<<< CONTENTS >>>

1. A "THANK YOU" AND AN APOLOGY
2. AS GOOD AS IT GETS!!! Resolution to Our Concerns About Reauthorization of the Rehab Act
3. BOSTON UNIVERSITY BACK IN THE HEADLINES
4. WHAT'S NEW AT THE HOME OF DAIS? New Postings and Information To Be Found at Our Website

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As all but the newest subscribers know, this has been a busy month for DAIS and for the field of disability services in higher education as we responded to the threat of a very dangerous change in the federal legislation governing our programs. Everything else took a back seat to efforts to "mobilize the troops" and focus the concern necessary to alter the wording proposed for the Reauthorization of the Vocational Rehabilitation Act. Thanks to the quick response and the hard work of MANY individuals, the higher education disability community won this first round. The first article below will provide an in-depth look at the threat, and the resolution achieved. Take note -- this isn't over yet! We will have to be prepared to make our case confidently, and to the right people, when the Act is implemented this Fall, or we could still find ourselves in very difficult circumstances.

My apologies to the subscribers of the DAIS Newsletter who received my two urgent "alerts" in the last 2 weeks... but who may NOT have known that we got a positive response to the flurry of calls/FAX/email we generated. I hesitated to contact you in the middle of the month regarding the threat itself -- it was definitely NOT a part of your subscription to this newsletter! -- but I felt the situation was urgent enough that it justified taking every opportunity to alert interested parties. When the word came from Washington last week that we had achieved our goal, I posted information to the DSSHE-L and several other listservs, but forgot how many of the subscribers to this newsletter may not monitor those lists. The full analysis is provided for readers below. There is a BRIEF "press release" regarding this issue posted to http://www.janejarrow.com/natlissues/vrissue/pressrelease.html. Feel free to pull down this summary and forward it on to colleagues, administrators, or interested bystanders who somehow were alerted to the possible crisis and who in any way helped to take a stand on this issue. We will continue to need those friends and supporters in the months to come.

Technology takes a back seat this month to burning issues on the national scene. Boston University was back in the news as Judge Patty Saris ruled on the remaining part of the BU lawsuit... the issue of foreign language substitutions. While the answer was not what some DSS advocates would have liked, neither will it necessarily impact on, nor interfere with, our daily routine -- and our established policies and procedures.

Finally, there are some exciting new "pieces" added to the DAIS Home Page during this past month. Some "teaser" information is included here to encourage you to visit and check it out for yourself!

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It is time for the higher education disability community to celebrate a quiet victory in the recent battle over language proposed for the Reauthorization of the Vocational Rehabilitation Act. There was confirmation on June 24 that the congressional staff working on the bill have agreed on compromise language which addresses the concerns raised by the postsecondary community. The language is expected to be adopted as part of the conference report when the Members of the Joint Conference Committee meet after the July 4th recess.

Specific Changes

The compromise language will apparently mean the removal of one statement and the insertion of another. They plan to strike the language proposed under Sec. 101(8)(B)(i) -- AGENCY FINANCIAL RESPONSIBILITY -- that would have designated the State agency (VR) as the "last dollar" in funding services, especially auxiliary aids and services. Instead, specific mention of the other state agencies who are stakeholders in the provision of vocational rehabilitation services (including "public institutions of higher education") has been added to the language in Section 101(8)(B) -- INTERAGENCY AGREEMENT. As the provision will now read, all of the relevant state agencies must come together under the auspices of the Governor to map out a plan for the delivery of service and the assignment of (financial) responsibility.

