On December 21, the U.S. Department of Justice rescinded its Statement on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and local Governments’ Employment Service Systems for Individuals with Disabilities. The statement, which was issued last year, described the obligations of states to administer their employment services for people with disabilities in the most integrated setting appropriate. Evidence-based supported employment services help people with disabilities secure and maintain competitive, integrated employment. They are critical to achieving the ADA’s goals of independent living and economic self-sufficiency.
We are extremely concerned about the withdrawal of this guidance document, both because it sends the wrong signal to public entities that are seeking to comply with the ADA and because it may reflect a diminished concern with the importance of providing employment services in the most integrated setting. As the Justice Department notes, withdrawal of this guidance “does not change the legal responsibilities of State and local governments under title II of the ADA, as reflected in the ADA, its implementing regulations, and other binding legal requirements and judicial precedent, including the U.S. Supreme Court’s Olmstead decision.” The Statement reflected already established law, and its withdrawal does nothing to change that law, existing settlement agreements, or prior Justice Department findings letters about the application of the ADA’s integration mandate and Olmstead to employment systems.
The vast majority of people with disabilities and their families want opportunities for competitive integrated employment. Most employment service providers, in response to best practices, federal law, and DOJ Guidance, are working to change their business models away from sheltered work to competitive integrated employment, and almost all states have embraced an “employment first” approach reflecting that shift. The Department’s guidance was consistent with the priority the disability community has placed on enforcement of their civil rights to work alongside and with the same conditions as their peers without disabilities.
We are committed to expanding opportunities for all people with disabilities to have opportunities to work alongside their non-disabled peers for competitive wages and fulfill the ADA’s goals of integration, independence and economic self-sufficiency. We urge the Justice Department to remain committed to these goals as well.
We are also concerned about the process by which the Department announced that it is withdrawing nine other technical assistance documents on the same day. While some of these documents were outdated, government transparency is critically important. We were concerned to see so many documents suddenly withdrawn with little explanation of the reasons for doing so. Guidance documents are important tools to educate all stakeholders about the requirements of the law in a clear fashion, and the withdrawal of some of these guidance documents may create confusion and misunderstanding.
The Consortium for Citizens with Disabilities (CCD) is the largest coalition of national organizations working together to advocate for federal public policy that ensures the self-determination, independence, empowerment, integration, and inclusion of children and adults with disabilities in all aspects of society. Contact for the CCD Rights Task Force is Jennifer Mathis, Bazelon Center for Mental Health Law, firstname.lastname@example.org.
The Collaboration to Promote Self Determination (CPSD) is a collaboration of national organizations representing people with disabilities and their families committed to educating Congress and federal agencies about what people with disabilities need to rise out of poverty and live more independently. We advocate for major systemic reform of the nation’s disability laws and programs so people with disabilities can become employed, earn competitive wages, live independently in inclusive communities, and rise out of poverty. Contact for CPSD is Alison Barkoff, Center for Public Representation, email@example.com.
On October 2, the Collaboration to Promote Self-Determination (CPSD) commemorated National Disability Employment Awareness Month with a Congressional briefing on the Workforce Innovation and Opportunity Act (WIOA) Advisory Committee Report and legislative recommendations for improving employment outcomes for people with disabilities. The briefing reviewed key findings from the Advisory Committee’s final report and highlighted state, employee, and employer perspectives and best practices.
The WIOA Advisory Committee formed in 2014 as a result of the Workforce Innovation and Opportunity Act, bipartisan, bicameral legislation calling for a convening of stakeholders to develop strategies for reducing barriers people with disabilities face securing jobs and careers.
The briefing was sponsored by Senator Bob Casey (D-PA) and Senator Maggie Hassan (D-NH) and presented in cooperation with House Bipartisan Disabilities Caucus Chairs Rep. Gregg Harper (R-MS) and Rep. Jim Langevin (D-RI).
David Michael Mank, Ph.D., is Professor Emeritus of the Indiana Institute on Disability and Community at Indiana University, Indiana’s University Center for Excellence on Disabilities, and Full Professor in the School of Education. As a writer and researcher, Dr. Mank has an extensive background in the education and employment for persons with disabilities. He has authored or coauthored dozens of articles and book chapters, is a member of the editorial boards of scholarly journals, and has held leadership positions and received multiple recognitions in the field.
Patti Killingsworth is an Assistant Commissioner for the Bureau of TennCare, and since February 2007, the Chief of Long Term Services & Supports. She has worked in Medicaid programs in Missouri and Tennessee for nearly two decades, leading system redesign initiatives in both states. She has a long history of ensuring that that the perspectives of people who need long term services and supports, their family members, and other key stakeholders are considered in policy and program decision- making processes.
