment may need some sort of assistive technology either to obtain training to go to work or actually on the job. So those are just some examples of what substantial impediment to employment is.

Let me give you an example of what would not be considered a substantial impediment. Let's say an individual has a hearing impairment and has been working for 20 years as an attorney, decides they no longer want to be an attorney but wants to be a chemist. That's a career change. The disability is not a substantial impediment to that individual becoming a chemist so they would not meet the first criteria. That's a simple career change that does not make that person eligible for VR services. That's the first criteria.

The second criteria for eligibility is the individual will need vocational rehabilitation services to prepare for, secure, retain or regain employment. So again, it's not only just getting the employment, it's actually possibly preparing for such employment, and keep in mind that VR services, unlike other services in the rehabilitation act, they're not just for independent living. An individual may want van modifications so they're able to sort of get around the community better, however, if it's not related to the individual's employment, those aren't services to secure, regain, prepare or retain employment. So just keep in mind it's not just simply independent living. There has to be a tie-in to that individual becoming employed.

Then finally, the third criteria is the individual must be able to benefit from vocational rehabilitation services. This is presumed, okay, and I'll talk about that in a little bit later about what the presumption means, but essentially if the individual meets the first two criteria, The Rehabilitation Act requires the VR agency to assume they can benefit from being provided vocational rehabilitation services, okay?

Slide 8, the next slide, for folks who are receiving Social Security disability income, SSDI, or supplemental security income, SSI, there is a special criteria for them. First of all, the SSDI or SSI recipient is presumed to have a physical or mental impairment which is a substantial impediment to employment. So SSDI and SSI individual automatically are presumed to meet criteria one. They are also presumed to meet criteria two that they need vocational rehabilitation services to prepare, secure, retain or regain employment. So the SSDI and SSI beneficiaries have it a little easier because they are presumed one and two and three as we said before are already -- presumed they can benefit from services. That's already in the law. So for those folks, what they have to do is essentially intend to want to become employed. They want an employment outcome. So an SSDI and SSI recipient who signs an application for services, that's considered their intent that they want to go to work and therefore the presumptions will go into effect so it's a little easier for them.

Now I think as Cheryl said the determination process of eligibility must happen within 60 days in the application. Now, in certain states, if we go to slide No. 9, certain states have implemented what's known as an order of selection. Okay, this currently applies to about 32 states. The Rehabilitation Act allowed the state VR agency which cannot provide the full range of VR services to eligible individuals to essentially establish an order of selection or an order of priority. Okay? So if the state can't afford to supply individuals with all eligible individuals with services they can establish this order of priority. The order of priority that the state develops must be based on the severity of the individual's disability, and it must essentially give priority to services to those who are most significantly disabled. So the folks who defined as most significantly disabled are provided VR services before other individuals.

If we go to slide 10, the order of selection developed by the states must follow generally some federal requirements that we won't get into in detail, but we have to follow the general federal requirements that specify different categories of individuals and who is going to be served first and who is going to be served second and so on based on these categories. They need to define these categories and definitions with the help of their state rehabilitation council. Every state has what's known as a state rehabilitation council or SRC and they have to provide the state VR agency input into creating these order of selections. Okay?

Now, the order the criteria that the VR agencies cannot consider -- and that's listed on slide 10 -- they can't look at types of disabilities. So they can't single out specific disabilities in the order of selection. They can't base the categories on how much it's going to cost to provide the VR services or the type of services the individuals might need. Individual characteristics such as age, race, national origin, those cannot play into the order of selection categories. They can't, you know, base it on the type of employment. They can't say we're only going to help people who want white collar jobs as opposed to blue collar jobs. They can't base it on the types of employment individuals might seek and then finally the main do not or cannot in terms of the order of selection is they cannot look at the individual's family income. That cannot be a consideration when they develop these categories. Okay?

So those are essentially the order of selection. Now if we go to slide 11, we look at the determination of -- as I said before, under criteria 3 and who is eligible for services, it's presumed that someone who meets criteria one and two can benefit from VR services, okay? Now, the state can overcome the presumption that an individual can benefit from services, and they need to do this by clear and convincing evidence that the individual cannot become employed even if the vocational rehabilitation agency provided VR services, okay? The key language there is clear and convincing evidence is what the state agency must show.

If we go to slide No. 12, in order to determine this clear and convincing evidence, there is several -- well there is one step a state VR agency must follow. They have to conduct a realistic trial work experience with the individual and this trial work experience has to assess the individual's abilities, capabilities and capacities to work in a realistic setting. And this is determined, okay, if VR provides these services, could this person go to work in this trial work experience to make that determination. Now in some cases the trial work experience for whatever reason -- we won't get into all the details today -- is not willing to work or is determined that the individual can benefit from services, the VR agency can conduct an extended evaluation to see if the individual can benefit from VR services, and this is basically providing the services and seeing if the individual is going to over a longer term benefit from these services and be able to get employed. So those are the two techniques that the VR agency needs to use. If it's clear and convincing based on these tests that the individual is not going to be able to become employed with the help of VR services, then te can find the individual ineligible and they won't be able the to get the VR services. That's essentially the process that VR needs to follow.

