For some time, I've been looking for a consumer guide to the Rehabilitation Act. The document below is the best I've found so far. It has the weaknesses of being a few years old, using some California-specific references, and scanned from a print copy. The content, however, seems generally relevant to clients of the federal-state rehabilitation system. Jamal Mazrui National Council on Disability Email: 74444.1076@compuserve.com ---------- VOCATIONAL RIGHTS AND SERVICES UNDER THE FEDERAL REHABILITATION ACT BY: Protection and Advocacy, Inc May 1993 INDEX WHAT ARE THE PRINCIPLES BEHIND THE REHABILITATION ACT? .......1 WHAT SERVICES DOES THE FEDERAL REHABILITATION ACT PROVIDE?....2 WHO IS ELIGIBLE FOR REHABILITATION SERVICES? .................3 WHAT DOES BENEFIT IN TERMS OF AN EMPLOYMENT OUTCOME MEAN? ................................................4 IF THE STATE HAS FUNDING LIMITATIONS, WHO WILL BE ELIGIBLE FOR SERVICES? ....................................5 WHERE DOES ONE APPLY FOR DR SERVICES? ........................5 HOW LONG DOES IT TAKE FOR THE DR TO PROCESS AN APPLICATION? ..6 HOW DOES THE DR DETERMINE WHO IS ELIGIBLE? ...................6 WHAT IS AN EXTENDED EVALUATION? ..............................6 WHAT HAPPENS IF DR DENIES ELIGIBILITY? .......................7 HOW DOES DR ASSESS WHAT SERVICES ARE PROVIDED TO INDIVIDUALS? ..............................................................7 WHAT IS AN INDIVIDUAL WRITTEN REHABILITATION PLAN (IWRP) AND WHO PARTICIPATES? .................................7 WHAT IS INCLUDED IN THE IWRP? ................................8 WHEN MAY DR TERMINATE SERVICES AFTER AN IWRP HAS BEEN DEVELOPED? ..........................................9 WHAT IS SUPPORTED EMPLOYMENT AND WHO IS ELIGIBLE? ............9 (I) WHAT SERVICES ARE INCLUDED FOR PERSONS WHO ARE ELIGIBLE FOR SUPPORTED EMPLOYMENT? ............................10 HOW LONG CAN SUPPORTED EMPLOYMENT SERVICES BE PROVIDED?........11 WHAT ARE EXTENDED SERVICES? ...................................11 ARE THE FEDERAL REGULATIONS WHICH COVER SUPPORTED EMPLOYMENT STILL VALID? .......................................11 WHAT IS THE CLIENT ASSISTANCE PROGRAM? ........................12 HOW DO YOU APPEAL AN ADVERSE DECISION BY DR? ..................13 WHAT IS THE FAIR HEARING PROCEDURE? ...........................13 WHAT HAPPENS TO SERVICES DURING THE APPEAL PROCESS? ...........15 REHABILITATION APPEALS BOARD DECISION AND TIMELINES ...........15 HOW DOES THE DIRECTOR MAKE THE FINAL DECISION? ................15 IS THERE AN APPEAL FROM THE FINAL DR DECISION? ................16 (ii) VOCATIONAL REHABILITATION RIGHTS AND SERVICES UNDER THE FEDERAL REHABILITATION ACT The federal Rehabilitation Act provides for vocational and independent living services to persons with disabilities. States can choose to participate in the program and receive federal monies to provide services. In exchange, they must abide by the federal mandate. The California agency responsible for providing vocational rehabilitation services is the Department of Rehabilitation (DR). In 1992, Congress amended the Rehabilitation Act to bring it into harmony with the Americans with Disabilities Act (ADA). The Amendments substantially changed the law in a number of areas. Proposed federal regulations are expected in October 1993. In response, California is in the process of amending its state statute (A.B. 1602) and regulations to bring them in line with the federal requirements. A new state plan should be developed by October 1, 1993. Advocates need to keep abreast of these changes and may wish to participate in the process by testifying at hearings on the state bill and the state plan or commenting on proposed regulatory changes. Since the state law is in flux, this handout will provide only information regarding the federal law and the state appeals process, which is exempt from the federal changes. WHAT ARE THE PRINCIPLES BEHIND THE REHABILITATION ACT? The Act sets forth the following guiding principles for implementation of rehabilitation programs. Individuals with disabilities, including the most severe disabilities, are generally presumed to be capable of engaging in gainful employment and the provision of individualized vocational rehabilitation services can improve their ability to become gainfully employed. Individuals with disabilities must be provided the opportunities to obtain gainful employment in integrated settings. Individuals with disabilities must be active participants in their own rehabilitation programs, including making meaningful and informed choices about the selection of their vocational goals and objectives and the vocational rehabilitation services they receive. Families and natural supports can play an important role in the success of a vocational rehabilitation program, if the individual with a disability requests, desires, or needs such supports. Qualified vocational