[nfbmi-talk] FW: [Chapter-presidents] HR 3086 Update: Please share

joe harcz Comcast joeharcz at comcast.net
Thu Jul 12 12:55:14 UTC 2012


This Technical Assistence Circular is germane to the broad issue here:
U.S. DEPARTMENT OF EDUCATION

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

REHABILITATION SERVICES ADMINISTRATION

WASHINGTON, D.C. 20202-2800





TECHNICAL ASSISTANCE CIRCULAR
RSA-TAC-06-01

Date: November 21, 2005





ADDRESSEES:         STATE VOCATIONAL REHABILITATION AGENCIES (GENERAL)

STATE VOCATIONAL REHABILITATION AGENCIES (BLIND)

STATE REHABILITATION COUNCILS

CLIENT ASSISTANCE PROGRAMS

REGIONAL REHABILITATION CONTINUING EDUCATION PROGRAMS

AMERICAN INDIAN VOCATIONAL REHABILITATION SERVICES PROJECTS

PROJECTS WITH INDUSTRY GRANTEES





SUBJECT:                  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





PURPOSE:                 Recently, the U.S. Department of Education has 
received a number of inquiries from community rehabilitation programs (CRP) 
concerning the interpretation of the term "integrated setting" for purposes 
of determining whether placements at these CRPs qualify as "employment 
outcomes" through the vocational rehabilitation (VR) program.



In this Technical Assistance Circular (TAC), the Rehabilitation Services 
Administration (RSA) provides factors that state VR agencies should consider 
when analyzing whether a particular work-unit (in which an individual with a 
disability is seeking a job) within a CRP satisfies the definition of 
"integrated setting" for employment purposes and, thus, constitutes an 
employment outcome under the VR program for that individual with a 
disability.



BACKGROUND:      For many years, the federal government has worked to ensure 
equality and the full inclusion of persons with disabilities in American 
society, including the workplace. Congress has addressed these goals by 
interweaving them throughout the Rehabilitation Act of 1973, as amended 
(Act). In particular, Congress recognized that "individuals with 
disabilities, including individuals with the most significant disabilities, 
have demonstrated their ability to achieve gainful employment in integrated 
settings if appropriate services and supports are provided" (Section 
100(a)(1)(C) of the Act).



RSA has taken a number of steps to implement these goals in its policies by 
emphasizing choice in the pursuit of quality, competitive, and integrated 
employment through the VR program. One of the most significant steps RSA has 
taken in this regard occurred on January 22, 2001, when RSA issued final 
regulations revising the definition of "employment outcome" for purposes of 
the VR program to mean employment in an integrated setting (Final 
Regulations for State VR Services Program, 66 Fed. Reg. 7249 (January 22, 
2001) (Final Extended Employment Regulations)). The purpose of the 
regulations was "to ensure, as we believe Title I of the Act intends, that 
participants in the VR program, particularly those with significant 
disabilities, are afforded a full opportunity to integrate within their 
communities and participate in jobs that are available to the general 
population" (Final Extended Employment Regulations, 66 Fed. Reg. 7249, 7251 
(January 22, 2001)). The definition of "employment outcome," found in 34 CFR 
361.5(b)(16), now reads as follows:

 Employment outcome means, with respect to an individual, entering or 
retaining full-time or, if appropriate, part-time competitive employment, as 
defined in §361.5(b)(11), in the integrated labor market, supported 
employment, or any other type of employment in an integrated setting, 
including self-employment, telecommuting, or business ownership, that is 
consistent with an individual's strengths, resources, priorities, concerns, 
abilities, capabilities, interests, and informed choice. As a result of this 
revision, extended employment no longer satisfies the definition of 
"employment outcome" for purposes of the VR program. The VR program 
regulations define "extended employment" as "work in a non-integrated or 
sheltered setting for a public or private nonprofit agency or organization 
that provides compensation in accordance with the Fair Labor Standards Act" 
(34 CFR 361.5(b)(19)). As we noted in the preamble to the Final Extended 
Employment Regulations, state VR agencies are still permitted to serve 
individuals with disabilities in extended employment settings for purposes 
of preparing those individuals for employment in integrated settings.[i]  A 
key component of the definition of "employment outcome," as revised in 2001, 
is the use of the term "integrated setting." The definition of "integrated 
setting," as used in the context of employment outcomes, can be found in 34 
CFR 361.5(b)(33)(ii) and reads as follows:  With respect to an employment 
outcome, means a setting typically found in the community in which 
applicants or eligible individuals interact with non-disabled individuals, 
other than non-disabled individuals who are providing services to those 
applicants or eligible individuals, to the same extent that non-disabled 
individuals in comparable positions interact with other persons. Note that 
the term "integrated setting" also is a key component of the definition of 
"competitive employment." Regulations found at 34 CFR 361.5(b)(11) define 
"competitive employment" to mean work:



(i)   In the competitive labor market that is performed on a full-time or 
part-time basis in an integrated setting; and

(ii)  For which an individual is compensated at or above the minimum wage, 
but not less than the customary wage and level of benefits paid by the 
employer for the same or similar work performed by individuals who are not 
disabled.

