Towards access, accountability, procedural regularity and participation: the Rehabilitation Act Amendments of 1992 and 1993.

The Rehabilitation Act Amendments of 1992, themselves recently amended by 1993 statutory changes, mark the first major revision of federal-state vocational rehabilitation program and the other provisions of the Rehabilitation Act since the passage of the Americans with Disabilities Act of 1990. Although most of the regulations to implement the law are still in the process of being developed, rehabilitation professionals should begin now to plan for such innovations as presumed eligibility for vocational rehabilitation services, national evaluation standards and performance indicators, independent hearing officers to decide appeals, and client choice of goals and services. The purpose of this article is to be a guide to the most important of the revisions in the rehabilitation law, analyzing them in relation to their intended goals of improving access to services, enhancing accountability, increasing procedural regularity, and expanding client participation in rehabilitation services choices. The article concludes that some of the changes made by the new laws are highly likely to meet their goals. Others will meet their immediate objectives, though they may have more difficulty fulfilling their real purposes. Finally, some changes have utterly unpredictable results; developments will require close watching by rehabilitation practitioners.

The latest amendments to the federal rehabilitation services program became law on August 11, 1993. These amendments made technical corrections to the Rehabilitation Act Amendments of 1992, which were the first major revision of rehabilitation law since the passage of the Americans with Disabilities Act of 1990. In the 1992 and 1993 Amendments, Congress instituted changes that will affect the daily work of rehabilitation professionals and the lives of the persons they serve. Although the "extensive proposed regulations" that will implement the bulk of the Amendments' provisions remain to be adopted (Federal Register, May 3 1993), it is not too soon to adjust to the new developments in rehabilitation service delivery that the revisions will cause.

Background

Twenty years ago, the Rehabilitation Act of 1973 codified the federal-state vocational rehabilitation program and a variety of other training and social service activities for Americans who have impairments that substantially impair major life activities. The Act also set out definitions and established expansive nondiscrimination requirements for federal grantees. The 1992 and 1993 Amendments to the Act primarily affect vocational rehabilitation and the other service programs. They can be organized into four categories according to their objectives: those that improve access to services; those that work towards enhanced accountability; those that increase procedural regularity; and those that advance the goal of client participation in the rehabilitation services program. The purpose of this article is to serve as a guide to the most important of the recent changes in the rehabilitation law, analyzing them in relation to their intended goals.

Access

Equal access is at the heart of the Americans with Disabilities Act (ADA) (Leung, 1990). Though vocational rehabilitation services aim to provide access to the world of employment covered by the ADA (Senate Report, 1992, pp. 5-7), rehabilitation services can themselves be inaccessible to the people with severe disabilities. Senator Dodd stated: "Prior to the introduction of this legislation, there were many diverse concerns about vocational rehabilitation services and what improvements could be made. Some complaints were consistent, however. One was that those with the most severe disabilities were shut out of the system, probably because they were more expensive to serve." (Congressional Record, Oct. 5, 1992, p. S16613.)

The principal innovation the 1992 Amendments make to increase access for individuals with severe impairments is a new presumption of eligibility for services. Rather than requiring an individual to show that he or she can benefit in terms of employability in order to qualify for services, the new law presumes that an individual can benefit in terms of employment outcome from vocational rehabilitation services unless the agency shows by clear and convincing evidence that the individual is incapable of benefiting (1992 Amendments, 123(a)). The Senate Committee took pains to emphasize that the "clear and convincing evidence" standard was meant to be the highest standard used in the American civil system of law; the evidence must be unequivocal, and an intelligence test alone will not suffice (Senate Report, p. 37). Programs should become prepared to serve more persons whose very severe impairments render them unquestionably disabled and possibly able to benefit in terms of employment outcome.

