**UNITED STATES DEPARTMENT OF EDUCATION**

**OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES**

**REHABILITATION SERVICES ADMINISTRATION**

**WASHINGTON, DC 20202-2531**

**TECHNICAL ASSISTANCE CIRCULAR**

**RSA-TAC-93-03**

**DATE: June 2, 1993**

**TO:STATE VOCATIONAL REHABILITATION AGENCIES (GENERAL)**

**STATE VOCATIONAL REHABILITATION AGENCIES (BLIND)**

**CLIENT ASSISTANCE PROGRAMS**

**REGIONAL REHABILITATION CONTINUING EDUCATION**

**PROGRAMS (RRCEPs)**

**RSA SENIOR MANAGEMENT TEAM**

**SUBJECT:**State Rehabilitation Advisory Council

**CITATIONS:**Sections 101(a)(36) and 105 of the Rehabilitation Act of
1973, as amended

**BACKGROUND:**This summarizes key provisions of the Rehabilitation Act
Amendments of 1992 (P. L. 102-569) related to the State Rehabilitation
Advisory Council (Council). Given the pivotal role of the Council
relating to the State plan for vocational rehabilitation services and
the statewide strategic plan for expanding and improving vocational
rehabilitation services, States should not wait for the receipt of the
implementing regulations to initiate activities to establish a Council.

Section 105 of the Act mandates the establishment of a Council in States
that do not have an independent, consumer-controlled commission
established under State law to oversee the operation of the vocational
rehabilitation program. The provisions of section 105 require that the
Council be consumer-controlled so as to provide individuals with
disabilities a stronger and more substantive role in shaping the
programs and services established to support their employment goals and
aspirations. As such, the Council provides consumers of rehabilitation
services with a formal mechanism to influence at the systemic and policy
level the direction of rehabilitation programming within their States.

**1. TITLE I FUNDING CONTINGENT ON ESTABLISHMENT OF COUNCIL**

The interest of Congress in seeing that a State has a
consumer-controlled commission overseeing the vocational rehabilitation
program or a consumer-controlled Council meeting the provisions of
section 105 is reflected by the requirement in section 105(a)(1) that
such a commission or Council must be in place in order for a State to
receive Federal funds under title I of the Act for the vocational
rehabilitation and the client assistance programs under part B and the
innovation and expansion program under part C. Thus, for a State to
receive its title I funding, it must assure in its State plan for
vocational rehabilitation services that it has in place a Council
meeting the requirements of section 105 or an independent,
consumer-controlled commission meeting the requirements of section
101(a)(36)(B) or (C).

**2. OPTION TO ESTABLISH A COMMISSION OR A COUNCIL**

The Amendments give States the option of establishing a Council that
meets the requirements of section 105 of the Act or a commission(s) that
meets the following requirements:

**\***The commission must be independent and established under State law
to oversee the operation of the vocational rehabilitation program and
must:

**\***be consumer-controlled by persons who are individuals with mental
and physical impairments that substantially limit major life activities
and who represent individuals with a broad range of disabilities;

**\***have representation of family members, advocates and authorized
representatives of individuals with mental impairments;

and

**\***to the extent feasible, conduct or have the authority to conduct
and analyze the effectiveness of and consumer satisfaction with the
provision of vocational rehabilitation services and the performance of
the State agencies and other entities responsible for providing
vocational rehabilitation services to individuals with disabilities.
(Section 101(a)(36)(B) of the Act)

**\***In a State where there are two State vocational rehabilitation
agencies, the Amendments provide additional choices with respect to
establishing a commission(s). The options are:

**\***a consumer-controlled independent commission, as described
previously, that is responsible under State law for overseeing both
agencies; or

**\***a consumer-controlled independent commission, as described
previously, that is responsible under State law for overseeing the
General agency and a separate independent commission responsible under
State law for overseeing the agency for individuals who are blind and
which is required by State law to be consumer-controlled by individuals
who are blind and to represent individuals who are blind.

(Section 101(a)(36)(C) of the Act)

The Council identified in sections 101(a)(36)(A) and 105 is in some
respects similar to the commission(s) identified in section
101(a)(36)(B) and (C). However, the Rehabilitation Services
Administration (RSA) believes the fundamental difference between the
Council and the commission(s) is that while both must be
consumer-controlled and have oversight responsibilities with respect to
the vocational rehabilitation program, the Council\'s role is advisory
in nature whereas the commission(s) described in section 101(a)(36)(B)
and (C) is directly responsible for overseeing and controlling the
operation of the vocational rehabilitation program within the State. As
such, the commission(s) serves as the designated State agency(ies).
States that have such commissions are not required to establish Councils
meeting the requirements of section 105.