 It is against this background that RSA issues this TAC for state VR 
agencies to use when analyzing whether a particular work-unit within a CRP 
satisfies the definition of "integrated setting" for employment purposes 
and, thus, constitutes an employment outcome under the VR program.



TECHNICAL

ASSISTANCE:          The legislative and regulatory history associated with 
the term "integrated setting" has focused on whether individuals with 
disabilities have the opportunity in their job positions to interact with 
non-disabled persons to the same extent that non-disabled persons in 
comparable positions interact with others. The Final Regulations for the 
state VR services program that implemented the definition of "integrated 
setting" "establish[ed] a standard of integration with respect to employment 
outcomes that is based on ensuring the same level of interaction by disabled 
individuals with non-disabled persons as that experienced by a non-disabled 
worker in the same or similar job" (62 Fed. Reg. 6307, 6311 (Feb. 11, 
1997)). Thus, "integrated settings" were to be distinguished from "sheltered 
settings" where individuals with disabilities have few opportunities to 
interact with non-disabled persons. This intent was reinforced in the Senate 
Committee Report that accompanied the 1998 amendments to the Act:



[A]though not identified as a definition in section 7, the term "integrated 
setting," as referenced throughout the statute, is intended to mean a work 
setting in a typical labor market site where people with disabilities engage 
in typical daily work patterns with co-workers who do not have disabilities; 
and where workers with disabilities are not congregated. (Senate Report 
105-166, page 10, March 2, 1998).



Therefore, the determination as to whether a particular work-unit, in which 
the particular job position is located, satisfies the definition of 
"integrated setting" and, thus, constitutes an employment outcome for 
purposes of the VR program hinges on the level of opportunities for 
interaction between the individual with a disability holding that position 
and non-disabled individuals.



As indicated earlier, this TAC focuses on employment positions within CRPs, 
particularly those CRPs that operate under contracts funded pursuant to the 
Javits-Wagner-O'Day (JWOD) program. However, it is important to note that 
not all CRPs operate exclusively under JWOD contracts. For CRPs that provide 
employment opportunities for individuals with disabilities under the JWOD 
program, the very nature of the JWOD programii may raise questions as to 
whether the employment position at such a CRP sought by an individual with a 
disability through the VR program satisfies the definition of "integrated 
setting" and, thus, would constitute an "employment outcome." Factors that 
typically distinguish JWOD-funded job positions from other positions 
include: (1) allowances under the Fair Labor Standards Act for compensatory 
sub-minimum wages; and (2) mandated direct labor-hour ratio of persons with 
disabilities. These factors are important when analyzing whether a 
particular work-unit within a CRP satisfies the definition of "integrated 
setting" and, thus, constitutes an employment outcome under the VR program 
because they are critical elements of the definitions pertinent to this 
analysis, namely, "integrated setting," "employment outcome," and "extended 
employment."



Nevertheless, the mere fact that a CRP operates under one or more JWOD 
contracts is not determinative of whether a job position within that CRP 
satisfies the definition of an "integrated setting."iii Instead, when this 
question is raised, the state VR agency should conduct further analysis, as 
described below, to make a determination as to whether a particular 
work-unit, which houses the particular job position sought by an individual 
with a disability, would be deemed to be an "integrated setting" because the 
individual with a disability has the opportunity to interact with 
non-disabled individuals, other than service providers, to the same extent 
that non-disabled individuals in comparable positions interact with other 
persons. While RSA recognizes that job positions obtained through JWOD 
contracts can be performed in "integrated settings,"iv it is essential that 
state VR agencies make the determination on a case-by-case basis by 
reviewing all pertinent facts of the employee's position.



In addition to job placements in CRPs that operate under JWOD contracts, job 
placements in CRPs that fall into the following two categories raise 
potential questions as to whether an individual's employment position would 
be deemed to be in an "integrated setting" for purposes of the VR program:



·        Placements in 501(c)(3) tax-exempt non-profit organizations 
classified under the National Taxonomy of Exempt Entities (NTEE) 
Classification System as a Sheltered Remunerative Employment, Work Activity 
Center.

·        Placements in organizations which utilize section 14(c) of the Fair 
Labor Standards Act to pay special minimum wages - less than the federal 
minimum wage - to individuals with disabilities.