rehabilitation counselors, other qualified rehabilitation personnel, and other qualified personnel facilitate the accomplishment of the employment goals and objectives of an individual. Individuals with disabilities and their advocates are full partners in the vocational rehabilitation program and must be involved on a regular basis and in a meaningful manner with respect to policy development and implementation. Accountability measures must facilitate and not impede the accomplishment of the goals and objectives of the program, including providing vocational rehabilitation services to, among others, individuals with the most severe disabilities. WHAT SERVICES DOES THE FEDERAL REHABILITATION ACT PROVIDE? As necessary to make an individual with disabilities employable, goods and services available under the Act include, but are not limited to, the following: Assessment to determine eligibility and/or scope of services including an extended evaluation or assessment in rehabilitation technology as needed. Counseling, guidance, job search and placement services including follow along, personal assistance and specific post-employment services. Vocational and training services including personal and vocational adjustment, books, materials, tuition to the extent that its not available through other sources. Services to families as needed to aid the adjustment or rehabilitation of the disabled individual. Physical and mental restoration services including, but not limited to, corrective surgery, therapeutic treatment, prosthetic and orthotic devices, eyeglasses and visual services, kidney transplants and dialysis, diagnosis and treatment for mental and emotional disorders. Income maintenance for additional costs while in rehabilitation. Interpreter and reader services for individuals who are deaf or blind. Orientation and mobility services. Occupational licenses, tools, equipment and initial stocks and supplies. Transportation in connection with any vocational rehabilitation service. Telecommunications, sensory and other technological aids and devices. Rehabilitation technology services. Transition services. On-the-job and other related personal assistance services provided while an individual with a disability is receiving rehabilitation services. Supported employment services. (For more information regarding supported work, see below.) WHO IS ELIGIBLE FOR REHABILITATION SERVICES? You are eligible for services if: 1) You have a physical or mental impairment which results in a substantial impediment to employment; and 2) Can benefit in terms of employment outcome from vocational services provided; and 3) Require vocational rehabilitation services to prepare for, enter, engage in,or retain gainful employment. You are considered an individual with a severe disability (which entitles you to have first priority for services if the state does not have enough money to serve all clients) if: 1) You have a severe physical or mental impairment which seriously limits one or more functional capacities (such as mobility, communication, self-care, self- direction, interpersonal skills, work tolerance, or work skill) in terms of an employment outcome; and 2) Your vocational rehabilitation can be expected to require multiple services over an extended period of time; and 3) You have one or more physical or mental disabilities resulting from amputation, arthritis, autism, blindness, burn injury, cancer, cerebral palsy, cystic fibrosis, deafness, head injury, heart disease,hemiplegia,hemophilia,respiratory or pulmonary dysfunction, mental retardation,mental illness, multiple sclerosis, muscular dystrophy, musculo-skeletal disorders, neurological disorders (including stroke and epilepsy),paraplegia, quadriplegia and other spinal cord conditions, sickle-cell anemia, specific learning disabilities, end-stage renal disease, or another disability or combination of disabilities determined on the basis of an assessment for determining eligibility and vocational rehabilitation needs which cause comparable substantial functional limitations. Determinations made by the Social Security office, school districts or other agencies shall be used for making determinations regarding disability in order to establish eligibility for DR services. WHAT DOES "BENEFIT IN TERMS OF AN EMPLOYMENT OUTCOME" MEAN? "Employment outcome" means entering or retaining full-time or, if appropriate, part-time competitive employment in the integrated labor market (including satisfying the vocational outcome of supported employment). The law presumes that you can benefit in terms of an employment outcome from vocational rehabilitation services unless the state can demonstrate "by clear and convincing evidence" that you are incapable of doing so. If you are an individual with a severe disability and DR is unable to determine whether you would benefit in terms of an employment outcome by reason of