Because a lifetime is too long to wait!
Because a lifetime is too long to wait!
By David Michael Mank, Ph.D.**
There are two wrong ways to view the capabilities of people with significant disabilities. The first way is to meet someone, and automatically focus on their disability and assume that competitive integrated employment (CIE) is not possible. When, in fact, this individual has capabilities to work successfully. The second way is to meet an individual with a significant disability, see their potential and seek to discover that person’s interests, history and capabilities but, over time, fail to successfully support them in finding and sustaining employment. I first heard of this sentiment many years ago in the writings of Don Baer from the University of Kansas (a pioneer in discovering how to connect with people with significant disabilities through identifying their potential and preferred modes of communication and teaching). Don’s points were clear, concise and to the point: If we are going to be wrong about the ability and potential of a person, we must always be wrong in the second way. As a young man in graduate school at the University of Oregon many years ago, I was taught that any failure to learn by a person with a disability is my failure as a teacher and not the person’s failure. And, in the words of the customized employment guru Marc Gold, it is our responsibility to “Try Another Way”.
Now, in 2021, the debate continues among the broader community not only about the capabilities of individuals with disabilities, but about how and where people should spend their time. There continue to be ongoing presumptions underlying these arguments that are based on low expectations of people with significant disabilities about their competencies and potential to make significant contributions to their communities. This paternalistic attitude continues to be toxic in terms of how we approach public policies that directly impact the options individuals with significant disabilities have in terms of where they live, if they are allowed to work (and where), and what they can do during the day.
This debate is never clearer than in a conversation about the employability of individuals with significant disabilities in the generic workforce. Many self-advocates and other advocacy organizations assert competitive integrated employment first for all adults with significant disabilities, and the end of sheltered workshops and sub-minimum wages for all. Many proponents of maintaining sheltered workshops and the payment of sub-minimum wages argue that without these mechanisms, people with significant disabilities would not have any opportunities to work or contribute. Passions run high across these divergent perspectives.
Too often, in my view, this is argued as an “either, or” question. My question is this: what do we need to do to make the use of sub-minimum wages and sheltered workshops unnecessary? I have tried to make the point, to the disappointment of some, that eliminating such policy without any additional work around systems-change is but a Pyrrhic Victory, taking too great of a toll that negates the achievement. Instead, we must offer something better, one person at a time. Simply eliminating sheltered work or sub-minimum wages today and doing nothing else to promote the employment of people with significant disabilities does not provide a better tomorrow. We need a well- designed phase out of sub-minimum wages and we must engage in the important work of seeking to discover each person’s interests and capabilities in a thorough and authentic process. We must learn the methods (now well-developed) of customized employment strategies, systematic instruction, and positive behavior supports. We must have a direct support workforce that is well-trained, well-supported and well-paid.
Will we always succeed? Probably not. Will we succeed more often than not? Yes. Studies show that two-thirds of people in sheltered workshop settings have an interest in competitive integrated employment. Even given this clear interest, few are given the opportunity to leave sheltered settings for competitive integrated employment. Addressing this need alone is many years of work.
We also know that working at full productivity is less about the person and the disability than it is about the intersection of a person and what they are being asked to do. Any one of us can, in 60 seconds, list at least 5 jobs where our performance would be very poor. Many of us spend years finding the kind of work that suits us. Too often in sheltered work, people are offered work available rather that offered work that suits the person based on their interests, skills and experiences.
In this new Administration, we have the opportunity to move forward with decreasing the reliance of states and the disability community on sheltered work by implementing real systems change that leads to increased competitive integrated employment options for individuals with significant disabilities. The Transformation to Competitive Employment Act, to be re-introduced this Congress, is one important opportunity. It builds on the work of many researchers, practitioners, self-advocates, employers and families over several decades. I have written about this opportunity in the past [read HERE], and stand by my belief that passing legislation such as the Transformation to Competitive Employment Act is the most effective and comprehensive way to empower those with disabilities while still maintaining federal safety nets that protect both the people gaining their economic independence, as well as the businesses that used to employ them. It is long past time that people with disabilities be given opportunities on par with everyone else – to obtain real jobs for real wages and make real contributions to society.
Image description: Photo of Professor David Mank, Caucasian man with gray hair, tie and glasses sitting in front of a white board with water bottle.
