[rehab] Introduction and some questions

[Tamara Smith-Kinney]

Michael,

Thank you so much for taking the time to provide such a complete and
informative answer.  I was aware of some of the overarching political
shenanigans, if in a generalized way.  I had some dark suspicions about
others.  Then there were the bits I hadn't heard of which inspired me to
shout, "OMG!  It's worse than I thought!" /grim smile/

In formulating my questions, I was purposely vague as to details because I
wanted to clarify my understanding of the law and what is required of the
agency in case I somehow had it wrong.  Also, I'm trying to come up with
some idea of what I can expect from my meeting with the new counselor on
Thursday, as well as trying to figure out what I can reasonably ask for at
this time in terms of VR services -- mostly adaptive tech.  It would appear
from what you have told me that my suspicions the answer there is "not much"
are correct.  Sigh.  So far, my relationship with them has ended up costing
me an awful lot; now that I've nearly gotten myself back to health, it would
be nice to have some financial assistance in getting the adaptive tech I
need to earn some income.

I do not know if my state has declared OOS, but I will be finding that out
first thing tomorrow!  If we are under OOS, this still does not settle the
question of the agency's responsibility in providing accurate information to
the client and why all of their publications, in addition to their spoken
communications, say they behave in certain ways when they do not.  Still
vague, I know, but adding details to clarify would get long, tedious and
confusing.  You would have the feeling there was something crazy in there
somewhere, which would be absolutely correct.  I have on good -- not to
mention highly educated, credentialed and paid -- authority that it is not
me.  Except for the PTSD after the situation which created the injuries
which left me physically disabled until I was able to pull together the
resources to pay for the treatment I needed to recover.  My travels through
CAP have been educational, yet fruitless, I'm afraid.  I did not go through
the administrative hearing because I simply needed to put my time and effort
into recovering, and it did not appear it would change anything except for
creating a new agreement for the agency to break.  It is very obvious that
they are accustomed to doing so with impunity; when I attempt to discuss the
matter with my counselor -- or with her boss when it is obvious she is
interfering again -- the most noteworthy reaction I get from them appears to
be genuine shock.  Followed by outright hostility.  The reaction to my use
of the words "informed choice" in one conversation was quite overdone, I
thought.  Well, now I'm getting to involved in blaterhing my *very* biased
opinion.

I have some very definite opinions about the concept of OOS and how it
appears to be applied, especially in a VR setting, but they involve a lot of
language many people consider unacceptable in a public forum.  /smile/  The
"easy to place" will cost less in the long run and be more likely to pay
into the system in taxes and in contributing to the economy as a whole, ya
know?  Not only leaving more but providing more for those who need more.
Ensuring that we become dependent on the social safety net (as they like to
call it, jokingly) to survive means we take more of those public resources
than they would have spent on keeping us working. Bah!

I may have more detailed, specific questions in the near future, depending
on how this meeting goes.  If the counselor gives me straightforward answers
and accurate information, that will be a big improvement, even if none if it
is what I want to hear.  If the discussion starts to follow the usual
patterns, that will tell me something, too.  Argh!

Thank you again!

Tami Smith-Kinney

-----Original Message-----
From: rehab-bounces at nfbnet.org [mailto:rehab-bounces at nfbnet.org] On Behalf
Of O'Neal, Mike (DSB)
Sent: Tuesday, April 21, 2009 5:39 PM
To: Rehabilitation Counselor Mailing List
Subject: Re: [rehab] Introduction and some questions

Hello Ms. Tami Smith-Kinney,

Answering your questions is both extremely easy and somewhat difficult
at the same time, and here's why.  As a long-time customer you may
already be aware of some of this. 

By federal law and in practice both the letter of the 1973
Rehabilitation Act are to be followed strictly by the state-federal
public partnership rehabilitation agencies, both the general rehab. and
blind service agencies.  By rights federal legislation and federal law
should always trump state law where human rights (civil rights,
disability rights, etc.), are at stake.  In addition, although there
should be some latitude allowed for states regarding policies and how
they regionally prefer to provide services (some states have elected to
have one general agency only while a few also have separate blind
service agencies), all services and service provisions should meet the
spirit of the federal Rehab. Act and should be mostly uniform from state
to state for everyone.  Unfortunately, this does not appear to be the
case.

