Regulation Part 247 - Client Services

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Table of Contents

247.1 - Definitions
247.2 - Administrative review, mediation and impartial hearing
247.3 - Administrative review and mediation
247.4 - Impartial hearing
247.5 - Confidentiality of personal information
247.6 - Eligibility for vocational rehabilitation services
247.7 - Order of selection
247.8 - Assessment for determining eligibility and vocational rehabilitation needs
247.9 - Decision on eligibility or ineligibility
247.10 - Individual record of services
247.11 - Individualized plan for employment
247.12 - Financial need
247.13 - Services available to individuals
247.14 - Requirements relating to specific services
247.15 - Audits of service providers
247.16 - Approval of vendors of goods and services furnished in connection with a program of vocational rehabilitation and basis for rates charged
247.17 - Transportation services
247.18 - Waiver

§ 247.1  Definitions.

Historical Note

As used in this Part, unless the context requires otherwise, these  terms shall have the meaning  indicated below:

  1. Administrative review means an informal review of an agency  action or decision at a  higher agency level than the case service unit that is available  to an individual, when the  individual and the district office manager agree that such informal  review is likely to eliminate the  individual's dissatisfaction.
  2. Agency means the Office of Vocational and Educational Services  for Individuals with  Disabilities of the New York State Education Department.
  3. Comparable services and benefits means services and benefits  provided by other public  agencies, by health insurance, or by employee benefits which are  available to the individual at the  time needed to ensure achieving the individual's employment  outcome and are commensurate to  the services that the individual would otherwise receive from the  agency.
  4. Eligible individual means an individual whom the agency  has found eligible for services  in accordance with the criteria contained in section 247.6 of this  Part.
  5. Employment outcome means entering or retaining full-time  or, if appropriate, part-time  competitive employment in the integrated labor market; supported  employment; or any other type  of employment in an integrated setting, including self-employment,  telecommuting or business  ownership, consistent with the individual's strengths, resources,  priorities, concerns, abilities,  capabilities, interests and informed choice.
  6. Hearing officer means a person who is appointed by the  Deputy Commissioner for  Vocational and Educational Services for Individuals with Disabilities  to conduct a hearing and  render a decision. A hearing officer shall:
    1. not be a member of the State Rehabilitation Council nor an employee  of a public  agency other than an institution of higher education;
    2. not have been involved in previous decisions regarding the vocational  rehabilitation of  the individual;
    3. have knowledge of the delivery of vocational rehabilitation services,  the State plan, and  the Federal and State laws and regulations and agency policies governing  the provisions of  services;
    4. have received training in the performance of official duties;  and
    5. have no personal, professional or financial interest that would  be in conflict with his or  her objectivity.
  7. Impartial hearing means a quasi-judicial hearing which  is a formal appeal by an  individual of an agency decision concerning delivery of services, and which  serves as the highest level of  appeal within the agency that may be initiated by an individual.
  8. Individual means a person who is receiving services from  the agency or a person who has  applied or attempted to apply for services from the agency.
  9. Initial review conference means an informal session held  by a senior counselor with an  individual and counselor in an effort to resolve an individual's disagreement within the case  service unit, and without the necessity of a formal hearing or administrative  review.
  10. Mediation means a voluntary submission by each party, of  their dispute, to a qualified and  impartial mediator who is trained in effective mediation techniques  and is knowledgeable in the  laws relating to vocational rehabilitation.
  11. Parties means the agency and the individual.
  12. Physical or mental impairment means:
    1. any physiological disorder or condition, cosmetic disfigurement,  or anatomical loss  affecting one or more of the following body systems: neurological,  musculo-skeletal, special  sense organs, respiratory (including speech organs), cardiovascular,  reproductive, digestive,  genitourinary, hemic and lymphatic, skin, and endocrine; or
    2. any mental or psychological disorder such as mental retardation,  organic brain  syndrome, emotional or mental illness, and specific learning disabilities.
  13. (m)  Relative means a person having any of the following relationships  to an eligible  individual: spouse, mother, father, stepparent or legal guardian.
  14. Review means an initial review conference, administrative  review, and/or impartial  hearing.
  15. Reviewer means the agency staff member who conducts the  administrative review.
  16. Substantial impediment to employment means a physical or  mental impairment which in  light of attendant, medical, psychological, vocational, educational  and other related factors,  hinders an individual from preparing for, entering into, engaging  in or retaining employment  consistent with the individual's strengths, resources, priorities,  concerns, abilities and  capabilities.
  17. Total support means the total cost for the following items  of the eligible individual's  support: housing, utilities, food, transportation and health care.
  18. Vendor means a person or business which, in addition to  any licenses or certifications  otherwise required to perform its services, has applied to the agency  and been approved to provide  specified services either directly to individuals or to the agency.

Historical Note
Sec. filed Dec. 15, 1978; amds. filed: April 28, 1980; Nov.  21, 1989; Jan. 23, 1990; Dec. 23,  1997; June 11, 1999; renum. 247.2, new filed Nov. 13, 2001; amd.  filed March 28, 2003 eff.  April 17, 2003. Amended (d).

§ 247.2  Administrative review, mediation and impartial hearing. 

Historical Note
Case Notes

  1. This section governs the conduct of the administrative review  and impartial hearing  process in the Office of Vocational and Educational Services for  Individuals with Disabilities,  through which individuals with disabilities can, upon request, obtain  mediation or a review of  actions taken by the Office of Vocational and Educational Services  for Individuals with  Disabilities.
  2. Individual rights in connection with appeals process.  All individuals shall have the  right to request a prompt review or mediation concerning determinations  made by agency  personnel that affect the provision of vocational rehabilitation  services to applicants or eligible  individuals.
  3. Notification of policy.  The policy established by this Part shall be communicated  through appropriate modes of communication to all applicants and  eligible individuals through at  least the following means:
    1. Written and other types of material identifying the individual's rights and obligations,  and containing instructions for initiating a review or seeking mediation,  shall be given to all  individuals who apply for service and shall be available without  asking at all field office  waiting areas.
    2. A statement of individual appeal rights shall be included on,  or attached to, the  following forms: the application for service, individualized plan  for employment, and letters  sent to individuals upon case closure.
    3. At the initial meeting with the interviewer and counselor, and  at the time of potential  impasse situations, individuals shall be counselled about their rights  and the actions necessary  to begin the review process. They shall be provided information about  the manner in which an  impartial hearing officer will be selected, and the names and addresses  of persons with whom  appeals may be filed.
  4. Right to representation. 
    1. Any individual who requests a review or mediation under  these regulations shall be notified in writing of the right to be  accompanied and represented by  an authorized representative of his or her choice, including a parent,  guardian, other family  member, or advocate, and shall be notified of the availability of  the Client Assistance Program.  All expenses caused by such representations, including legal fees,  shall be the responsibility of  the individual.
    2. If the individual elects to be represented by another person during  a review, the  individual shall so inform the agency, in writing. The individual  may withdraw authorization  for representation at any time by giving written notification to  the agency of such withdrawal.
    3. The individual may be accompanied at a review or hearing by another  person, without  prior written notification, if that person does not act as representative.  The reviewer or hearing  officer shall have the right to exclude any person whose presence  is disruptive to the review or  hearing.
  5. Use of individual's record of service.  The individual or representative may review the  record of service, either prior to, or at an administrative review,  mediation or impartial hearing,  subject to the limitations of section 247.4 of this Part.
  6. Time limitations.
    1. Computation of time. Computation of any period of time to  which reference is made in this Part shall begin on the first day  following the day on which the  act which initiates the action occurs. The term days  shall mean calendar days.
    2. Extension of time. It shall be within the discretion of the reviewer  or the hearing  officer, for good cause shown, or with the consent of the parties,  to extend any time limit  prescribed by this Part. All requests for extensions shall be made  in writing by the individual,  before the expiration of the period originally prescribed or as previously  extended, except that a  request for extension of the time limitation for requesting a review  may be submitted after the  expiration of the prescribed period.
  7. Steps in the review process. 
    1. An individual's appeal may proceed in the following  sequence:
      1. mediation;
      2. initial review conference;
      3. administrative review; and
      4. impartial hearing.
    2. No earlier level of review need be completed before resort to  an impartial hearing or  mediation, and a request for review or mediation shall begin the  time for conducting the  hearing unless the parties agree to a specific time extension.
  8. Modes of communication.  An interpreter fluent in the dominant language of the  individual or a person skilled in communicating with individuals with disabilities  who rely on special  modes of communication shall be provided, at agency expense, at the  mediation, initial review  conference, administrative review, and at an impartial hearing, when  necessary.
  9. Other expenses.  Transportation for an individual to attend a mediation, initial  review  conference, administrative review or hearing shall be provided at  agency expense usually only  within New York State. When a person is receiving services under  an individualized plan for  employment outside the State the agency may pay for transportation  from that service site to the  hearing site. The appropriate transportation carrier and class for  each individual shall be  determined by the agency. Lodging and other incidental expenses related  to the individual's attendance  at a mediation, review or hearing shall not be provided at agency  expense.
  10. Status quo.  Pending a mediation agreement or a final determination of the  impartial  hearing, no suspension, reduction or termination of services currently  being provided, including  evaluation and assessment services and services under an individualized  plan for employment,  shall be instituted by the agency unless the individual or the individual's representative so  requests or the services have been obtained through misrepresentation,  fraud, collusion, or  criminal conduct on the part of the individual or the individual's representative.