** About the Author: David Mank, Ph.D., Professor Emeritus at Indiana University. He chaired the Advisory Committee for Increasing Competitive Integrated Employment for Individuals with Disabilities established by Congress in the Workforce Innovation and Opportunity Act of 2014. He is an Advisory Council Member of the Collaboration to Promote Self Determination.
The Collaboration to Promote Self-Determination and the National Council on Disability celebrated National Disability Employment Awareness Month with a Congressional Briefing on Monday, October 28 2019.
SUCCESSES OF PEOPLE WITH DISABILITIES TRANSITIONING TO COMPETITIVE INTEGRATED EMPLOYMENT
Attendees learned about competitive integrated employment (CIE), community jobs where people with disabilities work alongside co-workers without disabilities and are paid competitive wages. They also heard success stories about transitioning to CIE from people with disabilities and their families and about states efforts to expand opportunities for CIE. Learn more about CIE at www.integratedemploymentnow.org.
This briefing was presented in collaboration with the House Bipartisan Disabilities Caucus and its co-chairs Rep. Jim Langevin (D-RI) and Rep. Don Young (R-AK), Senator Pat Roberts (R-KS), Senator Bob Casey (D-PA), Senator Jerry Moran (R-KS), Senator Maggie Hassan (D-NH) and Representative Cathy McMorris Rodgers (R-WA).
With generous support from the Autism Society of America and Anthem
Speaker Bios
Virginia
Lekisha Logan is a lifelong resident of Danville, Virginia and graduated from Dan River High School. She works at Dell’Anno’s Pizzeria in Danville, where she has worked since 2011 when she transitioned from a sheltered workshop where she was paid subminimum wages. Lekisha started in the dining room cleaning and clearing tables, and now works as a dishwasher. Lekisha has presented at The Arc of Virginia’s Annual Convention, sharing her experience in competitive integrated employment. She also has presented to a group of college students at Averett University about the importance of inclusion in all aspects of life.
Eric Cottrell works at Piedmont Regional Feeding Clinic in Danville Virginia, where patients receive therapies to improve eating and health. Eric grew up in Pittsylvania County, Virginia, where he graduated from Chatham High School and later moved to Danville. He has worked in several types of industries, but has always come back to the helping field because his passion is helping people. Eric transitioned to competitive integrated employment from a sheltered workshop where he was paid subminimum wages in 2011. Eric has presented on his experiences to attendees of The Arc of Virginia’s Annual Convention and was interviewed for a video on competitive integrated employment created by Virginia Commonwealth University’s Rehabilitation Research and Training Center.
Tonya Milling, originally from North Carolina, has worked in the disability field for over 20 years and has a passion for the rights of people with disabilities. Her career brought her to Virginia in 2011, where she joined The Arc of Southside as executive director and led the agency through a transformation from segregated services to inclusive supports that are built around the person and not their disability. At that chapter of The Arc, she and the leadership team successfully closed all of the segregated facility-based programs, which included a group home for 15 people, a sheltered workshop for 130 people, and a private day school serving 30 students with disabilities. She and the leadership team developed and implemented new support services that partner with people with developmental disabilities to build their own lives with the supports they need to live the lives that they choose. In January 2018, Tonya became the executive director of The Arc of Virginia, where she is advocating for change, so that every person with a developmental disability can have access to supports to live their life in their community.
Oregon
Acacia McGuire Anderson is the Statewide Employment First Coordinator for Oregon. Her role includes overseeing the transformation of Oregon’s employment services for people with intellectual and developmental disabilities to focus on community employment and inclusion. Her previous experience includes working as a services coordinator and as a program manager and prior to that a direct support professional for an employment provider in Oregon.
Joe Carroll, and his wife Linda, are the parents of Jeremy “Tad” Carroll, a 45 year old man with developmental and other disabilities. The Carrolls have been involved as advocates in the developmental disabilities community, including starting an early intervention program in their community with educators and other parents when Tad was three years old and serving on the boards of The Arc of Oregon and The Arc Mid-Columbia and as a member of the Oregon Council Developmental Disabilities. Tad worked in a sheltered workshop being paid subminimum wages, often earning less than 10 cents an hour, for almost 20 years. Starting in 2017, Tad began working with Vocational Rehabilitation Counselors and his employment team to transition to competitive integrated employment. Tad was hired in November 2018 by a local restaurant delivering meals. He is paid above minimum wage and is paying taxes for the first time in his life. Because of his job, Tad has become more integrated into the local community, improved his communication skills and made new friends.