So once the person gets through the eligibility determination, the next major step is the development of what's known as an individualized plan for employment. Now, this document is real critical. Essentially it outlines what the goal -- the employment goal is for the individual and the plan for VR services are in order for that individual to reach that employment goal. Right now we're on slide No. 13. The second point there is the IPE is not a contract. So it's not a contract with the VR agency, but it is very important and if there is disputes down the road, this document is going to have very significant weight. So you want to make sure that this IPE is developed properly and has all the important points into it.

Going on to slide No. 14, the individualized plan for employment -- these are some of the required components of the IPE. First off is the employment outcome or goal. And this is essentially what does the individual want to do when they are through with their VR services? They want to become -- they want to get a BA to go into counseling. They want to become a truckdriver or work in a warehouse or become an attorney, those kind of things are what the employment goal is and the individual needs to determine what that is.

Second major component of the IPE is the services that are going to be required to achieve that goal. What vocational rehabilitation services does that individual need in order to achieve that goal. Is it assistive technology? Is it a modified computer? Is it training in a whole new field? Is it to get a bachelor's degree? And then second to that is what of those services is VR going to provide? That also has to be in the IPE about what specifically the VR agency is going to provide concerning the services needed to achieve the goal. Now, both the individual and the VR agency need the agree on that on both one and two. So if there is a dispute over the employment goal, if VR doesn't think the individual can reach that goal, if they think it's beyond what is required under the Rehab Act, there may be some disputes there, but again, the key is that the goal and what services VR is going to provide, it needs to be agreed to by both folks.

Okay, slide 15 gives you a little bit better idea what the employment outcome or goal is. It must be based on the unique strengths, resources, priority concerns, abilities, capabilities, interests and informed choice of the individual. VR needs to agree with the individual, but the individual has got to be something they are interested in and they want to do and they have the ability to do. Now, obviously you know there is some things that may be just completely unrealistic that don't fall in with the capabilities and the abilities of the individual. So those have to be taken into consideration, but again, the last bullet point here is that it has to be an individualized informed choice about that employment goal and VR should not be steering folks into a specific program that that individual is not interested in.

Okay, as I said before, there is no entitlement to services. So there is going to be discussion about what VR services are going to be required and what they are going to be willing to provide in the IPE. The IPE can be developed by yourself or the VR counselor can assist you. So if the individual is having difficulty working with their VR counselor, the law provides the individual can go outside the VR agency, complete their IPE and bring a draft copy and say this is what I want to do and try to get the VR agency to approve that plan. However, if they are having a good relationship with the counselor they can work together to try to develop what the IPE is going to be.

Okay, slide No. 16, a little bit more about the employment outcome. In some cases, the individual will go to VR and really don't know what they want to do. Okay? Now, under the Rehab Act, the VR agency must conduct an assessment. So they must help the person determine what their employment goal should be. And you know, basically try to find out what this individual is interested in, what their strengths are and do some vocational testing, where their skills lie and those kind of things in order for the person to help develop their employment goals. So VR shouldn't be just saying you don't know what you want to do, come back when you decide. They should be helping that individual explore what their possibilities are and what that employment goal might be.

Okay, on slide 17, the next slide, just a little bit more information on the IPE. It must be provided in the native language or mode of communication of the individual. So if the individual's native language is Spanish, it should be this Spanish. If they have a visual impairment and need it in Braille, it should be in Braille, those kind of things.

Once the IPE is signed by both individuals, it needs to be reviewed on an annual basis by both the individual and a qualified rehabilitation counselor. This should not just be a paper review. The individual should be -- you know, there should be a discussion between the counselor and the individual about how the things are going on the IPE. It can be amended if the person decides their goal is unrealistic, they are discuss with VR to amend the goal. This routinely happens where additional services made be needed and the IPE will be a amended to those additional services. Again though like the IPE, there has to be agreement on both of the parties and both of them have to sign the amended IPE.

Next slide on slide 27, now we get into -- I sort of mentioned this briefly before -- about changes. Things obviously can change down the road. You know, some folks may need VR services for only several months. Some people may be five, six, seven, eight years, working with the VR system so obviously the IPE can be changed to include additional VR services. Any changes have to be agreed on with VR and the individual like we talked about before.