The oversight organization which monitors, gathers data, strongly
advises, and regulates these state agencies is the Rehabilitation
Services Administration (RSA), a subcabinet level part of the Dept. of
Education.  Until Pres. George W. Bush the President's designated
appointee to be the next RSA Commissioner had to be ratified by
Congress.  This meant that the candidate had to at least appear before
Senate hearings and explain his/her academic qualifications, related
previous career Hx and qualifications, plus personal philosophy about
disability and vocational rehabilitation.   President Bush tried very
hard to push through a reorganization of the RSA which most objective
observers consider was meant to gradually terminate that agency and the
current state-federal public rehabilitation partnership as a whole.  He
closed al the regional offices and laid off most of the RSA employees
including the influential regional directors.  He informed insiders and
most likely his appointed RSA Commissioner that he intended for the RSA
to become a subset of the Dept. of Labor.  The RSA Commissioner then
resigned.  

Congress finally reenacted and funded the 1973 Rehabilitation Act which
had expired for almost a year (imagine the 1964 Civil Rights Act being
allowed to expire by Congress and the President), and a much emasculated
RSA was allowed to remain a sub-department of the Dept. of Education
with its Commissioner now appointed by the Director of Education with no
need to have any professional or personal background in rehabilitation
or to explain his/her personal philosophy regarding disability and the
overall continuing high unemployment rates, especially of blind and
low-vision Americans.  My understanding is that this appointee can now
simply be a political crony or personal friend of the cabinet member who
selected him/her, which may of course, sometimes the case anyway, but at
least under the previous regimen any candidate for that position who
hoped his/her nomination to be confirmed, had to at least bone up
quickly on disability and the Hx of public disability policy in the
United States. 

The other issue is that for whatever reason, in the past, before the RSA
Commissioner could simply be a political appointee, the RSA allowed a
number of states to do odd accounting.
One year a state on the West Coast which begins with the letter "C", was
allowed by the RSA to close 3/4th of their customers counted as
successful employment placements as "Homemakers".  In vocational
rehabilitation (VR) by definition a "Homemaker" is someone who has
received the necessary adaptive skills training and equipment and aids
to daily living at home (ADL) skills that allow another family member to
support the family as the employed breadwinner.  I can't speak for other
counselors but in 14-yrs. I've never closed anyone as a "Homemaker".
This was followed by another state on the East Coast whose name begins
with the letter "N", who did the very same thing at almost the very same
rate.  A state in the mid-South which begins with a "K" and a state in
the Southwest which begins with "N", are allowed to count sheltered
employment in nonintegrated settings as successful competitive
employment outcomes in integrated settings by the RSA.  There was no
penalty or withholding of federal block grant funding for states C and N
who spent all their funds trying to find jobs for their customers,
couldn't so closed them as "Homemakers" anyway, and states "K" and "N"
still get to count their make-work employment for their blind customers
as meeting the RSA's own definition of successful competitive employment
in integrated settings (with mostly non-disabled other workers or
interacting on a regular basis with the general public), which they
obviously do not do.  

So, as a practical matter the intent of the 1973 Rehabilitation Act has
been largely ignored.  In addition the EEOC has reported that under
Pres. George W. Bush the number of federal employees with a disability
of any type has decreased by more than 13%.  The American Bar
Association reported that since the passage of the original 1990 ADA
that fully 80% of the disability cases on appeal that were found to have
some basis of legal merit and made it to the federal court of appeal
level, including the Supreme Court, were lost by persons with
disabilities in favor of mostly large corporations.  In the 16 most
blatant cases WalMart won three times.  Despite all the rhetoric about
compassionate conservatism by some, even many fellow Republicans thought
that the corporate attorneys and corporate HR Depts. had been allowed
too much leeway, and so may Republicans in Congress supported Democratic
party lead efforts to pass the 2008 Americans with Disability Act
Amendment Act (ADAAA) which became law January 1, 2009.   Hopefully, by
educating people with disabilities about their rights and that under the
new law if they are disabled the courts will no longer be able to claim
that a plaintiff is "not disabled enough" but the person who thinks they
have been discriminated against must be able to document that adverse
action by their employer or would be employer and prove that he/she has
been treated unfairly and differently from non-disabled employees or job
applicants, and that he/she can perform the essential tasks of the job
in question and are qualified to fill that job.  In the long run this
should help disabled people and the rehabilitation counselors who assist
them.

Have you heard the term Order of Selection (OOS)?  When state-federal
partnership public rehabilitation agencies do not have sufficient funds
to continue to provide the same level of quality services or when they
cannot attract and retain a sufficient number of staff to provide those
services, or, as often happens, a combination of both; they cannot
simply declare bankruptcy and close their doors.  Their only legal
option at that time is not to begin to ration services but to hold
public hearings and notify everyone that they are going into OOS.  