Iowa
Kyle Stumpf is a 29 year old man from Dubuque, Iowa. Kyle graduated from high school in 2009. After graduation, Kyle was employed in a sheltered workshop earning subminimum wages for approximately four years. In 2014, Kyle was hired at a local franchise for a major pizza chain in Dubuque, where he works alongside co-workers without disabilities and is paid above minimum wage. Kyle just recently celebrated his five year anniversary there. Kyle is also a very active participant in the community. He volunteers and participates in numerous events and recreational activities throughout the community. He has attended statewide conferences on self-advocacy and on competitive integrated employment. He currently attends many political events, telling his story and encouraging candidates to support disability rights.
Bill Stumpf lives in Dubuque, Iowa with his son, Kyle, and is a licensed practical nurse working with people with intellectual disabilities. Prior to pursuing nursing, Bill was employed in a paper factory for 30 years. He became active in the disability movement shortly after his son Kyle, who has Down syndrome, was born in 1990. He has been active on numerous local, state and national organizations over the years. He currently serves on the board for Disability Rights Iowa and is a member of the Iowa Coalition for Integration and Employment. Along with Kyle, Bill has been engaging political candidates at the local, state, and national levels supporting disability rights, including related to voting rights for people with disabilities, healthcare reform, and competitive integrated employment.
Maryland
Joshua Laird previously worked in a sheltered workshop doing piece work and on an enclave lawn crew, both jobs where he was paid subminimum wages and had no co-workers without disabilities. At the sheltered workshop, he had behavioral challenges, did not communicate much and seldom smiled. Beginning in 2016, Josh began attending a training program to help him transition to competitive integrated employment in anticipation of the sheltered workshop closing. Through this program, Josh expressed an interest in finding a job where he could work outside and independently and was introduced to the manager of a local marina. For the last three years, Josh has been working for the marina three days per week during the months of May through September and has received Certificates of Appreciation after each season. In the last year, Josh has taken a second job working at Salisbury University in the dining services building approximately 20 hours per week. He has enjoyed and is succeeding at this second job too.
ACTION ALERT:
Comment Today to Support Equal Pay for People with Disabilities!
This week the Department of Labor announced its new website, “the Section 14(c) National Online Dialogue.” The purpose of the website is to collect comments from the public about the impact of paying subminimum wages to people with disabilities under section 14(c) of the Fair Labor Standards Act. Employers with 14(c) certificates can legally pay people with disabilities less than the federal minimum wage, often times pennies on the dollar. Section 14(c) certificates are typically used in “sheltered workshops,” where people with disabilities are segregated from the broader community. The vast majority of disability advocates view Section 14(c) (created in 1938) as outdated, discriminatory, and reinforcing a life of poverty, segregation, and dependency on public support for people with disabilities. It is critical that you make your voice heard!
Input from people with disabilities, families, employment providers and employers is important. Share your perspective online here before Friday, June 14th.
Ideas to include in your comments are:
Disability advocates have made significant progress towards eliminating Section 14(c) and establishing the legal right of people with disabilities to be paid the same as everyone else. In 2014, Congress passed the bipartisan Workforce Innovation and Opportunity Act (WIOA), which made competitive integrated employment (CIE) a priority, limited the use of subminimum wages for youth with disabilities, and required people currently being paid subminimum wages to be given other employment options. In 2016, the Federal Advisory Committee for Increasing Competitive Integrated Employment for Individuals with Disabilities recommended to Congress and the Labor Secretary that Section 14(c) be phased-out, together with capacity building for competitive integrated employment. In 2019, Congress introduced bipartisan legislation, the Transformation to Competitive Employment Act, to phase-out 14(c) and help providers transform their models to CIE. Numerous states have already prohibited the use of subminimum wages, and other states are currently considering legislation. It is critical that we urge the Department of Labor to continue the progress towards ending this outdated and discriminatory practice.
Remember, you only have until June 21st to make your voice heard here!
