Vocational Rehabilitation Services and Motor Vehicles Modifications, Replacements and Upgrades: A Guide for Ohioans

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Vocational Rehabilitation Services and Motor Vehicles Modifications, Replacements and Upgrades: A Guide for Ohioans

A publication of the Ohio Legal Rights Service (OLRS)
April 2004

The information provided in any OLRS publication is not a substitute for legal advice. You should consult with a lawyer concerning your rights in a specific case. Contact your local bar association or visit the Ohio State Bar Association Web site to find a lawyer in your area.

Contents

• Abbreviations used in this publication
• Question 1: What are vocational rehabilitation (VR) services?
• Question 2: Who provides VR services in Ohio?
• Question 3: How can I get VR services from BVR or BSVI?
• Question 4: Do VR services include motor vehicle modifications?
• Question 5: Will RSC purchase replacement equipment?
• Question 6: Can I get an upgrade to better equipment?
• Question 7: Are there exceptions to the RSC rule on upgrades?
• Question 8: Can I get modifications on a replacement vehicle?
• Question 9: Are RSC's limitations on replacement vehicles legal?
• Question 10: Can I get an equipment upgrade before 7 years?
• Question 11: Would the courts uphold RSC's upgrade rule?
• Question 12: Will BVR or BSVI buy a vehicle for me?
• Question 13: Is RSC's rule against vehicle purchase legal?
• Question 14: Is RSC's rule an appropriately developed policy?
• Question 15: Do you have questions of your own?
• Funding for this Publication
• OLRS Vision, Mission, and Non-discrimination Policy

This booklet is protected by copyright under United States law and by international copyright laws and treaty provisions. You may copy and distribute the work provided that you use the work for personal, noncommercial use; do not add the work to a collection or use it with any other text, photographs, artwork, etc; do not modify or alter the work in any way or delete or modify any copyright; and do not publish or post all or any part of the work on any Internet site or in or on any other media without obtaining the prior written consent of Ohio Legal Rights Service.

Copyright © 2004 Ohio Legal Rights Service. All rights reserved.

Abbreviations used in this publication

• BSVI = Bureau of Services for the Visually Impaired
• BVR = Bureau of Vocational Rehabilitation
• CFR = Code of Federal Regulations (Federal regulations are available online at http://www.gpoaccess.gov)
• IPE = Individualized Plan for Employment
• OAC = Ohio Administrative Code (State regulations are available online at http://codes.ohio.gov/oac)
• RSC = Rehabilitation Services Commission
• VR = Vocational Rehabilitation
• VRC = Vocational Rehabilitation Counselor

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Question 1: What are vocational rehabilitation (VR) services?

Answer 1: Vocational rehabilitation (VR) services are services offered to qualified persons with disabilities that are needed to enable those persons to get or keep a job. Those services might include equipment, such as a computer, or job training, such as truck driving school or college classes.

Eligibility for VR Services

1. You have a physical, mental or emotional impairment which creates or results in a substantial barrier to employment; and
2. You can benefit from vocational rehabilitation services in terms of employment outcome; and
3. Vocational rehabilitation services must help you get and keep a job.

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Question 2: Who provides vocational rehabilitation services in Ohio?

Answer 2: Ohio residents with disabilities receive vocational rehabilitation services through the Ohio Rehabilitation Services Commission (RSC) and its agencies, the Ohio Bureau of Vocational Rehabilitation (BVR) and the Ohio Bureau of Services for the Visually Impaired (BSVI).

Contacts

Rehabilitation Services Commission (RSC)
800-282-4536 voice and TTY in Ohio
614-438-1200 voice and TTY
http://www.rsc.ohio.gov

Bureau of Vocational Rehabilitation (BVR)
800-282-4536 x1250 voice and TTY in Ohio or 614-438-1250
http://www.rsc.state.oh.us/bvrbvsi/default.aspx

Bureau of Services for the Visually Impaired (BSVI)
800-282-4536, x1255 in Ohio only or 614-438-1255
http://www.rsc.state.oh.us/bvrbvsi/default.aspx

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Question 3: How can I get VR services from BVR or BSVI?