Historical Note
Sec. filed Dec. 15, 1978; amds. filed: April 28, 1980; July  26, 1985; Nov. 21, 1989; Dec. 23,  1997; June 11, 1999; renum. 247.3, new added by renum. and amd. 247.1,  filed Nov. 13, 2001;  amd. filed March 28, 2003 eff. April 17, 2003. Amended (f)(2).

CASE NOTES
Client failed to state cognizable §§1983 claim  arising from termination of his New York Vocational  Educational Services for Individuals with  Disabilities (VESID) benefits, since client did not point to  violation of any specific federal statute or regulation  with regard to procedure for terminating his VESID  case, nor focus on any conflict between VESID  policies and federal regulations, but simply raised issues  with respect to whether VESID was following its  own regulations; administrative review to determine  compliance with state regulations was not  cognizable under §§1983.  Doe v. Pfrommer, C.A.2  (N.Y.)1998, 148 F.3d 73.

§ 247.3  Administrative review and mediation.

Historical Note

  1. Time limitation for requesting administrative review.  Requests for administrative  review shall be made no later than 90 days after the individual is  informed of the agency decision or  action which the individual seeks to review.
  2. Requesting an administrative review or mediation. 
    1. A request for administrative  review or mediation shall be made in writing to the district office  at which the individual has  received or applied for service.
    2. If the individual is unable to write, the request shall be taken  in dictation at the district  office, upon request by the individual.
    3. Each request shall be signed by the individual or representative  or, in the event the  request was taken in dictation, the request shall be witnessed by  two agency employees.
  3. Scheduling of administrative review or mediation. 
    1. If the individual agrees, upon  receipt of a request for administrative review, an initial review  conference shall be scheduled as  soon as possible at a site convenient to all parties prior to the  date that an administrative review  is scheduled. The opportunity for mediation shall be available whenever  a hearing is requested.
    2. If the individual has requested either an administrative review  or mediation, such shall  be scheduled to occur as soon as possible at a site convenient to  all parties. The district office  manager or other reviewer may decline to schedule an administrative  review if he or she  determines that the review is not likely to resolve the disagreement.
  4. Notice.  Notice of a scheduled administrative review shall be mailed by  the reviewer,  and notice of a mediation shall be sent to the individual. The notice  shall include but not be  limited to the time, date, place and nature of the review or mediation,  and the name of the  reviewer or mediator. An explanation of the review or mediation procedure  and the individual's  right to representation shall be included with the notice.
  5. Request for rescheduling.  Prior to the day on which the administrative review or  mediation is scheduled, a reviewer or mediator may, with the consent  of the individual or upon a  showing of good cause, change the date, time or place of the review  or mediation upon written  notice to the parties involved.
  6. Default.  Failure to appear at a scheduled review or to give notice of an  inability to  appear shall be deemed a waiver of the right to a review or mediation,  unless the individual  applies promptly to the reviewer or mediator for relief from the  default. Such application shall  include documentation of the reasons for the individual's failure  to appear and shall be granted if  the individual establishes good cause for such failure.
  7. Withdrawal from administrative review or mediation.  The parties to an administrative  review or mediation may resolve the issues causing the disagreement  prior to an administrative  review or mediation. If, as a result of this resolution, the individual  is satisfied and wishes to  withdraw the request for administrative review or mediation, the  individual shall submit a signed  written withdrawal. However, an administrative review or mediation  shall not be delayed or  cancelled because of the possibility of a negotiated agreement, unless  the individual requests a  delay or cancellation.
  8. Selection of reviewer or mediator. 
    1. The reviewer for the administrative review  shall be the district manager or an associate counselor or other  staff member designated by the  district manager, of the district office at which the individual  has received or applied for  service. To the fullest extent possible, the district office manager  or other likely reviewer shall  not become involved in decisions or actions that may result in the  individual's request for  administrative review.
    2. The mediator shall be a person selected from a list of qualified  mediators  knowledgeable in laws relating to the provision of vocational rehabilitation  services.
  9. Duties and powers of the reviewer.  The reviewer shall conduct an administrative review  of the issues and evidence presented at the review, and shall render  a decision in accordance with  the relevant statute, regulations and such evidence. The reviewer  may request a statement of the  issues from the individual and the agency.
  10. Form of decision.  The decision shall be a comprehensive statement by the reviewer  containing the following elements:
    1. a statement of the issue or issues involved;
    2. a clear and complete statement of fact as supported by evidence  presented at the  review;
    3. reference to all laws, regulations and other legal bases for the  decision;
    4. a concise statement of the conclusions drawn, and the basis for  such conclusions; and
    5. a clear statement of the actions to be taken to implement the  decision.
  11. Time limitation for decision.  The reviewer shall render a decision and give notice of the  decision within five days from the completion of the review.
  12. Notice of the decision. 
    1. The reviewer shall mail a copy of the decision to  appropriate agency staff and the individual and authorized representative.
    2. If the decision is favorable to the individual, and the individual  withdraws the request  for an impartial hearing pursuant to section 247.4(f) of this Part,  the decision shall be final and  the counselor shall begin implementation of the decision within 20  days of its receipt.
    3. If the decision is adverse to the individual, the reviewer shall  include a statement in the  decision informing the individual that an impartial hearing will  be scheduled unless the  individual withdraws the request for review.

Historical Note
Sec. filed Dec. 15, 1978; amds. filed: April 28, 1980; Nov.  21, 1989; Jan. 23, 1990; Dec. 23,  1997; June 11, 1999; renum. 247.4, new added by renum. and amd. 247.2,  filed Nov. 13, 2001;  amd. filed March 28, 2003 eff. April 17, 2003. Amended sec. title.

§ 247.4  Impartial hearing.

Historical Note

  1. Request for an impartial hearing.  A request for an impartial hearing shall be made no  later than 90 days after the individual is informed of the agency'  s decision or action which the  individual seeks to review. Any request for administrative review  shall be considered a request for  an impartial hearing as well.
  2. Scheduling of an impartial hearing.  Upon receipt of a request for review, a hearing  officer shall be appointed by the deputy commissioner. The hearing  officer shall set a date, time  and site for the hearing convenient for all parties. The date set  shall be within 60 days of the  receipt of the request for an impartial hearing.
  3. Notice.  Notice of the scheduled impartial hearing shall be mailed to all  parties. The  notice shall include the time, date, place and nature of the hearing,  the identity of the hearing  officer, a statement of the legal authority and jurisdiction under  which the hearing is to be held, a  reference to pertinent statutes, regulations, or agency policy involved,  and a short statement of  matters asserted. An explanation of the hearing procedure and the  individual's right to  representation shall be included with the notice.
  4. Request for rescheduling.  Prior to the day on which an impartial hearing is scheduled, a  hearing officer:
    1. may, with the consent of the parties, change the date, time or  place of the hearing, and  shall give written notice to the parties; or
    2. shall, upon a showing of good cause by either party, reschedule  the hearing.
  5. Default.  The individual's failure to appear or to give notice of an  inability to appear at a  scheduled hearing shall be deemed a waiver of the right to a hearing,  unless the individual applies  promptly to the hearing officer for relief from default. Such application  shall include  documentation of the reasons for the individual's failure to appear and  shall be granted if the individual  establishes good cause for such failure.
  6. Withdrawal from hearing.  The parties to an impartial hearing may resolve the issues  causing the disagreement prior to a hearing. If, as a result of this  resolution, the individual is  satisfied and wishes to withdraw the request for an impartial hearing,  the individual shall submit a  signed statement withdrawing the request for an impartial hearing.  However, a hearing shall not  be delayed or cancelled because of the possibility of a negotiated  agreement, unless the parties  agree to a specific extension.
  7. Subpoenas.  At the request of any party to the proceeding and subject to statutory  requirements, the hearing officer shall issue subpoenas in the name  of the agency, requiring  attendance and giving of testimony by witnesses and the production  of documents and other  evidence.
  8. Rights of the individual during a hearing.  The individual shall have the right to:
    1. present and establish all relevant facts by oral testimony and  documentary evidence;
    2. advance any pertinent arguments without undue interference;
    3. question or refute any evidence or testimony, including an opportunity  to confront and  cross-examine adverse witnesses;
    4. examine and introduce pertinent evidence from the record of service,  subject to the  provisions of section 247.5 of this Part; and
    5. examine and introduce any other pertinent agency documents, as  determined by the  hearing officer.
  9. Duties and powers of hearing officer. 
    1. The hearing officer shall define the issues  raised by the parties, receive and consider all relevant and reliable  evidence, insure an orderly  presentation of the evidence and issues, oversee the preparation  of the record of the  proceedings, and reach a fair, independent and impartial decision based  solely upon the issues and  evidence presented at the hearing and the approved State Plan, the  Federal and State laws and  regulations, and agency policies.
    2. The hearing officer shall have the powers provided by the State  Administrative  Procedure Act, section 304.
  10. Evidence.  The introduction of evidence shall be governed by the provisions  of the State  Administrative Procedure Act, section 306. All documents and other  evidence offered or taken for  the record shall be open to examination by the parties.
  11. Record of the hearing.  A record of the fair hearing shall be prepared in accordance with  the provisions of the State Administrative Procedure Act, section 302 .
  12. Form of decision.  The decision of the hearing officer shall be a comprehensive  statement by the hearing officer, containing the following elements:
    1. a statement of the issue or issues raised by the parties at the  hearing;
    2. a clear and complete statement of fact as supported by evidence  presented at the  hearing;
    3. reference to all laws, regulations and other legal bases for the  recommendation;
    4. a concise statement of the conclusions drawn, and the basis for  such conclusions; and
    5. a clear statement of the actions to be taken to implement the  recommendation.
  13. Time limits.  The hearing officer shall make a determination and issue a written  decision  to the agency and the individual and any authorized representative  promptly after completion of  the hearing, which shall be deemed to be upon receipt of the transcript  of the hearing. The notice  of the hearing officer's decision shall include a statement  that the transcript of the hearing shall be  made available to the individual upon request.
  14. Implementation.  The counselor shall begin implementation of the decision within  20  days of its receipt. The decision shall be final, and may not be  changed in its implementation  without the written consent of the individual.