By Greta Harrison
Picture this. You are at a conference attending the opening breakfast. A presentation begins and within minutes you see a picture of a man in a wheelchair with one arm. The executive who is speaking is also a nurse. She tells you that this man does not use language, and cannot count or read. Yet she shows you pictures of him at his job rehabbing a piece of hospital equipment, so it can be recycled, instead of thrown away. Because he cannot count, they put notches in a wheel and he knows to just fill up that wheel, and what to do with them afterwards. This man makes a living wage and receives benefits. He is happy and proud. The hospital saves hundreds of thousands of dollars a year. It is a win / win for all.
The next picture shows a young lady working in a very large hospital emergency room set up. She is stocking many rooms. She is very busy—and always on task. She is known for her work ethic. So much so, that the head of the very large dental clinic a few floors up, asks the executive nurse if this young woman would mind going to their department. The young woman goes there and quickly learns to sterilize dental instruments for over 20 operatories. She gets a significant raise and is still there over twenty years later. That woman has Down syndrome.
Those two examples sold me on Project SEARCH back in 2007. I knew then and there that we needed this program in Virginia. I also knew we had the right community to bring this together. So a year later, Hampton had the first official Project SEARCH site in Virginia. Now there are many sites in Virginia and hundreds all over the world. Project SEARCH has been around since 1995. All due to one nurse executive who was looking to stop turnover at Cleveland Children’s Hospital, the third largest hospital of its kind in the US. She had no kids of her own, and did not know any people with disabilities personally. The program was born out of employer need—and now runs globally on her passion that germinates quickly.
So when people tell me things like, “my child just can’t work”, or “it is a fantasy for my child to make minimum wage” – the visions of the man rehabbing equipment and the woman sterilizing dental instruments are in my head. I know that many parents, educators, and non- profit staff are unaware of possibilities in 2019. They are stuck in a time sixty years ago when sheltered workshops were the progressive choice. Some of these well – intentioned parents actually pay a non – profit so their loved one can ‘work’. For pennies or a few dollars an hour. They think that is all there is. They have very low expectations. And they don’t know what their loved one can really do.
Instead, we need to be pooling our resources to support employment in the community. We need to properly fund entities like Virginia’s Department of Aging and Rehabilitative Services (DARS) and provide better training for large employers, so they too can expand their workforces.
For the very small percent of the population that truly cannot work, and that is a very small number, we should have enrichment programs for them that offer continuing education, art, drama, photography, etc. The traditional day programs are also a sixty – year old idea—that started with good intentions. We can do better—and we should.
Fear, and overprotective natures often guide parents to petition for segregated regressive services. If we all move forward—proudly showing the great examples out there of supported employment—we can help these families move forward with us. Change is never easy. Every radical movement forward in American society has also faced people who did not believe. Let’s talk this out and make sure everyone’s fears are addressed. Let’s address each person left in a sheltered workshop individually and make sure person centered planning , and time, equal the best result for them. Let’s put an absolute stop to putting new graduates into sheltered workshops. Then let’s all move forward together.
I am writing this for three reasons. I have a daughter named Yasmine who is now nineteen. Yasmine has Down syndrome. Last summer she completed a successful internship with the City of Hampton working in their human resources department. It was such a positive experience that words cannot describe the joy she, my husband and I, and the City of Hampton all feel when we talk about it. Now my daughter has an internship with DARS-working in their local office. Thanks to my daughter’s inclusive and challenging education, and to DARS Pre-Employment Transition Services (Pre-ETS) program that targets people with disabilities before they graduate, she has many possibilities for the future that range from working for the city to working in the medical field, to starting her own business. She may go to community college as well. Working for subminimum wage is not even on the radar. In different circumstances, a different family, different support system, different schools, that is still an option for young women just like her. That should not be. Her future, full of possibilities, is what we should all be shooting for.
The second reason is that my daughter Yassy spoke to a congressional committee in September 2018, talking about her summer internship experience. What a parental moment that was—one etched permanently in my mind. Who thinks their child is going to give a speech before a congressional committee? My guess is not many parents—regardless of the fact that their child does or does not have a disability. She is a shy, but strong and articulate, self-advocate. You can read her testimony here (and I also spoke, my testimony is here).
