This blog is about understanding the ADA. That said, there are so many places that bounce into the ADA that sometimes I wonder if it is not more apt, at times, to say it is about understanding the ADA and related laws. This is one of those situations where I’m going to talk about a related law. The law is the Workforce Innovation and Opportunity Act enacted on July 22, 2014. For those dealing with a child with an IEP or a 504 plan who is going to need vocational rehabilitation services, these proposed regulations are a must read. I am going to highlight some of the requirements of the proposed regulations in this blog entry:
1. Amends the definition of employment outcome to include only those outcomes in competitive integrated employment or supported employment, and thereby eliminates uncompensated employment from the list of acceptable employment outcomes. Uncompensated employment would include such things as homemakers and unpaid family workers.
2. Supported employment outcomes must be in competitive integrated employment. If not, then supported employment outcomes must be in an integrated setting where the individual is working on a short-term basis for competitive integrated employment. Short-term basis would mean no longer than six months.
3. Economic self-sufficiency consistent with an individual’s unique circumstances must be a criteria considered when providing vocational rehabilitation services to an individual.
4. A comprehensive assessment, to the maximum extent possible, must rely on information obtained from the individual’s experiences in integrated employment settings in the community and other integrated settings in the community.
5. The employment location must be found in a setting typically found in the community.
6. An employee with a disability interaction with other employees and others, such as customers and vendors, who are not persons with disabilities (other than supervisors and service providers), must be done in the same way that employees without disabilities in similar positions interact with those individuals. That interaction has to occur as part of the individual’s performance of work duties and must occur both at the particular work unit and throughout the entire worksite.
7. Competitive integrated employment will not be considered as such unless the individual performed part-time work where he or she is earning at least the higher of the minimum wage established by federal or applicable state law.
8. An individual with a disability must be eligible for the same level of benefits provided to employees without disabilities in similar positions.
9. Self-employed individuals with disabilities can be considered to be receiving competitive compensation where their income is comparable to that of individuals without disabilities in similar occupations or performing similar tasks to those who possess the same level of training, experience, and skills.
10. The work location must be in a setting typically found in the community. That is, an integrated setting typically found in the competitive labor market.
11. Sheltered workshops do not constitute integrated settings because those settings are not typically found in the competitive labor market.
12. Individuals with disabilities must have the opportunity to interact with nondisabled coworkers during the course of performing the work duties to the same extent there nondisabled coworkers must interact with each other when performing the same work.
13. Whether a setting is integrated is to be focused on the interaction between employees with and without disabilities and not upon the interaction of employees with disabilities outside of the work unit. The example given is that if a person with a disability works in a customer service center, the interaction with the person on the other end of the line would not count.
14. Self-employed individuals or those engaged in telecommuting can satisfy competitive integrated employment so long as the employee with a disability interacts with employees in similar positions and other persons without disabilities to the same extent that those persons without disabilities interact with others even though that interaction is not face-to-face.
15. The interaction between employees with disabilities and those without disabilities must be focused with respect to the performance of the employee’s job duties and not on the casual, conversational, and social interaction that occurs in the workplace (such as interactions in the lunchroom and other common areas of the worksite (you could refer to that as “water cooler talk,” I suppose).
16. Employees with disabilities using the vocational rehabilitation services must have the same opportunities for advancement as employees without disabilities in similar positions.
17. The competitive integrated employment must be customized. That is, designed to meet both the specific abilities of the individual with a significant disability and the business needs of an employer.
18. In order to track the language of the Workforce Innovation Opportunity Act, extended services that may be provided to youth with the most significant disabilities may not exceed four years.
19. A person in a supported employment context is time-limited and will be considered to be working on a short-term basis toward competitive integrated employment where that individual reasonably expects achieving a competitive integrated employment outcome within six months of achieving the outcome of supported employment.
20. The designated state unit must have a 21st-century understanding of the evolving labor force and needs of persons with disabilities. The proposed regulations on this score would describe education and experience in fields related to rehabilitation. If the person only possessed a bachelors degree, there would be a requirement for at least one year paid or unpaid experience.
One wonders if this is really necessary (it may or may not be). Certainly, it will drive up the cost for the designated state units.
21. Designated state units have the ability to create an exemption from order of selection criteria for eligible individuals needing a specific service or equipment in order to maintain employment where they have such order of selection criteria. The purpose of this regulatory change would allow designated state units, at their discretion, to elect to serve these individuals outside of the order of selection criteria otherwise in place so that individuals could be served who are at risk of losing employment if such services or equipment are not given to them.
I find the comma placement for “at their discretion,” to be a bit odd grammatically because as such it seems to indicate that “may be at the discretion,” is not a big deal and could be taken out of the sentence. However, the proposed regulations make it quite clear that discretionary is a critical piece of this particular provision so that designated state units have the ability to serve these individuals outside of the established order and should do so if financial and staff resources are sufficient. Also, if they do exercise this discretion, the services and equipment provided under the authority have to be consistent with an individual’s individualized plan for employment in the same manner as any other service or equipment provided under vocational rehabilitation program. Finally, this particular provision only applies to the individual’s needs in order to maintain employment and not to other services the individual may need for other purposes.
22. A designated state unit cannot require an applicant to demonstrate a presence in the state by the production of documentation that would result in a residency duration requirement.