Historical Note
Sec. filed March 23, 1979; amd. filed Dec. 23, 1997; renum.  247.5, new added by renum.  and amd. 247.3, filed Nov. 13, 2001; amd. filed March 28, 2003 eff.  April 17, 2003. Amended  (b).

§ 247.5  Confidentiality of personal information. 

Historical Note

The agency shall hold as confidential all information concerning  persons applying for or  receiving vocational rehabilitation services, given or made available  to the agency, its  representatives or its employees, in the course of the administration of the  vocational rehabilitation program.  All applicants and eligible individuals and, as appropriate, those  individuals' representatives,  service providers, cooperating agencies, and interested persons will  be informed through  appropriate modes of communication of the confidentiality of personal  information and the conditions  for accessing and releasing this information and of the agency's  need to collect personal  information and the policies governing its use.

Historical Note
Sec. filed Dec. 15, 1978; amds. filed: Dec. 23, 1997; June  11, 1999; renum. 247.6, new  added by renum. and amd. 247.4, filed Nov. 13, 2001 eff. Jan. 2,  2002.

§ 247.6  Eligibility for vocational rehabilitation services.

Historical Note
Research Reference
Case Notes

  1. General provisions. 
    1. The eligibility requirements will be applied without regard to  the following: gender, race, age, creed, color, national origin,  type of disability, particular  service needs, anticipated cost of services or income level of the  applicant or his or her family.
    2. No duration of residence requirement, which excludes from services  any individual  who is present in the State, will be imposed.
  2. Basic conditions.  Eligibility for vocational rehabilitation services shall be based  only  upon:
    1. the presence of a physical or mental impairment which for the  individual constitutes or  results in a substantial impediment to employment;
    2. the ability to benefit in terms of an employment outcome from  vocational rehabilitation  services; and
    3. a determination that the applicant requires vocational rehabilitation  services to prepare  for, secure, retain or regain employment consistent with the applicant'  s strengths, resources,  priorities, concerns, abilities, capabilities, and informed choice.
  3. Presumptions.
    1. An applicant will be presumed to be able to benefit in terms of  an  employment outcome from vocational rehabilitation services unless  it is demonstrated  otherwise on the basis of clear and convincing evidence.
    2. An applicant with a disability as determined under title II or  title XVI of the Social  Security Act will be considered to be an individual with a significant  disability, and will be  presumed to be eligible for vocational rehabilitation services provided  the individual intends to  achieve an employment outcome consistent with the individual'  s unique strengths, resources,  priorities, concerns, abilities, capabilities, interests and informed  choice.

Historical Note
Sec. filed Dec. 15, 1978; amds. filed: July 25, 1995; Sept.  24, 1996 as emergency measure;  Nov. 12, 1996; June 11, 1999; renum. 247.7, new added by renum 247.5,  filed Nov. 13, 2001  eff. Jan. 2, 2002.
Research Reference
94 NY Jur 2d, Schools, Universities, and Colleges § 397.

CASE NOTES
Despite fact that physically disabled employee has  been employed by school district since 1972, he is  eligible for financial assistance from Office of  Vocational and Educational Services for Individuals with  Disabilities because such assistance would maximize  his employability.  Chirico v. Office of Vocational  and Educational Services for Individuals with  Disabilities (VESID) (3 Dept. 1995) 627 N.Y.S.2d 815, 211 A.D.2d 258   , leave to appeal denied 656 N.E.2d  597, 632 N.Y.S.2d 498, 86 N.Y.2d 705.

§ 247.7  Order of selection. 

Historical Note

In the event that the Education Department, hereinafter referred  to as the agency, is unable to  provide vocational rehabilitation services to all eligible individuals  with disabilities throughout a  Federal fiscal year, the agency will provide such services to eligible  persons in the order of  priority established in this section.

  1. Operation of order of selection. 
    1. The use of an order of selection of individuals for  vocational rehabilitation services shall not affect the provision  of services to the following  individuals:
      1. persons determined by the agency as eligible for vocational rehabilitation  services  prior to the date when the agency determines that an order of selection  of applicants shall be  implemented; and
      2. persons in extended evaluation prior to the date when the agency  determines that an  order of selection of applicants shall be implemented.
    2. If the agency is unable to serve an eligible individual as a result  of the individual's  placement in a particular priority classification, the agency will  place the individual in a  deferred service category, and will notify the individual of his  right to seek an administrative  review and impartial hearing concerning the individual's placement  in such priority  classification, and, if the individual desires, will offer referral of the  individual to another source of  assistance if available.
    3. The agency will regularly assess needs of individuals with disabilities  and available  resources to determine if the selection of individuals by priority  classification can be  terminated or modified. In the event that it becomes possible to serve  individuals placed in the  deferred service category, all such individuals will be contacted,  in chronological order of  application date, before vocational rehabilitation services will  be provided by the agency to  new applicants in the same priority classification.
  2. Order of selection to be used.  Eligible individuals will be selected by the agency to  receive vocational rehabilitation services in descending order of  the following priority  classifications. Individuals will be assigned to priority categories based  only on the following criteria  regardless of age, color, religion, creed, disability, marital status,  veteran status, national origin,  race, gender or sexual orientation.
    1. Priority category I - persons with the most significant disabilities.  An individual with  a most significant disability:
      1. has one or more physical or mental disabilities determined by  an assessment of  eligibility and vocational rehabilitation needs to cause substantial  functional limitations; and
      2. has a significant physical or mental impairment which seriously  limits three or more  functional capacities (such as mobility, communication, self-care,  self-direction,  interpersonal skills, cognition, work tolerance, or work skills) in terms  of an employment outcome;  and
      3. whose vocational rehabilitation will require multiple vocational  rehabilitation  services over an extended period of time.
    2. Priority category II - persons with significant disabilities.  An individual with a  significant disability:
      1. has one or more physical or mental disabilities determined by  an assessment of  eligibility and vocational rehabilitation needs to cause substantial  functional limitations; and
      2. has a significant physical or mental impairment which seriously  limits one or two  functional capacities (mobility, communication, self-care, self-direction,  interpersonal  skills, cognition, work tolerance, or work skills) in terms of achieving  an employment  outcome; and
      3. whose vocational rehabilitation will require multiple vocational  rehabilitation  services over an extended period of time.
    3. Priority category III - persons with less significant disabilities  who are not classified  in priority categories I and II.

Historical Note
Sec. filed Jan. 25, 1979; amds. filed: July 30, 1980; Dec.  23, 1997; June 11, 1999; renum.  247.8, new added by renum. and amd. 247.6, filed Nov. 13, 2001 eff.  Jan. 2, 2002

§ 247.8  Assessment for determining eligibility and vocational rehabilitation needs. 