Also on the topic of eligibility, the new law substitutes the term "employment outcome" for "employability" (1992 Amendments, 102(f)), stating that a person is eligible for services if the person is an individual with a disability and "requires vocational rehabilitation services to prepare for, enter, engage in, or retain gainful employment" (1992 Amendments, 123(a)). Supported Employment may be considered an appropriate rehabilitation objective in assessments of individuals (1992 Amendments, 621). The 1992 Amendments thus put into place a regime similar to that imposed on the Illinois Department of Rehabilitation Services under the consent decree in the Alford litigation (Alford v. Illinois Department of Rehabilitation Services, 1984). That injunction barred Illinois' use of any job-readiness requirement in qualifying for rehabilitation services and specified that a counselor may not consider the length of time or intensity of services needed to rehabilitate the individual, nor may the agency terminate the services because the individual will not reach the state of suitability for employment in the foreseeable future. Senator Dole summarized the change made by the 1992 Amendments by noting that the "amendments correctly place the focus of the law on streamlining access to vocational rehabilitation services for people with severe disabilities on achieving appropriate job placements..." (Congressional Record, p. S16609, Oct. 5, 1992). Rehabilitation practitioners are already seeing more persons with complicated disabling conditions, such as dual diagnoses of mental illness and mental retardation. The change in the eligibility standards should heighten that trend and stimulate practitioners to adjust programs to serve these individuals.

The 1992 Amendments also expand the scope of vocational rehabilitation services, a step that will be most useful for persons with severe disabilities. New services explicitly provided for in the 1992 Amendments include transition services, on-the-job and other personal assistance services, and supported employment services. These supported employment services may be provided under the vocational rehabilitation services program itself, rather than only under the specific supported employment program of title VI (1992 Amendments, 124(a)). Although this change may only affect funding sources of some programs, it should also increase likelihood that providers will conduct supported employment programs. Most other changes in supported employment are in the nature of clarification of existing program requirements (1992 Amendments, 621). Although Congress expressed strong concern that the program, which was designed for persons with the most severe disabilities, is being used largely for individuals with lesser conditions, notably mild mental retardation (Senate Report, p. 76), the changes do not address that problem directly.

Projects with Industry are made more accessible by the 1992 Amendments. The revisions clarify that grants are available to employers, community rehabilitation providers, labor unions, trade associations, and Indian tribes. The projects may make eligibility determinations of clients, which the state vocational rehabilitation agency must rely on to the extent appropriate. If the agency does not notify the project of an eligibility determination of a client in 60 days, the client is considered eligible (1992 Amendments, 611).

An additional program innovation designed to improve access to rehabilitation is a revised funding process for Centers for Independent Living (1992 Amendments, 701). Centers are nonresidential, community-based nonprofit agencies controlled by persons with disabilities. Centers that operate residential programs have until October 1994 to spin off or terminate the operations (1993 Amendments, 114(j)). The purpose of the centers is to provide independent living services to persons with severe disabilities. A Statewide Independent Living Council, with a majority of its members being persons with disabilities and not employed by the agency, will develop the state independent living services plan in conjunction with the designated state agency (1992 Amendments, 701; 1993 Amendments, 114(h). Both the director of the agency and the chair of the Council must sign the plan. These provisions give effective veto power to the Council over the state agency on the provisions of the plan, greatly enhancing the importance of individuals with disabilities in the conduct of the program.

To promote access to the protections of the Americans with Disabilities Act, the 1992 Amendments allow states to spend money to train employers about the ADA (1992 Amendments, 130(a)). Solomon (1993) has demonstrated the inaccessibility of protections of the ADA to some people covered by it due, in part, to ignorance of its provisions among employers. This provision may therefore have a significant positive impact on ADA enforcement.

An additional innovation is in personnel development. A limit on access to rehabilitation services is their limited availability; one cause of the limit is the shortage of qualified personnel. The 1992 Amendments call for a system of personnel development to remedy this problem. The system has to include the development and implementation of plan to address current and projected personnel needs, including: information on persons currently employed and ratios of counselors to persons served; projections of the numbers and types of personnel needed in five years; surveys of education systems and enrollments; plans to coordinate cooperative efforts with colleges and universities and professional associations; systems for continuing education, for dissemination of research, and for training in the requirements of the 1992 Rehabilitation Act Amendments; establishment, maintenance, and improvement of qualification standards; and programs to make available more personnel trained in the native languages or other communication modes of clients (1992 Amendments, 122(e)). The Senate Committee commented that it considered the personnel development provision to be among the most important in the 1992 Amendments (Senate Report, p. 29). The 1992 Amendments also make changes in the training and demonstration projects provisions of the law to promote the upgrading of skills of existing rehabilitation personnel and the provision of training to persons with disabilities and their families; grants are expanded from facility construction to community rehabilitation program improvement (1992 Amendments, 301-316).

