ORDER OF SELECTION—LESSONS LEARNED FROM A STUDY OF FEDERAL AND SELECTED STATE POLICY FRAMEWORKS Robert “Bobby” Silverstein The Council of State Administrators of Vocational Rehabilitation Date: 12/12/2008 Please stand by for real-time captions. Overview [Operator] Good day, ladies and gentlemen. Welcome to the “Order of Selection: Lessons Learned from a Study of Federal and Selected States.’ At this time all participants are in a listen-only mode. Later instructions will follow for the question and answer session. As a reminder, this call is being recorded. I would now like to introduce Pamela Williamson. [Pamela Williamson] Good morning, everyone. We are excited to have you all joining us for this very important audio conference. I'm Pamela Williamson. This is the first in a series of sessions offered by the newly funded Southeast Technical Assistance & Continuing Education Center. Our mission is to improve the quality and effectiveness of services and enhance employment outcomes for individuals with disabilities in the eight southeastern states in our region. It is collaboration. Today's session is entitled “Order of Selection: Lessons Learned from a Study of Federal and Selected State Policy Frameworks.” We're privileged to be joined by our speaker, Bobby Silverstein. Michael Morris will be moderating the call. First, housekeeping details. Note that individuals are joining us today using a variety of mediums. During the question and answer session, we will take questions from the telephone audience, through the phone, and over the internet. Bobby will speak for about 40 minutes. After that there will be an opportunity for everyone to ask questions for 15 minutes. The operators will provide instructions when they're ready to take questions. For the second part, Bobby will speak again. At the conclusion of that section, we will have another question and answer section. The operator will again be providing instructions at that time. Depending on the number of questions we have today, we may not be able to address all of the issues or concerns. We encourage you to follow up via phone 1-800-949-4232. I will now turn it over to Michael Morris, who will introduce our speaker. [Michael Morris] Thank you, Pam. It's a pleasure to be a part of this first audio conference and training program of the new Southeast TACE center. This center is really a learning consortium of outstanding educators, researchers, representatives of the business community, and representatives of the independent living community throughout the southeast region. We will be joined by a number of other national experts. We all share in common objective to advance the status of individuals across the full spectrum of disability. I'm pleased this morning to be able to introduce to you our guest presenter for today. Bobby Silverstein is a nationally recognized disability policy analyst with over 30 years of experience. Really one of the principal individuals who is involved in the development of so much of our public policy today that supports the independence and community participation and full productivity of individuals with disabilities nationwide. Bobby has been very active recently in working with CSAVR, and a variety of states, in helping us to learn and analyze and understand more about the Order of Selection provision under Title I, developing a series of policy bulletins. And in drafting recommendations for an advisory panel for improving partnerships between state vocational rehabilitation agencies and community rehabilitation providers under the Ticket to Work program. Bobby is a Principal in the law firm of Powers Pyles Sutter & Verville, P.C. here in Washington D.C. where he focuses on disability, healthcare, rehabilitation, employment, education, social security and civil rights. Bobby served as the director of the Center for the Study and Advancement of Disability Policy. All of his current work builds on his leadership on Capitol Hill, which included serving as staff director and chief counsel to the Subcommittee on Disability Policy, where he was the leader of some 20 different pieces of legislation, including the Americans with Disabilities Act, and IDEA. Mr. Silverstein has a law degree and a BS in economics. I know many of you have had an opportunity to hear Bobby speak, or are well aware of his reputation. We thought of no better individual to start off our series of training opportunities for this new southeast TACE. The presentation today on Order of Selection is really as much an introduction and opening to begin a dialogue with you, if you are at the state level. We hope what this can lead to is some one-to-one very customized technical assistance around policy development, procedures, and policy implementation regarding Order of Selection that Bobby would be glad to work with you on. We may also look at the possibility of creating a community of practice, which could go on for several months, or it could meet once, or it could continue throughout the year. It will depend on you and your interests as you listen to the presentation today and share some of your questions. Depending on your interests and what we can work on together to really tackle this subject, which of course is one of the significant challenges today facing vocational rehabilitation agencies with reduced budgets and increased demand; it's an appropriate kickoff topic for us today. With that introduction let me turn it over to Bobby Silverstein. [Bobby Silverstein] Thank you so much, Michael. Good morning to everyone. Brenda, are you out there by any chance in Tennessee? [Operator] She'll be locked out of being able to answer you now. [Bobby Silverstein] Tennessee was one of the states that we studied, as you will see shortly. I will go through this PowerPoint, I'm going to -- as I move, I will say slide 1, slide 2, and slide 3... Slide 1: Order of Selection—Lessons Learned From a Study of Federal and Selected State Policy Frameworks Slide 1 is just the title of the presentation. Slide 2: Summary of Report prepared for: The Rehabilitation Research and Training Center On Vocational Rehabilitation http://www.communityinclusion.org/ ; Report Prepared By: Robert “Bobby” Silverstein, Bobby.Silverstein@ppsv.com In Partnership with: The Council of State Administrators of Vocational Rehabilitation http://www.rehabnetwork.org What I am doing here is summarizing a report that was prepared for the RRTC on vocational rehabilitation in part with CSAVR. Order of Selection has -- whenever anybody is polled in the public rehab system, Order of Selection is always at the top. There's questions about whether the legislation -- whether the provision should be changed? Should it be retained? Should it be modified? In the past there was a lot of information about the Order of Selection policy as implemented in the various states, but there was no comprehensive report looking at the Order of Selection policy. We decided that this should be the first report prepared for the RRTC on VR. The southeast TACE felt this was, based on surveys and needs assessments, to be a number one issue. I want to make sure you all know the materials that are available, in addition to the slides in terms of the PowerPoint. We also have a comprehensive report. The report is called “A Description and Analysis of the Federal and Selected State Policy Frameworks Regarding Order of Selection under Title I of the Rehabilitation Act.” We also have a separate document which is a comprehensive review of the federal regulations. What I did in that document is describe comprehensively all of the key applicable regulations and the important part is in the appendix. I included the entire applicable sections