[Nfbk] Dr. Maurer's letter to the Department of Education

[Nickie Pearl]

NFB President Marc Maurer recently sent a letter to the Department of 
Education urging it to retain its current employment policy that states that 
disabled persons in sheltered employment, extended employment, or other 
employment in non-integrated settings are not considered to have achieved an 
employment outcome in the State Vocational Rehabilitation Services Program. 
National Industries for the Blind recently advocated for changes to this 
policy that would threaten blind Americans who strive to obtain full or 
part-time competitive employment.
    Below you will find a copy of the letter.

Letter to Alexa Posny

5/27/2010

May 27, 2010

The Honorable Alexa Posny
Assistant Secretary for Special Education
   and Rehabilitative Services
United States Department of Education
400 Maryland Avenue SW
Washington, DC  20202-2800

Dear Assistant Secretary Posny:

I serve as President of the National Federation of the Blind (NFB), the 
nation's oldest and largest organization of blind Americans.  The NFB has 
over 50,000 members comprising fifty-two affiliates (one in each state, the 
District of Columbia, and Puerto Rico), over seven hundred local chapters, 
and a number of special interest divisions.  Since its founding in 1940, the 
NFB has advocated for better employment opportunities for the blind, and I 
am writing to you in support of that fundamental goal.

Because we are determined that blind Americans should be given full 
opportunity to enter the careers of their choice, and because we are 
determined to assist blind people to find employment that is suited to their 
skills and aspirations, we are deeply concerned that National Industries for 
the Blind (NIB) has recently requested that you "issue new guidelines 
clarifying that the definition for 'employment outcomes' includes 
individuals who are blind and are working in the AbilityOne Program through 
National Industries for the Blind's nationwide network of nonprofit 
agencies."  (I am attaching correspondence from NIB to this effect for your 
convenience.)  The NFB strongly opposes the dramatic change in policy that 
is inherent in this request.

 Although NIB currently supports a policy that blind people should be paid 
at least the minimum wage, several of the NIB workshops do not universally 
adhere to this policy.  NIB officials have expressed the view that they 
cannot require the workshops to abide by the policy.  In the past, the 
placement policies of a number of state vocational rehabilitation agencies 
have emphasized placing blind individuals in NIB workshops because this 
placement was simpler and easier than finding employment for the blind in an 
integrated setting.  The effect of such policies in the past has been to 
"dump" blind people into NIB agency workshops unless extraordinary pressure 
was brought to bear to prevent it.  The result of "dumping" the blind into 
such workshops has been to doom blind clients to dead-end positions without 
opportunity for upward mobility or full opportunity for the employment of 
their talent.  Although a few blind people have recently found their way 
into management positions in NIB workshops, the promotion of blind 
individuals into management in NIB is notable, mostly for its failure rather 
than its success.  NIB is hoping that you will use your power to assign 
blind people to the workshops.  We believe that this is contrary to the 
policy of full employment opportunity contained in the Rehabilitation Act.

On January 22, 2001, the Office of Special Education and Rehabilitative 
Services (OSERS) issued final regulations to redefine the term "employment 
outcome" as it applies to the State Vocational Rehabilitation Services 
Program (VR program).  Under these regulations, "employment outcome" means 
an outcome in which an individual with a disability enters full- or 
part-time competitive employment in an integrated setting (66 Fed. Reg. 7250 
et seq., codified at 34 CFR Part 361).  The NFB endorsed these regulations 
during the rule-making process and continues to support them.  We believe 
the revised and now current definition of "employment outcome" [34 CFR 
361.5(b)(16)] properly reflects the Rehabilitation Act's strong emphasis on 
the integration into society of persons with disabilities and on the ability 
of individuals with disabilities to achieve employment in integrated 
settings if necessary services and supports are provided.

One of the effects of the revised definition is that disabled persons in 
sheltered employment, extended employment, or other employment in 
non-integrated settings are no longer considered to have achieved an 
employment outcome in the VR program.  This does not mean, however, that no 
individual participating in an AbilityOne job program can be considered to 
have achieved an employment outcome.  In discussing these changes, OSERS 
noted that many jobs obtained by disabled persons under certain types of 
set-aside contracts authorized by the Javits-Wagner-O'Day Act (JWOD) (41 USC 
46-48) would satisfy the definition of "employment outcome" as long as those 
jobs were performed in "integrated settings" as defined elsewhere in the 
regulations [34 CFR 361.5(b)(33)(ii)].  OSERS also stated:

    "The determination as to whether any job, including those obtained under 
JWOD contracts, meets the regulatory definition of 'integrated setting,' and 
therefore qualifies as an 'employment outcome' (for purposes of the VR 
program), must be made by State [VR] units on a case-by-case basis."  (66 
Fed. Reg. 7251)

We urge you to retain this policy position.  The determination of when an 
individual has achieved an employment outcome in the VR program is made 
jointly by the individual and a qualified rehabilitation counselor employed 
by the State VR agency after they agree that the individual is satisfied 
with and performing well in employment [34 CFR 361.56(c)].  OSERS should not 
issue any new policy that persons obtaining employment through JWOD 
contracts are automatically considered to have achieved an employment 
outcome in the VR program.  To do so would interdict the joint 
decision-making between the disabled individual and rehabilitation 
counselor, and would undermine the goal of competitive employment in 
integrated settings for people with disabilities.

Blind people must be able to decide for themselves when they have reached 
their employment goals; their cases should not automatically be closed by 
virtue of being employed in a NIB facility.  NIB's primary motivation in 
requesting this policy change is to give incentives to rehabilitation 
counselors to place consumers in its programs and facilities.  We have 
nothing against NIB, and its record of employing blind individuals at or 
above minimum wage has certainly improved, but blind people must be allowed 
to determine for themselves whether a NIB placement is their desired 
employment outcome.  The proper goal of rehabilitation is the successful 
employment of blind Americans in jobs that they find personally and 
professionally fulfilling, not the closing of rehabilitation cases or the 
support of NIB.

Thank you for your consideration of this critically important matter.  If 
you have any questions, please do not hesitate to contact me.

Sincerely,

Marc Maurer, President
NATIONAL FEDERATION OF THE BLIND