The third reason is because in March I launched a podcast called Born Fabulous. It features in depth discussions with the parents of very accomplished individuals who just happen to have disabilities. Every single case shows examples of what can happen when there are high expectations. I did this because these successes need to be highlighted and need to be the norm. Youth, parents, business, community, and political leaders all need these positive examples. In future seasons I will interview the self- advocates themselves.
The data, continuing education, and decades of experience all back up what I am saying. There is no data that supports segregated education or employment. And definitely none that supports a subminimum wage. Substitute the words black, Hispanic, gay, or any other minority into this equation. Sub minimum wage is not human in 2019.
When you are confronted with naysayers, please remember they are scared. Then make sure you are part of the solution that will not only assay their fears but will also move us forward. Please help make this world a kinder, gentler, and more productive place.
Let’s all move forward together!
Greta hosts Born Fabulous Podcast which explores the lives of very successful young adults with significant disabilities. A former retail manager and business owner, she has been a civic leader for 19 years with various organizations that work with people with disabilities. She has been married almost 39 years, and is the mother of Nia, 31, and Yasmine, 19. Yasmine has Down syndrome. Yasmine is fully included in Hampton City Schools, where she has made honor roll each year, and will soon be a senior. She has had two internships via her participation with DARS Pre-ETS program. The first was in the Human Resources Department at the City of Hampton last summer. The second is a current placement at the Hampton DARS office where she does office work. Yasmine is an artist, and loves her anatomy class. She is pursuing ‘a life like yours’.
The organizations listed in the letter above support the Transformation to Competitive Employment Act.
Most people with disabilities want to work, live independently and be economically self-sufficient. Unfortunately, employment for people with disabilities continues to lag significantly compared to those without disabilities. For too many people with disabilities, their only option is to work in segregated settings called “sheltered workshops,” where they are isolated from co-workers without disabilities and the broader society and are legally paid pennies on the dollar under Section 14(c) of the Fair Labor Standards Act (FLSA).
The bipartisan Transformation to Competitive Employment Act (H.R. 873/S. 260) will address barriers to employment and expand opportunities for competitive integrated employment for people with disabilities while phasing out subminimum wage certificates under 14(c) of the FLSA over a six-year period. This bill was introduced in the Senate by Senators Bob Casey (D-PA) and Chris Van Hollen (D-MD) and in the House by Chairman Bobby Scott (D-VA) and Representative Cathy McMorris Rodgers (R-WA).
The Collaboration to Promote Self Determination (CPSD) strongly supports this bill that will end the discriminatory and unfair payment of subminimum wages to people with disabilities while increasing opportunities for competitive integrated employment. The Transformation to Competitive Employment Act will:
inclusive wraparound services when not working. States and 14(c) certificate holders will be required to report on their grant activities, evaluate changes in employment for individuals with disabilities, report average wage information, and evaluate employer actions taken to comply with the phase-out of 14(c) and transformation grants.
Why is the capacity-building component of this bill so important?
All people with disabilities deserve opportunities for competitive integrated employment. A phase out of 14(c) must also include a systematic approach to expand capacity for competitive integrated employment, particularly for people transitioning out of sheltered workshops. The grants provided under this bill would provide technical assistance and funding to help states and 14(c) certificate holders move to a paradigm of more integrated and innovative approaches to disability employment. The grants would bring stakeholders together to develop the system infrastructure and align funding for competitive integrated employment and ensure that ending the subminimum wage is done thoughtfully to avoid unintended consequences for individuals with disabilities. This imperative for capacity-building efforts to accompany a 14(c) phase out is emphasized in the report to Congress from the WIOA Advisory Committee.1 The Transformation to Competitive Employment bill aligns the Committee’s recommendations and will help people withdisabilities transition to competitive integrated employment opportunities in a careful and responsible way.
Why is it important to phase out subminimum wage under Section 14(c)?
Section 14(c) of the FLSA enables public and private employers to obtain special certificates from the Department of Labor to pay workers with disabilities at rates well below the current federal minimum wage, often pennies on the dollar. This law, created in 1938, is outdated, discriminatory, and reinforces a life of poverty, segregation, and dependency on public support for people with disabilities.