At one time most of the state-federal partnership public rehabilitation
agencies were in OOS.   In the past and during this current major
economic recession, some state legislatures have passed bills mandating
across the board cuts in all their state agencies.  Recently one Western
state which begins with the letter "U", instead of prioritizing spending
and both houses and the governor reaching a compromise that best
reflected the needs of its citizens plus the values and essential
services for them, along with their governor, abrogated their
responsibility and oath of office and cut every state agency deeply and
across the board.  What this means for state-federal partnership public
rehabilitation agencies who usually receive between 75%-82% block grant
in federal funding is that when the state legislature does not match the
remaining 18%-25% federal funding is cut for each dollar not matched by
exactly the same ratio.  Even a state budget cut of 14% could put most
state-federal partnership public rehabilitation agencies into OOS.  The
operating rules change somewhat under OOS so that the state-federal
partnership public rehabilitation agency must first serve all customers
who are functionally most significantly disabled, then when they are all
served and employed or their cases closed unsuccessfully they can serve
customers in their state who are significantly disabled, and when they
are all served, customers who are disabled and otherwise eligible for VR
services.  New customers who need assistance with job retention are
turned away and most probably lose their employment while disabled
students similarly often are forced to drop out of school, all because
the previous customers with the most significant disabilities must be
all serviced first.  This rule is likely in place so that counselors and
agencies do not skim and only place customers who are the easiest to
place first and park or ignore those who are likely the most difficult
to assist and find jobs for.  

Some of your questions might be answered in light of the above
information.  States have to my mind been allowed excessive leeway in
the past which is in practice an abuse of the 1973 Rehabilitation Act,
an ineffective if not criminal waste of tax payer money, and have a
federal oversight organization with many good people in it who have been
reduced to a single office in Washington, DC with a Commissioner who in
the recent past could be a mere political appointment.  Added to this,
almost until the new President was sworn in, there was absolutely no
enforcement of the ADA with government as an employer being one of the
largest violators and giving corporations like WalMart a green light for
their abuses of their disabled employees.  In addition, Individualized
Plans for Employment (IPEs or rehab. plans), are not strictly contracts
and every state-federal partnership public rehabilitation agency that I
know of has included language in or after the IPE which says something
like:

	This IPE and the services specified herein are subject to funds
being available.

	Funding identified in this IPE and estimated costs are just
that, best estimates at the time 	of signing of projected likely
costs you as a participant may need to achieve your 	career goal, and
as such, there is no set aside account or total balance upon which you
can draw, as it is only a best estimate of services required and their
costs.

	In case of Order of Selection participants with the most
significant functional disabilities 	will need to be served first and
if you do not meet this criteria then your services and 	your IPE
will remain on hold until all such participants have been determined to
be 	adequately served first.


1.  Does agency policy and procedure take precedence over state and
federal
VR law?
No, but possibly due to lack of uniform oversight and of strict
enforcement and of sufficient staff to do this, unfortunately, this may
sometimes prove to be the rule and not the exception.

2.  When an IPE is agreed to by both parties, is the agency required to
follow through on providing the information and resources needed for the
client to fulfill her part?
Generally yes, except in situations where the agency has declared Order
of Selection (OOS) as explained above.

3.  Does the philosophy of informed choice imply any responsibility on
the
part of the agency to have and provide information that is not available
elsewhere, or to know where the client can find that information herself
if
she has not been able to do so without asking the agency?
I would hope so.  Providing adequate information about alternative
resources and referral information is part and parcel of counseling and
guidance, one of the main services any VR counselor should provide,
within reason.  Some customers with co-current disabilities or
contributing disabilities which caused or were the etiology of that
customer's blindness or low-vision such as a traumatic brain injury
(TBI) of any kind (including some forms of seizure disorder, aneurisms,
head wounds, optic nerve atrophy that may have also affected other areas
of the brain, ataxia, concussions, etc., and in some cases mental health
disorders), some specific learning disabilities (LDs), pervasive
developmental delays (DD), all may require more direct guidance and
possibly from the VR counselor than someone who is able to and should be
doing most of his/her own research themselves particularly if he/she has
a professional career goal targeted and is looking at pursuing most
technical and community college, but certainly university undergraduate
and graduate level education.  If I was providing services to a very
able customer who for whatever reason was unwilling or unable to do that
research for him/herself then I would suggest that issue should be fully
explored and addressed satisfactorily before educational services are
pursued any further.