The 1992 Amendments aim to enhance access of traditionally underserved minority populations to rehabilitation services. The problem of minority access to ADA protections has already been recognized (Leung, 1993). Representative Owens stated that less money was being spent on vocational rehabilitation services to African-Americans, American Indians, and other minorities than previously (Congressional Record, p. H7785, Aug. 10, 1992). The 1992 Amendments, making findings of higher rates of disability among minorities and patterns of inequitable treatment of minorities in the vocational rehabilitation process, require the Commissioner of the Rehabilitation Services Administration to develop a policy focusing on recruitment of minorities into vocational rehabilitation counseling and related disciplines and on assistance to higher education institutions with predominantly minority enrollments to prepare students for careers in rehabilitation (1992 Amendments, 111(a)).

Innovation and expansion grants may be used to increase access to services and to widen the range of services afforded (1992 Amendments, 134). Even access to research has been enhanced. Senator Harkin stated: "Both the House bill and the Senate amendment emphasize that research funded under title II should focus on improving the effectiveness of services provided under the act and that research information should be widely disseminated in practical, usable formats." (Congressional Record, p. S16612, Oct. 5, 1992). Congress recognized the need to involve persons with disabilities in the determination of research priorities and policies (Senate Report, p. 11). A variety of additional changes have been made in the law's research provisions (1992 Amendments, 201-206).

Accountability

Over the last generation, dissatisfaction with the cost-effectiveness of many educational and social service programs has resulted in a trend towards periodic program evaluation (Barak & Breier, 1990). This tide has reached vocational rehabilitation with the 1992 Amendments' imposition of evaluation standards and performance indicators on state programs under title I of the Rehabilitation Act (1992 Amendments, 127(a)). The Bush administration recommended this provision (Congressional Record, p. H7786, Aug. 10, 1992, remarks of Rep. Ballenger). With input from states, consumer and professional organizations, recipients of services, and others, the Commissioner must establish evaluation standards and performance indicators by September 30, 1994 (1992 Amendments, 127(a)). The Secretary of Education has already published examples of possible evaluation standards and performance indicators. Coverage and accessibility could be an evaluation standard, measured by performance indicators such as the number of persons accepted for services, including those with severe disabilities, in relation to the number who apply for services. Comments on possible standards and indicators were due April 20, 1993 (Federal Register, February 19, 1993, pp. 9458-59). A public meeting was to be held September 23, 1993 in Washington to solicit additional reactions from the field (Federal Register, August 24, 1993, p. 44638). Once standards and indicators are adopted, states will report their performance to the Rehabilitation Services Administration. The Commissioner must reduce or terminate funding to states that do not enter into or comply with an improvement plan after failing the standards.

As another measure to improve accountability, the federal government will provide for annual review and on-site monitoring of state vocational rehabilitation programs, determining whether evaluation standards and performance indicators are being met (1992 Amendments, 128(a); 1993 Amendments, 114(d)). States dissatisfied with funding reduction or termination decisions may petition for review of the decisions in the federal courts of appeals. Monitoring obligations are also placed on the Architectural and Transportation Barriers Compliance Board (1992 Amendments, 504).

