Vol. 5, No. 1 Jan/Feb 1997	Previous Issues Subscribe to AT Messenger Download PDF Viewer
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Financing Assistive Technology

Vocational Rehabilitation: Interagency Options and Responsibilities

Ron Sibert, DATI Funding Specialist

The State Division of Vocational Rehabilitation (VR) is an important AT funding source for working-age adults with disabilities. However, individuals with disabilities often receive services from more than one agency, and the issue of which one is responsible for the purchase/provision of AT is not always clear. For example, students with disabilities who are transitioning from school to the working world or who are in college pose particular challenges in determining which service provider pays for what and when. The November issue of the AT Advocate, the newsletter of the National Assistive Technology Advocacy Project, examines this issue from a legal standpoint. It discusses how VR agencies are supposed to treat AT, and whether or under what circumstances other funding sources should be brought to bear. Central to the issue is the notion of a "comparable benefits" requirement, which is the VR's federally mandated practice of seeking other payers before committing its own funds. The AT Advocate gives the following explanation.

VR agencies are the payer of last resort for many services. This means they will not pay for a service if a similar benefit is available through some other agency or program. 29 U.S.C. ß 721(a) (8).

For example, if an applicant qualifies for personal assistance services through Medicaid, the VR agency will not provide those services. By contrast, the VR agency cannot deny payment for college tuition because an individual could obtain student loans. Student loans, which must be repaid, are not similar benefits Additionally, a person does not have to exhaust similar benefits if the application process for the similar benefit would delay services to an individual at extreme medical risk; if an immediate job placement would be lost due to delay; or if rehabilitation technology, (i.e., AT) is involved. 29 U.S.C.ßß 721(a)(8), 723(a)(12);34 C.F.R. ß 361.47(b)(2)(v).

AT, then, is exempt from the VR's comparable benefits search requirement. While the Agency may not be restricted entirely from seeking or making use of alternative AT funding sources, the search should never delay the provision of AT.

Two applications of this requirement warrant further discussion. The first involves the interplay between a public school's obligation to provide a free appropriate public education under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. ß 1400, et seq., and the VR agency's responsibilities in the transition process. The second involves the interplay between a college or university's obligation to provide auxiliary aids and services under either Section 504 of the Rehabilitation Act, 29 U.S.C. ß 794, or the Americans with Disabilities Act (ADA), 42 U.S.C. ß 12101 et seq., and the VR agency's obligation to provide those services.

Purchase of AT for Students in Transition: Who pays?

IDEA requires that school districts include a transition plan to aid in the student's move to adult life in the Individualized Education Program (IEP) by the time s/he is 16 years of age. 34 CFR ß 361.31(a)(1). Of course the picture becomes more complex when the student is an AT user.

Where AT is involved, this can be a significant problem. As we noted in the August 1996 issue of the AT Advocate, schools do not normally consider AT devices purchased to ensure an appropriate education to be the student's property. If the AT device will also be essential for college or employment, an appropriate part of the transition plan should utilize VR agency funding to obtain AT for the student who is aging out of the special education system. Significant delays will result if the VR process does not begin until after a student leaves school It also makes little fiscal sense for a school to provide AT, merely to be surrendered upon graduation with the student then seeking another device from the VR agency.

Delaware's Department of Public Instruction (DPI) and Division of Vocational Rehabilitation (DVR) have a legally required interagency agreement that is supposed to address various transition-related issues. The two agencies are now in the process of revising that agreement, but how transitioning students can maintain access to school-purchased AT that they continue to need after graduation remains problematic. State policies regulating the purchase or disposal of public-financed equipment are at the heart of the problem. When equipment is purchased by the Local Education Agency (LEA) to meet IEP requirements, the equipment belongs to the LEA. So when the student graduates, state policies require the LEA to either retain the equipment, or to turn it over to a central pool for disposal/resale. Of course, in this instance, the most efficient and cost-effective solution might be a direct interagency transfer/purchase transaction. However, problems involving price determination and equipment disposal policies pose significant barriers to realizing that outcome. Even so, the outlook is hopeful. Delaware's Tech Act and Protection and Advocacy organizations are currently examining ways of removing those barriers, and related communication with the state agencies has already begun.

Nonetheless, there still may be some confusion around the issue of comparable benefits when the school is perceived as having primary responsibility for providing AT. This is a concern for educational institutions at all levels. The AT Advocate article makes several observations in that regard.

What is the VR agency's responsibility under these circumstances? One possible resolution of this dilemma is to remember that rehabilitation technology is exempt from the comparable benefit requirement. Moreover, in those cases where the student is not the owner of the AT device, its purchase by the school should not be viewed as a comparable benefit. Finally the regulations contemplate the provision of VR services to special education students and require coordination between the IWRP and the IEP. 34 C.F.R. ß 361.41(c).

AT for the College Student: Who Pays?

The issue of comparable benefits has been raised in the higher education arena as well. Colleges and universities are required by the ADA and Section 504 to provide AT to certain college students with disabilities. That responsibility is sometimes interpreted by VR agencies as a comparable benefit. However, Section 504 regulations indicate such interpretation is not appropriate and that they should in fact act as a resource for the schools.

...Section 504 regulations governing colleges indicate that the [U.S.] Department of Education envisioned that colleges could normally meet their obligation to provide auxiliary aids by assisting students in using existing resources for auxiliary aids such as state vocational rehabilitation agencies and private charitable organizations. Indeed, the Department anticipates that the bulk of auxiliary aids will be paid for by state and private agencies, not by colleges or universities." 34 C.F.R. Part 104, App. A, note 31, at 435 (1992) (emphasis added). The purpose of these comments was to highlight that the provision of auxiliary aids [was not intended to] be an undue burden on the colleges. See, U.S. v. Board of Trustees for U. of Ala., 908 F.2d 740, 745 (11th Cir. 1990).

Addressing this question relative to Section 504, the Seventh Circuit held that the state VR agency has the primary responsibility to provide auxiliary aids in the form of interpreter services. Jones v. Illinois Dept. of Rehabilitation services, 689 F.2d 724 (7th Cir. 1982). In dicta, the court also noted its approval of the district court's opinion that the similar benefits requirement did not even apply to colleges or universities. Id. at fn. 6. In Schornstein v. N.J. Div. of Voc. Rehab., 519 F. Supp. 773 (D. N.J. 1981), aff'd, 688 f.2d 824 (3d Cir. 1982), the court held that the VR agency's policy of refusing to provide interpreter services to college students violated Title I of the Rehabilitation Act.

The regulations under Section 504 exempt colleges from providing auxiliary aids and services for personal use or study. 34 C.F.R. ß 104.44(d)(2). The relevant ADA regulations also exempt personal devices and services. 28 C.F.R. ßß 35.135 and 36.306. Therefore, if a college is under no obligation to provide AT in such circumstances, there is no comparable benefit. Finally, as noted above, AT (rehabilitation technology) is exempt from the comparable benefit requirement. The Department of Education's Rehabilitation Services Administration is preparing a policy on the VR agency's role in providing auxiliary aids for college students. See "Several Vocational Agencies Stop Paying For Auxiliary Aids," Section 504 Compliance Handbook, Supp. No. 213, p. 1 (Thompson Publishing Group, August 1996).

Please note that the above passages should not be interpreted to mean that educational institutions are released from their obligations under the ADA and Section 504. They are included to clarify vocational rehabilitation agencies' AT- and interagency-related responsibilities, and the correct application of comparable benefits.