As good as it gets!!!

Analysis by Jane E. Jarrow, Ph.D.
Disability Access Information and Support

It is time for the higher education disability community to celebrate a quiet victory in the recent battle over language proposed for the Reauthorization of the Vocational Rehabilitation Act. There was confirmation today, June 24, that the congressional staff working on the bill have agreed on compromise language which addresses the concerns raised by the postsecondary community. The language is expected to be adopted as part of the conference report when the Members of the Joint Conference Committee meet after the July 4th recess.

Specific Changes

The compromise language will apparently mean the removal of one statement and the insertion of another. They plan to strike the language proposed under Sec. 101(8)(B)(i) — AGENCY FINANCIAL RESPONSIBILITY — that would have designated the State agency (VR) as the “last dollar” in funding services, especially auxiliary aids and services. Instead, specific mention of the other state agencies who are stakeholders in the provision of vocational rehabilitation services (including “public institutions of higher education”) has been added to the language in Section 101(8)(B) — Interagency Agreement. As the provision will now read, all of the relevant state agencies must come together under the auspices of the Governor to map out a plan for the delivery of service and the assignment of (financial) responsibility.

How Does This Address Our Concerns?

Financial Responsibility. The originally proposed language would have reversed the long-standing precedent (established with Jones v. Illinois Department of Rehabilitation Services) that mandated the VR system to pay for auxiliary aids and services for their clients in higher education, while institutions of higher education were given the responsibility of assuring the availability of such service for student who were not VR clients. Instead, by law, institutions of higher education would have been responsible for the provision of auxiliary aids and services for all students, including those who were clients of the VR system. The revised language does not reverse the historical precedent, but it may nullify it. That court decision was based on language included in the 1973 Reauthorization of the Vocational Rehabilitation Act; the change in language means that the precedent is no longer binding because the law on which it was established has changed. On the other hand… this new language also nullifies the argument put forth by a number of state VR agencies that suggests that responsibility for provision of such services is assigned to colleges and universities by the ADA. Instead, the determination of who is responsible for what is to be made on a state-by-state basis, starting now, and by legal mandate the higher education community will have a place at that negotiating table!

This new language, and the requirement for interagency cooperation and agreement, may be a huge step forward in resolving the tense situation that has existed between the VR agencies and the postsecondary community over the past several years. Institutions and state systems of higher education that have a good working relationship with their state VR agency can reasonably expect that cooperation to be continued. Institutions that have had long standing contracts with their state VR agencies to deliver services to VR clients (including those instances in which such contracts have recently been threatened or withdrawn) should find this language gives fresh hope for continuing and/or renewed arrangements. Institutions who have seen the state VR agency withdraw completely from support of postsecondary clients in recent years will now have an opportunity to redefine roles and responsibilities under the direction of state government. And IF the powers-that-be in state government decide that the state will require higher education (rather than VR) to shoulder such responsibilities, then at least the higher education community will be in a position to say, “Fine. If the State is specifically assigning us the responsibility of meeting the State‚Äôs requirement for services and access, then what money is the State going to provide to the institutions to assist in this obligation?”

There may also be the possibility of a place at that “bargaining table” for private institutions. Elsewhere within the Reauthorization there is language that suggests that appropriate vocational rehabilitation services are to be provided by state agencies unless it is determined that non-state sources can better serve the needs of a specific individual or population, in which case the State is empowered to negotiate for those services with the non-state agency. If the vocational rehabilitation counselor agrees that a student should attend a private, rather than public, institution (that is, the counselor agrees to pay tuition and support for a student attending a private institution) it would seem to suggest that there has been a determination that a non-state agency is best suited to meet the training/education needs of this student. With this assumption in mind, it could be argued that the state VR agency is obligated under the state plan to negotiate with the non-state institution regarding roles/responsibilities in providing for the vocational rehabilitation needs of this client. (NOTE: The term “non-state” has been used several times in this paragraph, as opposed to talking about “private” institutions) because it may be important to draw the distinction between those agencies that are part of the state system and those entities that are not part of THAT state system. One of the fine points that must be resolved is how this new state-by-state agreement will impact on students sent by one state VR agency to an institution in another state.)

Threat to Autonomy. As we began this battle 10 days ago, it appeared that the greater threat might come from language in the reimbursement section of the State plan (Section 101 (8) (C)) that empowered state VR agencies to determine what services would be provided to their clients by other state agencies and to compel those agencies to either provide the service or to pay for the service provided by the VR agency. While there has been no change in the language of this section, there is room for quiet optimism as a result of the changes discussed above.

This reimbursement language all centers around state agencies fulfilling their financial responsibility to the provision of vocational rehabilitation services (emphasis added). Under the originally proposed language, assigning financial responsibility first to the institutions, this might have precipitated dramatic encroachment on the activities — and budgets! — of postsecondary institutions. However, based on the changes wrought in the Interagency Agreement and Financial Responsibility sections of the bill, currently neither VR nor the higher education community have any financial responsibility for such services — both sides start with a clean slate when they sit down at the table to talk. The first job of the postsecondary community will be to prepare adequately and be represented in those negotiating sessions by people who understand what is at stake. More importantly, a narrow interpretation of the reimbursement language is much less threatening to the higher education community — we just have to make sure it gets interpreted narrowly! The reference is specifically to vocational rehabilitation services. Many of the services and supports we provide to students at the postsecondary level are not provided for purposes of rehabilitation, but rather for purposes of assuring access. We have to make sure that we sort out those pieces in determining not only what rehabilitation services are to be delivered and by whom, but also what services lie outside the realm of one side or the other. As part of the state plan, responsibility must be assigned for services that overlap, such as interpreters and materials in alternate media. On the other hand, personal care attendants are a vocational rehabilitation service but clearly not an institutional responsibility; scribes and proctors for tests are clearly an institutional responsibility because they are necessary for access but are not vocational rehabilitation services.

The word from Washington is that the higher education community was not the target of this reimbursement language, and the people who inserted the language to begin with were adamant about keeping it in place. So long as we do our homework, prepare our case, and are as persuasive in our arguments at the state level as we have been at the federal level, we should be alright!

This is as good as it gets!!!