Charles Hill is the General Manager of Embassy Suites Washington, DC Convention Center. Mr. Hill’s commitment to hiring people with disabilities to fill critical roles at Embassy Suites Washington, DC continues to serve as a model for his colleagues in the industry. He spearheaded the creation of an internship program for young adults with disabilities and works with his Hilton partners to facilitate opportunities for interns to transition into paid staff positions.
Lauren Kuster is employed with the Consumer Products Safety Commission. She formerly worked for 14 years at a sheltered workshop earning below minimum wage before successfully transitioning to competitive integrated employment.
Letter to Secretary DeVos can also be accessed here.
September 5, 2017
The Honorable Betsy DeVos
United States Department of Education
400 Maryland Avenue, SW
Washington, DC 20202
Dear Secretary DeVos:
The undersigned organizations are writing to express our strong opposition to the July 28, 2017 letter sent to you and signed by 45 members of Congress, asking for changes in the regulations that define “Competitive Integrated Employment” in Title IV of the Workforce Innovation and Opportunity Act (WIOA). The congressional letter states that the implementing regulations and sub-regulatory guidance from the Rehabilitation Services Administration (RSA) are having a negative impact on AbilityOne Programs, in terms of placements by state Vocational Rehabilitation agencies. (AbilityOne is a federal set-aside program authorized by the Javits-Wagner-O’Day act where organizations receive contracts from the federal government for goods and services; at least 75% of the hours worked to fulfill these contracts must be performed by individuals who are blind or have significant disabilities.) The Congressional letter specifically asks you to remove the following from the sub-regulatory guidance: “that the following factors would generally result in a determination that the placement does not meet the WIOA definition of competitive integrated employment: (1) the funding of positions through Javits-Wagner-O’Day (JWOD) Act contracts or State purchase programs; (2) allowances under the Fair Labor Standards Act for compensatory subminimum wages; and (3) compliance with a mandated direct labor-hour ratio of persons with disabilities.” The letter also requests the issuance of regulations that allow AbilityOne to continue to receive state referrals and placements.
As advocates for the full inclusion and integration of individuals with disabilities, working side-by-side with individuals without disabilities in the general workforce, the undersigned organizations strongly oppose this effort to make changes to the WIOA definition of Competitive Integrated Employment for the following reasons:
1. The regulations are very much aligned with Congressional intent and long-standing Department of Education policy: The WIOA legislation states that employment must be “at a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons.” The subsequent regulations are very much aligned with Congressional intent, in specifying that the location must be one that is “typically found in the community,” “where the employee with a disability interacts for the purpose of performing the duties of the position with other employees within the particular work unit and the entire work site, and, as appropriate to the work performed, other persons (e.g., customers and vendors), who are not individuals with disabilities.” The regulations specifying interactions within the work unit are part of long-standing Department of Education policy since at least 2005 (November 2005, RSA-TAC-06-01: Factors State Vocational Rehabilitation Agencies Should Consider When Determining Whether a Job Position Within a Community Rehabilitation Program is Deemed to be in an “Integrated Setting” for Purposes of the Vocational Rehabilitation Program, https://www2.ed.gov/policy/speced/guid/rsa/subregulatory/tac-06-01.pdf)
2. AbilityOne’s mandated direct labor-hour ratio generally leads to an environment that is not integrated: Under current statute, at least 75% of the hours of worked to fulfill an AbilityOne contract must be performed by individuals who have a significant disability. As such, AbilityOne work environments generally cannot meet both the definition of integration in terms of level of interaction and the mandated direct labor-hour ratio. The congressional letter incorrectly states that using a mandated direct labor-hour ratio of persons with disabilities as a criteria that generally does not constitute Competitive Integrated Employment is new and a regulatory overreach. Such a factor in determining whether a placement is integrated has been in place since at least 2005 via the above cited policy document from the Department of Education.