23. The ability to utilize the extended evaluation process is eliminated. This means that before designated state unit can find someone ineligible, they must conduct a full assessment of the capacity of the applicant to perform in realistic work settings without the exception of extended evaluations.
24. A designated state unit must develop an individualized plan for employment for each eligible individual as soon as possible and no later than 90 days following determination of eligibility unless the designated state unit and the individual agreed to a specific extension of that timeframe.
25. Designated state units must provide eligible individuals entitled to Social Security benefits under title II or XVI of the Social Security act information on assistance and support available to individuals desiring to enter the workforce, including benefits planning. Hopefully, someone will write in that such information should include a discussion of judicial estoppel per Cleveland v. Policy Management Systems Company, 526 U.S. 795 (1999). (I knew I could figure out a way to get the ADA into this blog entry somehow:-)
22. The Workforce Innovation Opportunity Act requires states to reserve 15% of their vocational rehabilitation allotment to provide pre-employment transition services to students with disabilities eligible or potentially eligible for vocational rehabilitation services.
23. Adds to the definition of pre-employment transition services the terms “student with a disability,” and “youth with a disability.” The reason is because the act distinguishes the kinds of services that a student with a disability can obtain v. the kind of services that a youth with a disability can obtain.
24. Decisions related to the entity responsible for providing transition or pre-employment transition services that could be considered both a special education and a vocational rehabilitation service are to be made at the state and local level as part of the collaboration between the vocational rehabilitation agencies, State educational agencies, and local education agencies through interagency agreements or other mechanism for interagency coordination. The regulations note that both IDEA and the Rehabilitation Act already require state educational agencies and vocational rehabilitation agencies to plan and coordinate transition services for students with disabilities.
25. A person who has a 504 plan must have their 504 plan incorporated into consideration of the development of an individualized plan for employment. Current regulations only apply to IEP’s.
26. Description of specific vocational rehabilitation services pursuant to development of the individual plan for employment must include the specific transition services and supports needed for an eligible student with a disability or a youth with a disability in order to achieve an employment outcome or projected post school employment outcome. That is, the generally described employment goal previously permitted is now out the window.
The only concern I would have with respect to a specific employment goal is the funneling of persons with disabilities into certain professions or careers or jobs based on stereotypes.
27. Permit pre-employment transition services to be provided to all students with disabilities regardless of whether they have applied for vocational rehabilitation services and clarifies that similar transition services are available to youth with disabilities when specified in an individualized plan for employment.
28. Other proposed regulations that would: specify the required pre-employment transition services to be provided directly to students with disabilities; would describe the authorized activities that a state can provide- providing sufficient funds are available,- to improve the transition of students with disabilities from school to postsecondary education or to an employment outcome; and would describe the responsibility for pre-employment transition coordination to be carried out by vocational rehabilitation agencies.
29. A student with a disability, a broader term than the definition used in IDEA, does not have to apply for or be determined eligible for vocational rehabilitation services prior to receiving pre-employment transition services.
30. Educational agencies are clarified to mean state or local educational agencies.
31. Allows for transition services to students and youth with disabilities to be done as a permissible service for the benefit of groups of individuals with disabilities. This particular regulation is focused on being of service to groups.
32. Community rehabilitation programs must be used to promote competitive integrated employment, including customized and supported employment.
33. Vocational rehabilitation agencies are given the authority to provide technical assistance to all businesses considering hiring individuals with disabilities. That may be fine, but the concern would be entering into the area of providing legal advice. There is no substitution for a knowledgeable lawyer with a background in the ADA when legal rights are involved. See also paragraph 35 below. It makes you wonder whether vocational rehabilitation agencies might not farm this out to protection and advocacy groups and technical assistance centers. Again, there is no substitution for knowledgeable legal counsel. Also, one wonders just what will be the background of the trainers (disability activist, lawyer, etc.).
34. Assistive technology services may be provided for the benefit of a group of individuals.
35. Vocational rehabilitation agencies are given the ability to provide support for advanced training in the manner benefiting a group of eligible individuals.
36. Accommodations and auxiliary aids and services are to be included among the vocational rehabilitation services requiring the determination of the availability of comparable services and benefits prior to the provision of such services to an eligible individual.
37. Supported employment programs are now described as a purpose to provide individualized supported employment services, including extended services, to youth with the most significant disabilities in order to assist them in achieving supportive employment and competitive integrated employment. For such individuals, supported employment services can be extended to 24 months.
38. Prohibits a local educational agency or a state educational agency from entering into a contract with a sheltered workshop.
1. These proposed regulations are mandatory reading for: anyone with a child who has an IEP or a 504 plan and whose child may be in need of vocational rehabilitation services; for those working in or representing vocational rehabilitation agencies; for attorneys for mental health mental retardation authorities (what they were called at the time in texas back in the 90s-governmental entities acting as a safety net for persons with mental health issues, intellectual disabilities, and substance abuse), or similar outfits; and any attorney representing k-12 programs. To a lesser extent, college and university attorneys may want to become familiar with these regulations.
2. Anybody with an interest in these regulations should take advantage of the commenting period as the time to influence regulations is during the commenting time frame.
3. We have previously discussed how Olmstead is being used to phase out sheltered workshops. Now, the Department of Education is coming at it in another way. The days of the sheltered workshop are definitely numbered, and a segment of parents are not going to be any too happy about that.