Braille Monitor April 1986
(On January 29, 1986, the National Federation of the Blind testified about rehabilitation before the Subcommittee on Select Education of the Committee on Education and Labor of the United States House of Representatives. On March 20, 1986, the Federation testified before the Subcommittee on the Handicapped of the Committee on Labor and Human Resources of the United States Senate. Here is the Senate testimony.)
Before the Subcommittee on the Handicapped Committee on Labor and Human Resources United States Senate Testimony of the National Federation of the Blind Washington, D.C. March 20, 1986
Mr. Chairman, my name is James Gashel. My address is 1800 Johnson Street, Baltimore, Maryland 21230; telephone (301) 659-9314. I am Director of Governmental Affairs for the National Federation of the Blind. I appreciate your invitation to testify before the Subcommittee on the Handicapped during this review of vocational and other rehabilitation programs and the statutory provisions which authorize them.
During these hearings, Mr. Chairman, you will receive a substantial amount of testimony from professional rehabilitation workers and their associations. These are people who are employed to administer or deliver the services authorized by law. Their concern is the interest of the provider. This should not be confused with the consumer perspective. I feel this distinction is too often not made in the rehabilitation field. There is a seemingly irresistible tendency for the providers of rehabilitation services to speak to Congress and to others on behalf of the handicapped consumers. This conveys the impression that the interests of the providers and the interests of the consumers are one and the same--"doing the best for the handicapped or disabled." But the fact is that the interests of the providers and the interests of the consumers of rehabilitation services are not necessarily the same. We do not all speak with one voice, nor should we be forced to.
That said, Mr. Chairman, the National Federation of the Blind is a consumer voice for the blind in all matters of rehabilitation. The people we represent are on the receiving end of these programs. Our membership is broadly based and nationwide. Our collective experience with the rehabilitation system throughout the United States allows us to observe and report patterns of conduct. Just as there is a state vocational rehabilitation agency or state agency for the blind in each state and the District of Columbia, so, too, we have an affiliate of the National Federation of the Blind in each state and in Washington, D.C. We also have local chapters which blind people join in their home communities in most sizable population areas of the United States. Forty-six years ago, the National Federation of the Blind was formed as a vehicle for self-expression by the blind. That is still our purpose and function today.
My focus in presenting this testimony will be on the vocational rehabilitation provisions found in Title I of the Rehabilitation Act of 1973, as amended.
From the client services end, this is the bread and butter portion of the statute. There is always a question of whether to sugar-coat a statement or to "tell it like it is." I am assuming that you want me to do the latter so members of this Subcommittee and others in Congress can make a thorough evaluation of how things are going. A bit of personal background by way of introductory explanation might also be in order. For twenty years I have actively worked in and around the rehabilitation system. I have studied the law, the regulations, chapters of the Rehabilitation Services Manual, and many other written policies or interpretations of policy. These are collectively used as mandates or guidance for the administration of the program. I have also been a direct consumer of services, and I was "closed rehabilitated" more than once. For a few years I helped to administer state programs for the blind in Iowa. That experience helped me to gain direct knowledge of state agency operations from the provider perspective.
I believe these lengthy and varied experiences with the vocational rehabilitation program have given me sufficient knowledge to analyze some common policies and characteristics of the program and to make recommendations for policy directions which should improve the availability of services to clients.
At last summer's Convention of the National Federation of the Blind (held during the week of the 4th of July in Louisville, Kentucky), a shocking fact emerged. It happened like this: Patricia Owens, Associate Commissioner for Disability at the Social Security Administration, was explaining how her agency is increasing the emphasis on successful beneficiary rehabilitation. She indicated that the Social Security Administration was less than enthused about the performance of the state vocational rehabilitation agencies, particularly with respect to job placement. She said Social Security officials are actively seeking alternative rehabilitation programs which might be more successful. Several speakers from the floor voiced specific complaints about rehabilitation programs and their policies. The pattern which emerged in the discussion showed that this audience of nearly two thousand (either consumers or potential consumers of rehabilitation services) unanimously felt ill-served by current programs. In fact, not one person spoke up to defend rehabilitation in its present form. So the policy position which emerged later in a resolution from the Convention unanimously called for reform in rehabilitation.
That position (and especially the intensity of support for change) represents the culmination of a shift in our thinking about rehabilitation--something which has been evolving among the blind consumer population over the past several years. In fact (although I hope these are not the alternatives we must face), I hear more and more blind people saying that if our choices are to have rehabilitation (unreformed, fully funded, and as it is) or to have no rehabilitation program at all, the choice is simple. It would be better to have none at all. Improvements in the law are needed. It is not just a matter of money.