**3. OPTION FOR SEPARATE COUNCIL FOR STATE AGENCY FOR INDIVIDUALS WHO
ARE BLIND**

The Amendments provide States in which there are two State agencies, one
for individuals who are blind and the other for individuals with other
types of impairments, the discretion to establish either one Council for
both agencies or two Councils, one for each agency. (Section 105(a)(2)
of the Act)

**4. COMPOSITION OF COUNCIL**

The composition of the Council is clearly specified in the Amendments.
The size of the Council is at the discretion of the State, provided the
requirements related to the composition of the Council are satisfied.
The Council must be consumer-controlled in that the majority of the
members of the Council must be individuals with disabilities, i.e., any
individual who has a physical or mental impairment that substantially
limits one or more of the individual\'s major life activities, has a
record of such an impairment, or is regarded as having such an
impairment. The statute, however, is clear that if an individual with a
disability is also an employee of the designated State vocational
rehabilitation agency, that individual cannot be counted for purposes of
establishing that the majority of the Council members are individuals
with disabilities.

The Council must be comprised of at least one representative of:

**\***the Statewide Independent Living Council;

**\***a parent training and information center established under the
Individuals with Disabilities Education Act;

**\***the client assistance program;

**\***vocational rehabilitation counselors, with knowledge of and
experience with vocational rehabilitation programs, who shall serve as
an ex officio, nonvoting member(s) of the Council if employed by the
State agency; and

**\***community rehabilitation program service providers.

In addition, the Council is to be comprised of:

**\***four representatives of business, industry, and labor;

**\***representatives of disability advocacy groups representing a cross
section of individuals with disabilities, and parents, family members,
guardians, advocates, or authorized representatives of individuals with
disabilities who have difficulty in representing themselves or are
unable to due to their disabilities; and

**\***current or former applicants for, or recipients of, vocational
rehabilitation services.

The Director of the State unit is to be an ex officio, nonvoting member
of the Council. In addition, anyone who serves as an impartial hearing
officer under section 102(d) cannot serve as a member of the Council.
(Sections 105(b)(1), (2) and 7(28)(A)(ii) of the Act)

**5**. **APPOINTMENT OF MEMBERS OF THE COUNCIL**

Members are to be appointed by the Governor or the appropriate entity in
the State responsible for making appointments. The term \"appropriate
entity\" is not defined in the statute; however, the Senate Committee
Report (102-357) accompanying the Senate bill provides the following
explanation of the Committee\'s views on this subject.

The Committee bill specifies that the Council members will be appointed
by the Governor or by the \"appropriate entity within the State
responsible for making appointments.\" If, pursuant to State law, a
separate State Board (rather than the Governor) has responsibility for
overseeing the operation of the designated State agency, that Board
shall be considered an \"appropriate entity\" for purposes of making the
appointments. (pp.43-44)

Based on this explanation, it is RSA\'s interpretation that a designated
State agency (or designated State unit) cannot serve as the
\"appropriate entity\" for appointing members to the Council. From the
Senate Committee Report and the pertinent statutory language, it appears
that the \"appropriate entity\" must be an independent body established
under State law to which the designated State agency is accountable and
that has appointment authority in lieu of the Governor.

The appointing authority is to select members after soliciting
recommendations from representatives of organizations representing a
broad range of individuals with disabilities.

(Section 105(b)(3) of the Act)

**6. SELECTION OF COUNCIL CHAIRPERSON**

The Council is to select a chairperson from among the Council
membership; however, in those States in which the Governor does not have
veto power under State law, the Governor is to designate a member of the
Council to serve as the chairperson or require the Council to make such
a designation. (Section 105(b)(5) of the Act)

**7. LENGTH OF TERM OF COUNCIL MEMBERS**

**\***Each member of the Council is to serve for a term of not more than
3 years, except that -

**\***a member appointed to fill a vacancy occurring prior to the
expiration of a member\'s term is to be appointed for the remainder of
the term; and

**\***the terms of service of the members initially appointed are to be
set by the appointing authority so that expiration of terms will occur
on a staggered basis.