Historical Note

  1. Review and assessment of data for eligibility determination. 
    1. In order to determine  whether any individual is eligible for vocational rehabilitation  services, the agency will base its  eligibility determination on:
      1. a review of existing data, including counselor observations, education  records,  information provided by the individual or the individual's family,  information used by the Social  Security Administration, and determination made by officials of other  agencies; and
      2. if existing data are insufficient, the provision of appropriate  assessment activities to  obtain additional data that are necessary to determine whether an  individual is eligible.
  2. Trial work experience to determine eligibility. 
    1. Basic conditions. Prior to any  determination that an individual with a severe disability is incapable  of benefiting from  vocational rehabilitation services in terms of an employment outcome  because of the severity  of that individual's disability, the agency shall explore the  individual's abilities, capabilities  and capacity to perform in work situations through the use of trial  work experience, except  under limited circumstances when an individual cannot take advantage  of such experience.  During trial work experiences, individuals will be provided appropriate  supports and training.  Such experience will result in a determination that the individual  is eligible or that clear and  convincing evidence exists that the individual is incapable of benefiting  from services due to  the severity of the disability.
  3. Comprehensive assessment.
    1. Basic conditions. To the extent additional data are  necessary to make a determination of the employment outcomes, and  the objectives, nature,  and scope of vocational rehabilitation services to be included in  the individualized plan for  employment of an eligible individual, a comprehensive assessment  shall be conducted to  determine the unique strengths, resources, priorities, concerns,  abilities, capabilities, interests,  and informed choice, including the need for supported employment,  of the eligible individual.
    2. Extent of services. The comprehensive assessment:
      1. is limited to information that is necessary to identify the rehabilitation  needs of the  individual that is necessary to identify the rehabilitation needs  of the individual and to  develop the individualized plan for employment of the eligible individual;
      2. uses, as a primary source of such information, to the maximum  extent possible and  appropriate and in accordance with confidentiality requirements,  existing information  obtained for the purposes of determining the eligibility of the individual  and assigning priority  for services, and such information as can be provided by the individual  and the family of the  individual;
      3. may include, to the degree needed to make such a determination,  an assessment of  the personality, interests, interpersonal skills, intelligence and  related functional capacities,  educational achievements, work experience, vocational aptitudes,  personal and social  adjustments, and employment opportunities of the individual, and the medical,  psychiatric,  psychological, and other pertinent vocational, educational, cultural,  social, recreational, and  environmental factors, that affect the employment and rehabilitation  needs of the individual;  and
      4. may include, to the degree needed, an appraisal of the patterns  of work behavior of  the individual and services needed for the individual to acquire  occupational skills, and to  develop work attitudes, work habits, work tolerance, and social and  behavior patterns  necessary for successful job performance, including the utilization  of work in real job  situations to assess and develop the capacities of the individual  to perform adequately in a  work environment.
  4. Technology referral. As appropriate, individuals will be  referred for the provision of  rehabilitation technology services to assess and develop the capacities  of the individual to  perform in a work environment.

Historical Note
Sec. filed Jan. 25, 1979; amds. filed: Nov. 24, 1987; Dec.  23, 1997; June 11, 1999; renum.  247.9, new added by renum. and amd. 247.7, filed Nov. 13, 2001 eff.  Jan. 2, 2002.

§ 247.9  Decision on eligibility or ineligibility. 

Historical Note

  1. Determination of eligibility. 
    1. At the time an applicant is determined to be eligible  for vocational rehabilitation services, the agency will determine  in writing that the applicant  has met the basic eligibility requirements specified in section 247.6  of this Part.
    2. Such certification shall be dated and signed by agency staff.
  2. Determination of ineligibility. 
    1. The agency will certify in writing that an applicant  is ineligible for vocational rehabilitation services whenever the  agency determines that the  applicant fails to meet the basic conditions for eligibility specified  in section 247.6 of this Part.
    2. Such certification of ineligibility shall include a specification  of the reasons for the  determination of ineligibility, and shall be made only after an opportunity  for full consultation  with the applicant or, as appropriate, with the applicant's  representative.
    3. Such certification shall be dated and signed by agency staff.
    4. The agency will also notify the applicant, in writing, of the  determination, including the  reasons for the determination, and will inform the applicant in writing  of the right to seek  review and means of seeking a remedy for disagreement provided by  sections 247.2 through  247.4 of this Part.
    5. The agency will inform the applicant of the availability of resources  and services  through other programs or facilities, including client assistance  programs, and, if appropriate,  will offer referral to such programs or facilities.
    6. If the applicant was determined to be ineligible because of a  finding that the applicant is  incapable of benefiting in terms of an employment outcome the agency  will review and re- evaluate such determination annually for the first two years after  the individual's record of  services is closed, and annually thereafter if requested.

Historical Note
Sec. filed March 2, 1979; amds. filed: Dec. 23, 1997; June  11, 1999; renum. 247.10, new  added by renum. and amd. 247.8, filed Nov. 13, 2001 eff. Jan. 2,  2002.

§ 247.10  Individual record of services.

Historical Note

The New York State Education Department will maintain for each  applicant or individual  eligible for vocational rehabilitation services a separate record  of services which includes  information required by Federal statute and regulation. At the time of  application and as appropriate  thereafter, the agency will describe its policies on recordkeeping  to the individual, including the  individual's right to access to his or her records. Should an  individual request deletion or  correction of a part of his or her record, the agency shall do so  if it finds that the item in the record  is inaccurate, but not otherwise.

Historical Note
Sec. filed March 2, 1979; amds. filed: Dec. 21, 1981 as emergency  measure, expired 60 days  after filing; March 1, 1982; Dec. 23, 1997; June 11, 1999; renum.  247.11, new added by  renum. and amd. 247.9, filed Nov. 13, 2001 eff. Jan. 2, 2002.

§ 247.11  Individualized plan for employment. 

Historical Note
Research Reference
Case Notes

  1. The New York State Education Department, hereinafter known as  the agency, will  complete an assessment for determining eligibility and vocational  rehabilitation needs, if  appropriate, and shall then provide information to each individual eligible  for vocational rehabilitation  services about the individual's options for developing an individualized  plan for employment.
  2. Process for developing the individualized plan for employment.
    1. The plan shall be  developed by the individual with the assistance of a vocational rehabilitation  counselor to the  extent the individual determines. The plan shall be a written document  using forms provided by  the agency and must be agreed to and signed by the individual or,  if appropriate, the  individual's representative. It must also be approved and signed by  a qualified vocational  rehabilitation counselor employed by the agency. A copy of the plan and any  amendments or revisions  thereto shall be provided to the individual or, as appropriate, the  individual's parent, guardian  or other representative in the language or mode of communication  appropriate.
    2. The plan shall be developed promptly after an individual is determined  to be eligible  for vocational rehabilitation services. To the extent possible, the  employment outcome and the  nature and scope of rehabilitation services must be determined based  on the data used for the  assessment of eligibility.
    3. If additional data are necessary, the agency shall conduct a comprehensive  assessment  of the unique strengths, resources, priorities, concerns, abilities,  capabilities, interests, and  needs, including the need for supported employment services, of an  eligible individual, in the  most integrated setting possible, consistent with the informed choice  of the individual. The  comprehensive assessment must be limited to information that is necessary  to identify the  rehabilitation needs of the individual and develop the individualized  plan for employment and  may, to the extent needed, include:
      1. an analysis of the pertinent medical, psychiatric, psychological,  neuropsychological,  and other pertinent vocational, educational, cultural, social, recreational,  and environmental  factors that affect the employment and rehabilitation needs of the  individual;
      2. an analysis of the individual's personality, career interests,  interpersonal skills,  intelligence and related functional capacities, educational achievements,  work experience,  vocational aptitudes, personal and social adjustments, and employment  opportunities of the  individual, and the medical, psychiatric, psychological, and other  pertinent vocational,  educational, cultural, social, recreational and environmental factors  that affect the  employment and rehabilitation needs of the individual;
      3. an appraisal of the individual's patterns of work behavior  and services needed to  acquire occupational skills and to develop work attitudes, work habits,  work tolerance, and  social and behavior patterns suitable for successful job performance  including the use of  work in real job situations to assess and develop the capacities  of the individual to perform  adequately in a work environment;
      4. a referral for the provision of rehabilitation technology services,  to assess and  develop the individual's capacities to perform in a work environment;  and
      5. an exploration of the individual's abilities, capabilities,  and capacity to perform in  work situations, which shall be assessed periodically during trial  work experiences,  including experiences in which the individual is provided appropriate supports  and training.
    4. The program shall be designed to achieve an employment outcome  that is consistent  with the individual's unique strengths, priorities, concerns,  abilities, capabilities, career  interests and informed choice.
    5. The program for a student with a disability who is receiving special  education services,  shall consider the student's individualized education program  and be coordinated with it in  terms of the goals, objectives, and services identified.
  3. Content of the individualized plan for employment shall include  the following:
    1. the specific employment outcome established for the individual,  including the  projected timeframe for achieving it;
    2. the specific vocational rehabilitation services, the providers  and the projected initiation  and completion date of such services;
    3. a procedure and schedule for periodic review and evaluation of  progress toward  rehabilitation objectives based on objective criteria;
    4. for individuals with the most significant disabilities for whom  a vocational goal in a  supported employment setting has been determined to be appropriate,  descriptions of the  supported employment services to be provided and of the extended  services needed and an  identification of the source of extended services or, if identification  is not possible, a statement  explaining the basis for concluding that there is a reasonable expectation  that services will  become available;
    5. the individual's words describing how he or she was informed  about and involved in  choosing among alternative goals, objectives, services, providers  and methods used to provide  services;
    6. the terms and conditions for the provision of vocational rehabilitation  services,  including the responsibilities of the individual in implementing the program,  the extent the  individual's participation in the cost of services, the extent to which  goods and services will be  provided in the most integrated settings possible, consistent with  the informed choice of the  individual and the extent to which comparable services and benefits  are available to the  individual under any other programs;
    7. a statement assuring that the individual has been informed of  the right and means of  review of agency actions or decisions with which the individual is  dissatisfied and of the  availability of the client assistance program;
    8. the basis on which the individual has been determined to have  achieved an employment  outcome; and
    9. any plans for the provision of post-employment services after  an employment outcome  has been achieved, and the basis on which such plans are developed.
  4. The program shall be reviewed as often as necessary, but at least  annually, at which time  each individual or, as appropriate, the individual's parent,  guardian or other representative, will  be able to amend it. Any substantive change in the employment outcome,  services or service  providers shall not take effect until agreed to and signed by the  individual or his or her  representative and the rehabilitation counselor.
  5. If services are to be terminated under a program on the basis  of a determination that the  individual is not capable of achieving an employment outcome and  is therefore no longer eligible,  the following conditions shall apply:
    1. Such decision shall be made only with the full participation of  such individual or, as  appropriate, the individual's parent, guardian or other representative,  except under any of the  following circumstances:
      1. a clear opportunity for such consultation was offered but refused;
      2. the individual is no longer present in New York State;
      3. the individual's whereabouts are unknown; or
      4. the individual's medical condition is rapidly progressive  or terminal.
    2. When the full participation of the individual or the individual's representative has been  secured in making such decision, such person's views concerning  the decision shall be  recorded in the program.
    3. The agency shall record an amendment to the program indicating  that the individual is  not capable of achieving an employment outcome.
    4. There shall be a periodic review, at least annually if requested  by the individual, of the  ineligibility decision, in which the individual will be afforded  clear opportunity for full  consultation in the reconsideration of such decision, except in situations  in which a periodic  review is precluded for any of the following reasons:
      1. the individual has refused services;
      2. the individual has refused the review;
      3. the individual is no longer present in New York State;
      4. the individual's whereabouts are unknown; or
      5. the individual's medical condition is rapidly progressive  or terminal.