Answer 3: You must apply for services and establish your eligibility. Then you must meet with your assigned vocational rehabilitation counselor (VRC) and reach agreement on an employment outcome (your job goal). Then you and the VRC must set up an individualized plan for employment (IPE) which outlines the services you need to achieve your goal, and specifies who will pay for those services.

Steps to VR Services

1. apply for services
2. establish your eligibility
3. meet with VRC and set job goal
4. set up your IPE
5. achieve your goal

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Question 4: Do VR services include motor vehicle modifications?

Answer 4: They can. BVR and BSVI can fund vehicle modifications (such as hand controls or a wheelchair handling device) if they are necessary to enable you to reach or maintain your employment outcome as defined in your IPE. RSC's regulations on this subject are found at Ohio Administrative Code (OAC) sections 3304-6-01 and 3304-6-14.

The OAC is free online at http://codes.ohio.gov/oac

Please note that such vehicle modifications have to be necessary in order for you to reach or keep your job goal. Being merely helpful or convenient for you is not enough. Please note also that the provision for such modifications needs to be expressly written into your IPE. BVR and BSVI will not pay for anything that is not on your IPE.

Finally, note also that the IPE must specify who will pay for the modifications. Your VRC may allocate certain costs to you as a "consumer contribution." (If you do not agree with the decision to assign a cost to you, you can appeal that decision through the agency's appeal process.)

BVR and BSVI should pay for modifications necessary to reach your job goal. You have the right to appeal if denied.

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Question 5: If I get modification installed by RSC and the devices wear out or break, will RSC purchase replacement equipment?

Answer 5: Maybe. Your first recourse would be through any existing warranty on the equipment, or any insurance on the equipment. Otherwise, RSC and its agencies have strict criteria about when they will pay to replace equipment. Apparently, you would have to meet all of these three conditions:

1. You must have been using the equipment for at least 7 years;
2. The equipment must have been in use for at least 70 thousand miles; and
3. You must have been involved in your job goal for at least 2 consecutive years.

Note: The regulation for "replacement modifications," OAC 3304-6-01, appears to require all of these elements. However, another regulation, OAC 3304-6-14, states that RSC may authorize certain limited modifications on unmodified vehicles and certain limited new modifications on previously modified vehicles where the vehicle is older than seven years or has more than seventy thousand miles on the odometer. RSC has not explained this apparent inconsistency, nor has it stated whether it will interpret OAC 3304-6-01 to require all of the above conditions to install new equipment in a new vehicle which replaces an older, previously equipped vehicle.

The RSC Replacement Rule is as follows: 7 (7 years old) + 70 (up thousand miles) + 2 (2 years employed)

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Question 6: If better equipment is developed and I want an upgrade to the better equipment, can I get it?

Answer 6: In general, you would be eligible only if you meet the three criteria listed on page 10 (7 years, 70 thousand miles, 2 years in an employment outcome). You must also demonstrate a need for the upgrade.

The RSC Upgrade Rule is as follows: 7 (7 years old) + 70 (70 thousand miles) + 2 (2 years employed) + need (demonstrated need of upgrade)

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Question 7: Are there any exceptions to the RSC upgrade rule?

Answer 7: Not many. Just two, in fact:

1. If your disabling condition is progressive (such as muscular dystrophy, multiple sclerosis, or spinal muscular atrophy) and you can no longer safely drive or be transported with your present adaptive equipment, you can receive an additional modification with upgraded technology to meet your current needs.
2. If you experience an additional disabling condition which renders you no longer able to drive or be transported safely with your current vehicle modifications, you can be given additional modifications to match your changed needs.

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Question 8: If I get a vehicle modified through RSC and its agencies, then I replace it with another vehicle, can I get modifications installed on the replacement vehicle?

Answer 8: Again, maybe. RSC and its agencies also have strict criteria about when they will pay to modify a replacement vehicle. You would have to meet one of the following two situations:

1. Transfer of existing equipment. RSC agencies will pay to remove most adaptive equipment (including hand controls and wheelchair handling devices) from the original vehicle and re-install it in the replacement vehicle if the equipment items are visually and functionally inspected by an RSC representative or designee and found to be satisfactory. The items would then be transferred to the replacement vehicle by a retail dealer who is qualified to install the equivalent new equipment. Some items (including structural modifications, electrical modifications, and fuel delivery system modifications) cannot be transferred to a replacement vehicle.
2. Installation of new equipment. If items cannot be transferred (either because they are found not satisfactory, or because they are of a type not permitted for transfer), then new equipment would need to be installed onto the replacement vehicle. It is not clear from the regulations whether RSC would impose all of the eligibility criteria for replacement modifications (7 years, 70 thousand miles, 2 years in an employment outcome) in this situation.