the severity of your disability, the state must do an extended evaluation before determining you are not eligible. DR cannot make a determination that you are ineligible because you cannot benefit unless there has been an extended evaluation. IF THE STATE HAS FUNDING LIMITATIONS, WHO WILL BE ELIGIBLE FOR SERVICES? The federal Act governing vocational rehabilitation services requires that, any time the state cannot provide services to all eligible individuals, those individuals with the most severe disabilities must be served before other less disabled individuals. An "individual with a severe disability" is defined in a previous section. In the current three-year state plan for DR services, California has committed to serving all eligible persons, including the most severely disabled. Therefore, the State has no basis for denying services to any eligible person. However, given the current state budget crisis, the order of selection process may be implemented at any time. WHERE DOES ONE APPLY FOR DR SERVICES? You may apply for services by completing and signing a request for services and a release of information form at a district office of the DR. District offices are located throughout the state and are listed in telephone directories under the State of California, Department of Rehabilitation. HOW LONG DOES IT TAKE FOR THE DR TO PROCESS AN APPLICATION? Eligibility determinations should be completed within a reasonable time not to exceed 60 days of the date a request for services is filed, unless there are exceptional and unforeseen circumstances beyond the state's control, and the client agrees. The only exception is when an extended evaluation is required, as discussed below. HOW DOES THE DR DETERMINE WHO IS ELIGIBLE? Eligibility for DR services shall be based on: 1) A review of existing data to determine whether an individual is eligible for vocational rehabilitation services and to assign the priority (either severe or not severe) to be used if the order of selection process is needed. 2) If needed, a preliminary assessment which can include the provision of goods and services needed for the assessment. When appropriate, the provision of rehabilitation technology services to an individual with disabilities to assess eligibility and develop work capacities or an extended evaluation (see below) is used. WHAT IS AN EXTENDED EVALUATION? The DR conducts an extended evaluation in cases where, by reason of the severity of the disability, DR is unable to determine whether the individual is eligible and the nature and scope of DR services needed. If needed, goods and services can be provided for purposes of the assessment. An extended evaluation can take up to 18 months; however, the DR must assess progress at least once every 90 days to determine if eligibility or type of services needed can be determined within a shorter timeline. WHAT HAPPENS IF DR DENIES ELIGIBILITY? Any determination of ineligibility shall include the following information: 1)The reasons for the determination. The rights and remedies available to the individual including your right to a reevaluation of your case on an annual basis and your right to appeal the decision. The availability of services under the Client Assistance Program discussed below. HOW DOES DR ASSESS WHAT SERVICES ARE PROVIDED TO INDIVIDUALS? Immediately following determination of eligibility, DR shall perform a comprehensive assessment, if needed, of the unique strengths, resources, priorities, interest, and needs of the individual, including the need for supported employment, to determine the goals, objectives, nature, and scope of DR services to be included in the IWRP. Such comprehensive assessment is limited to information necessary to determine rehabilitation needs and develop a plan, and, to the extent possible, shall rely on information provided by the individual and the family or existing information and may include assessment in real work situations. WHAT IS AN INDIVIDUAL WRITTEN REHABILITATION PLAN (IWRP) AND WHO PARTICIPATES? After the comprehensive assessment, or after determination of eligibility if no assessment is needed, DR; holds a planning meeting with the client, or if appropriate the parent, family member, guardian or advocate or the individual, to jointly develop and agree on a written plan of action called an individual written rehabilitation plan ("IWRP"). WHAT IS INCLUDED IN THE IWRP? The IWRP must be designed to achieve the employment objective of the individual, consistent with his/her unique strengths, resources, priorities, concerns, abilities and capabilities and must include the following as appropriate: 1) Long-term vocational goals based on any assessments, including assessment of the individual's career interest; and to the maximum extent appropriate include placement in integrated settings. 