Many states have a variety of agencies that offer services to persons with disabilities. The multiple service providers can leave applicants with a bewildering array of decisions and non-decisions about needed services. The 1992 Amendments try to solve this accountability problem by requiring states to promote interagency cooperation, including training of various state agencies' personnel about vocational rehabilitation services, and, if appropriate, establishing interagency working groups and making formal interagency cooperative agreements (1992 Amendments, 122(i)). State plans must address transition from special education to vocational rehabilitation services (1992 Amendments, 121(q)). Coordination of effort at the federal level is addressed by a new Federal Interagency Coordinating Council (1992 Amendments, 508). The fact that coordination remains a problem after so many years of federally supported rehabilitation services may inspire pessimism about the efforts required by the new law; nothing substitutes for direct action by a state governor to cause agencies to coordinate their operations.

Effective October 1993, states must also engage in strategic planning, writing a plan for a three-year period with input from the Advisory Council and other sources. This plan will need to contain a mission statement, goals and objectives for expanding and improving the vocational rehabilitation program, means to accomplish the objectives, descriptions of specific programs, projects, and activities funded by innovation and expansion grants, and criteria for determining whether the objectives of the strategic plan have been achieved (1992 Amendments, 134(a)).

Procedural Regularity

Congress has recognized that a problem exists with protracted periods of determination of eligibility (Senate Report, p. 8). Accordingly, the 1992 Amendments impose a time limit of 60 days after application for the state vocational rehabilitation services agency to make a determination of the applicant's eligibility. The only exceptions are when the agency notifies the applicant of exceptional and unforeseen circumstances beyond the control of the agency, and the applicant agrees to extend the time, or when extended evaluation is required (1992 Amendments, 123(a)). The 1992 Amendments facilitate state agencies' compliance with the deadline by requiring them to use Social Security disability determinations and other existing information about applicants' conditions to the maximum extent appropriate (1992 Amendments, 122(g)). This new requirement will have a dramatic effect on the standard operating procedure of many rehabilitation services programs, which are now accustomed to waiting for full medical and other reports before beginning services for a client.

The 1992 Amendments also aid prompt delivery of services by permitting waiver of the requirement that comparable services and benefits be exhausted when a job placement would be lost due to delay in obtaining the benefits (1992 Amendments, 122(f)). As under previous law, state agencies must afford applicants denied eligibility a statement of the reasons for the determination and of the rights to challenge the decision, including the availability of services from the Client Assistance Program (1992 Amendments. 123(a)).

New requirements have been adopted for the persons who decide appeals of decisions on vocational rehabilitation services. Impartial hearing officers are to be chosen either randomly or by agreement of the director of the state agency and the individual with a disability from a pool of qualified persons identified jointly by the agency and the members of the State Rehabilitation Advisory Council or a comparable commission (1992 Amendments, 124(d)). The hearing officers must not be employees of a public agency (other than administrative law judges, hearing examiners, or employees of institutions of higher education), nor may they be members of the State Rehabilitation Advisory Council, nor persons involved in previous decisions about the vocational rehabilitation of the individual with disabilities, nor persons with any other conflict of interest. Payment for serving as a hearing officer does not make the hearing officers agency employees. Hearing officers must be knowledgeable about delivery of vocational rehabilitation services, the state plan, and applicable federal and state rules (1992 Amendments, 102(n)). They are to receive formal training, with Congress encouraging the use of a broad range of individuals in the training program. Training should cover the conduct of fair hearings, legal standards, and weighing of evidence (Senate Report, p. 20).

The impartiality requirement is to be construed broadly. Congress gave the example of a principal in a private entity that contracts with the state agency, saying this person should not serve as a hearing officer (Senate Report, p. 20). Courts might be expected to construe the new impartiality requirement by analogy to the hearing officer impartiality provisions of the Individuals with Disabilities Education Act (IDEA). A variety of precedent exists under that law. In Mayson v. Teague (1984), a federal court of appeals found a state hearing system for IDEA cases to be insufficiently impartial. The court ruled that officials of school districts other than the one involved in the hearing, and state university personnel involved in formulating special education policies could not serve as hearing officers. Another court, however, has ruled that state university personnel in general are not disqualified from serving as hearing officers by virtue of being employees of the state department of education (Silvio v. Commonwealth, 1983). A federal appeals court has held that the state superintendent of public instruction may not serve as a hearing officer, reasoning that the state board of education has indirect involvement in the education of every child with disabilities in the state (Robert M. v. Benton. 1980). Another United States Court of Appeals has ruled that a hearing officer selection system in which the school board's attorney recommended the officer to the school board, which then selected him, violated IDEA (Heldman v. Sobol, 1992). One court applied general principles in favor of preserving hearing officer impartiality to strike the decision of a hearing officer who engaged in contact with a witness before the hearing (Hollenbeck v. Board of Educ., 1988).