Remember that, for purposes of priority for service, blind people are among the most severely disabled. Even so, rehabilitation agencies tended to be much more responsive to our needs twenty years ago than they are today. Why? I believe there are at least three areas where the basic statute is being misinterpreted, misapplied, or is in need of correction today. Also, I believe there is a failure properly to coordinate policy which permits conflicting determinations such as these makes no sense.
Speaking of Social Security and vocational rehabilitation, there is also something else that makes no sense. You might call it the "merry-go-round" or the "revolving door" of rehabilitation. If a person applies for and receives Social Security Disability Insurance benefits, there is an automatic referral to the state vocational rehabilitation agency. Then the individual is required by law to accept rehabilitation services in order to become employed, if at all possible. That's what the law says. Referral by Social Security is done to encourage people to leave the Social Security rolls, after a period of training or retraining to achieve employment. That makes sense.
But it does not make sense that the rehabilitation counselor has the discretion to turn the same individual (referred by Social Security) away by saying: "There is no substantial handicap to employment." What we have from this policy is a path that leads in a circle. Social Security refers you to rehab, and rehab turns you away. Yet Social Security requires you to accept rehabilitation services and to try to become employed. How can you if rehab turns you away?
One final point on eligibility. This has to do with the second element in the definition of "handicapped individual" -- can the individual reasonably be expected to benefit in terms of employ ability from receiving vocational rehabilitation services? As I have said already, we have no quarrel with a determination of that type being made as one of the two elements in the decision on eligibility. However, there is an apparent incongruity in the Act which Congress, alone, can remedy.
The incongruity arises from conflicting statutory language. Section 7(7) (A) defines "handicapped individual" for purposes of eligibility for vocational rehabilitation under titles I and III of the Act. The two elements of this definition are set forth in subclauses (i) and (ii) of this section. But paragraph (2) of section 102(c) of the Act also contains language pertaining to the employability question. The problem is that the language of section 102(c)(2) is more restrictive than and inconsistent with the section 7(7) definition of "handicapped individual."
I mention this because we have seen eligibility denials based on the language in section 102(c)(2), even though there is a reasonable expectation that rehabilitation services can benefit the individual in terms of employment. With the conflicting language of these sections, the question is, which one prevails? It would be better if the language of these two sections contained an identical standard for determining the likelihood of an employment benefit.
(1) The Act should be amended to provide that anyone whose handicap is severe, as defined in the Act, shall be determined to have a substantial handicap to employment.
(2) The Act should be amended to provide that anyone who is determined eligible for benefits under Title II or Title XVI of the Social Security Act shall be determined to have a substantial handicap to employment.
(3) The Act should be amended to clarify that eligibility will be found for anyone who has a substantial handicap to employment and for whom there is a reasonable expectation that vocational rehabilitation services will be beneficial in terms of employability.
FINANCING CLIENT SERVICES: THE MEANS TEST
Economic need standards, or "means tests," are optional in the vocational rehabilitation program as determined by policies of each state agency. Until about 1965 there was actually a Federal requirement mandating a means test by every state agency in the program. Most states still have them; some do not.
The Act gives no direct authority for a means test to be administered by any state agency, but administrative regulations permit it. We would certainly favor a statutory prohibition of the means test. If Congress does not do that, there should at least be guidance in the statute so program administrators are restrained from certain abuses which have come to light.
The idea of the means test is to determine whether the client of vocational rehabilitation services can afford to pay for any of the services which may be offered by the program. This is a determination which is made after the decision on eligibility or ineligibility. So, believe it or not, you may be eligible for vocational rehabilitation services which you are then required to pay for. What a bonus. How much you ere required to pay depends on the state you live in and the policy preferences of the people in charge of the agency. This leads to inequities among the states and a lack of uniformity in the program. But worse than that, the Federal hands off approach permits abuses that ought to be corrected by statute.
One means test policy which appears to be an abuse is to require (as many states do) clients to pay for services that are provided directly by the state rehabilitation agency or obtained by contract with a private rehabilitation agency. Services from these agencies (which receive tax dollars specifically for the purpose of providing rehabilitation services) should be paid for by those tax dollars, not by the clients who need the services. The individual applying for services from rehabilitation agencies should not be taxed a second time to obtain the services that they provide directly or by contract with private agencies.
For example, if an agency for the blind provides in-house training for blind persons who want to become self employed as licensed blind vendors under that agency's vending facilities program, training to enter that program should be a service provided without charge by that agency. Likewise, if the agency sends a client to a pre-vocational adjustment center where the techniques and attitudes concerning blindness are taught, that is a reasonable service to expect without charge from the agency. Requiring clients to pay for basic training and adjustment services which are directly available from state agencies or provided by contract with private rehabilitation agencies makes one wonder where our tax dollars appropriated for vocational rehabilitation are actually going.