Historical Note
Sec. filed March 23, 1979; amds. filed: April 28, 1980; Dec.  21, 1981 as emergency  measure, expired 60 days after filing; March 1, 1982; Sept. 24, 1996  as emergency measure;  Nov. 12, 1996; renum. 247.12, new added by renum. 247.10, filed Nov.  13, 2001 eff. Jan. 2,  2002.
Research Reference
94 NY Jur 2d, Schools, Universities, and Colleges § 400.

CASE NOTES
Federal Rehabilitation Act and its State  implementation did not require Office of Vocational and  Educational Services for Individuals with Disabilities  (VESID) to provide services to a disabled student  until she attained optimal employment, but rather,  the requisite standard of service was met when the  student was aided to the point, level and degree that  allowed the opportunity for personal attainment of  maximum employment; accordingly, the student was  not entitled to funding for costs of her law school  education.  Murphy v. Office of Vocational and  Educational Services for Individuals with Disabilities,  1998, 705 N.E.2d 1180, 683 N.Y.S.2d 139, 92  N.Y.2d 477.

§ 247.12  Financial need. 

Historical Note

  1. Purpose.  The agency's limited financial resources shall be allocated  to maximize  provision of vocational rehabilitation services to those eligible individuals  with the greatest financial  need. The determination of financial need shall be considered an  integral part of the rehabilitation  planning process for eligible individuals receiving vocational rehabilitation  services.
  2. Eligible individuals exempt from financial need requirements. 
    1. The following  individuals shall not be subject to a financial needs test:
      1. public assistance recipients for whom verification of receipt  of assistance has been  received by the agency; and
      2. persons determined eligible for Social Security benefits under  title II or XVI of the  Social Security Act.
    2. If an eligible individual has been terminated from any of the  programs listed in  paragraph (1) of this subdivision, the individual shall become subject  to financial need  requirements, unless he/she is made eligible for another of such programs.
    3. The agency reserves the right to waive the requirement of meeting  financial need  criteria, if the agency deems it to be in the best interests of an  individual terminated from any of  the programs in paragraph (1) of this subdivision, or for an individual  whose family resources  increase following commencement of a program of service under an  Individualized Written  Rehabilitation Program.
  3. To the extent permitted by Federal law, all services will be subject  to financial need  requirements. Individuals will be informed of those services subject  to financial need at the time  of program planning, and other appropriate times.Services provided to individuals without regard to financial status  are:
    1. assessment for determining eligibility and priority for services  except those non- assessment services that are provided to an individual with a significant  disability during either  an exploration of the individual's abilities, capabilities,  and capacity to perform in work  situations through the use of trial work experiences or an extended  evaluation;
    2. assessment for determining vocational rehabilitation needs;
    3. vocational rehabilitation counseling and guidance;
    4. referral and other services;
    5. job-related services;
    6. personal assistance services; and
    7. any auxiliary aid or service such as interpreter services or reader  services that an  individual with a disability requires under section 504 of the Rehabilitation  Act or the  Americans with Disabilities Act or regulations implementing those laws,  in order for the individual to  participate in the agency's program.
  4. Computing individual's and agency's participation  in service costs. 
    1. The agency  will establish levels of individual financial need to determine the  extent of participation by the  eligible individual in the cost of the vocational rehabilitation  services. These levels will take  into account the current income and assets of the individual, the  individual's spouse, and any  other relative upon whom the individual is considered dependent.
    2. The agency's participation in the cost of a vocational rehabilitation  service will be  limited by the maximum level of funding established for such service  pursuant to section 247.14  of this Part.
    3. Financial information submitted by each eligible individual will  be applied against the  agency's financial need levels. The agency will establish and  maintain written procedures for  performing these determinations. These procedures will be available  to each individual.
    4. The financial need of all eligible individuals will be reviewed  at least once a year.
  5. Determination of dependency. 
    1. An eligible individual under the age of 22 will be  presumed dependent upon his or her parents, or legal guardian, unless  the individual can  satisfactorily demonstrate that he or she would not be considered  dependent if the dependency  test contained in paragraph (2) of this subdivision were applied.
    2. An eligible individual of age 22 or older will be considered independent,  unless in the  most recent calendar year more than one half of the individual's total support was provided by a  relative.
  6. Submission of financial information. 
    1. Each eligible individual shall be required to  report at least annually on income, assets, dependency status, and  similar benefits available  under other programs or insurance which might duplicate agency services.
    2. The eligible individual shall also be required to report at least  annually on the income  and assets of the individual's spouse and, if the individual  is a dependent, on the income and  assets of the relative upon whom the individual is dependent.
    3. The eligible individual may be required to present documentation  of all financial need  information reported.
    4. The eligible individual shall be required to report any changes  in income, assets,  dependency status, or similar benefits that would have an effect  on the financial need  determination. The agency will maintain written procedures for adjusting  financial need  determinations under such circumstances.
  7. Refusal to provide financial information. 
    1. In the event the eligible individual or the  individual's spouse, or the relative upon whom the individual  is dependent, refuses to provide  information or documentation required to determine financial need,  the agency will withhold  all services which are contingent upon financial need, except as  otherwise provided in  paragraph (2) of this subdivision.
    2. In the event that the individual upon whom the eligible individual  is dependent refuses  to provide information or documentation required to determine financial  need, upon  satisfactory demonstration of the individual's cooperation, the agency,  at its discretion, may provide  services contingent on financial determinations based solely on documented  information  provided by the individual.
  8. Refusal to assume responsibility for financial participation. 
    1. If an eligible  individual refuses to contribute the share of service cost indicated by  financial need computations,  from resources within the control of the individual, then no service  contingent on financial need  may be authorized.
    2. If the resources in question are controlled by another person  who refuses to accept  responsibility for the cost of services, the agency will determine  whether the resources are  actually available to the eligible individual or whether they may  be excluded from financial  need computations. Considerations in this determination shall include:
      1. the nature of the individual's relationship with the individual  who controls the  resources;
      2. the probable effect on the individual's situation of continuing  to include such  resources in financial need computations; and
      3. the long-term public interest, if there is a probability that  the withholding of  vocational rehabilitation services will result in the individual  becoming or remaining on  public assistance.

Historical Note
Sec. filed March 23, 1979; amds. filed: Dec. 21, 1981 as emergency  measure, expired 60  days after filing; March 1, 1982; Dec. 23, 1997; June 11, 1999; renum.  247.13, new added by  renum. and amd. 247.11, filed Nov. 13, 2001 eff. Jan. 2, 2002.

§ 247.13  Services available to individuals. 

Historical Note

The agency will maintain written policies covering the scope and  nature of each of the  vocational rehabilitation services available and the criteria, under  which each service will be  provided to achieve an employment outcome. Services will be based  on the rehabilitation needs of  the individual and will be consistent with the individual's informed  choice. The following  vocational rehabilitation services shall be available to individuals  as components of a planned  vocational program, subject to the conditions set forth in section 247.14  of this Part:

  1. assessment for determining eligibility, priority for services  and vocational rehabilitation  needs;
  2. vocational rehabilitation counseling, guidance and referral;
  3. physical and mental restoration services;
  4. vocational and other training services;
  5. maintenance;
  6. transportation;
  7. vocational rehabilitation services to members of an individual's  family necessary to  enable the individual to achieve an employment outcome;
  8. interpreter services for individuals who are deaf and tactile  interpreting services for  individuals who are deaf-blind;
  9. reader services, rehabilitation teaching services, and orientation  and mobility services for  individuals who are blind;
  10. recruitment and training services to provide new employment opportunities  in  rehabilitation, health, welfare, public safety, law enforcement and other appropriate  public service  employment;
  11. job-related services, including job search and placement assistance,  job retention  services, follow-up services, and follow-along services;
  12. post-employment services;
  13. occupational licenses, tools, equipment, initial stocks and supplies;
  14. personal assistance services;
  15. supported employment services;
  16. rehabilitation technology;
  17. transition services; and
  18. other goods and services necessary for the individual with a disability  to achieve an  employment outcome.