from the Code of Federal Regulations. You have a description of the federal policy, as well as the actual policy. The last document you should have to accompany the PowerPoint is comprehensive notes. The reason for sharing that with you is I hope you will feel free to use this document to train and provide technical assistance to others. Feel free to use this document. Slide 3: Introduction: Order of Selection Policy Introduction Order of Selection Policy, In General State VR agency must implement Order of Selection (OOS) when it will not have sufficient resources to fully serve all eligible individuals. The VR Agency must first select individuals with the most significant disabilities. Let's look at the Order of Selection policy in general. Where did it come from? What is the basis for it? When we write public policy there's usually a fundamental social policy dilemma. Do you focus money in a given program on those most in need? Or do you focus the program on those most able to benefit? Those most able to benefit in this context may, for example, be people with more moderate disabilities. So the dilemma is how do you structure a law when you know you don't have enough funds to serve all? In the case of Title I of the Rehab Act, Congress has said we are going to have an Order of Selection policy, which must be implemented when the state VR agency anticipates it will not be able to serve everyone. And we use -- we focus on individuals with the most significant disabilities who are selected first. Slide 4: Introduction: Purpose of Policy Analysis Introduction: Purpose of Policy Analysis Help inform policymakers and other stakeholders about the implementation of Order of Selection by: Conducting comprehensive review of the federal policy framework Conducting comprehensive review of selected state policy frameworks What was the purpose of our policy analysis? We wanted to provide information to the various stakeholders ranging from state VR agencies, CRPs, independent living centers, persons with disabilities, organizations representing the various groups, as well as federal policymakers. So we could get a comprehensive view of the lay of the land, in terms of policy development and implementation. Slide 5: Introduction: Selection of States Introduction: Selection of States Eight states selected based on national survey and pre-determined criteria. States selected were California, Iowa, Massachusetts, Michigan, Tennessee, Virginia, West Virginia, and Wisconsin. We selected the eight states. How were they selected? We worked with CSAVR and did a national survey and asked who has developed comprehensive policies, guidelines, tools, and training materials? Who has established an Order of Selection? Who has been active in the Order of Selection? Slide 6: Introduction: Methodology Introduction: Methodology Reviewed Federal Policy Framework Used common template to analyze policy framework for each of the eight states Conducted thematic analysis of key components of OOS policy across eight states The way I approached it, I first did a look at the policy framework, the statute, the regulations, the guidelines, any kind of technical assistance manuals developed over time by the Department of Education. Next we researched and described the state policy frameworks using a uniform template so the descriptions are in that lengthy document that you have a copy of. If you look at how Tennessee or West Virginia or Virginia - what their policy framework is - you will see the identical headings for all of the states. Then, finally, we did analysis. We took each of the major headings, and we looked to see how each of the various eight states had addressed a particular topic area. Slide 7. Introduction: Presentation Regarding Order of Selection Introduction: Presentation Regarding Order of Selection Overview Establishment Implementation Administration In terms of how I'm going to proceed now, I'm going to give you a quick overview of Order of Selection. And then I'm going to focus on the first subtopic, which is establishing an Order of Selection. Again, I'm on slide 7. Then we will stop for questions for 15 minutes or so. Then we will continue on and look at implementation and administration and then have another Q & A session. Slides 8 and 9: Overview of the Order of Selection Overview of the Order of Selection Determining Whether to Establish an Order of Selection Standard When decision must be made Re-evaluation I'm now on slides 8 and 9. This is now the topic that I'm going to talk about for the next five or ten minutes. First, determining whether to establish an Order of Selection. We will talk about the standard, when the decision must be made, and the need to do a reevaluation. Under the regulation, state VR agencies are required to implement an Order of Selection when it's established there will not be sufficient resources to fully serve all individuals. The decision to establish and implement Order of Selection must be made prior to the beginning of each fiscal year. California, for example, talks about doing this ongoing review quarterly. Michigan talks about doing it periodically. Wisconsin talks about doing this review once a month. If folks are interested in an example of how a state does the analysis, I would urge you all to look at the red flag system used by Michigan. It's on page 47 of the document called "Description and Analysis." If anybody has any questions about that, I'm glad to do it on Q & A. That's the kind of thing that I think after the call if you are interested, you may want to look at the red flag system. Slide 10: Establishment of Order of Selection Establishment of Order of Selection Consists of priority categories: Those with the most significant disabilities selected first The Order of Selection consists of priority categories in which eligible individuals are assigned. Under Order of Selection, individuals with the most significant disabilities are selected first. Slide 11: Definition of “individual with a significant disability” Definition of “individual with a significant disability” Criteria: Severe physical or mental impairment Serious limitations in one or more functional capacities in terms of an employment outcome Requires multiple vocational rehabilitation services over an extended period of time Determining how to do Order of Selection. Two key definitions must be reviewed. First is the definition of “individual with a significant disability.” And then we'll see in the next slide “individual with the most significant disability.” I want to focus for a minute here - this is a key slide, an individual with a disability is an individual -- with a significant disability is an individual who has a severe physical or mental impairment which seriously limits one or more functional capacities in terms of employment outcome, whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time. And later in this -- in about five minutes, we will focus on each of those key words. Slide 12: Definition of “individual with a most significant disability” Definition of “individual with a most significant disability” Defined by each State VR agency Agency uses criteria consistent with statutory definition of individual with a significant disability OOS must be based on refinement of the three criteria in definition No other factors can be used In terms of definition of individual with the most significant disability, the statute permits the state VR agency to use criteria, so long as it's consistent. The Order of Selection must be based on a refinement of the criteria in the definition. And no other factors can be used to determine significant disability or assignment to a priority category. That's key. That's