**\***No member of the Council can serve more than two consecutive full
terms.

**\***Any vacancy occurring in the membership of the Council is to be
filled in the same manner as an original appointment and the vacancy is
not to affect the power of the remaining members to execute the duties
of the Council. (Section 105(b)(6) and (7) of the Act)

**8. FUNCTIONS OF THE COUNCIL**

The overall function of the Council is advisory in nature and specific
functions identified in the Amendments include:

**\***review, analyze, and advise the designated State unit regarding
the performance of its responsibilities under title I, particularly
responsibilities relating to -

**\***eligibility (including order of selection);

**\***the extent, scope, and effectiveness of services provided; and

**\***functions performed by State agencies that affect or that
potentially affect the ability of individuals with disabilities in
achieving rehabilitation goals and objectives under title I;

**\***advise the designated State agency and the designated State unit,
and, at the discretion of the designated State agency, assist in the
preparation of applications, the State plan for vocational
rehabilitation services, the strategic plan and amendments to the plans,
reports, needs assessments, and evaluations required by title I;

**\***conduct, to the extent feasible, a review and analysis of the
effectiveness of and consumer satisfaction with -

**\***the performance of functions of State agencies and other public
and private entities responsible for performing functions for
individuals with disabilities; and

**\***vocational rehabilitation services provided or paid for from funds
made available under the Act or through other public or private sources
and provided by State agencies and other public and private entities
responsible for providing vocational rehabilitation services to
individuals with disabilities;

**\***prepare and submit an annual report to the Governor or appropriate
State entity and the Commissioner on the status of vocational
rehabilitation programs operated within the State, and make the report
available to the public;

**\***coordinate with other councils within the State, including the
Statewide Independent Living Council, the advisory panel established
under section 613(a)(12) of the Individuals with Disabilities Education
Act, the State Developmental Disabilities Planning Council and the State
Mental Health Planning Council;

**\***advise the designated State agency and provide for coordination
and the establishment of working relationships between the State agency
and the Statewide Independent Living Council and centers for independent
living within the State; and

**\***perform such other functions, consistent with the purpose of title
I, as the Council determines to be appropriate and that are comparable
to the other functions performed by the Council. (Section 105(c) of the
Act)

**9. PROHIBITION ON CONFLICT OF INTEREST**

No member of the Council is to vote on any matter that would provide
direct financial benefit to the member or otherwise give the appearance
of a conflict of interest under State law. (Section 105(e) of the Act)

**10. RESOURCE AND MANAGEMENT PLAN FOR THE COUNCIL**

**\*Funding.**

Key to the ability of the Council to carry out its responsibilities will
be adequate funding. To provide funding support for the Council, a
variety of funding streams can be used such as State and private funds;
funds allotted under title I, part B for vocational rehabilitation
services and part C (innovation and expansion); and, Social Security
reimbursements. (Sections 101(a)(34)(B), 123(12), and 108 of the Act)

These funds, together with the necessary personnel resources, should
serve as the basis for the resource plan that the Council, in
conjunction with the designated State unit, is to develop to carry out
the functions of the Council. The Amendments stipulate that to the
maximum extent possible the resource plan is to rely on the use of
existing resources and that any disagreement between the Council and the
designated State unit over the allocation of resources is to be resolved
by the Governor or the appointing authority, as appropriate.

**\*Personnel Management.**

The Council, consistent with State law, is to supervise and evaluate
staff and other personnel as may be necessary to carry out its
functions. While assisting the Council in carrying out its
responsibilities, staff and other personnel are not to be assigned
duties by the designated State unit or any other agency or office of the
State that would create a conflict of interest. In discussing the
provision of section 105(d) of the Act, the Conference Report (102-973)
states the following:

The Conferees expect that the State Rehabilitation Advisory Council will
be fully independent from the State vocational rehabilitation agency
even while relying, to the maximum extent possible, on existing
resources from the State vocational rehabilitation agency to provide
staff and other personnel. The Conferees expect that staff provided by
the State vocational rehabilitation agency, when assigned to work for
the Council, will work solely on behalf of the Council and will not be
assigned duties that create a conflict of interest. The Conferees expect
that administrative arrangements made in the State will be consistent
with this expectation so that each State Rehabilitation Advisory Council
can operate independently. (p.180)

**11. COUNCIL MEETINGS/FORUMS/HEARINGS**

**\*Frequency.**

The Council is to convene at least 4 meetings a year in such places as
it determines to be necessary to conduct Council business. It also may
convene forums or hearings as it determines appropriate and necessary to
carry out its duties.

