June 26, 1992 The Honorable Major R. Owens Chairman, Subcommittee on Select Education U.S. House of Representatives Washington, D.C. 20515 Dear Mr. Chairman: The recommendations on the attached sheets regarding the draft of the bill to reauthorize the Rehabilitation Act were among the recommendations previously made to both Majority and Minority staffpersons at a meeting convened by your staff last week. The Council of State Administrators of Vocational Rehabilitation is concerned that amendments made to the Rehabilitation Act will assist, in practice as well as in intent, our efforts in placing more persons with disabilities into gainful employment leading to living independently. There has been a 33 percent decrease in the number of individuals with disabilities rehabilitated and placed in employment between 1975 and 1990. Further, our concerns are based in part on the fact that the number of persons served in the Federal-State Rehabilitation Program has experienced a 25 percent decline in those same 15 years. It is vital that very limited resources not, at this critical time, be moved from service delivery to additional bureaucratic mandates and onerous additional accountability in a well-meaning effort to assure that the purposes of the Act are being met. The Council has provided herewith our major concerns and has previously made other recommendations to your staff. We continue to stand ready to assist in this important endeavor and to respond to any questions you or your staff may have. Sincerely, Jack G. Duncan General Counsel COUNCIL OF STATE ADMINISTRATORS OF VOCATIONAL REHABILITATION SUGGESTIONS REGARDING DRAFT HOUSE BILL TO REAUTHORIZE THE REHABILITATION ACT Pages 17 and 20: TITLE OF REHABILITATION ACT We recommend that the title of the Rehabilitation Act of 1973 not be changed. However, if the title is to be changed, we recommend that "Vocational Rehabilitation Employment" precede the term "Independent Living," for Vocational Rehabilitation and manpower training and placement in competitive employment continues to be the cornerstone and major purpose of the Act. If the title is to be changed, we strongly recommend that it read "Vocational Rehabilitation Employment and Independent Living Act of 1992". Page 21: "REDIRECT" SERVICES TO CAREERS We take issue with the term, "redirect", when used to describe the recognition of career choices of persons with disabilities by traditional rehabilitation services. There is ample evidence that careers have been and continue to be the focus of the Vocational Rehabilitation program, and that the consumer's career choice has been an essential part of the "joint development" of the IWRP. We recommend substituting the term, "direct" for the term, "redirect". Page 22: APPOINTMENT OF THE RSA COMMISSIONER We oppose any diminution of the authority of the Commissioner of the Rehabilitation Services Administration. The deletion of the phrase, "by and with the advice and consent of the Senate" diminishes the authority, visibility, and stature of this important office. We recommend retaining the phrase, "by and with the advice and consent of the Senate." for the Presidential appointment of the RSA Commissioner. Page 24: REHABILITATION POTENTIAL We are concerned with the change of the term "rehabilitation potential" to "rehabilitation needs." This simple wording change would result in a significant change in the philosophy for the Vocational Rehabilitation Program. There is a vast difference between the evaluation of a person's needs (what is required) and a person's potential (one's talents and prospects). We recommend retaining the term, "rehabilitation potential". Page 29: EMPLOYMENT OUTCOME We believe the term, and the definition for the term, "successful outcome" would result in a diminution of the employment goals of the Rehabilitation Program. The term, should it be changed should read, "successful EMPLOYMENT goals," and the definition should not include the plurality of goals and outcomes, but include only "a minimum of 60 days of successful employment." Page 33: REPORTS The CSAVR agrees on the need for timely and vital information, in spite of the fact that the Office of Management and Budget and the Administration did not require important program statistics, the CSAVR has continued to collect data on certain of the Rehabilitation Programs. However, the addition of so many data elements to the report by the Commissioner to Congress would result in the additional expenditure of very scarce client service resources in the collection of data to be used only for research purposes. The collection of three years of employment and other data, in particular, would cause a major administrative overload, would further prolong eligibility determinations, and would divert resources from direct service delivery to persons with disabilities. We