2) Intermediate rehabilitation objectives to achieve the goal. 3) Specific vocational rehabilitation services to be provided, and the dates for initiation and duration of each service. 4) Specific rehabilitation technology services to be provided to assist in implementation of the goal and objectives. 5) Specific on-the-job and related personal assistance services to be provided to the individual. 6) Post employment services and, if appropriate, extended services. 7) How extended services, beyond the point of successful rehabilitation, shall be provided through cooperative agreements with other service providers. 8) Objective criteria and evaluation procedure and schedule for determining whether goals and objectives are met. 9) Include how goods and services will be provided in the most integrated setting. 10) Identify provider of goods and services and process. 11) Describe how the individual (using his/her own words or those of his/her advocate or legal representative) was informed about and involved in choosing among alternative goals, objectives, services, and providers and methods of services. 12) Rights and remedies available to the individual. 13) Description of the client assistance program. A copy of the IWRP must be provided to the client or legal representative in his/her native language or mode of communication. The IWRP must be updated in writing on an annual basis and signed by the individual. WHEN MAY DR TERMINATE SERVICES AFTER AN IWRP HAS BEEN DEVELOPED? DR can terminate services upon successful implementation of the IWRP. Or, services can be terminated if the person is certified as not capable of achieving a vocational goal and thus is no longer considered eligible for vocational rehabilitation services. The determination that an individual is no longer eligible, can be made only with full consultation with the individual (or legal representative) and must be documented in an amendment to the IWRP. The reasons must be specified and the individual must receive information regarding his/her rights and remedies to appeal the decision. Such a determination shall be reviewed at least annually. If the ineligibility determination comes prior to development of the IWRP, for instance during the application or assessment phase, see previous sections for more information. WHAT IS SUPPORTED EMPLOYMENT AND WHO IS ELIGIBLE? Supported employment means competitive work in integrated work settings for individuals with the most severe disabilities, including those with mental illness: 1) For whom competitive employment has not traditionally occurred; or, 2) For whom competitive employment has been interrupted or intermittent as a result of severe disability; and 3) Who, because of the nature and severity of their disability, need intensive supported employment services or extended services in order to perform such work. 9 WHAT SERVICES ARE INCLUDED FOR PERSONS WHO ARE ELIGIBLE FOR SUPPORTED EMPLOYMENT? Supported employment services include ongoing support services and other appropriate services needed to support and maintain an individual with the most severe disability in employment. It also includes transitional employment for persons with severe disabilities due to mental illness. Services are based on the needs of the individual as specified in the IWRP. Supported employment services can be provided singly or in combination in order to assist an eligible individual in entering or maintaining integrated, competitive employment. Ongoing support services are provided to severely disabled persons, at a minimum of twice monthly, for the purpose of assessing the work site or situation of the individual and providing coordination or specific intensive services needed to maintain employment. They include: Assessments in addition to the comprehensive one usually performed. On-site intensive job skills training. Job development and placement. Social skills training. Regular observation or supervision of the individual. Follow-up services such as contact with employers, family or the individual in order to reinforce and stabilize job placement. Facilitation of natural supports at the work site. Any other services provided for in the Act. HOW LONG CAN SUPPORTED EMPLOYMENT SERVICES BE PROVIDED? The federal law states that DR only provide supported employment services for up to 18 months unless, under special circumstances, the eligible individual and rehabilitation counselor jointly agree to extend the time in order to achieve the objectives in the IWRP. However, state agencies or other resources may be used to fund extended services beyond 18 months. For example, persons with developmental disabilities can receive additional assistance under state law through the habilitation program or individuals on SSI could provide funding for extended support through a PASS and/or IRWE without adversely impacting on their SSI grant or earnings. WHAT ARE EXTENDED SERVICES? The term "extended services" means ongoing support