why shortly we will be looking at the refinement of how states have refined the term “severe.” What do we mean by multiple vocational services over an extended period of time? Slide 13: Implementation of Order of Selection Implementation of Order of Selection When State VR agency establishes but does not implement Closing of priority categories We're now on slide 13. Continuing on the overview. Here we're getting into implementation. If a state VR agency establishes an order but does not implement it at the beginning of the year, it must be able to fully serve all eligible individuals. If it cannot, it must implement the order by closing one or more priority categories. Slide 14: Administration of Order of Selection Administration of Order of Selection Development of IPE for those individuals to whom state is able to provide services. Information and referral system used for individuals on waiting list. Role of State Rehabilitation Council. The administration of Order of Selection. In a state that is operating under Order of Selection, the IPE must be developed and implemented but only for those who are eligible individuals who are in a priority category. Thus, IPEs may not be developed for individuals on waiting lists. However, those on waiting lists, those who are not in the priority categories, must be provided information and referral. And there must be consultation with the state rehab council. Now into the first of our four major headings. Now we're going to slides 15 and 16. Slide 15 Establishment of Order of Selection Slide 16 Establishment of Priority Categories Establishment of Priority Categories Federal policy—first priority given to individuals with the most significant disabilities. State implementation: Three Priority Category System (California, Iowa, Massachusetts, Michigan and Wisconsin) Four Priority Category System (Tennessee, West Virginia, Virginia) The federal policy framework explains that when we establish this order of selection for services, we're doing it to provide an organized and equitable method for VR agencies to serve individuals when there are not enough resources to serve everyone. Now, states over time have developed different types of systems. Some states use the three-priority category system for determining individuals with the most significant disabilities. Some states have established what we call the four-priority category system. Let's look at the three-priority category system first. First category is those with the most significant disability. Second category is those with significant disabilities. The third is others. There are variations in some of the states. If you go to the next slide -- I'm sorry, let's stay on that slide for a second. We have the four-priority categories first. Tennessee is one state that is using four priorities. They have most significant disability. Second is significant. Then they have a third category of individuals who do not have a significant disability and whose rehab is expected to require multiple services. The fourth category is individuals who do not have a significant disability and who cannot be classified in any other category. Then we have Virginia, which has an interesting variation. They have a category one for most significant disability. Then category two and three are variations on individuals with significant disabilities. Category two is those with two functional areas and requires two or more services. Category three is one functional area and requires two or more services. Slide 17: Individual with a significant disability Individual with a significant disability Federal criteria: Severe physical or mental impairment Number and degree of functional limitations in terms of employment outcome Number of (multiple) vocational rehabilitation services needed Amount of time needed (over an extended period of time) We now go to slide 17. I hope I didn't mess things up too much. Individuals with a significant disability. We're now looking at what are the federal criteria? The federal criteria are who has a severe impairment which seriously limits one or more functional capacities. If you go to the next chart, slide 18 you will see how various states have interpreted the definition of significant disability. And you will see California, for example, says at least one. Slide 18: Variations among states Slide 19: Individual with the most significant disability Individual with the most significant disability Order of selection based on refinement of criteria in the definition of individual with a significant disability; No other factors may be used Then if we go to the next chart on Slide 19, it will be individual with the most significant disability. Under the federal law, again, you can refine the criteria that I just articulated, but you cannot use other factors. You may refine the number and degree of functional limitations, the number of rehab services needed, and the amount of time you need to provide it. Slide 20: Variations among States If you then go to slide 20, you will see the list of states. You will see for example, Tennessee is two or more severe limitations, and needing two or more VR services over an extended period of six months or more. You will see that Iowa has three or more, more than one service, longer than one year. You see there is some degree of variation among the states. Slide 21: Functional capacity areas Functional capacity areas State implementation—all of the states except California include the 7 categories identified in the federal regulations (i.e., mobility, communication, interpersonal skills, mobility, self-care, self-direction, work skills, and work tolerance). California does not include self-direction. No state included additional functional capacity areas. Lets now turn to slide 21. In terms of functional capacity areas, the federal regulations list seven. They are mobility, communication, interpersonal skills, self care, work skills, work tolerance. All of the states use these categories, except California. Slide 22: Establishment of Order of Selection Several states include comprehensive definitions for each functional capacity area and required documentation (see e.g., Tennessee). Several states have developed comprehensive manuals related to functional capacity areas (e.g., Iowa) and checklist (e.g., Massachusetts). We go to the next slide, Slide 22. Several states include comprehensive definitions of each of the functional capacity areas in required documentation. This is an important slide. Because you will see if you go back to the previous slide in terms of the variation between the states in terms of definition of most significant disability, there is not that much variation. But you will find there is some comprehensive -- some states provide comprehensive guidelines on defining each of the functional areas and as we will see shortly, defining what we mean by the term serious limitation in terms of employment and what we mean by what are some acceptable and unacceptable factors to use. Let's start with the notion of comprehensive definitions. Tennessee -- I'm sorry, we're on slide 22. Let's look at Tennessee in terms of mobility. They have a definition that is comprehensive. Unable to use available public transportation because of a physical disability or unable to operate a motor vehicle because of a physical disability or has limited or no independent mobility. Iowa defines it differently. Moving about from place to place. Talks about moving the whole body and includes travel to and from destinations. This is a teaser. This is to show you if you are looking at developing an Order of Selection or revising it you have here eight different state approaches for how they define the various functional capacity areas, and the kind of documentation they require. (That was Slide 21.) 