recommend the deletion of the additional requirements for data elements to be reported by the RSA Commissioner. Page 34: EVALUATION BY THE COMMISSIONER The "Commissioner" would be replaced by the "Secretary" as the person responsible for the evaluation of programs under the Act. This would greatly diminish the authority of the Commissioner, who (in Section 3 of the Act) is the appointee with "substantial experience in rehabilitation and in rehabilitation program management". Evaluation of programs under the Rehabilitation Act is an essential function of the Commissioner, and must not be taken away. We recommend that the term, "Commissioner" not be deleted. Pages 35 and 74: PURPOSE OF VOCATIONAL REHABILITATION It is important that the purpose statement for Title I further strengthen the focus on employment. The draft bill would blur this focus by adding "and independent living." as one of the purposes of the Program. We strongly recommend that, in lieu of draft language, the following be added, "leading to living independently" on pages 35 and 74. Page 50: ELIGIBILITY FOR VOCATIONAL REHABILITATION We have major difficulties with a number of clauses in the description of eligibility for Vocational Rehabilitation services in the draft bill. We do not believe it appropriate that every person with a disability under the Individuals with Disabilities Education Act should be determined to be eligible for Vocational Rehabilitation services, or regarded as an individual with a "severe" disability. While the "Determinations" made by other agencies ought not to be used in the determination of eligibility for Vocational Rehabilitation services, the medical records and other documentation used by other agencies may and should be used in this determination of eligibility. The phrase, "demonstrate unequivocally beyond a reasonable doubt" is a term most often used in criminal proceedings. It should not be used in a determination of eligibility. We recommend: (1) deleting the phrase, "or as determined pursuant to the Individuals with Disabilities Education Act"; (2) substituting the term, "documentation supporting determinations made by other agencies" for the term, "determinations made by other agencies; and (3) substituting the term, "document with clear and convincing evidence" for the term, "demonstrate unequivocally beyond a reasonable doubt with clear and convincing evidence". Page 53: FINAL DECISION BY IMPARTIAL HEARING OFFICER We believe it to be questionable public policy for an Impartial Hearing Officer to make "final" decisions. The Director, who is the accountable agent for the expenditure of public tax dollars, should have the authority to overturn or modify an Impartial Hearing Officer's decision in instances where that decision is contrary to the interests of the individual with a disability, where the decision misapplies the evidence, or where the decision is wrong on other grounds. This proposal to prohibit the Director from overturning such decisions is addressing a problem which does not, in reality, exist. Nationwide, very few decisions by Impartial Hearing Officers have been overturned or modified, and most of those changes have been in favor of the person with a disability. We recommend that paragraphs (3)(B) and (3)(C) on page 53 remain intact, and that paragraphs (C) and (D) not be added. Pages 63 - 65: STATE CONSUMER AND BUSINESS ADVISORY COUNCIL We strongly support the concept of a State Consumer and Business Advisory Council, and support most of the language on pages 63-65 of the draft bill. We suggest, however, that a more positive view of the Council be presented with the assumption that it is there to help advocate and advise the State Rehabilitation Agency. It should not be perceived as an adversarial body. Congress should encourage a positive working relationship between service providers and persons with disabilities and not give the impression of, or encouragement to, divisiveness and discord. Should there be disagreements between the Council and the Agency, we believe that there is ample protection through state plan assurances, the annual report, and monitoring by the RSA. As a practical matter, it should be evident that it would not be to the advantage of the State Agency to have major differences with the Council and that the Agency can be expected to make every effort to accommodate the Council's needs. Therefore, we recommend: (1) that the term, "advising the designated State unit" be substituted for "overseeing the operation of the designated State unit" on page 63; (2) that the terms, "review" and "analyze" be deleted from page 65; (3) that the Council be appointed by the State Agency Director after conducting a highly publicized open nominations process in paragraph (3) on page 64; (4) that paragraph (5) on page 64 be revised to state only: "The