services and other appropriate services needed to support and maintain an individual with the most severe disability in supported employment, that - 1) Are provided singly or in combination and are organized and made available in such a way as to assist an eligible individual in maintaining integrated, competitive employment; 2) Are based on a determination of the needs of an eligible individual,as specified in an individualized written rehabilitation program; and 3) Are provided by a State agency, a nonprofit private organization,employer, or any other appropriate resource, after an individual has made the transition from support provided by DR. ARE THE FEDERAL REGULATIONS WHICH COVER SUPPORTED EMPLOYMENT VALID? In June 1992, the federal Office of Special Education and Rehabilitation Services, U.S. Department of Education, promulgated regulations governing special grants to states for funding of supported employment. Much of the language in the regulations was included in the 1992 amendments to the Rehabilitation Act which was passed later that same year. Although new regulations to implement the 1992 statutory changes are expected in October 1993, there are no plans to change the current supported work regulations and they are still valid. These regulations contain definitions not included in the Act which may be helpful in interpreting the new federal statutory requirements. Specifically, the regulations include definitions of "competitive work", "integrated work setting", and "transitional employment" as follows. "Competitive work" means work that is performed weekly on a full-time or part-time basis, as determined in the IWRP, and for which the individual is paid consistent with the wage standards in the Fair Labor Standards Act. "Integrated work setting" means: 1) job sites where most employees are not disabled, and individuals interact with non-disabled employees, and, if part of a distinct work group of disabled individuals, the work group contains no more than eight persons; or, 2) if there are no other employees other than individuals in the work group,the individual interacts on a regular basis as part of his/her job with non-disabled members of the public. "Transitional employment" means a series of temporary job placements in competitive work in an integrated setting with on-going support services for individuals with chronic mental illness. WHAT IS THE CLIENT ASSISTANCE PROGRAM? The Client Assistance Program ("CAP") is available to inform and advise all clients and applicants of all available benefits under the Act and under the ADA, especially those individuals who have been traditionally underserved by vocational rehabilitation programs. Upon request, CAP can assist and advocate for clients or applicants regarding programs providing vocational rehabilitation services and regarding other services directly related to facilitating employment of the individual. CAP can also assist and advocate in pursuing legal, administrative or other appropriate remedies to ensure the protection of the rights of individuals and access to services and funds through individual and systemic advocacy. All programs that provide services under the Rehabilitation Act must advise individuals and, as appropriate, their authorized representatives or families of the availability and purposes of the Client Assistance Program and how to seek assistance. HOW DO YOU APPEAL AN ADVERSE DECISION BY DR? If an individual disagrees or is dissatisfied with any DR action or denial of DR services, s/he may request an administrative review within one year. A request can be made to the District Director orally or in writing. Such a request shall include the reason for the appeal and action which the individual/appellant thinks should be taken. A district administrator must conduct a review, with the appellant or authorized representative present (unless waived), and send a written decision by certified mail within 15 days of the request for review. The written decision must inform the individual that, if dissatisfied, s/he may file a written request for a fair hearing within 30 days of receiving the decision. WHAT IS THE FAIR HEARING PROCEDURE? A fair hearing must be held within 45 days of the request. The hearing is before the Rehabilitation Appeals Board (RAB), an impartial seven-member board established to perform the function of hearing officer. The RAB must meet at a time and place convenient and accessible to the appellant. Interpreters and readers shall be provided for those individuals who request assistance. The appellant may appear alone or with an authorized representative, or may be represented by an authorized representative without attending the hearing. Hearings must be before a minimum of three Appeals Board members and are conducted by one of the members. The technical rules of evidence which apply in court do not apply at the RAB hearing. However, the