Historical Note
Sec. filed March 23, 1979; amds. filed: Nov. 27, 1979; April  28, 1980; Dec. 21, 1981 as  emergency measure, expired 60 days after filing; March 1, 1982; March  29, 1982; July 29,  1983; April 30, 1991; July 30, 1991 as emergency measure; Sept. 17,  1991; July 28, 1992 as  emergency measure; Sept. 18, 1992; Dec. 19, 1995 as emergency measure;  Feb. 13, 1996;  Sept. 24, 1996; as emergency measure; Nov. 12, 1996; Dec. 23, 1997;  June 11, 1999; renum.  247.14, new added by renum. and amd. 247.12, filed Nov. 13, 2001  eff. Jan. 2, 2002.

§ 247.14  Requirements relating to specific services. 

Historical Note
Case Notes

  1. Assessment services.  The agency will conduct an assessment for determining eligibility  and the priority for services if the agency is operating under an  order of selection. The assessment  must be conducted in the most integrated setting possible, consistent  with the individual's needs  and informed choice.
  2. Home modification, adaptive and household equipment.  The agency shall provide  home modifications and adaptive and household equipment to meet the  functional needs of an  individual in the home, if such service is required within the context  of the individualized plan for  employment. Such services shall be provided only if the following  conditions are met:
    1. the individual is in trial work experience or the active caseload;
    2. the services are included in the individualized plan for employment,  and are consistent  with the employment outcome of the program and any limitations established  in writing by the  agency for the provision of such services to individuals with such  an employment outcome;
    3. the need for the service has been evaluated by a qualified home  economist,  occupational therapist, registered nurse, counselor or other professional  with a background and  training in home evaluation;
    4. the owner of a building affected by modifications or installation  of equipment has  given written permission for such actions;
    5. the individual has given written assurance that the building is  intended to be his or her  long-term residence;
    6. the modifications or installation of equipment were not contracted  or initiated prior to  the completion of the individualized plan for employment;
    7. the costs of modifications, adaptive equipment and household equipment  do not exceed  maximum expenditures for such services established by the agency  in writing unless waived by  the agency;
    8. the individual meets criteria for financial need; and
    9. the full use of available comparable benefits has been planned  prior to the provision of  services using agency funds.
  3. Interpreter services for individuals who are deaf.  Such services shall be provided to  assure adequate communication between an individual who is deaf and  agency staff, or to assure  maximum benefit of planned vocational rehabilitation services. They  shall be provided only  under the following conditions:
    1.  the individual is an applicant or is in extended evaluation or  the active caseload;
    2. the provision of such service is included in the individualized  plan for employment for  an individual in the active caseload, or in the written plan, if  the individual is in trial work  experience;
    3. the full use of comparable services and benefits has been planned  prior to the provision  of any services using agency funds.
  4. Maintenance.  Maintenance shall be provided to an eligible individual or an  individual  receiving either trial work or extended evaluation services, when  appropriate, to cover additional  costs including basic subsistence expenses such as food, shelter  and clothing that are in excess of  the individual's normal expenses and are necessary because of  the individual's participation in a  program of vocational rehabilitation.
    1. Types of maintenance.
      1. Major maintenance shall be provided for food, shelter  and miscellaneous personal needs for individuals living away from  home to compensate for  extra expenses incurred while undergoing diagnostic evaluation or  participating in a training  program. Supplementation for food and shelter provided for an individual  participating in a  training program while living away from home shall be funded up to  a maximum amount  established by the agency, provided that such maximum amount shall  not exceed the current  and actual State University of New York (SUNY) room and board costs.  Approval may be  granted for a variance from such maximum amount upon a finding by  the agency that the  cost to the agency resulting from such variance will not be greater  than the alternative cost of  providing commutation transportation and/or other support services.  Major maintenance  shall also be provided to individuals living at home only if all  the following conditions are  met:
        (a)  the individual has head-of-household status for Federal income  tax purposes of  either a family or independent unit prior to applying for vocational  rehabilitation services  or onset of illness or disease;
        (b)  the individual receives insufficient income from another resource  to provide basic  support of the family and to provide the individual's shelter;  and
        (c)  the individual is not receiving support from public assistance  or supplemental  security income as a result of income and/or resources.
      2. Minor maintenance shall be provided for local transportation,  lunch and related  miscellaneous expenses for individuals living at home while undergoing  diagnostic  evaluation, participating in a training program or receiving physical or  mental restoration services.
    2. General conditions for payment of maintenance. Maintenance shall  be provided only  under the following conditions:
      1. the individual is an applicant or is in extended evaluation or  the active caseload;
      2. the individual has incurred additional expenses for basic subsistence  items as a result  of participating in the vocational rehabilitation program;
      3. the maintenance is included in the individualized plan for employment  and is  supportive of other vocational rehabilitation services;
      4. for maintenance provided to individuals in the active caseload  or in extended  evaluation, the individual meets the criteria for financial need  or is a participant in a program  which does not require a determination of financial need.
  5. Medical care for acute conditions.  Medical care shall be provided for acute conditions  which arise during a rehabilitation program and which, if not cared  for, would complicate or delay  the achievement of the employment outcome. Acute medical care shall  be provided only under  the following conditions:
    1. the individual is in the active caseload or extended evaluation;
    2. the service shall be included in the individualized plan for employment;
    3. the acute medical condition interrupts or threatens to interrupt  the progress of the  individualized plan for employment;
    4. the service shall be provided by a physician licensed by the state  in which such  physician practices;
    5. the individual meets the criteria for financial need;
    6. the full use of similar benefits has been planned prior to the  provision of such services  using agency funds.
  6. Physical and mental restoration.  Physical and mental restoration services shall be  provided for the purpose of correcting or substantially modifying  a diagnosed physical or mental  condition which results in a substantial impediment to employment.
    1. General conditions under which physical and mental restoration  shall be provided:
      1. the individual is in extended evaluation or the active caseload;
      2. the individual's physical and mental impairment is stable  or slowly progressive and  is likely to require only a limited period of treatment;
      3. the service is included in the individualized plan for employment;
      4. the service is provided by professionals who are licensed to provide  such services, if  the state in which they practice requires such licensure;
      5. the individual meets criteria for financial need or is a participant  in a program which  does not require a determination of financial need;
      6. the full use of similar benefits has been planned prior to the  provision of such  services using agency funds.
    2. Additional conditions relating to hospitalization and related  care. The service shall be  provided in a facility approved by the New York State Department  of Health, or the equivalent  approving body of the state in which it operates, and is not provided  in long-term care facilities,  domiciliary institutions, and non-medically oriented rehabilitation  and adjustment training  centers.
    3. Additional conditions relating to prosthetic appliances:
      1. the appliance is prescribed by a physician licensed by the state  in which such  physician practices;
      2. the service is provided by qualified orthotist and prosthetists.
  7. Post-employment services.  Noncomplex, short-term post-employment services shall be  provided to individuals if they are necessary to maintain, regain  or advance in employment. Post- employment services shall be provided only under the following conditions:
    1. the individual has achieved an employment outcome through vocational  rehabilitation  services;
    2. the service is necessary to assist the individual to maintain,  regain, or advance in  employment;
    3. the individual's rehabilitation needs do not require a comprehensive  or complex  provision of services. Services needed are limited in scope and are of  short duration. If more  comprehensive, extensive services are needed, the individual may  reapply for services;
    4. the service is related to the objective of the individualized  plan for employment and is  included in an amendment to it;
    5. the individual meets the criteria for financial need.
  8. Services to other family members.  Services shall be provided to members of an  individual's family if such services are necessary to enable the individual  to achieve an employment  outcome. The services may include any family-oriented services, as  well as any of the vocational  rehabilitation services provided to individuals. Services to other  family members shall be  provided only under the following conditions:
    1. the individual is in extended evaluation or the active caseload;
    2. the family member is a relative or guardian of the individual  or lives in the same  household and has a substantial interest in the well-being of the  individual;
    3. the services provided are necessary to enable the individual to  achieve an employment  outcome;
    4. the service is not readily available through existing community  agencies;
    5. the individual meets the criteria for financial need.
  9. Tools, initial stock, equipment, supplies and occupational  licenses.  Such items shall be  furnished if they are necessary to the individual's successful  employment or self-employment  following completion of the rehabilitation program. They shall be  provided only under the  following conditions:
    1. the individual is in the active caseload;
    2. the provision of such items is included in the individualized  plan for employment;
    3. the individual meets criteria for financial need.
  10.   Training. 
    1. Types of training provided. The agency shall provide the following  types  of training when necessary for the individual to achieve an employment  outcome:
      1. personal and vocational adjustment training;
      2. vocational training;
      3. vocational training at a rehabilitation facility;
      4. training at a college, business college or university, provided  that the funding for  tuition shall not exceed the maximum amount established by the agency,  and provided  further that such maximum amount shall not exceed the current and  actual resident tuition  rate for the State University of New York (SUNY) full-time enrollment  during an academic  year (excluding mini-session, intersession and/or summer session).  Funding for tuition for  mini-session, intersession, and summer session shall be prorated  based on such established  maximum. The agency shall waive this maximum, or any prorated amount  based on such  established maximum, and pay tuition in an amount not to exceed the  tuition costs of  attending the least expensive public institution of higher education  within New York  offering an academic program necessary to achieve the student's vocational  goal. If there is no  such public program in New York State, the actual tuition costs of  attending the least  expensive non-public institution of higher education may be paid.  Tuition and other  necessary costs shall be paid only upon a finding that all available means  of alternative funding  including, but not limited to, grants, scholarships and tuition assistance,  have been obtained  by the student and subtracted from the tuition, and that payment  of the balance of tuition is  necessary to achieve the vocational goal of the student. Maintenance  provided during such  training shall be provided in accordance with subdivision (d) of  this section. An individual  who attends training out-of-state when necessary training or services  are available within  New York State, shall bear the full costs of such attendance to the  extent they exceed what  would have been such costs had the individual attended the least  expensive program within  New York State;
      5. training at a business school. Maintenance provided during such  training shall be  provided in accordance with subdivision (d) of this section;
      6. training at a vocational trade school. Maintenance provided during  such training  shall be provided in accordance with subdivision (d) of this section;
      7. training at other educational institutions. Maintenance provided  during such  training shall be provided in accordance with subdivision (d) of this  section;
      8. on-the-job training;
      9. correspondence school;
      10. tutoring;
      11.   other training appropriate to the individualized plan for employment.
    2. Conditions for provision of training. Training shall be provided  only under the  following conditions:
      1. the individual is in trial work experience or the active caseload;
      2. the service is included in the individualized plan for employment;
      3. the service is provided at facilities or academic institutions  approved or accredited  by the state in which they are located;
      4. the full use of similar benefits has been planned prior to the  provision of training  with agency funds;
      5. the individual meets the criteria for financial need;
      6. books and related training materials may be provided, to a maximum  combined  allowance as established by the agency, provided that such maximum  allowance shall not  exceed the average cost of books published annually by the State  University of New York  (SUNY), unless there is documentation of the need to exceed this  limit including, but not  limited to, written confirmation by appropriate school personnel  that each item for which an  allowance is made is actually necessary for the individual's participation in a particular  course or program.
  11. Vehicle modification and adaptive equipment.  Such services or equipment, including  the cost of optional equipment available through the automobile manufacturer,  shall be provided  if they are necessary because of the individual's disability  to enable an individual to use or operate  a motor vehicle, and the use or operation of a vehicle is necessary  to the rehabilitation of the  individual. Vehicle modification and adaptive equipment shall be  provided only under the  following conditions:
    1. the individual is in trial work experience or the active caseload;
    2. the individual is pursuing or is expected to pursue an employment  outcome for which  the modification or equipment is necessary, and the provision of  such modification or  equipment is included in the individualized plan for employment;
    3. the necessity of such services has been justified by a driving  evaluator;
    4.   the individual and vehicle owner each provides a written statement  that a motor vehicle  will be available for the individual's use and indicates any  conditions or limitations on  availability;
    5. the individual meets criteria for financial need;
    6. the individual assumes responsibility for maintenance of the equipment  upon  installation or delivery.
  12. Special transportation for severely disabled individuals.  Special transportation shall be  provided only to those individuals whose disabilities are so severe  as to preclude the use of other  means of transportation. The unavailability of public transportation  shall not constitute a basis for  the provision of special transportation.
  13. Other services.  At the option of the agency and subject to approval by the  commissioner or an individual designated by the commissioner, other services  may be provided to  individuals based on their individual needs as components of a planned  vocational rehabilitation  program, consistent with the financial need requirements contained  in section 247.11 of this Part.
  14. Services not provided.  The following items shall not be provided to individuals:
    1. land; or
    2. purchase or construction of buildings.