3. Under WIOA, a federal advisory committee has found that AbilityOne is not aligned with Competitive Integrated Employment and has called for the program’s reform: As part of WIOA, Congress mandated the establishment of the Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities (ACICIEID). In its final report to Congress and the Labor Secretary in September 2016 (https://www.dol.gov/odep/topics/pdf/ACICIEID_Final_Report_9-8-16.pdf – pp. 57-61), the ACICIEID stated that “AbilityOne has not evolved to fully reflect modern disability policy goals, including those enshrined in the ADA and the Supreme Court’s decision in Olmstead v. L.C.,” and that in its current design AbilityOne may inhibit increased Competitive Integrated Employment. Noting significant issues with AbilityOne, including the segregation of workers in AbilityOne from the mainstream workforce, the lack of pathways to employment in typical private and public sector employment settings, and a lack of oversight regarding aligning AbilityOne with federal disability policy, the Committee recommended a comprehensive series of changes and reforms to the program. To allow placements in AbilityOne programs as Competitive Integrated Employment is in complete conflict with these recommendations and is at odds with current federal disability policy. A more appropriate solution to the concerns raised in the letter is for Congress to amend the statutes governing AbilityOne in line with the recommendations by the ACICIEID, so that AbilityOne facilitates the achievement of Competitive Integrated Employment for people with disabilities.
4. By statute, AbilityOne is not competitive employment: Under the current statute authorizing AbilityOne, to be eligible to work on an AbilityOne contract, an individual with a disability must be legally blind or must have a physical or mental disability that “constitutes a substantial handicap to employment and is of such a nature as to prevent the individual under such disability from currently engaging in normal competitive employment.” (41 U.S.C. §8501) To be clear, the undersigned take issue with that concept that a person’s disability can preclude them from participating in competitive employment, and feel strongly, as stated in numerous Department of Education support documents for WIOA, “that individuals with disabilities, including those with the most significant disabilities, are capable of achieving high quality, competitive integrated employment when provided the necessary skills and supports.” As noted above, AbilityOne should be reformed by Congress to reflect this. However, until that occurs, AbilityOne programs should not generally qualify as Competitive Integrated Employment, when the law currently authorizing AbilityOne specifically states that AbilityOne exists to employ individuals who cannot engage in competitive employment.
5. Consistent with longstanding policy, placements in AbilityOne are still permitted if they are in integrated settings: RSA has been very clear in its guidance that while AbilityOne placements raise concerns and generally will not meet the standards for an integrated setting, placement in AbilityOne is still allowed, with a determination regarding Competitive Integrated Employment to be made on a case-by-case basis, in line with long-standing RSA policy.
6. WIOA requires employment at minimum wage or higher: The letter from members of Congress stated that among the factors that are having a negative impact on Ability One programs, is the requirement that an organization would not meet the criteria for competitive integrated employment if it is allowed to pay subminimum wage. The letter claims this criteria is nowhere to found in the WIOA law. In fact, the definition for Competitive Integrated Employment in WIOA itself states that the placement must provide compensation at or above the federal, state, or local minimum wage, whichever is higher.
Thank you for your consideration and attention to this matter. If you have any questions or need further information, please contact Jenny Stonemeier, Interim Executive Director of the Association of People Supporting Employment First (APSE) at (301) 279-0060 or firstname.lastname@example.org or Alison Barkoff, Policy Advisor to the Collaboration to Promote Self-Determination (CPSD) at (202) 854-1270 or email@example.com.
Association of People Supporting Employment First (APSE)
Association of University Centers on Disabilities (AUCD)
Autism Society of America
Autistic Self-Advocacy Network (ASAN)
Bazelon Center for Mental Health Law
Center for Public Representation (CPR)
Collaboration to Promote Self-Determination (CPSD)
Council of State Administrators of Vocational Rehabilitation (CSAVR)
Institution for Educational Leadership
National Association for Rights Protection and Advocacy (NARPA)
National Association of Councils on Developmental Disabilities (NACDD)
National Association of State Directors of Special Education (NASDSE)
National Council of Independent Living (NICL)
National Disability Institute (NDI)
National Down Syndrome Congress (NDSC)
National Federation of the Blind (NFB)
National Organization on Disability (NOD)
The Arc of the United States
Office of General Counsel – U.S. Department of Education
Representative Kristi Noem
Representative Cathy McMorris Rodgers
Representative Kevin Brady
Representative Luke Messer
Representative Doug LaMalfa
Representative Earl L. Carter
Representative Susan W. Brooks
Representative Phil Roe
Representative Tim Walberg
Representative Todd Rokita
Representative Glenn Thompson
Representative Barbara Comstock
Representative Vicky Hartzler
Representative Lynn Jenkins
Representative Carlos Curbelo
Representative Glenn Grothman
Representative Claudia Tenney
Representative Jim Renacci
Representative Mike Bishop
Representative Mike Gallagher
Representative Jason Smith
Representative H. Morgan Griffith
Representative Rob Bishop
Representative Mo Brooks
Representative Lamar Smith
Representative A. Drew Ferguson IV, D.M.D.