22. Now in terms of several states include -- we did that. I'm sorry. Now we're on to 23. Slide 23: Multiple vocational rehabilitation services State implementation—the states include varying definitions of the term. The next key term that I described is multiple rehab services. And here, again, it's very critical to look at how the various states have defined multiple rehab services. You will note significant variation. I will share with you - California excludes counseling and guidance. Tennessee excludes support services such as transportation, maintenance and routine counseling and guidance that should take place in every state. Let's look at what Tennessee includes -- their definition of multiple services means two or more rehab services. Now, Massachusetts lists about 15 different categories of services that are included and has exclusion for assessment, determining eligibility, counseling and guidance, job-related services not of a specialized nature. Here again you can see some variation in how states define this term, which they are permitted to do. There would be some implications of who is receiving services based on the definitions. Slide 24: Serious limitation in terms of employment State implementation—several states included definitions for the term “serious limitations” in terms of employment. California Tennessee Iowa Virginia Michigan Then the term serious limitation in terms of employment. This was my major ah-hah! when doing my research. When I was discussing things with the disability community, everybody was focusing on how many functional -- how many functional -- how many limitations and how many areas. Or what was the extended period of time? What I found most interesting is the significant variation in how the term “serious limitation in terms of employment” was defined by various states and how much -- manuals and check lists and stuff were developed. In some states the material was quite extensive. California defines it to mean a reduction of one's capacity to perform due to severe impairment to the degree that the individual requires services or accommodations. A lot of states have that phrase. Michigan would say limitations in a functional area that are poor or well below what is typically expected. And Tennessee actually includes a different definition for each of the seven functional areas, which is quite interesting. They go into extensive technical, or policy, advice with respect to what constitutes a serious limitation in terms of each of the various functional limitations. One of the things I included in the paper, but did not include in the slide when I listed states, is Wisconsin. There's some question about Wisconsin's policy. Because what they do is to say they define serious limitation by looking at if a person has a mitigating factor. If a person uses a wheelchair, they may not be significantly disabled, because they have mobility capacity. They were the only state that included this policy. Slide 25: Acceptable and Unacceptable Factors Acceptable and Unacceptable Factors Federal policy—Acceptable factors and unacceptable factors State implementation—Several states include or incorporate by reference the factors set out in the federal policy framework in guidelines or state regulations. California adds “sexual orientation” to the list. If we go to slide 25. We know what some of the acceptable policies are, but the regulations also specify what is not permissible. And this is important in terms of developing policy. You may not base Order of Selection on the duration or residency of an individual, source of referral, type of expected employment outcome, or the need for specific services. Slide 26: Ranking Individuals within a Priority (Waiting Lists) Ranking Individuals within a Priority (Waiting Lists) Federal Policy—Okay to use equitable and reasonable factors such as date of application. State implementation—All of the states adopt the individual’s date of application as an equitable and reasonable factor for ranking individuals within a priority (waiting list). Some states explain that individuals are taken off the waiting list in the same manner (e.g., Iowa). The next slide, which is slide 26, deals with the policies of, okay, you have priority one, most significant. What happens if you don't have enough money to serve everybody in priority one? The policy says that you can develop a ranking system using equitable and reasonable factors, that's the language from the policy. They give an example as first come is first served, that is the date of application. If you have folks in priority one and can't serve everybody, one reasonable way of doing it is order in terms of the state of the application. I'm going to stop here. It's exactly 40 minutes. And open it up for questions. Then after the question and answer session we will continue by going through the issues of implementation of Order of Selection and administration of Order of Selection. Questions Section 1 [Operator] Ladies and gentlemen, at this time if you have a question please press the 1 key on your phone. If your question is answered, or you wish to remove yourself, press the pound key. One moment while we wait for any questions. [Pamela Williamson] While we're waiting, Bobby, we have received one via email. The question is what is the impact on service in the states that chose to use the three-priority system versus the four-priority system? [Bobby Silverstein] The answer to that question is I have only looked at the policies right now. The next research project is to answer that question, among others. To say, okay, now we know the differences in policies, what are the implications? At this stage you would be able to identify the states that use three and use four, and then be able to know that you can give them a buzz or you can give me a call, and I can try to follow-up. That was our next research project, in fact. [Michael Morris] Bobby, while we wait to see if the audience has some additional questions, this is Michael, I have two so far. I will take advantage of the time. One is in one of the slides you mentioned that federal policy makes it clear there are certain factors that are unacceptable in developing a policy on Order of Selection. My question is whether or not you can use the distinction of age to put someone -- to incorporate that into an Order of Selection? [Bobby Silverstein] The answer is no. Age, gender, race, national origin are listed as unacceptable factors. [Michael Morris] You could not use age. [Bobby Silverstein] Correct. [Michael Morris] Okay. Also, in the policy guidance, has there been anything that would indicate whether individuals who are on SSI or SSDI automatically would have to qualify as the most severely disabled and be a priority for Order of Selection? [Bobby Silverstein] That is an excellent question. The answer, Michael, is that the statute and regulations explicitly say in defining individual with a significant disability, um, folks on SSI and SSD are significantly disabled. It also makes it clear they do not, do not automatically qualify as most severe, most significantly disabled. [Michael Morris] Okay. [Operator] We do have a question over the phone. Jim Harris from Alabama. Your line is open. [Jim Harris] Thank you. Bobby, could you address extended period of time? [Bobby Silverstein] Yes. Again, what you have -- if we go back to slide 20, you see there's been a variation in terms of how states have interpreted this from California for more than six months to Iowa being longer than a year. Most folks do six months. West Virginia has nine months