Diane Smith


Washington, DC (202) 408-9514

Ronald M. Hager

National AT Advocacy Project

a project of Neighborhood Legal Services, Inc. · Buffalo, New York · (716) 847-0650


I. Introduction

A. Questions from last week

B. Today’s session

1. VR overview–Ron

2. Special education transition and connection to VR–Diane

3. Obligations of colleges under § 504 and the ADA–Ron

II. Vocational Rehabilitation

A. Introduction

1. History

a. Title I of the Rehabilitation Act of 1973

b. Amended in 1998 as part of the Workforce Investment Act

c. Proposed regulations out 2/28/2000, now final

2. Like the IDEA, States are given money and have to comply with the federal requirements

3. States must designate a single agency to administer the program unless they designate a second agency to serve individuals who are blind

4. VR agencies are authorized to provide an incredibly broad array of goods and services to prepare and assist individuals in working

5. Unlike the IDEA, the standard is to maximize employment (p. 1)

B. Eligibility

1. Disability which interferes with ability to work

2. Need VR services to prepare for, secure, retain or regain employment

3. Need not be as severe as criteria for SSD or SSI

4. SSD or SSI recipients presumed eligible, provided they desire to achieve an employment outcome

5. Presumption that no one is too disabled to be eligible for services

a. VR can seek to establish by "clear and convincing" evidence that person is incapable from benefitting

b. Must first try a wide variety of trial work experiences, with supports

6. "Order of Selection"

a. For States not able to serve all eligible individuals

b. Must develop a plan for who will be served and the rationale

c. Must serve most severely disabled first

d. Those not served are to be referred to providers within the Workforce Investment System

7. Process starts with an evaluation

C. Developing the individualized plan for employment (IPE)

1. Used to be called the individualized written rehabilitation plan (IWRP)

2. Comprehensive evaluation to the extent necessary to determine the employment outcome, objectives or VR services

3. Informed choice throughout the process

a. Rehab ‘98 revolutionizes informed choice

b. IPE no longer jointly developed with client and VR counselor

c. Client determines level of VR counselor involvement, if any

d. VR counselor still must approve the plan

e. Appropriate VR objections, given maximization obligations

(1) Employment goal is not feasible for the individual, i.e., beyond the person’s capabilities

(2) Employment goal not likely to lead to a successful outcome, i.e., no jobs of that sort available

4. Identifies the employment goal

5. Lists services to be provided and who is responsible to pay

6. Sets out timeline for meeting objectives

7. Annual review

8. Can be modified as needed

D. Services available

1. All necessary services to equip individual for employment

2. VR agency cannot pick and choose what to provide

3. Goal is to maximize employability

4. Examples (p. 6-7)

a. Assistive technology

b. Tuition for college or trade school

c. Diagnosis and treatment to the extent not available from other sources

d. Personal assistance services, while receiving other VR services

e. Transportation services, while receiving other VR services

f. Transition services for special education students

g. Supported employment

h. Post employment services

5. Can have a financial needs test or contribution toward costs, but must have exceptions (p. 12)

6. Comparable benefits (p. 18)

a. Can look to other providers, such as Medicaid

b. Cannot deny or delay services while waiting for other provider

c. AT is exempt from comparable benefits analysis

E. Maximization of employability

1. Initial standard and Cook decision (p.12)

2. 1986 legislative history quote (p. 13)

3. 1992 amended language

4. 1997 RSA Policy Directive (p. 14)

5. Court decisions

a. Most early decisions extremely positive

b. Murphy–opposite result of Firth and Polkabla

F. Due process

1. Availability of Client Assistance Program (CAP)

2. State’s must offer mediation, like the IDEA

3. Right to an impartial hearing

4. Right to second level of administrative review, if offered in that State

5. Right to appeal to court

a. Probably no attorneys’ fees

b. Minimal status quo–implement final State decision while in court

III. Special Education Transition and Connection to VR

A. The IDEA on Transition

1. The IDEA contains a clear mandate that districts provide students with "transition services."

2. Transition services are defined as: a " coordinated set of activities for a student that is designed within an outcome oriented process, that promotes movement from school to post school activities. " 34 CFR §300.29

3. "Post school activities" include such things as: Post secondary education, vocational training, independent living. Transition planning is not just about vocational training or job placement, but about preparing the student for life after special education.

4. Transition services can include (depending upon the needs of the individual student):

a. Instruction

b. Related services

c. Community experiences

d. The development of employment and other post-school adult living objectives

e. Training in daily living skills

f. Functional vocational evaluation (34 CFR §300.29)

5. Fundamental requirements for transition services

a. Coordinated - including all of the systems which will be involved with a student when s/he leaves special ed.

The public school district leads this coordination.

b. Outcome oriented - transition should be focused on whether or not the student has actually achieved the goals or mastered the skills intended, not simply whether the services were provided

c. Based on the individual’s needs, preferences , and interests

6. Age when transition services begin 34 CFR §300.347

a. Beginning at age 14 (or younger, if determined appropriate by the IEP team) the IEP team must consider the student’s transition needs and include a statement about these needs in the student’s IEP.

i. Goal: To prevent a student from arriving at senior year without the course requirements necessary to be accepted into college, or with a job placement but no understanding of how to take a bus to get to work.

b. Beginning at age 16 (or younger, if determined appropriate by the IEP team), the IEP team must also consider what transition services the student will need including, if appropriate, a statement of the responsibilities of other agencies that will be involved with the student, such as the state vocational rehabilitation agency (VR).

c. Like the other parts of the IEP, the transition aspects of a student’s IEP must be reviewed annually.

d. Districts do not have to provide transition services to students convicted as adults and incarcerated in adult prisons, if they will age out of special education before they are released from prison.

e. Participants at IEP meeting 34 CFR §300.344

(1) The student

(2) Other agencies likely to become likely to be responsible for providing or paying for transition services for the student.