The director of the state agency may overturn the impartial hearing officer's decision, but only based on clear and convincing evidence that the decision is clearly erroneous on the basis of being contrary to Federal or State law, including policy (1992 Amendments, 123(d)(2)). This standard blends concepts used in evaluating factual issues and legal ones. "Clearly erroneous" is the standard used by federal appellate courts in reviewing fact determinations of federal trial judges (Federal Rules of Civil Procedure). Decisions of the lower courts may also be reversed because they are contrary to law. The practical meaning of the 1992 Amendments' combination of the factual and legal standards will need to be worked out in case-by-case adjudication.

The state agency is forbidden from cutting off or reducing services pending the final decision by the director unless the receipt of services is due to misrepresentation, fraud, collusion, or criminal conduct by the person with a disability (1992 Amendments, 123(d)(4)). Although this provision does not apply during the pendency of an appeal to the courts, the courts may exercise their own powers enjoin a state agency from changing the status quo (Senate Report, p. 42).

Client Assistance Programs have an important role in maintaining procedural regularity and fairness in the vocational rehabilitation services program. The 1992 Amendments direct Client Assistance Programs to include in their activities "individual and systemic advocacy," as well as the provision of information about rehabilitation services and ADA protections to persons with disabilities in the state, especially minorities (133). Independence of the Client Assistance Program agencies is also increased. Any Client Assistance Program agency that has its duties taken away by agency redesignation has new rights to challenge the governor's action (1992 Amendments, 133(b)) identical to those enjoyed by protection and advocacy agencies under other laws.

Among numerous other changes to the "Rights and Advocacy" title of the Rehabilitation Act are provisions conforming disability discrimination definitions for federal government, federal contractors, and federal grantees to ADA standards (1992 Amendments, 503, 505-506). Several Senators commented that unchanged portions of the Rights and Advocacy title create a private right of action for individuals to sue federal agencies for disability discrimination, a subject of conflicting judicial determinations (Congressional Record, pp. S16609 (remarks of Sen. Jeffords), S16611 (remarks of Sen. Harkin), S16613 (remarks of Sen. Kennedy), Oct. 5, 1992).

Client participation

Representative Owens commented: "With the advent of the Americans with Disabilities Act of 1990, we are in a pivotal position to advance the cause of consumer empowerment and to facilitate and maximize opportunities for individuals with disabilities to have control and authority over their lives. (Congressional Record, p. H7785, Aug. 10, 1992). Witnesses before the Senate stressed the need to support clients' choices of training, work, and career aspirations (Senate Report, p. 10).

The 1992 Amendments seek to respond to these concerns by increasing client choice of employment objectives, providers and services. The Individualized Written Rehabilitation Plan provisions include, for example, a requirement that the client state in his or her own words how the individual was informed of and involved in choosing among alternative goals, objectives, services, service providers and methods of providing or procuring services. When appropriate, a family member or other authorized representative may make the statement (1992 Amendments, 123(b)). New regulations are to address the selection of rehabilitation services, including the delivery of services in integrated settings, and assistance for providing information about available services, particularly to clients with cognitive disabilities (1992 Amendments, 105(b)). The Commissioner has already solicited comments from the public as part of the process of formulating proposed regulations on this topic (Federal Register, Feb. 16, 1993). Final rules for demonstration projects to increase client choice were published July 29, 1993 (Federal Register, p. 40706).