or more. [Jim Harris] State's option, thank you. [Bobby Silverstein] State's option. [Jim Harris] Thank you. [Operator] We have no further questions. [Michael Morris] Bobby, I will ask you one more. That is -- again, you looked at a sub-sample of states. Do you get any sense as to whether states, again, due to further difficulties in terms of budget resources, are sort of increasing the number of areas in terms of functional capacity and increasing the number of areas for multiple service needs, which would continue to narrow the definition of individual with the most significant disability? [Bobby Silverstein] Yes. I think the folks that are trying to do the narrowing because of limited resources are spending more time providing more extensive definitions of two phrases, -- severe and seriously limits one or more functional capacities. This is my major ah-hah. It was not the category that we would have expected in terms of how many functional capacities, how many services, or what period of time. The real way of doing the limit is with respect to the definition of severe physical or mental impairment, serious limitation and the documentation in a is required. To me the most important thing for a follow-up is to look at the paper, the lengthy paper, it is page 96-98, where there's a really good set of examples of how various states have addressed this issue. Then go into the section that looks at each state in depth, see how they've done it. If anybody is interested, you can just email me, or get in touch with me, I can probably get the actual state policy. Again, the purpose of this call is to say we're here ready, willing and able to walk you through the gestalt of Order of Selection, all of the soups and nuts, every aspect of this and help you by not saying what you should do, but telling you what the federal policy is and giving you eight examples of how states have decided to implement the policy. [Michael Morris] Great. That's helpful. Okay. You probably want to go to the next section, as you said, looking at implementation. Slide 27: Implementation of Order of Selection Bobby Silverstein Okay. We're on slide 27. These are policy-related issues in terms of methods of administration on how you implement the Order of Selection. Slide 28: Statewide Basis Implementation of Order of Selection Statewide Basis Federal policy Same priority categories closed in all State VR agency offices Notify all eligible individuals of priority status and right to appeal assignment The first issue under slide 28 -- The policy requirement and this slide will be the federal policy; the next slide is how the states have implemented. Slide 29: Statewide Basis State implementation—All of the states explain that the order of selection must be implemented on a statewide basis. For example, Michigan policy explains that waiting lists are developed on a statewide basis for eligible individuals, regardless of location, based on their significance of disability priority order, and on the date of application. The order of selection is managed centrally. Order of Selection must be implemented on a statewide basis. The same categories must be closed in all state VR agencies offices around the state. The states all have policies with respect to this. For example, Michigan, which is the next slide. Michigan policy explains that waiting lists are developed on a statewide basis, regardless of location, based on significance of disability, priority order, and date of application. The reason for date of application is if you are in priority one and you don't have enough resources, you may have a waiting list. Slide 30: Authority to Open and Close Priority Categories, as Needed Authority to Open and Close Priority Categories, as Needed Federal policy Authority to open and close priority categories, as needed Authority to establish but not implement ] We go to the next slide, number 30, the authority to open and close priority categories. This slide is the federal policy. The next slide is the state policy. The feds have said you are authorized and permitted to open and close priority categories as needed. But there's a proviso, as long as the order of the categories is maintained and there's continuity of services to all individuals selected, you must be able to provide a full range of services to all, or in the alternative it must implement the Order of Selection by closing one or more priority categories if there's insufficient funding. Another way of saying this is a state agency that is operating Order of Selection with all priority categories open must meet the same requirements as an agency that did not establish an Order of Selection. Or it must close one or more categories. Slide 31: Authority to Open and Close Priority Categories, as Needed Authority to Open and Close Priority Categories, as Needed State implementation—The states have adopted policies that reflect the federal policy framework. West Virginia Iowa Slide 31. In terms of implementation, I give you an example here of West Virginia. It specifies that the VR director has the authority to open and close categories as long as the categories -- there's continuity of services. Iowa includes a provision that was -- I didn't see it in any other state, it said once determined to be severely disabled an individual classification is never downgraded during the time that file is open. Even if there's a new assessment, you will not change the individual's priority category. Slide 32: Continuation of Services Continuation of Services Federal policy—Authority to open and close priority categories as long as continuity of services to all individuals selected for services is assured. State implementation—All of the states include the policy regarding continuation of services. (California example). The next slide, slide 32, continuation of services. Here is the federal policy, there is the authority, and states have the authority to open and close categories so long as the order of categories is maintained and continuity of services. And so let's look at California for example. They specify that on implementation of Order of Selection, individuals whose IPE was written and signed prior to implementation of Order of Selection must continue to receive services. But if somebody is determined eligible prior to implementation, but there is no IPE, they shall be assigned a priority category. If they're not in the highest priority, then services would not be provided. Slide 33: Funding Arrangements-Contributions Funding Arrangements-Contributions Federal policy—earmarks for particular services and particular groups but must be used in a manner consistent with state’s order of selection. State Implementation [e.g. Michigan, Iowa, Tennessee, West Virginia Funding arrangements. This is one of these nuances that are addressed in the federal policy, and in state policies. Sometimes there's earmarking of services under a state law or somebody is willing to provide funding but only for certain services or for certain groups. The question is does this funding priority, or earmarking, pre-empt the Order of Selection? The answer is no. The funding must be consistent with the Order of Selection of policy. Many of the states that have cooperative agreements with other states have made it clear that in terms of implementation and how to deal with the funding arrangements that they still must be consistent with the state's Order of Selection policy. That's an important proviso or policy clarification. Slide 34: Administration of Order of Selection We will now go to move to the last topic for the day, in terms of Order of Selection. This is administration of Order of Selection, slide 34. Then we will move to