Representative John R. Moolenaar
Representative Mike Simpson
Representative John Katko
Representative Kevin Cramer
Representative Dave Brat
Representative Gus Bilirakis
Representative Diane Black
Representative Steven M. Palazzo
Representative Chuck Fleischmann
Representative Larry Bucshon, M.D.
Representative Rick W. Allen
Representative Ron Estes
Representative Trey Gowdy
Representative Pete Sessions
Representative Markwayne Mullin
Representative Blake Farenthold
Representative Leonard Lance
Representative Jeff Fortenberry
Representative Mike Coffman
The Collaboration to Promote Self-Determination in partnership with the Workforce Innovation Technical Assistance Center and the Youth Technical Assistance Center will be presenting a Webinar on:
The Implementation of Section 511 of the Workforce Innovation and Opportunity Act and National Efforts to Promote Competitive Integrated Employment for Individuals with Disabilities
This webinar will be presented on:
Monday, September 11th from 12:30 – 2:00 Eastern time.
In this Webinar we will be sharing information on the requirements for Vocational Rehabilitation programs and their partners in implementing Section 511 of WIOA, which focuses on providing options and information for individuals with disabilities that are currently in, or seeking to enter, sub-minimum wage employment. We will discuss how implementation of Section 511 is progressing after the first year. In addition, we will share information on an exciting project that is developing the capacity of public vocational rehabilitation programs and their network of service providers to provide customized employment opportunities to individuals that would otherwise be working in sub-minimum wage jobs.
We will be sending you registration information for this Webinar shortly, but please set the date and time aside to join us!
Congressman Gregg Harper (R-MS) presents a policy briefing on congressional support for competitive, integrated employment and the elimination of sub-minimum wages for people with disabilities, Thursday, June 22, 2017, 10:00 a.m. to 11:00 a.m, in 1310 Longworth House Office building. The briefing will be moderated by Phoebe Ball, Legislative Affairs Specialist, NCD, and panelists will include: Neil Romano, Member of the National Council on Disability (NCD) (appointed by Senator Mitch McConnell) and former Assistant Secretary of Labor for Disability Employment Policy, Linda and Emily Scott, mother / daughter (Vermont), and Ken Capone, consumer advocate. For more information, click here.
The Collaboration to Promote Self-Determination (CPSD) today announced support for the Raise the Wage Act bill. In a letter to Senators Patty Murray (D-WA) and Bernie Sanders (D-VT) and Representatives Bobby Scott (D-VA) and Keith Ellison (D-MN), advocates touted the importance of fair and living wages in achieving economic stability for all people, including those with disabilities, and the critical need for access to competitive integrated employment opportunities. Read the full letter here.
The Home and Community-Based Settings Rule Attempts to Usher In Long Overdue Higher Standards
For nearly 35 years, the federal Medicaid program has given states the opportunity to provide services and supports outside of institutions to individuals with disabilities who would otherwise be eligible for institutional care. Despite the fact that entitlement to institutional care remains a feature of the modern-day Medicaid program, many state Medicaid agencies have reached a point where they serve far more people with disabilities in non-institutional services (called “home and community services” or “HCBS”) than are served in institutional settings. Spending patterns have followed, despite the fact that the per-person cost of institutional care rises exponentially as states reduce the numbers of people served in these settings. There is irrefutable and long-standing evidence demonstrating that, on the whole, serving individuals with disabilities in home and community based services and settings costs less than serving those same individuals in institutional settings. Read more…
As states adopt Employment First policy and seek to increase the percentage of working-age individuals with disabilities who are participating in integrated employment at competitive wages, reimbursement methodologies for Supported Employment and related services become a core consideration for ensuring successful outcomes. This policy brief discusses the issues with current approaches to funding Supported Employment services and explores the concept of outcome-based reimbursement for long-term (sometimes called “extended”) Supported Employment services in particular. By way of illustration, the longest-standing models of outcome based reimbursement for Supported Employment is briefly described, including its impressive track record of success over nearly two decades. Read more…
Or Are Sheltered Workshops Cheaper to Operate?
In this economic climate, vocational programs for adults with disabilities have to compete for the limited funds available. In order to obtain these funds, services providers have to demonstrate the fiscal merits of their programs. For instance, proponents of facility-based programs, such as sheltered workshops, might indicate that their services are better investments for taxpayers because they work with groups of people while supported employment only works serves person at a time. Advocates of supported employment, on the other hand, might counter that their programs are better because they facilitate independence whereas sheltered workshops create dependence. Which program is the best investment for taxpayers? Several recent studies have attempted to answer this question. Read more…