All of this presumes that the replacement vehicle you have obtained is acceptable to RSC for modification. Any new vehicle, of course, is acceptable. In addition, any used vehicle is acceptable if the only devices to be installed are standard mechanical hand/foot controls.

Modifications of Used Vehicles

When purchasing a used vehicle, however, you should be aware of the following three standards:

1. For vehicles older than one year, RSC may authorize modifications on unmodified vehicles and additional modifications for previously modified vehicles only after receipt of a written inspection report from a certified mechanic verifying that the vehicle is in sound condition or will be after certain repairs are done.
2. When a vehicle is older than 7 years or has more than 70 thousand miles on the odometer, RSC may authorize modifications on unmodified vehicles and additional modifications for previously modified vehicles only when the previous and new modifications are relatively minor and the vehicle is in excellent condition, as inspected and reported by a certified mechanic.
3. When a vehicle has been previously modified, RSC may authorize additional modifications only if all aspects of both previous and new modifications comply with RSC's standards. Adaptive equipment not in such compliance must be removed and replaced with new adaptive equipment.

So, RSC may agree to transfer or install new modifications, but the older the replacement vehicle, the less likely RSC will agree to transfer modifications.

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Question 9: Is it legal for RSC to use those three narrow eligibility limitations?

Answer 9: This question has not yet been decided by a court. In some circumstances, it might be possible to challenge these rules. One thing is certain: RSC and its agencies must comply with federal law. One such law is the federal regulation governing the amount of consumer contribution.

"Consumer contribution" is the amount you yourself must pay (and which RSC agencies, therefore, do not pay). If upgraded equipment or modifications to a replacement vehicle are necessary for you to reach or maintain your job goal, but the RSC agency will not pay for them, then the modification costs would have to be considered a form of consumer contribution.

Federal regulation 34 CFR 361.54 governs consumer contribution. That rule states that RSC's policy in this regard must ensure that the level of an individual's participation in the cost of vocational rehabilitation services (a) is reasonable, (b) is based on the individual's financial need, and (c) is not so high as to effectively deny the individual a necessary service.

Your contribution: RSC must consider any expenses that you pay related to your disability.

For example, refer to Question 10.

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Question 10: What if I need an upgraded piece of adaptive equipment in my vehicle, but fewer than 7 years have gone by since the current modification was installed?

Answer 10: Under RSC's rule, you must automatically pay for the upgrade yourself. RSC's rule would allow it to avoid examining the appropriateness of forcing you to pay these replacement modification costs.

But the federal rule says that if the cost of the replacement modifications would effectively deny you a necessary service (a properly modified vehicle), then RSC must pay the cost, rather than shifting the expense to you as a "consumer contribution."

State Law (OAC) states that you must pay for upgrades before 7 years. Federal Law (CFR) states that RSC must not effectively deny you a necessary service. One thing is certain: RSC and its agencies must comply with federal law.

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Question 11: What would the courts say about RSC's rule that you must automatically pay for upgrades before 7 years?

Answer 11: An appropriate challenge to the RSC regulation has not yet gotten to the courts. But it is entirely possible that a court would rule that the RSC rule is invalid (for conflict with the federal rule).

If you have a situation of this type, or know of a situation of this type, please contact Ohio Legal Rights Service for consultation.

Ohio Legal Rights Service
50 West Broad Street, Suite 1400
Columbus, Ohio 43215-5923
614-466-7264 local or 800-282-9181 in Ohio
614-728-2553 TTY or 800-858-3542 TTY in Ohio
http://olrs.ohio.gov

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Question 12: Can I get BVR or BSVI to purchase a vehicle for me (including a modified vehicle)?

Answer 12: RSC's current regulations (OAC Sections 3304-6-01 and 3304-2-59) state that RSC and its agencies do not purchase any vehicles, in whole or in part, for any consumer.