slide 35, which is assessment for determining priority of services. Slide 35: Assessment for Determining Eligibility and Priority for Services Assessment for Determining Eligibility and Priority for Services Federal policies—conduct of assessment, including determining priority for services The federal is on slide 35; the state policy is on slide 36. What is the federal policy with respect to assessment? The individual's priority under Order of Selection, the VR must conduct an assessment. The eligibility could be using existing data or additional data when necessary. The question was raised whether or not you can use information from another agency. The answer is yes, to assist the VR council to make these determinations. Slide 36: Assessment for Determining Eligibility and Priority for Services Assessment for Determining Eligibility and Priority for Services State implementation—states have developed comprehensive policies, procedures, manuals and checklists for conducting assessments for determining priority for services. ] In terms of state implementation, here in terms of follow-up, I would urge you to look at the sections of the discussion of assessments in the long paper. Because here you will see the extensive nature of what some states are doing in terms of comprehensive policies and procedures, manuals, check lists with respect to making priority determinations. Here is where a lot of that information comes out with respect to who has a severe impairment and when is it -- when does it seriously limit one or more functional areas? Again, I urge you to look at that more extensive document. For example, if we look at Tennessee for a moment, they have for each functional area they describe what constitutes a serious limitation and they have extensive discussion on the type of documentation that would be required. Let's take mobility for example. Seriously limits means unable to use available public transportation because of a physical disability or unable to operate a motor vehicle or has limited or no independent mobility. Then under documentation -- it will require documentation from a physician or other medical source. If it's readily apparent, the council may document it by outlining the basis for the observation. Again, you will find the Tennessee materials are particularly helpful with respect to both defining each of the serious limitations in each of the areas, as well as the documentation that must be provided as part of the assessment. Slide 37: Notification of Eligible Individuals Notification of Eligible Individuals Under the federal policy framework, the State VR agency must notify all eligible individuals of the priority categories in a state’s Order of Selection, their assignment to a particular category, and their right to appeal their category assignment. [34 CFR 361.36(e)(2) States provide notification to eligible individuals consistent with the federal policy framework. ] If we then go to slide 37, here is the requirement for notifying the individual. They must be notified as to what priority category they're in, their assignment to the category, and the right to appeal. Most of the states have specific policies and most of the states have model letters that can be sent from rehab counselors to the various -- to the individuals. Slide 38: Responsibilities to Individuals Who Meet Open Categories Under OOS Responsibilities to Individuals Who Meet Open Categories Under OOS Federal policy—must receive assessment and full range of services State implementation—the states all include the policy specified in the federal policy framework. (e.g. Michigan, Massachusetts) If we go to the next slide, number 38. What are the requirements for folks that are in open categories? Again, there needs to be an assessment done. First of all, there's an IPE for these individuals. And then the assessment is going to be used to determine the employment outcome, the nature and scope of the VR services to be included in the IPE. And the states make it clear, again, that under Order of Selection customers served under an IPE must be able to obtain the full range of services, you can never cut back on the services provided to an individual with an IPE. That is a very key policy understanding. Slide 39: Responsibilities to Individuals Who Do Not Meet Open Categories Under OOS Responsibilities to Individuals Who Do Not Meet Open Categories Under OOS Federal policy—access to information and referral system State implementation—The state policies generally restate the policies set out in the federal policy framework (see e.g., Tennessee and West Virginia) Additional State Policies (Iowa, Michigan, Virginia) The next slide, Slide 39, is the responsibilities to individuals who do not meet open categories. There was no policy guidance on this issue in the federal statute until 1998. Because in 1998 there was some consideration to modify the Order of Selection. Instead of doing that -- part of the policy issues is what happens to the folks in priority category two and three if you can only serve category one? Some of the folks were just sent away. Congress wants to make it clear that just sending people away was not acceptable. There is explicit policy that says if you do not meet the criteria for an open category, you must receive information and referral services. That would include information and guidance to assist individuals in achieving employment outcome and referring individuals to other programs. More specifically, there must be a notice of the referral, a point of contact, information and advice. Slide 40: Case Closure and Maintenance of Records Case Closure and Maintenance of Records Federal Policy The individual’s service record must include documentation on the nature and scope of information and referral services provided by the State VR agency to the individual and documentation on the referral itself [34 CFR 361.47(a) (13). The designated state unit must maintain for each applicant and eligible individual a record of services that includes, to the extent pertinent, documentation supporting a determination that an individual is an individual with a significant disability or an individual with the most significant disability. [34 CFR 361.47] The states have adopted policies consistent with the federal policy framework. This is one of the areas that it's important, again, to look at the detailed paper, it's on page 103, for those of you that want to follow-up. There are many states that specify if you are not in a priority category that no special services may be provided to you, no money or staff time, no purchase of services. One such state is Iowa. Michigan's policy, cost services cannot be provided to those on the wait list, only counseling regarding referrals to other agencies. Virginia policy, while a case is in delayed status, counselors are limited to providing additional diagnostic services. If needed to assess diagnostic services the counselor may provide them. Again, developing this policy, or looking at how other states have done it would be very critical because you see some degree of variation here. In terms of case closure and maintenance of records the policy is clear. The individual record must include documentation on the nature and scope of the information and the referral. This must be maintained. Slide 4l: Monitoring and Oversight Monitoring and Oversight State Implementation: California has adopted specific policy requiring the VR agency to review at least annually the order of selection for all eligible individuals in priority categories, including those being served and those on the waiting list. The review must be conducted to assure that services are being provided on a statewide