Regulation Part 247 - Client Services

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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:

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.
Agency means the Office of Vocational and Educational Services for Individuals with Disabilities of the New York State Education Department.
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.
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.
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.
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.
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.
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.
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.
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.
Parties means the agency and the individual.
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.
(m) Relative means a person having any of the following relationships to an eligible individual: spouse, mother, father, stepparent or legal guardian.
Review means an initial review conference, administrative review, and/or impartial hearing.
Reviewer means the agency staff member who conducts the administrative review.
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.
Total support means the total cost for the following items of the eligible individual's support: housing, utilities, food, transportation and health care.
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

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.
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.
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.
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.
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.
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.
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.
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.
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.
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

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 .
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.
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.
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

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.
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.
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.

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.
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

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.
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.
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.
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

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.
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

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.
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.
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.
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.
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

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.
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.
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.
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.
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.
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.
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.
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:

assessment for determining eligibility, priority for services and vocational rehabilitation needs;
vocational rehabilitation counseling, guidance and referral;
physical and mental restoration services;
vocational and other training services;
maintenance;
transportation;
vocational rehabilitation services to members of an individual's family necessary to enable the individual to achieve an employment outcome;
interpreter services for individuals who are deaf and tactile interpreting services for individuals who are deaf-blind;
reader services, rehabilitation teaching services, and orientation and mobility services for individuals who are blind;
recruitment and training services to provide new employment opportunities in rehabilitation, health, welfare, public safety, law enforcement and other appropriate public service employment;
job-related services, including job search and placement assistance, job retention services, follow-up services, and follow-along services;
post-employment services;
occupational licenses, tools, equipment, initial stocks and supplies;
personal assistance services;
supported employment services;
rehabilitation technology;
transition services; and
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

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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

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.
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.
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

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.
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.
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.
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

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.
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.
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.

Regulation Part 247 - Client Services

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.

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