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Question 13: Is a blanket prohibition against vehicle purchases legal?

Answer 13: Once again, this has not yet been decided by the courts. It may be possible to challenge this rule, as well.

As we noted before, RSC's rules and policies must not conflict with federal laws on the subject. There are in fact some federal regulations that may apply in this situation.

34 CFR 361.48 lists the following as a required service:

• (h) Transportation in connection with the rendering of any vocational rehabilitation service and in accordance with the definition of that term in Sec. 361.5(b)(57).

34 CFR 361.5 states:

• (b)(57) Transportation means travel and related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service, including expenses for training in the use of public transportation vehicles and systems.
• (i) Examples: The following are examples of expenses that would meet the definition of transportation. The examples are purely illustrative, do not address all possible circumstances, and are not intended to substitute for individual counselor judgment.
• Ex. 2: The purchase and repair of vehicles, including vans, but not the modification of these vehicles, as modification would be considered a rehabilitation technology service.

The federal rule specifically requires BVR/BSVI to provide transportation services as that term is defined. The examples provided are for illustration and guidance only. A specific form of service must be provided only where:

1. provision of that form of service is necessary for an individual to participate in a vocational rehabilitation service, and
2. provision of that form of service is consistent with "appropriately developed" RSC policies governing the provision of services.

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Question 14: Is RSC's blanket exclusion of vehicle purchase an appropriately-developed policy governing the scope of transportation services?

Answer 14: It is possible that a court would conclude that the purchase of a vehicle cannot be excluded by a blanket rule. Once again, a case has not yet arisen to test the validity of RSC's regulation in court.

If you have a situation of this type, or know of a situation of this type, please contact Ohio Legal Rights Service for consultation.

Ohio Legal Rights Service
50 West Broad Street, Suite 1400
Columbus, Ohio 43215-5923
614-466-7264 local or 800-282-9181 in Ohio
614-728-2553 TTY or 800-858-3542 TTY in Ohio
http://olrs.ohio.gov

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Question 15: Do you have questions of your own?

Answer 15: Contact the Client Assistance Program (CAP) of Ohio Legal Rights Service for answers.

Ohio Legal Rights Service
50 West Broad Street, Suite 1400
Columbus, Ohio 43215-5923
614-466-7264 local or 800-282-9181 in Ohio
614-728-2553 TTY or 800-858-3542 TTY in Ohio
http://olrs.ohio.gov

Remember — You must receive transportation services if those services are necessary to achieve or maintain your job goal. However, you are entitled only to a form of transportation that is adequate, not necessarily the form that is best or most preferable to you. For example, BVR/BSVI could insist on taking you to work or school in a taxi rather than assisting you with the purchase of your own car, even if it costs them more.

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Funding for this Publication

This publication was produced by the Ohio Legal Rights Service, 50 West Broad Street, Suite 1400, Columbus, Ohio 43215-5923. Telephone 614-466-7264/800-282-9181 TTY 614-728-2553/800-858-3542 Web site: http://olrs.ohio.gov

Ohio Legal Rights Service is funded by, and prepared the booklet in part through, grants under the following federal programs:

• The Rehabilitation Act of 1973 as amended administered by the Office of Special Education and Rehabilitative Services of the United States Department of Education;
• The Developmental Disabilities Assistance and Bill of Rights Act (DD Act) of 1975 administered by the Administration for Developmental Disabilities of the United States Department of Health and Human Services;
• The Protection & Advocacy for Individuals with Mental Illness Act (PAIMI Act) of 1986 administered by the Center for Mental Health Services of the United States Department of Health and Human Services;
• and with additional funding from the State of Ohio General Revenue Funds.

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OLRS Vision, Mission, and Non-discrimination Policy

OLRS envisions a society in which people with disabilities enjoy the same rights and opportunities as all people. Everyone is entitled to make decisions about where, how and with whom they will live and work as full and equal members of their communities.

OLRS' mission is to protect and advocate for the human, civil and legal rights of people with disabilities. OLRS accomplishes this mission by providing information, referral and educational services, individual case advocacy, policy analysis, legal representation and systems change.

Ohio Legal Rights Service does not discriminate in provision of service or employment because of race, color, religion, sex, sexual orientation, national origin, military service, disability, or age.

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