Another policy issue with respect to the means test is the disincentive factor for individuals referred to vocational rehabilitation by Social Security. Believe it or not, I have actually seen means tests which require Social Security Disability Insurance (SSDI) beneficiaries and Supplemental Security Income (SSI) recipients to pay for their own vocational rehabilitation services. Talk about an abuse. Benefit levels for SSDI and SSI beneficiaries are not that generous. In fact, most of them live at or near the poverty level.
They can ill-afford to pay for anything but keeping a roof over their heads and food on their tables. Now the rehabilitation agency comes along and says, "Here's a bill for the services we provided; pay up." Restrictive requirements of this sort frustrate the goals of rehabilitation and, more particularly, the goals of the Beneficiary Rehabilitation Program, funded by the Social Security Administration. Remember once again that SSDI and SSI beneficiaries are required to accept vocational rehabilitation services.
But where does it say in the Social Security Act that they are also required to pay for them? It does not. That is a discretionary requirement of state vocational rehabilitation agencies that have means tests. So, depending on the state of residence of an SSDI or SSI recipient, the individual either will or will not be forced to pay for vocational rehabilitation, at least to some degree.
This degree of discretion permits abuses since SSDI and SSI beneficiaries are placed in an untenable position. If they do not cooperate with the rehabilitation agency and pay for their rehabilitation services, they may be reported to the Social Security Administration as declining rehabilitation. Then they may lose their benefits altogether. Depending on the harshness of the means test, this amount of policy discretion means that the client may be required to take essential living expense money to pay for rehabilitation, or lose Social Security benefits altogether.
(4) The Act should be amended to prohibit any designated state unit from applying a standard of economic need in relationship to any vocational rehabilitation service for which the designated state unit has previously not applied a financial needs standard prior to the enactment of the Rehabilitation Act Amendments of 1986.
(5) The Act should be amended to provide that in the administration of the state plan for vocational rehabilitation services, the designated state unit may not apply any standard of economic need for any services provided directly by the agency or paid for by contract with another agency primarily engaged in the rehabilitation of handicapped individuals.
(6) The Act should be amended to provide that in electing to establish any standard of economic need which requires handicapped individuals to share in meeting the costs of vocational rehabilitation services, the designated state unit shall exclude from consideration any income received by a handicapped individual pursuant to Titles II or XVI of the Social Security Act and shall further exclude such other income as may be reasonably necessary for the handicapped individual to meet all ordinary household expenses and existing financial obligations.
The concept of similar benefits is intended to be used by vocational rehabilitation agencies in order to assure that handicapped individuals also obtain the benefits of other programs to which they may be entitled. An example which seems obvious and reasonable is to utilize student financial assistance grants to the fullest (excluding loans) before applying vocational rehabilitation funds to pay for college tuition and other higher education expenses.
But while that is reasonable, there are other practices that occur with respect to similar benefits that are not reasonable. For example, students who receive scholarships from private organizations should not receive a corresponding refusal for services from vocational rehabilitation due to the receipt of the scholarship. Yet, this is the most common result of the similar benefits provision. For example, the National Federation of the Blind awards scholarships annually amounting to almost $100,000.00. Our largest scholarship is $10,000.00. But the recipient may actually lose in the end or be no better off if the vocational rehabilitation agency determines that the similar benefit must then be used to exclude most or all vocational rehabilitation services that would otherwise be provided. For a private, non-profit organization such as ours, it is rather discouraging to learn that individuals we intended to help are actually thrown into a turmoil with their vocational rehabilitation agencies.
The recipients of our scholarships should not have to fight to receive some actual benefit from the scholarships we give them. A more acceptable policy would be to consider scholarships from private groups to be an additional benefit, not a similar benefit.
The more extreme abuse of the similar benefits requirements occurs when state vocational rehabilitation agencies insist that all private sources for any vocational rehabilitation service must be tapped before funds will be authorized from the agency. For example, if equipment or aids of some type are to be purchased, there is a standard vocational rehabilitation policy which requires clients to sign releases which enable counselors to contact charitable associations in the community. This amounts to a solicitation of funds on behalf of rehabilitation clients in order to provide the services which tax dollars have been appropriated to pay for.
As a matter of policy, I have asked RSA regional office and central office staff whether state vocational rehabilitation agencies are encouraged to implement the similar benefits provisions by using fund raising campaigns among community and civic groups. What do you suppose? Everyone said that the fund raising among charitable groups by rehab was an entirely appropriate enterprise, in fact required by the similar benefits concept. How interesting. I thought similar benefits meant that a client of vocational rehabilitation was required to explore and exhaust ,if possible, all other benefits available from public programs for which the individual might also be eligible. That is quite a different requirement from fund raising as a matter of charity to obtain funds to buy services for clients of vocational rehabilitation. Yet this is how the similar benefits requirements are being interpreted. Carried to its most logical extreme, there is almost nothing that vocational rehabilitation would ever have to pay for if the agency could find someone else to do it. And, that's exactly what rehabilitation is coming down to.