appellant has the right to review the record, present evidence, examine witnesses and be represented by counsel or an advocate. All witnesses must testify under oath. The DR is represented by the employee who made the decision or the supervisor. Two weeks before the hearing, the DR must provide the RAB with a case review, copy of its written administrative review decision and any documents to be presented as evidence. The appellant must also supply the RAB with a copy of all documents to be used as evidence two weeks prior to the hearing. Materials will be distributed to all parties no later than one week prior to the hearing. The RAB must give the appellant an opportunity to submit a written response, which must also be sent to the DR. The RAB is required to hear all relevant evidence and consider each issue before them. The regulations regarding notice of attendance at the hearing are strict. The appellant or authorized representative must give written notice of their intent to attend within seven days of the hearing. If they fail to do so, the hearing will be cancelled and the issues decided on the written materials submitted. If the appellant fails to appear at a hearing within 30 minutes of the scheduled time, again it will be cancelled. The appellant or representative may submit a written request to withdraw the request for the hearing at any time. A scheduled hearing can be postponed for up to 90 days if good cause exists and if requested at least 5 days prior to the hearing date. Good cause is defined as a death in the family, personal illness or injury to the appellant or authorized representative or sudden and unexpected emergencies. The RAB may continue a hearing to receive additional evidence or may close the hearing and hold the record open for 30 days to receive additional written evidence. The RAB must make any additional evidence available to both you and the DR for a written response. [NOTE: The 1992 Amendments added language regarding the use of an impartial hearing officer in vocational rehabilitation appeals. Although California is exempt from this requirement due to a provision in the statute which permits use of an appeals board established by state law prior to 1985, there is some indication that California is considering shifting over to an impartial hearing officer system.] WHAT HAPPENS TO SERVICES DURING THE APPEAL PROCESS? Unless the individual or, if appropriate, the authorized representative requests otherwise, services shall be continued until a final decision is made as a result of the hearing. The exception to this rule is when services have been obtained as a result of misrepresentation, fraud, collusion or criminal conduct by the individual. REHABILITATION APPEALS BOARD DECISION AND TIMELINES The Rehabilitation Appeals Board (RAB) sends a proposed decision to the state's Director of the Department of Rehabilitation, within 30 days of completion of the hearing. The decision must set forth: (1) the issues; (2) the findings of fact; (3) reasons for the decision referencing the law, regulations and policy; and (4) the recommended decision. When the RAB sends the proposed decision to the Director, a copy is sent by certified mail to all parties as well. The proposed decision includes the issues, findings of fact, reason for the decision referencing applicable laws, regulations and policies, and the recommended decision. HOW DOES THE DIRECTOR MAKE THE FINAL DECISION? The Director, within 20 days of receiving the proposed decision, will either adopt the proposed decision by the RAB in its entirety or review the decision, in whole or in part, and issue a separate decision. If the Director decides to review the proposed RAB decision and issue a modified or separate decision, the Director must notify the appellant and provide him/her with an opportunity to submit additional evidence and information relevant to the portions of the decision that the Director intends to review. The Director can also decide to return the proposed decision to the RAB for reconsideration and, in these cases, the RAB may request new evidence and, if needed, conduct a new hearing. If the Director chooses to complete the additional review, s/he must render a final decision within 30 days of mailing the notice of intent. The Director must make the final decision in writing, stating the findings and grounds for the decision and notifying the individual of his/her right to appeal. Copies of the final decision will be sent to the appellant and authorized representative by certified mail. IS THERE AN APPEAL FROM THE FINAL DR DECISION? If dissatisfied with the Director's final decision, the individual has the right to appeal the decision in Superior Court within six months. The individual has the right to ask for a legal review by the Client Assistance Program, to assist in deciding whether to go to court. ---------- End of Document