We recommend that the state VR agency consider the following factors when 
making its determination about a particular employment position at a 
particular CRP:



1.   Level of interaction of the individual with disabilities with 
non-disabled persons within that individual's entire work-site.v

2.   Level of interaction of the individual with disabilities with 
non-disabled persons within that individual's work-unit.

3.   Level of interaction of the individual with disabilities with other 
non-disabled persons, such as customers or vendors.



We believe that consideration of all of these factors, taken together, will 
provide the state VR agency with the information it needs to make each 
case-by-case determination. The state VR agency may decide it is prudent to 
conduct an on-site visit of the potential employment setting before making a 
determination as to whether the job is in an integrated setting and, 
therefore, qualifies as an employment outcome through the VR program. It is 
important for a State VR agency to determine whether a VR consumer has 
achieved an employment outcome in an integrated setting because section 
101(a)(14) of the Act requires the VR agency to conduct an annual review and 
reevaluation of any VR consumer who accepts employment in an extended, or 
non-integrated or sheltered, setting. The purpose of the annual review is to 
determine the interests, priorities and needs of the individual with respect 
to competitive employment or training for competitive employment. 
Furthermore, application of this analysis will assist a VR agency to make 
appropriate determinations of whether an individual has achieved an 
employment outcome so that the agency can accurately report to RSA the 
number of individuals achieving employment outcomes each year, as required 
by section 101(a)(10)(C)(iii) and (iv) of the Act.



SUMMARY:              The VR agency in each state must determine on a 
case-by-case basis if the particular work-unit, which houses the 
individual's job position, satisfies the definition of "integrated setting" 
and, thus, constitutes an employment outcome under the VR program. This 
determination must be made with respect to all employment positions sought 
by VR consumers at CRPs, not only those funded under JWOD contracts. We 
believe it is essential that the state VR agency analyze whether the 
work-unit which houses the actual position sought by the individual with a 
disability constitutes an "integrated setting" because it is possible that 
certain work-units within a CRP would satisfy the definition of "integrated 
setting" whereas others may not.



CITATIONS:             Javits-Wagner-O'Day Act, 41 USC 46-48c; 
Rehabilitation Act of 1973, as amended, 29 USC 721(a)(10) and (14).



34 CFR 361.5(b)(11), (16), (19) and (33)(ii); 41 CFR 51-1.3.



INQUIRIES:              RSA Commissioner at (202) 245-7488









Edward Anthony, Ph.D.

Delegated the authority to perform
the functions of Commissioner for the Rehabilitation Services Administration





cc:        Council of State Administrators of Vocational Rehabilitation

Consortia of Administrators of Native American Rehabilitation

National Disability Rights Network

National Council on Independent Living



--------------------------------------------------------------------------------

[i] Final Extended Employment Regulations, 66 Fed. Reg. 7249, 7250 (January 
22, 2001).

ii The JWOD (41 USC §§46-48c and 41 CFR Part 51) program provides employment 
opportunities for individuals who are blind and/or have other significant 
disabilities. The Committee for Purchase From People Who Are Blind or 
Severely Disabled is appointed by the President to provide federal oversight 
of the implementation of JWOD policy and the procurement of products and 
services by the federal government. To qualify for the JWOD program, a 
non-profit agency must, in furnishing commodities and services, employ 
persons with severe disabilities (including blind) for not less than 75 
percent of the work-hours of direct labor required to furnish such 
commodities or services (see 41 USC §48b and 41 CFR 51-1.3).

iii See Notice of Proposed Rulemaking for State VR Services Program, 65 Fed. 
Reg. 39491, 39493 (June 26, 2000); and Final Extended Employment 
Regulations, 66 Fed. Reg. 7249, 7251 (January 22, 2001). Other discussion of 
the regulatory history about "integrated setting" can be found at: Notice of 
Proposed Rulemaking VR Regulations, 60 Fed. Reg. 64475, 64479-64480 (Dec. 
15, 1995); and Final Regulations State VR Services Program, 62 Fed. Reg. 
6307, 6311-6312 (Feb. 11, 1997).

iv Final Extended Employment Regulations, 66 Fed. Reg. 7249, 7251 (January 
22, 2001).v We want to point out that entities that are set up specifically 
for the purpose of providing employment to individuals with disabilities 
will likely not satisfy the definition of "integrated setting." The high 
percentage of individuals with disabilities employed with these entities 
most likely would result in little to no opportunities for interaction 
between individuals with disabilities and non-disabled individuals. These 
entities, therefore, would be considered sheltered or non-integrated 
employment sites. (Final Regulations State VR Services Program, 62 Fed. Reg. 
6307, 6311 ((Feb. 11, 1997)).