4.  If the client makes a decision based on information received from
the
agency about the agency's procedures, purpose and services, is it the
agency's responsibility to behave according to that information?
To answer your question fairly it would be helpful to have more
background or context.
If the person who provided that information was a newly hired staff
person, a new VR counselor who provided the information to the best of
his/her ability and may have possibly said something inaccurately based
upon his/her prior employment experience at another state blind services
agency or another general rehab. agency in the same sate, or based upon
his/her understanding from just completed masters level education, and
not strictly on that particular agency's way of implementing policy or
procedures; it might not be the agency's, "...responsibility to behave
according to that information."  If the former agency executive director
said something specific to you or lead you to think something would or
would not be done in a certain manner or at a certain time and then this
was contradicted by the newly appointed agency executive director who
had a different take on things, I don't think he/she would feel at all
duty bound to, "...to behave according to that information."  If someone
flatly said something then totally contradicted themselves and you felt
it was important to your services and your career goal, then I would
suggest you think about doing any of the following:
a) Call your VR counselor and schedule a face-to-face meeting with
him/her and lay it all out and explain how you would like to see this
problem resolved
b) Call your VR counselor's supervisor or team leader and do the same as
above.
c) Call the agency statewide vocational rehabilitation services program
manager or assistant director and request to do the same as above.
d) Call your VR counselor and let him/her know that you intend to speak
with your nearest Client Assistance Program (CAP) and do the same as
above then work with them to help resolve the situation to your
satisfaction.
e. Within 20-60-days (depends upon your local state law) contact and
request an Impartial or Fair Hearing via your state's Office of
Administrative Hearings and spell out the problem.  Most states require
that not only the agency executive director be notified but also the
governor.  This begins a formal process in which an administrative law
judge will be assigned to hear your case and make a determination based
upon the evidence presented at your hearing.  This is another option for
you as a VR customer.

5.  If the agency does not follow its stated policy and procedure or VR
law,
and if the client suffers serious harm and becomes unable to pursue her
employment and educational goals or to maintain activities of daily
living
because of this, does the agency have any responsibility to provide
resources to help mitigate those barriers to employment?
Please see above.  I'm sorry this has happened to you.  You may wish to
also ask about free initial legal representation in your city and/or
consult an attorney.

6.  If the agency's official assessment is directly contradicted by
easily
documented evidence -- including the diagnosis of the agency-selected
outside specialist -- is it acceptable for the agency to refuse or deny
the
evidence in contradiction in order to arrive at a more accurate
assessment?
Please see above.

Of course, there are always two or more sides to a story but even if
your questions are not totally unbiased it does not sound at all like
your experience with your agency has been beneficial for your.  This is
not what the authors of the Rehabilitation Act intended and I wish you
the very best in your career endeavors and hope that matters are
resolved for your quickly.

Best regards.

 Michael O'Neal, M.Ed., CRC 
 
-----Original Message-----
From: rehab-bounces at nfbnet.org [mailto:rehab-bounces at nfbnet.org] On
Behalf Of Tamara Smith-Kinney
Sent: Tuesday, April 21, 2009 1:05 PM
To: 'Rehabilitation Counselor Mailing List'
Subject: [rehab] Introduction and some questions

Hello!

To start with, I will come clean and admit that I'm a VR client, not a
counselor.  I joined this list in order to ask some questions that have
a
bearing on my own VR case.  I have been wracking my brain trying to
phrase
the questions so that I don't end up sounding like a brainless ninny,
but I
haven't seemed to manage it.  So I'll just say that there's a long
history,
my VR case with my state's agency is, well, fubar.  Literally.  I am
having
a meeting with a new VR counselor and, before I talk to him would like
to
clarify some points about the VR process and philosophy in general.
These
questions are based on past behavior and information of the agency as a
whole, including those of the VR director, who has consistently over
turned
the decisions and renegged on the agreements made by my now-retired VR
counselor.

So here goes.  Yes, I've read through the following, and I apologize for
the
stilted tone and phrasing.  I believe I know the answers to these
questions,
but a good reality check never hurts. /smile/

1.  Does agency policy and procedure take precedence over state and
federal
VR law?
2.  When an IPE is agreed to by both parties, is the agency required to
follow through on providing the information and resources needed for the
client to fulfill her part?
3.  Does the philosophy of informed choice imply any responsibility on
the
part of the agency to have and provide information that is not available
elsewhere, or to know where the client can find that information herself
if
she has not been able to do so without asking the agency?
4.  If the client makes a decision based on information received from
the
agency about the agency's procedures, purpose and services, is it the
agency's responsibility to behave according to that information?
5.  If the agency does not follow its stated policy and procedure or VR
law,
and if the client suffers serious harm and becomes unable to pursue her
employment and educational goals or to maintain activities of daily
living
because of this, does the agency have any responsibility to provide
resources to help mitigate those barriers to employment?
6.  If the agency's official assessment is directly contradicted by
easily
documented evidence -- including the diagnosis of the agency-selected
outside specialist -- is it acceptable for the agency to refuse or deny
the
evidence in contradiction in order to arrive at a more accurate
assessment?

Thank you for any answers and information you can provide.

Tami Smith-Kinney




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