basis and the determination of priority category does not bar or discriminate against any eligible individual based on proscribed factors. If the Department’s review discloses the order of selection is barring or discriminating against any eligible individuals based on inappropriate factors, the Department must remedy that situation by promulgating emergency regulations within 90 days. Slide 41. We found in the state of California they had included significant policy guidance in terms of monitoring Order of Selection. And included a specific policy for how the Order of Selection should be overseen. The last slide, Slide 42 Slide 42: Role of State Rehabilitation Council Role of State Rehabilitation Council Under the federal policy framework, the designated state unit must consult with the State Rehabilitation Council regarding the— Need to establish an order of selection, including any reevaluations of the need; Priority categories of the particular order of selection; Criteria for determining individuals with the most significant disabilities; and Administration of the order of selection. [34 CFR 361.17(h) and 34 CFR 361.36(f) -- With respect to administration of Order of Selection, the state rehab council has a key role with state decision making. Now, it is 12:10, I'm going to open this up for comments, we're ahead of the game because we had so few questions before. If there are any questions on any topic from establishment, implementation, or administration, I'm glad to take it now. And also talk about, again, any kind of follow-up that any of you would like to have with respect to reviewing current policies or deciding whether to go to Order of Selection in the first place. Questions Section 2 [Operator] Once again, if you have a question or a comment please press the 1 key at this time. [Michael Morris] Bobby, this is Michael. I will jump in while people think. I was struck by the -- you are mentioning on one of the slides that the policy must be implemented uniformly on a statewide basis. It would seem to me that, again, given just the different population centers in a state that could impact adversely people in more densely populated areas. I'm surprised there's not a way of taking into consideration, you know, demand in one part of a state versus another, as a result being able to customize Order of Selection based on demand. [Bobby Silverstein] Yeah. The answer is no. The question I have that I think is an interesting follow-up question, again, there's a follow-up question with respect to state implementation, and how are they doing this? The question is if you are in priority category one is there flexibility by using an equitable and reasonable factor other than date of application? Michael, I'm wondering if you can't get into your issues in terms of rural areas. That I don't know the answer to. I think that's the place where it would be interesting to find out additional guidance from RSA. [Operator] No questions over the phone. [Michael Morris] I will ask one or two more. Do you have a sense of -- are there any states in the country that are not under Order of Selection at this point? [Bobby Silverstein] Um, the last list that I got from John Halloday, 27 combined agencies in the country, 15 were in Order of Selection. This is 2007. 24 general agencies, 14 in Order of Selection. 25 agencies for the blind, 5 in the Order of Selection. [Michael Morris] Okay. In terms of the policy implementation issues, did you explore at all what approaches the eight states you looked at had been engaging their counselors in terms of training to understand and implement their policies? [Bobby Silverstein] Yeah, one of the directives from RSA is the requirement for extensive training of counselors with respect to Order of Selection. So there's a full knowledge of how the Order of Selection policies are to be implemented across the state. [Michael Morris] Okay, got it. I wonder -- we'll see if someone yet joins in with a question. I wonder if could you talk about some of your thoughts about different ways you might be helpful to any of the eight states in the southeast region in terms of -- it may be all of these things, review of their policy, it may be consideration of ways to modify their policy in light of what guidance exists from RSA, or it could be around administration and quality assurance, I guess. [Bobby Silverstein] Part of -- I am ready, willing and able to assist any state that is looking at Order of Selection, in any way they are doing it, and try to provide options, approaches. Again, as Michael said, if we want to establish a community of practice I'm glad to help facilitate that, so there's cross-state discussion on why did you develop this policy? Why did you develop this check list? Is it working? What are the implications? And help facilitate that process. [Michael Morris] Okay. I believe Pam may have some questions that have come in via email. Pam? [Pamela Williamson] Operator any questions in the queue? [Operator] The next is from David in Florida. Your line is open. [Audience] Hello. On the last slide regarding SRCs and the designated state units [Speaker/Audio Faint or Unclear ] to consult with them. I'm wondering if there's an expansion of the definition of consult given. [Bobby Silverstein] Sure. If you like I will look at what the regulation says on this so I can basically quote the reg. Let me find the document. Here it is. Take me just one second. Designated state units must be consulted with regarding the need to establish an Order of Selection, including any reevaluations of the need, priority categories of the particular Order of Selection, criteria for determining individuals with the most significant disabilities, and administration of the Order of Selection. Let me see if there is anything more specific in the actual regulation itself. That will take me two seconds. The rehab council must [ Speaker/Audio Faint or Unclear ] the performance of the state unit's responsibilities under this part, particularly responsibilities related to Order of Selection. The answer is there's no specific consultation with respect to Order of Selection. It is the broad general obligation to consult with. [Operator] We have another question. From David in Florida. [Audience] Yes. Just wondering in terms of the social security recipients and the Order of Selection there. Guaranteed a category of significant disability, but not most. The counselor when they come in on a social security disability and there's an assumed eligibility does the counselor take it to the next step in terms of looking at -- to get a most significant disability? [Bobby Silverstein] Yeah. What they're saying is this person would automatically qualify as significant. You are using the criteria that would otherwise be available to others to make the determination of most significant. So that, again, using Tennessee's example you would look at their definition of mobility and documentation and still use that for purposes of determining if there's a serious. [Audience] Thank you. Okay. [Operator] We have no further questions. [Michael Morris] Okay. Bobby, I will go back to what we were talking about -- [Bobby Silverstein] Michael, I will read you what it says in the policy. There's no statute within our authority for assigning a special priority category for individuals receiving SSI and SSDI or selecting these individuals before other individuals with most significant disability. [Michael Morris] Okay. Bobby, I was going to go back to just the ways we might proceed from here. What we may do is do direct follow-ups with in each of the eight states, with the state VR directors and perhaps offer them a set of choices. Would they