(7) The Act should be amended to provide that scholarship awards, resulting from competition and based on merit, shall not be considered similar benefits where such scholarships are awarded by private, not-for-profit organizations.
(8) The Act should be amended to require the designated state unit to provide any vocational rehabilitation service if the application of the similar benefits policy would cause a delay for the client in fulfilling either the long range goals or intermediate objectives of the individualized written rehabilitation program.
(9) The Act should be amended to provide that a similar benefit is any service of the type described in section 103 of the Act, where such benefit is provided pursuant to law by a public agency or program and the handicapped individual meets the eligibility criteria for the specific service in question.
The key word here is public. In other words, assistance provided by private agencies, organizations, or individuals should not be similar benefits.
Taken as a whole, the nine recommendations in this testimony are designed to make the vocational rehabilitation program more responsive to consumer demands for service. They address problems in eligibility, the means test, and similar benefits. These areas are the cause of most blind consumer dissatisfaction.
First, there is a question of eligibility. Then if eligible, there is a question of whether or not the individual will need to pay for the service in whole or in part. Finally, to round out the picture, if it is ultimately determined that the individual is, in fact, eligible and that the individual is too poor to pay for the service, there is a third escape clause for rehabilitation by applying the similar benefits criteria. All of these provisions may be applied almost with a vengeance as I have described. As a result, there is strong evidence that rehabilitation agencies today are attempting to exclude, not include, potential clients. I think that is why so many individuals feel, and rightly so, that they just cannot get any service at all from rehab. If people are aware, as they inevitably are, that the vocational rehabilitation system nationwide has over $1,140,000,000.00 Federal money alone to spend on vocational rehabilitation services this year, they wonder where the service actually is. In the days gone by, when funds were far less and annual increases more limited, we could expect to get some service from rehabilitation agencies, despite numerous bungles and stumbles along the way. Mostly, though, the agencies seemed to want to give service, and the money flowed to client needs. Now it does not. Counselors are more like gate-keepers with the primary purpose of protecting the agency instead of serving the client. So for the consumer, you can't get into the system, or if you do get in, you can't get anything out of it, or so it seems.
This sense of growing frustration with the current system of vocational rehabilitation has led many of us in the National Federation of the Blind to give thought to alternative systems of service rather than using the traditional vocational rehabilitation state agencies. One plan would be to install a free market system where clients could pick and choose among rehabilitation agencies that would, in a sense, be competing for their patronage. This would be a step beyond and outside of the institutionalized state vocational rehabilitation agency system. It would provide a rehabilitation benefit in the sense of portable funding available to a handicapped individual for use at any agency capable of providing the services. One way to implement a free market rehabilitation system might be to amend certain provisions of the Social Security Act in order to make the rehabilitation funding which now exists an actual component of the Social Security benefit for the handicapped individual who is eligible for Social Security Disability Insurance or Supplemental Security Income. To a certain degree, this would follow a concept similar to providing Medicare and Medicaid benefits as an attached service to eligibility for the cash benefit programs of Social Security.
There is a song we have in the National Federation of the Blind which shows the sense of frustration we share in dealing with the rehabilitation system and its characteristic policy limits that I have described. The problems and goals of other minorities have often been expressed in the songs they sing, and so it is with the blind:
Today I am happy; today I am glad. I finished my five year course in rehab. I learned chair caning; I learned basketry. And now there's not a damn soul who wants to hire me. Today I am happy; today I am glad. I finished my five year course in rehab. I learned chair caning; I learned basketry; And now there's not a damn soul who wants to hire me. Rehab, I'm glad rehab.
We call that the "Rehab Song." We sing it often and with great gusto, but it is not a song of joy. It expresses great frustration with what too many blind people regard as an absolute waste of time. Worse yet, there is the hassle that many describe in just trying to get something out of what seems like a massive state rehabilitation bureaucracy.
This is what has led us to begin thinking about an alternative free market system where the client would take the money and buy the service from the agency that was most responsive, based on individual preference and need. Mr. Chairman, again I appreciate the opportunity to present this testimony, and to have our views considered as you prepare the Subcommittee's proposals to amend and extend the Rehabilitation Act of 1973, as amended. I hope and believe that your deliberations will lead to constructive changes in the direction of better service for blind consumers. Toward that end, we have sought to present an honest appraisal of where we think rehabilitation is currently headed and how it can be improved. If the appraisal seems harsh, so be it. It would be worse for us to remain silent when we have facts and experience that might actually help you improve upon existing programs. In any event, that is our goal. I thank you.