----- Original Message ----- 
From: "Fred wurtzel" <f.wurtzel at comcast.net>
To: "'NFB of Michigan Internet Mailing List'" <nfbmi-talk at nfbnet.org>
Sent: Wednesday, July 11, 2012 10:01 PM
Subject: [nfbmi-talk] FW: [Chapter-presidents] HR 3086 Update: Please share






From: chapter-presidents-bounces at nfbnet.org
[mailto:chapter-presidents-bounces at nfbnet.org] On Behalf Of Lewis, Anil
Sent: Wednesday, July 11, 2012 3:59 PM
To: Lewis, Anil
Subject: [Chapter-presidents] HR 3086 Update: Please share



All:



HR 3086, the Fair Wages for Workers with Disabilities Act, continues to gain
additional support.   We currently have 81 co-sponsors of this legislation
that will phase out the payment of subminimum wages to workers with
disabilities.  We have a list of over 45 supporting organizations.  We are
grateful for the support of each national organization, but we have noticed
that local organizations of people with disabilities and employers of
workers with disabilities carry a lot of weight when encouraging members to
co-sponsor the legislation.  Please have any of your state organizations
email me if they are willing to have their organizations added to our
support list.



Our Goodwill boycott is garnering more and more media attention.  I have
attached a copy of a feature article from the Examiner, along with a
powerful editorial from the paper about the subminimum wage issue.  Channel
9, WUSA, in D.C. did a feature story on our Goodwill boycott.  You can take
a look at the  story at:
http://www.wusa9.com/rss/article/208068/158/Goodwill-Pays-Disabled-Employees
-Less-than-Minimum-Wage. Goodwill could be the champion entity for this
issue if their leadership has the courage to do the right thing.  They state
that 101 of their 165 affiliated agencies already pay the federal minimum
wage to their employees with disabilities.  We need them to require the
other 64 to do the same.  We may be conducting actual protests of some of
the  facilities.  If any of your local organizations are interested in
participating in an active protest at some of the Goodwill locations, please
have them contact me directly.



The following is a list of members of the Ed and Workforce Committee.  A (*(
designates those members that have already co-sponsored HR 3086.  Please
have your members thank these members, an encourage the others to consider
co-sponsoring the legislation. Moreover, ask committee members to contact
Ed&Workforce Committee Chair and committee staff to requests a hearing on
this legislation.



Education and the Workforce Committee Members



Majority

John Kline, Minnesota  , Chairman

Tom Petri, Wisconsin

Howard "Buck" McKeon, California

Judy Biggert, Illinois

Todd Russell Platts, Pennsylvania

Joe Wilson, South Carolina

Virginia Foxx, North Carolina

Bob Goodlatte, Virginia

Duncan D. Hunter, California

Phil Roe, Tennessee

Glenn "G.T." Thompson, Pennsylvania

Tim Walberg, Michigan

Scott DesJarlais, Tennessee

Richard L. Hanna, New York

Todd Rokita, Indiana

Larry Bucshon, Indiana

Trey Gowdy, South Carolina

*         Lou Barletta, Pennsylvania

Kristi Noem, South Dakota

Martha Roby, Alabama

Joe Heck, Nevada

Dennis A. Ross, Florida

Mike Kelly, Pennsylvania



Minority

George Miller, California, Ranking Member

*         Dale E. Kildee, Michigan

Donald M. Payne, New Jersey

Rob Andrews, New Jersey

Bobby Scott, Virginia

*         Lynn Woolsey, California

Rubén Hinojosa, Texas

*         Carolyn McCarthy, New York

John F. Tierney, Massachusetts

Dennis Kucinich, Ohio

Rush D. Holt, Jr., New Jersey

*         Susan Davis, California

Raúl Grijalva, Arizona

*         Timothy Bishop, New York

David Loebsack, Iowa

Mazie Hirono, Hawaii

Jason Altmire, Pennsylvania



I appreciate your assistance with this effort.  Please contact me with any
questions.



Sincerely,



Anil



Mr. Anil Lewis, M.P.A.
Director of Strategic Communications



"Eliminating Subminimum Wages for People with Disabilities"

 <http://www.nfb.org/fairwages> http://www.nfb.org/fairwages



NATIONAL FEDERATION OF THE BLIND
200 East Wells Street at Jernigan Place
Baltimore, Maryland   21230



(410) 659-9314 ext. 2374 (Voice)

(410) 685-5653 (FAX)
Email:  <mailto:alewis at nfb.org> alewis at nfb.org
Web:  <http://www.nfb.org> www.nfb.org




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