have interest in you looking at their policy, analyze it in terms of whether you see points of concern regarding current RSA guidance. Second, whether they would like some customized assistance in terms of maybe in the refinement or modification of their policy. Or it could be on the administration, implementation, and quality assurance side. We could develop a little mini-survey back to the eight states at the state level and look at that in terms of interest from a menu. From that then we could follow-up in terms of, again, it could be one-on-one or it could be offering the opportunity in terms of -- would people like in a small group what we call a community of practice? Community of practice, just to be clear, is a fancy name for a small group, I would suggest less than 15 individuals, even better if it's around 10-12 individuals who express interest who would like to discuss this set of issues in more depth and use the group to help evolve in terms of some group problem solving and that type of group could meet on a monthly basis via a conference call. We could also set up space on the TACE website where individuals could be able to talk with each other on this particular set of issues and maybe post some type of modified Q & A that seem to be coming up repeatedly. Those are the options. Bobby is also available to do a series of these trainings on other topics, all which focus on opportunities for the vocational rehabilitation agencies to be involved in varied system change initiatives. Whether that be working with Medicaid infrastructure grants. Or engagement with WIPA grantees, work incentives, planning and assistance grantees as just a few of the topics. We'll be running this series next year, in 2009, probably about one a quarter. Again, we're open to suggestions you have based on needs you identify. There probably is not -- I know there's not a better policy expert on vocational rehabilitation and its relationship to other public systems than Bobby. We're pleased to have Bobby a part of our expert team in implementing the southeast TACE on behalf of RSA. Those are some of the options ahead. I don't know, Bobby, if you have any further comment about that. [Bobby Silverstein] Again, this was the issue that was identified by VR agency folks as the number one issue of concern. That's why I tried to do this exhaustive, I apologize for writing a hundred-page paper; it's more of a resource guide. If folks are saying what should I do on a particular issue? The guide is to say there are ten issues, not two. Let me see what the feds have said and what my colleagues have said. The purpose of this presentation is to say we're here, these resource materials exist, hopefully, they'll be of use. [Michael Morris] Right. Do we have -- I will go back to see if there are any questions. Or if you want to react to some of the ways that Bobby may be helpful in the future. Or even with -- since we have a little bit of time if anyone wanted to throw out a topic you feel would be interested in this area of policy development and policy implementation that extends beyond Order of Selection. Bobby at the front of the slides has shared his email address, I'm pretty sure. You can also communicate with him directly. I also would tell you for those that have joined today, please from time to time visit the TACE southeast.org website. You will begin to see more and more postings of training, technical assistance, continuing education opportunities. And we welcome your contacting the site in terms of identifying additional need areas whether it's at a system policy level, or it can be at an individual counselor level, or it could be about the issues of cross system collaboration. If you go to the website you will see that there is a second training informational call next week on December 18th. It is going to introduce the topic of communities of excellence. We will have a number of guest speakers on that. Joe Skiba, Mark Gold and Associates, and -- please do look at the website. You can register for that call as well, which is coming up next week. Let me just pause to see if there's anyone who would like to get a comment in before I close up. [Operator] If you have a question or a comment please press the 1 key. [Operator] I'm not showing any questions. [Pamela Williamson] This is Pam, while we're waiting I thought it would be helpful to provide Bobby's email to address to everyone. That is Bobby.Silverstein@ppsv.com. It is also on slide number 2 of the materials that you downloaded. [Operator We have no questions over the phone. [Michael Morris] Okay, thank you. Let me first thank Bobby Silverstein for this presentation. It is a very important topic in these times of constrained budgets it is a topic of greater scrutiny. You have given us important insights and excellent examples of the trends in where state VR agencies are going with the development of their policies and the administration of Order of Selection. We thank you for this, as I understand this presentation will be up on the website within about two weeks for people to review. Again, I urge all of you to pass the word along to others that you know in the rehabilitation community to visit the TACEsoutheast.org website, there will be an increasing amount of information. The TACE southeast project is a collaborative project in every way you can imagine, in terms of staff and collaborators. We will do everything possible to develop not only the appropriate access to the subject matter expertise, but offer multiple ways that meet your learning preferences in responding to those needs. We will be establishing and having state leadership councils in each of the eight states. They will be having their first meetings in January. There also is a regional advisory council that will be meeting after that first take place. We look at the TACE as a project funded by RSA, but a project that belongs to all of us in the region. We're enthusiastic about the opportunities to -- the bottom line is improve the quality of service delivery, improve employment and economic outcomes for individuals with disabilities, youth and adults with disabilities in the region. [Michael Morris Again, do visit the website. You will see that Lucy Wong Hernandez is the project director out of North Carolina. We also have in a leadership role Jill Houghton out of south Florida. You will see on the website how to reach those individuals. We hope you engage us in good dialogue as we work towards common objectives. With that I will signoff. I appreciate those of you that have joined us today. [Pamela Williamson] Just as a reminder, the transcript will be available in two weeks on the website. Those of you that have participated will get an email when that is available. The evaluation of today's session is available on the MyTACE portal. We ask that you please complete the evaluation because it really will assist us for continued planning to address your specific needs and concerns. For those of you that would like to get the CEUs, this was .2 CEUs. The requirements for the credits were participation in the full session and a completion of a post test that is available online at the MyTACE. The test will be available after 2:00 p.m. Eastern Time Zone today. If you have any questions that need responses and you have not gotten your questions answered today, please call us at 1-800-949-4232. Or send an email to TACEsoutheast@law.syr.edu. That wraps up my part of the session. I think we can draw it to a close. I will turn it back to the operator. [Operator] Thank you. Ladies and gentlemen, thank you for participating in today's conference. This concludes the program, you may now disconnect. [ Event Concluded ]