Historical Note
Sec. filed April 30, 1979; amd. filed Jan. 23, 1990; renum.  247.15, new added by renum. and  amd. 247.13, filed Nov. 13, 2001; amd. filed Jan. 16, 2007 eff. Feb.  1, 2007. Amended (d), (j).

CASE NOTES
Cap imposed on payment of tuition and maintenance  to paraplegic student pursuant to §247.13 by Office  of Vocation Rehabilitation did not violate due  process where notice and opportunity to be heard were  provided at time individual plan was amended in  accordance with caps; caps did not violate equal  protection based on treating less severely disabled  differently than more severely disabled, where cap  applies equally to all eligible disabled persons; state  did violate equal protection by having different caps  applying to blind and other disabilities, due to  different agencies responsible for administration; and state  did violate §504 where reimbursement of tuition  differed for visually disabled and paraplegic solely  on basis of disability.  McGuire v. Switzer, 1990, 734  F.Supp. 99.

Where comparable vocational training program  existed in New York, Office of Vocational and  Educational Services for Individuals with Disabilities  (VESID) is precluded from providing payment of  expenses to petitioner for out-of-state facility.  Cohen  v. New York State Educ. Dept., Office of Vocational  and Educational Services for Individuals with  Disabilities (3 Dept. 1994) 619 N.Y.S.2d 177, 209  A.D.2d 853.

§ 247.15  Audits of service providers. 

Historical Note

  1. Scope.  Field audits will be conducted by the Office of Vocational and  Educational  Services for Individuals with Disabilities, hereinafter referred  to as the agency, to review,  investigate, advise and report upon the financial and operating practices  and program  performance of contractors, service providers, grantees, and subgrantees  utilized by the agency pursuant  to article 21 of the Education Law.
  2. Access to records.  All such contractors, service providers, grantees and subgrantees  shall make all records, books, reports, computer programs and files,  documents and papers which,  in the opinion of the auditors, are pertinent to the conduct of an  audit as set forth under this  section, available to any agency auditor, upon request for the purpose  of making audit,  examination, excerpts and transcripts.
  3. Audit provision.  All contracts, subcontracts, and authorization/vouchers issued  pursuant  to article 21 of the Education Law will include a provision for audit  of the contractor, service  provider, grantee or subgrantee by the agency.

Historical Note
Sec. filed Aug. 1, 1979; amds. filed: Jan. 23, 1990; Dec. 23,  1997; renum. 247.16, new  added by renum. 247.14, filed Nov. 13, 2001 eff. Jan. 2, 2002.

§ 247.16  Approval of vendors of goods and services furnished in connection  with a  program of vocational rehabilitation and basis for rates charged. 