Financial Responsibility

The originally proposed language would have **reversed** the longstanding precedent (established with Jones v. Illinois Department of Rehabilitation Services) that mandated the VR system to pay for auxiliary aids and services for their clients in higher education, while institutions of higher education were given the responsibility of assuring the availability of such service for student who were not VR clients. Instead, by law, institutions of higher education would have been responsible for the provision of auxiliary aids and services for all students, including those who were clients of the VR system. The revised language does not reverse the historical precedent, but it may **nullify** it. That court decision was based on language included in the 1973 Reauthorization of the Vocational Rehabilitation Act; the change in language means that the precedent is no longer binding because the law on which it was established has changed. On the other hand... this new language also nullifies the argument put forth by a number of state VR agencies that suggests that responsibility for provision of such services is assigned to colleges and universities by the ADA. Instead, the determination of who is responsible for what is to be made on a state-by-state basis, starting now, and by legal mandate the higher education community will have a place at that negotiating table!

This new language, and the requirement for interagency cooperation and agreement, may be a huge step forward in resolving the tense situation that has existed between the VR agencies and the postsecondary community over the past several years. Institutions and state systems of higher education that have a good working relationship with their state VR agency can reasonably expect that cooperation to be continued. Institutions that have had long standing contracts with their state VR agencies to deliver services to VR clients (including those instances in which such contracts have recently been threatened or withdrawn) should find this language gives fresh hope for continuing and/or renewed arrangements. Institutions who have seen the state VR agency withdraw completely from support of postsecondary clients in recent years will now have an opportunity to redefine roles and responsibilities under the direction of state government. And IF the powers-that-be in state government decide that the state will require higher education (rather than VR) to shoulder such responsibilities exclusively, then at least the higher education community will be in a position to say, "Fine. If the STATE is specifically assigning us the responsibility of meeting the STATE's requirement for services and access, then what money is the STATE going to provide to the institutions to assist in this obligation?"

There may also be a place at that "bargaining table" for private institutions. Elsewhere within the Reauthorization there is language that suggests that appropriate vocational rehabilitation services are to be provided by state agencies unless it is determined that non-state sources can better serve the needs of a specific individual or population, in which case the State is empowered to negotiate for those services with the non-state agency. If the vocational rehabilitation counselor agrees that a student should attend a private, rather than public, institution (that is, the counselor agrees to pay tuition and support for a student attending a private institution) it would seem to suggest that there has been a determination that a non-state agency is best suited to meet the training/education needs of this student. With this assumption in mind, it could be argued that the state VR agency is obligated under the state plan to negotiate with the non-state institution regarding roles/responsibilities in providing for the vocational rehabilitation needs of this client. (NOTE: The term "non-state" has been used several times in this paragraph -- as opposed to talking about "private" institutions -- because it may be important to draw the distinction between those agencies that are part of the state system and those entities that are not part of a SPECIFIC state system. One of the fine points that must be resolved is how this new state-by-state agreement will impact on students sent by one state VR agency to an institution in another state.)

Threat to Autonomy

As we began this battle 10 days ago, it appeared that the greater threat might come from language in the reimbursement section of the State plan (Section 101 (8) (C)) that empowered state VR agencies to determine what services would be provided to their clients by other state agencies and to compel those agencies to either provide the service or to pay for the service provided by the VR agency. While there has been no change in the language of this section, there is room for quiet optimism as a result of the changes discussed above.

This reimbursement language all centers around state agencies fulfilling their financial responsibility to the provision of ** vocational rehabilitation services ** (emphasis added). Under the originally proposed language, assigning financial responsibility first to the institutions, this might have precipitated dramatic encroachment on the activities -- and budgets! -- of postsecondary institutions. However, based on the changes wrought in the Interagency Agreement and Financial Responsibility sections of the bill, currently neither VR nor the higher education community have any financial responsibility for such services -- both sides start with a clean slate when they sit down at the table to talk. The first job of the postsecondary community will be to prepare adequately and be represented in those negotiating sessions by people who understand what is at stake. More importantly, a narrow interpretation of the reimbursement language is much less threatening to the higher education community -- we just have to make sure it gets interpreted narrowly! The reference is specifically to vocational rehabilitation services. Many of the services and supports we provide to students at the postsecondary level are NOT provided for purposes of rehabilitation, but rather for purposes of assuring access. We have to make sure that we sort out those pieces in determining not only what rehabilitation services are to be delivered and by whom, but also what services lie outside the realm of one side or the other. As part of the state plan, responsibility must be assigned for services that overlap, such as interpreters and materials in alternate media. On the other hand, personal care attendants are a vocational rehabilitation service but clearly NOT an institutional responsibility; scribes and proctors for tests are clearly an institutional responsibility because they are necessary for access but I would argue they are not vocational rehabilitation services.