Okay, on slide 28 now, you know, changes can't be resolved through IPE or some problems or disagreements come up with VR, now we get into what the resolution procedure is for problems that develop. Now, disagreements with the VR agency, again, we're on slide 28, can occur over the termination if the person is not eligible for services, the specific order of selection category, if you're one of the 32 states operating under order of selection, and you're at a very high so you're on a waiting list, you can possibly dispute that selection category. Your employment outcome, if you want to do employment goal X and VR says, no, they want you to do Y, that can go through the appeals process. If you need some sort of assistive technology, VR disagrees with you, that can go through the appeals process. You know, we had the question about closure of a VR case. If they terminate services or closes a case inappropriately, that's another disagreement that can go through the appeals process and there is a lot of issues that can go through on that. Slide 29, there is at least two free legal services that are available or advocacy services that are available. One is the Client Assistance Program which we talked about. There are 56 of these -- 50 states and six territories have a CAP program and again they can assist you with disagreements with the VR agency. Again, if you're receiving services or you're an applicant for VR services CAP can assist you if there is a problem. And then there is a protection assistance, the PAS program. This is specifically available to folks who are on SSDI or SSI that face barriers to work and if you're having a disagreement with VR that's obviously a barrier to employment. So they can't represent everybody who is a potential VR eligible individual or applicant, but the SSDI and SSI individual they can assess.

The actual process which is on slide 30, okay, you get a decision by the VR agency or they're not doing something you think that they should be such as, you know, they don't agree with your employment goal or they are not going the give you an assistive technology or there is some other disagreement. The first step I would say is call your Client Assistance Program or your PAS program and get their input. The first process that you can sort of employ is sort of informal. The CAP advocate or you alone can go in and talk to your counselor, talk to the counselor's supervisor and say here is the problem and is there a way to resolve it. Negotiation at a very informal level with the VR counselor or that individual's supervisor.

The next step would be negotiation which is essentially -- pretty much the same, go into the counselor or to the supervisor or to the manager of the VR agency's office. Or you can go into a little bit more of a formal process called mediation which is essentially an independent mediator will come in, will listen to both sides of the story and will try to suggest a solution and resolve the disagreement. Now, the mediation is nonbinding. You can disagree with it but it's a way to try to facilitate a resolution that's fairly informal and much simpler to achieve.

Okay, the first step -- the informal review and the mediation and negotiation, those first two steps are voluntary. You don't have to do them. You can go straight to requesting an administrative hearing, when you do disagree with VR. The administrative hearing is a formal process. There is an administrative hearing officer. You can get representation by either PAS or CAP or another attorney --

Cheryl: or a representative of your choosing.

David: You've got to watch for time periods. Some states will set a time period when you have to make the request. As Cheryl said that, individual received oral notification. To play it safe they should look at what the time limit would be and get their appeal in within whatever time period the state sets. Once you ask for an administrative hearing, it should occur within 60 days, both parties can agree to extend that, but again, the law requires that the hearing be held within 60 days. And then after the hearing, the decision needs to come down within 30 days. Sometimes that's extended if the parties want to submit additional documents or written statements, that 30 days may slip a little bit if the parties agree.

Then the next step after the administrative hearing, if you're unsuccessful in resolving the dispute, you can seek review in federal or state court. They'll essentially look at what the administrative hearing officer considered. You can add additional evidence at the federal or state court level, but again, at that point, I would definitely get an attorney or some other person who is knowledgeable. I would get an attorney at the point you're going to federal or state court just to make sure you're getting through the process correctly and following all the procedures.

The next slide, slide 31, most disagreements are resolved at mediation or the negotiation informal stage. Very few cases go to an administrative hearing. Most of the time -- especially the CAPS and PAS advocates can resolve this through an informal process. And again, specifically with the CAP program, they will try to settle it at the -- at the lowest level possible. Ultimately the individuals want to decide whether or not to accept or reject an agreement. If they don't like what the representative has negotiated, they can reject that and it will continue to go through the process. Just one other caveat in terms of folks who may got to CAPS or PAS, essentially they have to look at the merit of the case. You may think you have a great case, but your advocate may not think the merit is there. So they are not obligated to represent every individual and they are going to look at the merits of the case. They don't think you have a good leg to stand on, they may say we're not going to take the case.

Just real quickly to wrap up in the last three minutes here is hopefully you won't have to go through the appeals processor the administrative review or any of than things will work out successfully. Once you've completed the plan, if you're in employment for 90 days, you know, VR will essentially do an assessment and close your case as successful employment outcome which is obviously the goal here. It is to get individuals with disabilities to achieve their employment outcome. And at that point, you know, hopefully in the competitive employment and has succeeded through the employment plan.

Tajauna: The last question that I have -- and then I'm going to turn I over to you guys for any last closing statements if you have any, but the last question asks what can people with disabilities expect from VR?

Cheryl: to be treated with respect, to be taken seriously, to be an active participant in the process and to receive the services and support both from the VR counselor, but also if you request to have, you know, family support or some other support for you in the process for that to basically be allowed. And as long as you can serious and committed to an employment outcome and to working and basically improving your quality of life, then VR counselors ought to be on that same page with you and offering you whatever services and supports they can to help you move along that process.

Beth: Didn't I tell you that was great? And there was so much information I had to leave out, on what kinds of services can be provided, and education and all kinds of great stuff. So visit the podcast website at www.ada-podcast.com and find the link to the full length webcast and listen to that one. It's fantastic. Until next time, I'm Beth Case, and thanks for listening to the Southwest ADA Center Podcast.





The Southwest ADA Center is a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. The Southwest ADA Center Podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.