B. Interagency interaction

1. If another agency has a responsibility to the student and fails to meet that responsibility, the district must convene an IEP meeting to determine alternative ways to meet the student’s need. This does not release the recalcitrant agency from its responsibility. 34 CFR §300.348 See also Appendix A, 34 CFR 300

2. SEA must provide interagency agreements with such agencies at the state level. The regulations specify what these agreements must include.

34 CFR §300.142

C. Cases and other relevant authorities

IV. Letter to Goodman, OSEP Letter 1998, 30 IDELR 611

How to arrange so that a student may continue to use an assistive technology device (e.g a laptop computer) purchased by the district once s/he becomes a VR client after graduation.

2. East Penn School District v. Scott B. ,U.S. District Ct., ED PA 1999, 29 IDELR 1058 Inadequate transition IEP -- did not include appropriate goals, insufficient focus on student’s non-academic needs, assistive technology delivered too late to be useful, etc.

3. Lancaster Independent School District, 31 IDELR 24 (Hearing Decision TX, 8/13/98). School district offered unacceptable transition services for a student with LD, ADHD and Depression.

4. Fulton County School System, 29 IDELR 1031(ALJ Decision, GA, 2/11/99). Example of an acceptable transition IEP.

IV. Obligations of Colleges Under § 504 and the ADA, 34 C.F.R. Part 104

A. Otherwise qualified

1. For college, person must meet academic and technical standards for admission

B. Reasonable accommodations

1. Students: modification in policies, practices or procedures which is not a fundamental alteration of the program, service or activity

2a Undue hardship: undue financial or administrative burden when looking at the resources and operation of the entire covered entity

C0 General standard for colleges and universities

1a No qualified student with a disability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in the following areas:

a0 Academic, research or occupational training programs

b0 Housing and transportation

c0 Health insurance

d0 Counseling

e0 Financial aid

f0 Physical education, athletics, recreation or other extracurricular programs

2a College or university shall operate its programs and activities in the most integrated setting appropriate

D0 Admissions and recruitment

1a Cannot discriminate in the admission or recruitment process

2a Cannot use a test or other admission criterion that has a disproportionate, adverse impact on people with disabilities, unless it has been validated as predictor of success in the program in question and no alternatives are available

3a Admissions tests must be selected and administered to best ensure that the test measures the person’s aptitude and not the person’s disability, unless that is what the test is designed to measure

4a Modified tests must be offered as often as other admissions tests

5a Admissions tests must be offered in accessible facilities

6a College cannot make a pre-admission inquiry into whether a person has a disability unless the college is undertaking action to overcome past under inclusion of people with disabilities

7a College can ask, confidentially, after admission, whether a person has a disability which may need accommodating

E0 Academic adjustments

1a Academic requirements

a0 Individual must request accommodations

b0 Individual determination, based on documented need of the disability; person responsible for providing this documentation, at own expense

c0 College must make modifications to its academic requirements, such as length of time to complete degree, substituting courses, adapting manner courses are conducted

d0 Exception if requirement is essential to the program of instruction or to a directly related licensing requirement

2a Policy modifications–cannot impose rules, such as prohibiting tape recorders or guide dogs, which limit the participation of people with disabilities in the program

3a Course examinations–must modify examinations or other procedures for evaluating student performance

4a Auxiliary aids

a0 Must provide auxiliary aids to enable students with impaired sensory, manual or speaking skills to participate in the program

b0 Can include taped texts, interpreters, readers in libraries, adapted classroom equipment and other similar services and actions

c0 Personal services (including readers for personal study) or individually prescribed devices are not included

F0 Housing

1a Provided by college

a0 Must provide comparable, convenient and accessible housing at same cost as provided to others

b0 Must be available in sufficient quantity, variety and scope to provide people with disabilities choices that are comparable to those provided to people who are not disabled

2a Provided by others–if college assists others in providing housing, must ensure that it is available in a manner that does not discriminate

G0 Financial and employment assistance–cannot discriminate in the provision of these services

H0 Nonacademic services

1a Must allow equal opportunity to participate in extracurricular activities

2a If the college provides significant assistance to social organizations (such as fraternities or sororities), it must ensure they do not discriminate

I0 Accessibility requirements

1a Program access

a0 A college is required to make its programs and activities readily accessible to people with disabilities

b0 This does not mean that the college must make each existing facility or part of a facility accessible

c0 The college may reassign programs to accessible locations

d0 In choosing among available alternatives to ensure program access, the district must give priority to those methods that offer the programs or activities in the most integrated setting appropriate

e0 Use of stair trac not appropriate to transport a student from one floor to another

2a New construction (after 1977) and alterations

a0 All new facilities or parts of facilities must be readily accessible to and usable by handicapped persons

b0 The altered portion of any existing facility which could affect the usability of the facility, must, to the maximum extent feasible be altered in such a way as to be readily accessible to and usable by handicapped persons

J0 Obligations of VR

1a Regulatory history to § 504 regulations (p.25)

2a Court decisions have indicated that VR system has primary responsibility

3a Rehab ‘98

a0 Planning with public colleges regarding who is responsible for what

b0 IPE indicates who is providing what services

c0 Colleges remain responsible for their obligations under § 504 and the ADA

d0 VR must provide if college does not