TASH is pleased to provide these comments to OSERS as it considers regulations and guidance for the administration of the Workforce Opportunity and Investment Act. TASH recognizes the importance of work in the lives of all people as an element of full participation and inclusion in society. TASH affirms the right of all people with significant disabilities to full participation in community life with supports tailored to individual abilities and needs. Integrated employment is a critical element of community living.
Despite the fact that individuals with significant disabilities have much to contribute to community workplaces, the vast majority do not have access to integrated jobs due to a variety of factors. In many instances individuals need access to work site supports and yet others need a customized process that allows them to make discrete contributions in relation to employer needs. Most individuals with significant disabilities continue to be isolated and segregated in a day activity centers and sheltered workshops or are unemployed and unserved on waiting lists. Reliance on community participation must not be seen as a substitute for employment. Furthermore, if individuals with significant disabilities are to achieve full participation and inclusion in society, work is the most defining aspect of that status. Employment should be an expected life activity for individuals with significant disabilities and they should not be forced into a decision of whether or not to work as an aspect of self-determination.
These recommendations are intended to elevate innovative and effective state strategies to national scale. As these solutions have rolled out in some states, previously resistant stakeholders have emerged as champions of change. Our goal is to offer a clear path to ending the status quo. With a thoughtful and deliberate approach, we believe outcomes will be the best possible for the people most directly impacted; people with disabilities. This should be our primary goal.
- What should OSERS consider in developing regulation or guidance for implementing performance measures in section 116 of WIOA with regard to the Vocational Rehabilitation Services program?
TASH recommends that recent revisions in the RSA-911 Reporting Manual are maintained and emphasized, as they have potential to have a very positive impact in terms of employment outcomes for RSA enrollees that have long been underserved. Two important changes are:
- The addition of reporting data on Customized Employment (Data Elements 181-185), clearly distinguishing this set of strategies as those which include employer negotiation in the process; and
- Dropping sheltered work as a data element.
Both of these changes take us a step closer to progressive practices and to integrated employment outcomes. Including Customized Employment strategies as data elements legitimizes this effective set of practices as an important tool for all VR counselors, including those states where integrated employment outcomes for people with significant disabilities has lagged behind the rest of the nation. No longer acknowledging sheltered work as a possible outcome of RSA services sends a clear message to vocational rehabilitation counselors and agency leadership that sheltered work is no longer an acceptable outcome of VR services.
In addition, we recommend the following change:
- Disallow other forms of segregated work placement (i.e.: enclaves), including those at minimum wage or above, to be counted as successful employment outcomes.
These work arrangements are in violation of Title II of the Americans with Disabilities Act’s mandate for “most integrated setting” and in conflict with the Olmstead Decision. It should be the intent of the VR system to achieve the desired outcomes of wage equality and integration in society for all VR consumers, and as such, outcome measures should track both of these desired outcomes.
- To ensure VR systems are administering services in the spirit of “presumption of employability” TASH urges OSERS to track additional data on closures prior to the development of an IPE (such as “unable to benefit” data, etc.) For each type of pre-IPE closure, states should be required to report additional data, such as disability group, type of assessment used (to include Discovery), length and number of work trials, etc.
- Allow state VR agencies to apply for partial waivers of performance standards if a state VR agency is making sufficient commitment to develop service provider capacity in best and emerging practices (e.g. Customized Employment) and to sharply increase the number of individuals with significant disabilities receiving services through Supported Employment IPEs. A specified portion of these individuals should be those being supported to transition out of sheltered workshops into competitive employment of at least 15 hours per week, with community-based prevocational services (or other community-based HCBS waiver services) provided as wrap-around to this employment when needed.
- In light of the new provisions in the Rehabilitation Act regarding competitive integrated employment in high-demand fields, what revisions should be made, if any, to the regulations related to the definition of employment outcome?
It is laudable and appropriate for VR services to place a focus on securing employment in high-demand fields for people with disabilities. However, TASH urges caution against over-emphasizing high demand fields as it carries significant risk of excluding more people from employment opportunities. The people TASH is most concerned about – those with the most significant impact of disability and most vulnerable to placement in sheltered workshops – are most likely benefited from Customized Employment strategies. We urge OSERS to clarify that an emphasis on placement in high demand fields is NOT in conflict with an expectation that VR use Customized Employment strategies for people with significant impact of disability and complex support needs.
- What should OSERS consider in developing regulation or guidance related to transition services for students with disabilities, particularly the new provisions in section 113 of the Rehabilitation Act related to pre-employment transition services and transition services to groups in section 103(b) of the Rehabilitation Act?
TASH is concerned about the term “pre-employment transition services” as it is akin to “readiness” and other descriptors used for services that permanently segregate people. The groups of students most vulnerable to segregation and to placement in sheltered workshops are those with intellectual and developmental disabilities (I/DD), autism, and multiple disabilities. Research has demonstrated that these individuals are most likely to achieve employment outcomes when they have work experiences in integrated settings in real jobs. There is no “pre” or “readiness” environment that prepares a person for employment more efficiently or effectively than an actual job in the community. Regulations must make clear that “pre” services must take place in integrated settings with a clear presumption of employability throughout the duration of service.
TASH recommends that regulations include the following:
- Assessing youth in facilities that are segregated and pay subminimum wage must be prohibited.
- Youth must be supported to have several work experiences in integrated settings prior to leaving high school. Work experience in segregated and/or sheltered workshops must be prohibited by regulations.