In passing the bipartisan Workforce Innovation Opportunity Act (WIOA) of 2014, Congress made clear that competitive integrated employment – where people with disabilities work in mainstream jobs alongside, and are paid comparable wages to, co-workers without disabilities – is a national priority. The broader disability community, the Advisory Committee created by Congress in WIOA, the National Council on Disability and others have all called for a phase-out of subminimum wage.2
Legislative request
Please sign on to cosponsor the Transformation to Competitive Employment Act (H.R. 873/S. 260) by contacting Phoebe Ball with Chairman Scott on the House Committee on Education & Labor (phoebe.ball@mail.house.gov) or Michael Gamel-McCormick with Senator Casey on the Senate Committee on Aging (Michael_Gamel-McCormick@aging.senate.gov).
If you have any questions, or to follow up, please reach out to Alison Barkoff, Policy Advisor to CPSD (abarkoff@cpr-us.org). For more information about CPSD, please see www.thecpsd.org.
1 See Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities, September 15, 2016 Report (Committee Report) at 28-32, available at https://www.dol.gov/odep/topics/pdf/ACICIEID_Final_Report_9-8-16.pdf.
2 See Committee Report; National Council on Disability, From the New Deal to the Real Deal: Joining the Industries of the FutureOctober 2018 Report, available at https://ncd.gov/sites/default/files/New%20Deal%20to%20Real%20Deal%20FINAL_508.PDF.
January 25, 2019
Senator Robert “Bob” Casey
393 Russell Senate Office Building
Washington, D.C. 20510
Chairman Bobby Scott
2176 Rayburn House Office Building
Washington, D.C. 20510
Dear Senator Casey and Chairman Scott:
On behalf of the Collaboration to Promote Self-Determination (CPSD), I write to express our support for the Transformation to Competitive Employment Act. Founded in 2007, CPSD is an advocacy coalition of organizations representing people with intellectual, developmental and other disabilities and their families, disability service agencies and individuals who have come together to bring about a significant modernization and alignment of the federal system of services and supports for persons with disabilities. Since its inception, CPSD has been working to reform the nation’s disability laws and programs to advance economic security, enhance community participation, and increase opportunities for people with disabilities so that they are able to lead self-determined lives.
In passing the Workforce Innovation Opportunity Act (WIOA) of 2014, Congress made clear that competitive integrated employment (CIE) – where people with disabilities work in mainstream jobs alongside, and are paid comparable wages to, co-workers without disabilities – is a national priority. Yet nearly 230,000 people with disabilities are still legally paid subminimum wages under Section 14(c) of the Fair Labor Standards Act, largely in settings where they are segregated from their nondisabled peers and broader society.The subminimum wage for too long has created and reinforced a life of poverty, segregation ,and dependency on public support. That is why the WIOA Advisory Committee, the National Council on Disability, and the disability community have called for the elimination of subminimum wage.
CPSD has long advocated for the elimination of the unfair and discriminatory payment of subminimum wages to people with disabilities under Section 14(c). We have always emphasized that any phase out of 14(c) must be combined with building capacity in service systems that lead CIE and economic advancement of people with disabilities. We are thrilled to see the capacity-building component included in the Transformation to Competitive Employment Act and believe it will be crucial to expanding opportunities for CIE.
CPSD greatly appreciates your leadership around employment of people with disabilities and believes that this bill represents a thoughtful approach to phasing out Section 14(c) subminimum wage while providing the funding, supports and training necessary to change the infrastructure of outdated business models. This bill will also ensure that individuals with disabilities have opportunities for CIE and are supported throughout the process. In short, this bill signifies a critical and responsible paradigm shift for the employment of people with disabilities.
Thankyou again for the introduction of this critical bill. CPSD stands ready to assist you as this bill moves through Congress. Please contact Alison Barkoff, Policy Advisor to CPSD (abarkoff@cpr-us.org or 202-854-1270) if you have any questions or to follow up on this letter.
Sincerely,
Madeleine C. Will
President, Collaboration to Promote Self-Determination
Please see the attached two letters for more details.
| To read the bill text of the Raise the Wage Act, click here. To read the section-by-section of the Raise the Wage Act, click here. To read a fact sheet on Raise the Wage Act, click here. |
November 27, 2018
Secretary Betsy DeVos
U.S. Department of Education 400 Maryland Ave., SW Washington, DC 20202-7100
Dear Secretary DeVos,
The undersigned organizations write to express our continued strong opposition to any efforts by the U.S. Department of Education to open existing regulations implementing the Workforce Innovation and Opportunity Act (WIOA) of 2014. We were dismayed to see thatthe WIOA implementing regulations, 34 CFR part 361, were included on the Secretary’s FallUnified Agenda, with an estimated date of January, 2019 for regulatory action.