Historical Note

  1. Purpose.  The purpose of this section is to establish general and specific  provisions for  approval of vendors of goods and services other than community rehabilitation  programs and for  establishing a basis for the rates to be charged.
  2. Definitions.  As used in this section:
    1. Agency means the New York State Education Department,  Office of Vocational and  Educational Services for Individuals with Disabilities.
    2. Personal assistance services means the provision  of a range of services designed to  assist the individual to perform daily living activities on or off  the job that the individual would  typically perform without assistance if the individual did not have  a disability. The services  must be designed to increase the individual's control in life  and ability to perform everyday  activities on or off the job. The services must be necessary to the  achievement of an  employment outcome and may be provided only while the individual is receiving  other vocational  rehabilitation services.
    3. Home study means enrollment and study with an educational  institution which provides  lesson materials prepared in a sequential and logical order for study  by a student on his or her  own.
    4. Interpreter means an individual who possesses skill  in the language of signs and  fingerspelling, can convey a hearing person's message to a deaf  person, and can convey a deaf  person's message to a hearing person.
    5. Prosthetic device vendor means an individual who  provides artificial substitutes for  missing body parts such as an arm, leg, eye or tooth, used for functional  and/or cosmetic  reasons.
    6. Wheelchair accessible van means any motor vehicle  equipped with a powered lift or  ramp designed for the purpose of transporting persons in wheelchairs  or containing any other  physical device or alteration designed to permit access to and enable  the transportation of  persons with physical disabilities.
  3. General provisions.  Goods and services to individuals with disabilities shall be  provided consistent with the following provisions:
    1. The vendor providing services authorized by the agency shall agree  not to extract or  accept payment from the individual or his or her family for such  services without prior approval  of the agency.
    2. Contracts for payment for approved services between the agency  and a vendor shall  require prior approval by the agency. Advance payment for such services  shall not be made.
    3. Vendors approved to provide services to individuals must provide  information and data  deemed sufficient by the agency to establish a rate or amount of  payment for each specific  service.
    4. The rate charged by the vendors to the agency shall not exceed  the rate charged to the  general public. If the vendor or school has a policy or practice  of providing rebates or discounts  to commercial customers, such policy or practice shall be extended  to the agency.
    5. All vendors approved by the agency shall comply with the state  and/or Federal  regulations governing the vendor services they provide (e.g., licenses and applications required by the  State and/or Federal regulatory agency).
    6.   All vendors other than rehabilitation facilities providing services,  specified in  subdivision (d) of this section, for the agency are subject to agency approval  prior to the provision of  goods and services as covered by this section.
    7. Services and/or vendors not specifically covered in this section  may be approved on a  temporary basis at the discretion of the agency and in the interest  in providing services;  however, such services and/or vendors must be included by amendment  in subdivision (d) of  this section within 180 days from the date the temporary approval  was granted in order for such  services or vendors to be utilized in the future.
    8. It shall be within the sole discretion of the agency whether a  particular vendor of goods  or services is utilized, and the agency may revoke its approval of  utilization where it is deemed  by the agency to be in the interest of efficient and effective administration  notwithstanding a  vendor's compliance with the provisions of subdivision (d) of  this section.
  4. Types of vendor services subject to approval.  Prior to agency approval, vendors shall  comply with the applicable provisions set forth as follows:
    1. Colleges and universities. Colleges, universities and other degree-granting  institutions  must be accredited by a regional accrediting body recognized by the  U.S. Commissioner of  Education or approved by the New York State Board of Regents in order  to be considered by  the agency for the provision of services. Exceptions may be made  where accreditation is  pending or conditional and the course of study is sufficiently unique  to justify utilization. Fees  and costs established in college catalogues shall be subject to approval  pursuant to the agency's  procedures for such approvals.
    2. Vocational trade schools and business schools. All vendors in  this category shall meet  the requirements of Part 126 of this Title and be licensed by the  New York State Education  Department's Bureau of Proprietary School Supervision. All instructional  requirements and  provisions of other student services contained in Part 126 of this  Title shall apply. Waivers may  be granted by written agreement between the agency and the vendor  if specifically agreed to by  the individual. Fees for these training programs shall be paid in  accordance with enrollment  agreements which have been approved by the agency.
    3. Commercial driver training schools. Vendors in this category shall  meet the licensing  requirements of the New York State Department of Motor Vehicles to  provide such services.  Vendors in other states may be approved if they are approved by the  motor vehicle departments  in the states in which the services are provided. Fees for services  in this category shall be  consistent with or below the prevailing rate charged to the general  public.
    4. Correspondence or home study programs. Vendors in this category  shall be accredited  by an accrediting body recognized by the U.S. Commissioner of Education.  Notwithstanding  the foregoing provisions, all vendors shall be subject to agency  review and approval before  utilization by the agency. All fees are subject to approval by the  agency.
    5. Limousine and taxi service. Vendors of limousine and taxi service  shall be duly  licensed by the local government agencies where required. Fees are  paid according to the meter  reading or by agreement between the agency and vendor.
    6. Vehicles operated by rehabilitation and other facilities. Such  vendors shall be licensed  by appropriate local, State and Federal regulatory agencies. Where  required, fees are paid by  standard agency vouchers based on the prevailing rate at the time  of transportation.
    7. Airlines, trains, buses and other carriers. Such vendors shall  be licensed by appropriate  local, State and Federal regulatory agencies. Where required, fees  are paid by standard agency  vouchers based on the prevailing rate at the time of transportation.
    8. Private wheelchair accessible vehicles. Vendors in this category  shall be licensed by  the appropriate local and State governmental agencies (e.g., State Department of Health,  Department of Transportation, New York City Taxi and Limousine Commission).  Fees shall be  negotiated and are subject to approval by the agency.
    9. Diagnostic and treatment specialist (e.g., speech  and language therapist, occupational  therapist, physical therapist, audiologist or psychologist). All  such vendors shall be licensed  and/or certified by the appropriate New York State licensing body  or by the state in which they  practice. Application to provide services by these vendors are subject  to approval by the  agency. Fees are paid in accordance with the agency's medical  fee schedule for practitioners to  clinics and hospitals.
    10. Medical practitioners and medical service providers (e.g., physicians, dentists or  hospitals). Practitioners and service providers in this category  shall be licensed and/or certified  by the State of New York or by the state in which they are examining  the individual. Fees are  paid either directly to the practitioner or to the institution or  facility. Hospital rates are subject  to State and Federal guidelines.
    11. Vendors of prosthetic devices (e.g., hearing aid  dealers, prosthetic or artificial limbs  dealers, or wheelchair retailers). To the extent required by the  Public Health Law or  regulations, all such vendors shall be registered with the New York State  Department of Health. Fees  for prosthetic appliances are set by the New York State Department  of Health.
    12. Interpreter, tutorial and attendant services. 
      1. Vendors of interpreter services shall  be certified by the National Register of Interpreters for the Deaf.  Exceptions may be made  where certified interpreters are not available.
      2. Providers of tutorial services must provide written documentation  of their expertise  and ability to provide the specific tutorial service required (e.g., academic degree in the  specialty area and letters of reference from responsible and knowledgeable  sources).
      3. Attendant services shall be authorized on the basis of the nature  of service  performed and hours involved and are subject to prior approval by the  agency.
      4. Interpreters for the deaf are paid according to the agency fee  schedule which  excludes transportation to and from work settings. Tutorial and attendant  fees are negotiable.

Historical Note
Sec. filed Dec. 17, 1979; amds. filed: Jan. 23, 1990; Dec.  23, 1997; renum. 247.17, new  added by renum. 247.15, filed Nov. 13, 2001 eff. Jan. 2, 2002.

§ 247.17  Transportation services. 

Historical Note

  1. Purpose.  The purpose of this section is to establish standards for individuals,  partnerships or corporations engaged in providing transportation to individuals  by motor vehicles which  are specially designed and equipped to transport persons with disabilities  who do not require  emergency care while in transit.
  2. Definitions. 
    1. Special transportation carriers mean vendors who  operate motor  vehicles which are specially designed and properly equipped to transport  invalid, infirm or  disabled persons.
    2. Agency means the Office of Vocational and Educational  Services for Individuals with  Disabilities of the New York State Education Department.
    3. Nonambulatory individuals mean persons who are restricted  to a wheelchair, stretcher,  or similar conveyance for purposes of mobility.
  3. Standards. 
    1. Each special transportation carrier shall comply with 17 NYCRR 720   with regard to motor vehicles with a seating capacity of not more  than 16 passengers and with  17 NYCRR 721 with regard to motor vehicles with a seating capacity  of more than 16  passengers. Each special transportation carrier shall comply with  all applicable provisions of  the Vehicle and Traffic Law, the Regulations of the Commissioner  of Motor Vehicles (15  NYCRR), and relevant laws, ordinances, and regulations of local application.
    2. In addition to the requirements of paragraph (1) of this subdivision,  the following  safety features are required of all special transportation carriers  as specified below.
      1. All motor vehicles of special transportation carriers shall be  equipped with safety  belts for all seating positions up to the maximum capacity of the  vehicle.
      2. All motor vehicles of special transportation carriers with a seating  capacity of more  than one passenger shall be equipped with an automatic activator  device that causes the two  front and two rear directional lights to flash simultaneously upon  opening of the loading  door.
      3. A person who has successfully completed an American Red Cross  standard first aid  and personal safety course or equivalent training shall either operate  or be in attendance in  each vehicle when such vehicle is transporting a client of the agency.
    3. Special transportation carriers engaged in the transportation  of nonambulatory  individuals shall comply with the following requirements in addition to  the standards contained in  paragraphs (1) and (2) of this subdivision.
      1. All vehicles used to transport nonambulatory individuals shall  be equipped with  permanently mounted wheelchair and/or other appropriate locking devices  equal in number  to the maximum number of spaces in the vehicle designated for nonambulatory  individuals.  Such vehicles shall also contain or provide belts or similar restraints  to secure each  nonambulatory individual to the wheelchair, stretcher or similar  conveyance.
      2. All motor vehicles of special transportation carriers shall provide  sufficient  headroom to safety and comfortably accommodate nonambulatory passengers  during  entrance, egress, and transport.

Historical Note
Sec. added by renum. 247.16, filed Nov. 13, 2001 eff. Jan.  2, 2002.

§ 247.18  Waiver. 

Historical Note

The agency shall grant a waiver to an eligible individual of any  maximum amount, maximum  allowance or other cost and/or duration limit established in this  Part, upon a finding by the agency  that such cost and/or duration limit, if made applicable to such  individual, would effectively deny  his or her access to services necessary to achieve an employment  outcome. A request for a waiver  shall be submitted in a form prescribed by the commissioner.

Historical Note
Sec. filed Jan. 16, 2007 eff. Feb. 1, 2007.

\TITLE 8 EDUCATION DEPARTMENT  \Chapter II.  Regulations of the Commissioner (  continued)   \Subchapter V.  Office of Vocational Rehabilitation  \Part 247.  CLIENT SERVICES  \§ 247.18  Waiver.  \ Historical Note\

 

Last Reviewed: March 2010

Disclaimer:

These Rules of the Regents and Regulations of the Commissioner of Education ("regulations") are unofficial, and are presented for general informational purposes as a public service. Although reasonable efforts have been made to ensure that these regulations are current, complete and accurate, the State Education Department does not warrant or represent that they are current, complete and accurate. These regulations are subject to change on a regular basis. Readers are advised to consult Title 8 of the Official Compilation of Codes, Rules and Regulations of the State of New York (8 NYCRR), published by the Department of State, and the State Register for the official exposition of the text of these regulations, as well as for amendments and any subsequent changes or revisions thereto.