- Schools and/or VR agencies must provide an array of potential work experiences to youth. Regulations and/or guidance must make clear that the same rotation of work experiences for each student is not effective in achieving employment outcomes, or in assessing employability of youth. Work experiences must not be used to screen a young person as ineligible for VR services. Each work experience must provide additional clarity toward the development of a career goal.
- Schools must embrace their responsibility for facilitating employment outcomes. School personnel must not interfere with an employment opportunity extended by an employer to a youth for the sake of maintaining that “slot” for another student.
- Clarify how resources can be used across agencies to support youth with significant disabilities transitioning into adulthood. VR agencies must be expected to blend and braid funding with schools, and be prohibited from MOUs and other agreements that initiate VR services when IDEA services end.
- Discovery must be emphasized as an effective assessment process for transition age youth.
The strategy of Discovery is of critical importance as a tool to substitute for the negative consequences of vocational evaluations. In a manner similar to that of competitive, demand employment, assessments set a threshold of expected performance related to the normative performance of others. Since the passage of the Rehabilitation Act of 1973, employment services for job seekers with disabilities have relied on comparative, norm-referenced assessments and evaluations to both assure the potential of benefit by individuals regarding the expenditure of public funds and to guide individuals into jobs that best fit them. In the 1992 Amendments to the Rehab Act, Congress directed VR counselors to basically presume benefit in terms of an employment outcome, but the practice has persisted at the grass-roots level in the years since. While many individuals with disabilities will benefit from a well-administered comparative assessment, job seekers with the most significant impact of disability, especially many with intellectual and developmental disabilities, will be found unlikely to benefit in terms of an employment outcomes. Many of these individuals end up in sheltered workshops, day programs or at home or in institutions, unemployed and poor.
Discovery is a process based on qualitative research rather than quantitative, comparative research. The fundamental question of Discovery is, “who is this person?” The fundamental value of Discovery is that all people have specific areas of competence and potential contribution. By getting to know job seekers deeply it is possible to translate their life competencies into their conditions for success, interests to certain aspects of the job market and specific contributions to be offered to potential employers. In this way, Discovery provides the foundation for the negotiation of a Customized job for individuals with significant disabilities.
- Subtitle G of WIOA made significant changes to the Rehabilitation Act related to supported employment. What should be considered in regulation or guidance on the new requirements specifically related to the provision of supported employment to youth with most significant disabilities?
TASH recommends that regulations and/or guidance include the following provisions:
- Discovery must be used as an assessment process for youth vulnerable to closure because of perceived inability to benefit to meet the “clean and convincing evidence” standard.
- Clarify expectations regarding application of the “presumption of benefit” provisions in existing federal law. In particular, clarification should be provided on “clear and convincing evidence” standards that must be met in order to determine a VR applicant unable to benefit from VR services.
- Trial work experiences must “be of sufficient variety and over a sufficient length of time” to determine whether the individual is eligible. Regulations should clarify what constitutes a “sufficient variety” (we recommend at least four) and “sufficient length of time” (we suggest at least forty hours for each work trial).
- Trial work experiences must be established with the intent of identifying a path to employability for each individual, rather than using these services with the intent of proving a person is incapable of benefiting from VR services. In the end, the intent behind authorizing a service is strongly associated with the outcomes resulting from that service.
- RSA should require every state VR agency to conduct a review of their data on closures of VR applicants/consumers with most significant disabilities before the development of an IPE. A determination of the reasons for these closures should be done and a plan to reduce the number of these closures by 50% within two years should be put into place immediately by each state VR agency. As noted in the DOJ findings in Oregon, state VR agencies are discriminating against individuals with the most significant disabilities when they apply standards for consumer participation that do not take account of level of disability.
- RSA should clarify that every state VR agency is expected to have effective policies and procedures in place to fully and successfully serve individuals with the most significant disabilities even if they may have access to Medicaid HCBS waiver funding to prepare them for entry into VR services and to sustain the competitive employment outcomes that the state VR agency helps them achieve.
- RSA should clarify the intent of existing Payer of Last Resort regulations when a VR applicant/consumer is also receiving services through a Medicaid HCBS waiver. Too many state VR agencies are expecting Medicaid HCBS waivers to provide waiver participants with the employment services that VR could otherwise provide. This is in addition to the expectation that Medicaid HCBS waivers provide the employment services VR cannot provide (e.g. community-based prevocational services and long-term employment support services). There is not an equitable sharing of responsibility across state agencies to serve this population, underscoring the need for specific RSA guidance to state VR agencies regarding their role serving individuals also enrolled in Medicaid HCBS waivers.
- Allow and encourage state VR agencies to utilize innovation and expansion funds to increase supported employment provider capacity by targeting investments to facilitate expansion, of both capacity and geographic regions served, by existing supported employment providers demonstrating best performance to date in providing supported employment services to individuals with the most significant disabilities who would otherwise be placed in sheltered workshops or segregated day programs.
Through targeted technical assistance, RSA should offer state VR agencies support for updating and strengthening state policies, regulations, service standards, provider standards and rate/reimbursement strategies in order to support and incentivize supported employment services and outcomes for individuals with the most significant disabilities. This should include providing technical guidance (including specific working examples) on permissible methods for blending and braiding VR funding with funding from IDEA and Medicaid in particular. To this point, blending and braiding still remain popular slogans that have not become reality in most places in the country. Existing regulations still caution against these practices we now clearly recognize as essential elements of successfully serving individuals with the most significant disabilities.