As we described in our July 9 letter to you and reiterate today, we believe that opening the WIOA regulations will undermine implementation of the law, which establishes competitive integrated employment (CIE) as a clear national priority built on the goal of economic self-sufficiency established in the bipartisan Americans with Disabilities Act (ADA).
WIOA also prioritizes the transition of youth with disabilities from school to CIE and aligns with the Individuals with Disabilities Education Act’s (IDEA) goal of educating students with disabilities alongside their peers without disabilities. The Department’s WIOA regulations not only reflectCongressional intent to prioritize CIE and align WIOA with the ADA and IDEA, but they also codify long-standing Department of Education policy. We strongly believe that opening the regulations is unnecessary and that any concerns that the Department may have, or misinformation that exists in the field, can be addressed most effectively though technical assistance and other sub-regulatory guidance.
Two federal reports issued in the last month share our view that opening the WIOA regulations is unnecessary and would, in fact, be counterproductive. Both reports recommend that the Department provide technical assistance. On October 11, 2018, the National Council on Disability, the independent federal agency charged with advising the President, Congress, and other federal agencies regarding policies, programs, practices, and procedures that affect peoplewith disabilities, issued “From the New Deal to the Real Deal: Joining Industries of the Future.”1The report discusses the definition of CIE in WIOA and its implementing regulations and finds that they reflect long-standing law and policy of the Rehabilitation Act and regulations and align with the requirements of the ADA and the Supreme Court’s decision Olmstead v. L.C. NCD found that any confusion or misunderstanding by state vocational rehabilitation (VR) agencies about how to apply the CIE definition is not a result of the regulations – which clearly call for VR counselors to consider employment settings on a case-by-case basis – but instead indicate a need for more technical assistance to state VR agencies. Thus, “NCD recommends to theDepartment of Education, including the Office of Special Education and Rehabilitative Services, that the WIOA regulations – specifically the definition of competitive, integrated employment – not be reopened for public comment or amendment because the consensus of the disability, business, and employment service provider communities is that the current regulations are of vital importance to the modernization of employment service systems and efforts to on-board people with disabilities into jobs in the economic mainstream.”
The Senate Health, Education, Labor and Pension (HELP) Committee also issued a report making similar recommendations titled, “Disability Employment: Outdated Laws Leave People with Disabilities Behind in Today’s Economy, Minority Staff Report.”2 The HELP Committee collected information from all 79 state VR agencies looking at how they were applying the new definition of CIE, particularly with respect to AbilityOne settings. With a 100% response rate, state VR agencies reported that they do refer clients to AbilityOne setting that meet the CIE definition, that they do conduct case-by-case analyses all employment settings about whether they meet the definition of CIE, and that they do make referrals for clients who make an informed choice of a setting that does not meet the definition of CIE. The report concludes that“The regulations promulgated by the U.S. Department of Education should not be changed at this time. Technical assistance should be provided by the Rehabilitative Services Administration to support state-level implementation of the law and existing regulation.”
As you review the WIOA regulations, we hope you will closely consider the information in these two reports and the views of the wide range of undersigned organizations that strongly oppose opening the regulations and encourage you to seek other options, including technical assistance and guidance to the field, to address confusion or misinformation. The undersigned groups stand ready to engage in thoughtful dialogue with you and your staff about how to best craft such guidance. Please contact Alison Barkoff, CPSD Policy Advisor (abarkoff@cpr-us.org) or Amanda Lowe, NDRN Senior Public Policy Analyst (amanda.lowe@ndrn.org) with any questions or to follow up on our letter.
Respectfully,
American Civil Liberties Union
American Association of People with Disabilities American Network of Community Options and Resources Association of People Supporting Employment First Association of University Centers on Disabilities
Autism Society of America
Autistic Self Advocacy Network
Bazelon Center for Mental Health LawCenter for American Progress
DeVos letter re WIOA regulations from disability community follow up (11.27.18 final)