Council chairperson shall be selected from among the membership."; and (5) that paragraph (d) on page 64 be deleted, and that the following be inserted in lieu thereof: "Resources - The State agency shall provide the necessary resources and assistance to carry out the functions of the Council." Page 69: INNOVATION AND EXPANSION GRANTS We support the purpose of Innovation and Expansion Authorities; however, we strongly oppose any earmarking of Section 110 funds, particularly earmarking these funds for something other than direct client services. There has been and should be a separate authorization for appropriation of funds for Innovation and Expansion grants. We strongly recommend that Section 100(b)(2) not be deleted. Pages 77 - 92: NATIONAL INSTITUTE ON DISABILITY AND REHABILITATION RESEARCH The NIDRR was created out of the research authority of the Rehabilitation Services Administration. However, in trying to meet the great research needs in the disability community, the NIDRR has failed to meet even the basic needs of adults with disabilities. That the NIDRR has failed to address the needs of Vocational Rehabilitation, which comprises 50 percent of the resources in the OSERS, has been clearly documented. While we recognize that the needs for research in the disability field are great, it would appear that a priority would necessarily be recognized to support this major program, Vocational Rehabilitation. One would think that since the NIDRR is authorized under this Act, such a mandate would be unnecessary. However, efforts to correct the imbalance have yielded little beyond promises. Therefore, we strongly recommend that Congress explicitly mandate that the NIDRR provide particular attention to the needs of programs funded under the Act, particularly the needs of adults with disabilities served by the Vocational Rehabilitation program. Page 122: CLOSURE DEMONSTRATION The demonstration project considering anything other than employment as "program outcomes" would violate the intent of the Vocational Rehabilitation program and reflects a lowering of expectations for persons with disabilities. If, as the draft bill states earlier, all persons with disabilities are presumed to be employable, it appears inconsistent to then fund and encourage projects which appear to reject that concept. We strongly recommend the deletion of this demonstration authority. Pages 123 - 127: NATIONAL COMMISSION ON REHABILITATION SERVICES We see no need for a Commission to study programs authorized under the Rehabilitation Act. The duties of the National Council on Disability include the review of, and recommendations concerning, these programs. The Client Assistance Programs, the State Independent Living Councils, and the State Consumer and Business Advisory Councils also have, or would have, responsibilities in this area. We strongly recommend deletion of pages 123 - 127. Pages 186 - 189: INDEPENDENT LIVING COUNCILS Many of our suggestions regarding the State Consumer and Business Advisory Councils are applicable to the changes which would be made to the State Independent Living Councils. Requiring the "Governor" to appoint members of the Council would impose significant time delays to such appointments, and could result in the appointment of "politically selected" individuals with disabilities to the Council. We do not believe the Council should "prepare" its own "budget", as this would lead to a significant increase in administrative costs, and a further decrease in scarce resources for client service delivery, from Title I. We recommend that the members of the State Independent Living Council be appointed by the State Agency Director after conducting a highly publicized open nominations process. We recommend that paragraph 7, on pages 186 and 187, be revised to state only: "The Council chairperson shall be selected from among the membership." We recommend that the section on "Management Authority" on page 188 be deleted, and that the following be inserted in lieu thereof: "Resources - The State Agency shall provide the necessary resources and assistance to carry out the functions of the Council." Pages 169 - 200: TITLE VII We strongly recommend that Part A services be retained intact, so as not to dismantle the National Service Delivery Program of Independent Living. We also recommend that designated State units be eligible to apply for Independent Living Centers. We believe these recommendations are included in the draft House bill, and wish to express our support for these aspects of the bill. Pages 198 - 200: OLDER BLIND INDIVIDUALS PROGRAM We support and are pleased to see provisions creating a nationwide service delivery program for Older Blind Individuals. It is vital that this program have authorizations for appropriations adequate for the establishment of a program in each State.