The increase in individual choice is matched by an increase in the collective power of persons with disabilities in the operation of rehabilitation services programs. Of greatest significance among the Amendments' changes in the collective role of persons with disabilities is the sharing of power between the State Independent Living Council and the state agency receiving funding for independent living services. This innovation, discussed above, gives an entity composed of a majority of persons with disabilities actual control of a crucial rehabilitation services program.

Rehabilitation services clients and other persons with disabilities will have additional ability to affect state programmatic choices by participating in the newly-mandated State Rehabilitation Advisory Council (1992 Amendments, 126(a)). The majority of the Council must be individuals with disabilities and must not be employees of the state vocational rehabilitation services agency. The 1992 Amendments also make revisions in the nomination process for, and the duties of, the National Council on Disability (1992 Amendments, 401-06). While providing advice about scope of services and other topics, the Council is also to give assistance on the state plan, the strategic plan, and other documents. It is to monitor consumer satisfaction and prepare and submit an annual report to the governor. The Council will also provide advice for the state agency's determinations about order of selection and its definition of the term "individuals with the most severe disabilities" (Senate Report, p. 28). The enhanced role of the Council could have an important, though perhaps somewhat unpredictable, effect on funding availability for programs providing services to different populations. Newly proposed regulations on order of selection for service will also have an impact of unpredictable scope (Federal Register, July 16, 1993, p. 38482).

Conclusion

The 1992 Amendments to the Rehabilitation Act make a wide range of changes designed to enhance access, accountability, procedural regularity, and client participation. These revisions are a response to perceived weaknesses in existing programs and an effort to accomplish goals, such as genuine client participation in choice of services, that might once have been thought too difficult to achieve. In part, they also represent the predictable extension of such modern trends in human services delivery as formal program review and client empowerment measures. Some provisions are highly likely to meet their goals, such as those designed to give more services to individuals whose disabilities are more severe. Others will meet their immediate objectives, though they may have more difficulty reaching their ultimate goals. An example would be the state interagency coordination provisions, which will likely yield more formal interagency agreements, but may not achieve integrated, timely services. Some changes with the best of goals will have highly unpredictable results, such as the ambiguous provisions on state review of independent heating decisions and the ambitious enhancements of the role of persons with disabilities in the independent living services program.

References

Afford v. Illinois Department of Rehabilitation Services, No. 83 C 9301 (N.D. Ill., Consent Decree, June 29, 1984)

Americans with Disabilities Act of 1990, as amended, 42 U.S.C.A. 12101-12213 (West Supp. 1993).

Barak, R. Brier, B. (1990). Successful Program Review. San Francisco: Jossey-Bass.

Congressional Record. (1992) 138 (daily ed.).

Federal Register. (1993) 58.

Federal Rules of Civil Procedure, Rule 52(a).

Heldman v. Sobol, 962 F.2d 148 (2d Cir. 1992).

Hollenbeck v. Board of Educ., 699 F. Supp. 658 (N.D. Ill. 1988).

Individuals with Disabilities Education Act of 1990, as amended, 20 U.S.C.A. 1400-1485) (West 1990 & Supp. 1993).

Leung, P. (1990). Editor's comment. Journal of Rehabilitation, 56(1), p. 5.

Leung, P. (1993). Minorities with disabilities and the Americans with Disabilities Act: A promise yet to be fulfilled. Journal of Rehabilitation Administration, 17(3), pp. 92-98.

Mayson v. Teague, 749 F.2d 652 (11th Cir. 1984).

Rehabilitation Act Amendments of 1992, Pub. L. 102-569, codified in scattered sections of 29 U.S.C.A. 701-797b (West Supp. 1993).

Rehabilitation Act Amendments of 1993, Pub. L. 103-37.

Robert M. v. Benton, 634 F.2d 1139 (8th Cir. 1980).

Sen. Rep. No. 357, 102d Cong. 2d Sess. (1992).

Silvio v. Commonwealth, 439 A.2d 893 (Pa. Commw.), aff'd, 456 A.2d 1366 (Pa. 1983) (per curiam).

Solomon, M. (1993). Is the ADA "accessible" to people with disabilities? Journal of Rehabilitation Administration, 17(3), pp. 109-117.