**\*Public Meetings.**

The meetings are to be publicly announced and open and accessible to the
general public, unless there is a valid reason for an executive session.

(Section 105(f) of the Act)

**12. STATE PLAN REQUIREMENTS RELATED TO THE COUNCIL**

To underscore the importance of the Council as a vehicle for real and
solid consumer involvement in the programs that affect them and to give
individuals with disabilities an effective mechanism to influence the
direction of these programs, the Amendments mandate the following
Council-related requirements for the State plan for vocational
rehabilitation services.

**\*State Plan Assurances.**

The State plan must assure that:

**\***a Council meeting the criteria of section 105 is in place (or a
commission meeting the requirements of section 101(a)(36)(B) or (C));

**\***the State agency (unit) seeks and considers on a regular and
ongoing basis advice from the Council regarding the development of and
revisions to:

**\***the State plan for vocational rehabilitation services and its
supported employment services supplement;

**\***the strategic plan under part C of title I; and

**\***policies/procedures pertaining to the provision of vocational
rehabilitation services.

**\***the State agency transmits to the Council

**\***copies of all materials required by the Act to be submitted to the
Commissioner;

**\***all policies, practices and procedures of general applicability
provided to or used by rehabilitation personnel; and

**\***copies of due-process hearing decisions.

**\*State Plan Descriptions.**

The State plan must also provide:

**\***a description of the manner in which the State agency will modify
its policies and procedures based on the consumer satisfaction surveys
conducted by the Council, and

**\***a summary of the advice provided by the Council, including the
Council\'s recommendations from its annual report; its survey of
consumer satisfaction; and other reports of the Council. Also, the State
agency must include in the plan its response to the advice and
recommendations, with an explanation for the rejection of any advice or
recommendations. (Section 101(a)(32) and (36) of the Act)

**13. ROLE OF THE COUNCIL IN IDENTIFICATION OF POOL OF QUALIFIED PERSONS
TO SERVE AS IMPARTIAL HEARING OFFICERS**

The selection (on a random basis or by agreement between the Director of
the designated State unit and the individual with a disability or the
individual\'s representative) of the impartial hearing officer is to be
from a pool of qualified persons identified jointly by the designated
State unit and the following members of the Council:

**\***representative(s) of community rehabilitation service providers;

**\***the four representatives of business, industry and labor;

**\***representatives of disability advocacy groups representing a cross
section of individuals with disabilities, including individuals who, due
to their disabilities, can not represent themselves or have difficulty
in doing so; and

**\***current or former applicants or recipients of vocational
rehabilitation services. (Section 102(d)(2)(B) and (C) of the Act)

In those States in which there is a commission(s) meeting the
requirements of 101(a)(36)(B) or (C), the pool of qualified persons to
serve as impartial hearing officers is to be jointly identified by the
designated State unit and the commission(s). (Section
102(d)(2)(C)(ii)(II) and (III) of the Act)

**14. ROLE OF THE COUNCIL IN FEDERAL MONITORING**

In conducting monitoring reviews, RSA staff will meet with the Council
and consider, among other sources, information provided by the Council.

(Section 107(a)(2)(G) of the Act)

**15. ROLE OF THE COUNCIL IN THE DEVELOPMENT OF THE STRATEGIC PLAN**

In developing the statewide strategic plan, the State agency is to:

**\***meet with and receive recommendations of members of the Council;

**\***reflect the input of the Council in the plan;

**\***explain in the plan why any recommendations of the Council were
not accepted; and

**\***develop a procedure to ensure the ongoing input of the Council
during the period of plan implementation. (Section 122(b), (c) and (d)
of the Act)

All of these provisions of the Amendments related to the Council are
designed to provide consumers a real voice in the dialogue at the State
level regarding the direction of the vocational rehabilitation and
supported employment programs; the provision of rehabilitation services;
and how to make those services a more effective tool in enabling
individuals with disabilities achieve their chosen employment goals.

Achieving the intent of these provisions will be a challenge both for
consumers of rehabilitation services and the State vocational
rehabilitation agencies. This challenge, however, can be successfully
met if all parties embrace the principle articulated in section 100 of
the Act that individuals with disabilities and their advocates are full
partners in the vocational rehabilitation program and must be involved
on a regular basis and in a meaningful manner in policy development and
implementation.

**INQUIRIES:**RSA Regional Commissioners

William L. Smith

Acting Commissioner