The word from Washington is that the higher education community was not the target of this reimbursement language, and the people who inserted the language to begin with were adamant about keeping it in place. So long as we do our homework, prepare our case, and are as persuasive in our arguments at the state level as we have been at the federal level, we should be alright!

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On the same day that the last issue of the DAIS Newsletter was disseminated, word was received that a decision had been reached in the second portion of the celebrated BU lawsuit. Boston University had been ordered to consider, through legitimate academic discourse, whether the granting of substitutions for the foreign language requirement in their College of Liberal Arts would substantially alter an essential part of that curriculum. During the Fall of 1997, a blue ribbon panel from within the ranks of the BU faculty came together to consider that question and they concluded that such substitution WOULD, in fact, mean a substantial change in an essential element of their Liberal Arts degree. In her May 29 decision, Judge Patty Saris upheld the institution's right to adhere to that academic decision and refuse substitutions, even for students with disabilities who may have great difficulty in completing such requirements.

Over the years, disability service providers have insisted that the 504/ADA demand case-by-case consideration of decisions. Does this most recent BU decision alter that general rule of thumb? Does it suggest that institutions of higher education can simply make a blanket policy regarding requirements and refuse to consider exceptions? I don't think so. I think the difference in the BU decision and the case-by-case doctrine we have always adhered to is in the focus on the "essential nature of the requirement" -- as opposed to a focus on the student. The BU decision revolved around whether making a substitution would be a reasonable accommodation (regardless of who asked for it or why), and the answer was found to be "no" because it would mean a substantial alteration in an essential element of the curriculum. Based on this decision, BU is not required to allow foreign language substitutions for their LD students, or their deaf students, or their student athletes, for that matter. What Judge Saris demanded of BU in her August decision was that they make a determination of "essentialness (is that a word?) based on sound academic judgement. That having been done, they are not required to test that particular decision on a case-by-case basis because no matter who the student was, that part would not change.

Given the nature of the program at BU and a fair reading of the legitimate diligence of the academic faculty in reaching their conclusion, the decision seems both logical and in keeping with everything we have ALWAYS believed to be true about the obligations of institutions under the law(s). But let's not be hasty in assuming/fearing major changes in what we know or understand those oblibations to be. When the BU lawsuit first came to trial it was suggested that, in the end, the decision would be a narrow one based on the facts of the case. It was. Judge Saris upheld BU's right not to make course substitutions for its Liberal Arts majors because the institution demonstrated that foreign language was essential to its curriculum as they have designed it. But BU is not the world, their curriculum is not the norm, and life goes on...

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Several new elements have been added to the DAIS Home Page this month --

* Visit the Kitchen a take a look at the Job Board -- a collection of postings regarding positions open in the area of disability and higher education;

* Visit the Study/Workroom and see the format developed for pulling out valuable discussion threads from the DSSHE-L listserv and providing immediate access to the wisdom and input of colleagues from across the country;

* Visit the TV Room and get the full picture of the urgent concern -- and immediate actions -- which resulted in the changes proposed for the Reauthorization of the Rehabilitation Act;

* Visit the Dining Room and sample this month's "food for thought." In the Administrator's Corner you'll find an article entitled "SENSE AND SENSIBILITY: Getting the Job Done Without Offending the Audience." In the Faculty Corner, this month's feature is "A ROSE IS A ROSE IS A ROSE... OR IS IT? Making the Dean's List."

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(End of newsletter)