The RSA has announced three regional meetings to provide technical assistance on program specific requirements in programs established under that Rehabilitation Act of 1973, as reauthorized by the Workforce Innovation and Opportunity Act (WIOA). The meetings will be held on August 9th in Washington DC, September 7th in Chicago IL, and September 27th in Sacramento CA. These meeting are expected to be held in conjunction with the release of its new regulations. Specific topics to be addressed include changes to competitive integrated employment, employment outcomes, limits on the use of subminimum wage, transition services, supported employment, and fiscal requirements.
The DOL released the much anticipated final Overtime rule on May 18, 2016, with an effective date of December 1, 2016. Along with the rule, DOL announced a non-enforcement policy for providers of Medicaid-funded services for individuals with intellectual and/or developmental disabilities in residential homes and facilities with 15 or fewer beds. The full policy will be published in the Federal Register on May 23, 2016.
The non-enforcement policy will be in effect from December 1, 2016 (when the final rule goes into effect,) until March, 2019. This non-enforcement timeframe is intended to align with the implementation timeline of the Home and Community Based Settings final rule. This will allow Medicaid Home and Community Based Services providers who qualify to prepare for the implementation.
The Arc staff is in the midst of analyzing the rule and the non-enforcement policy more closely. The Arc staff anticipates, based on its review and the thoughtful questions received from chapters, seeking some further clarification from DOL in the very near future.
DOL has also released several documents for non-profits includingguidance and a shorter fact sheet. Additional resources can be found on DOL’swebsite. DOL will also be hosting several webinars to provide additional information: register here.
On Monday, May 9, the EEOC released a publication detailing employer obligations with respect to leave under the ADA. Topics addressed include equal access to leave, leave as a reasonable accommodation, maximum leave policies, return to work and reasonable accommodation, and undue hardship. This publication provides places existing guidance in one centralized location.
Last Wednesday and Thursday, April 27 and 28, the Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities (the committee), held their bi-monthly meeting in Washington DC. The committee is mandated by section 609 of the Rehabilitation Act of 1973, as amended by section 461 of the Workforce Innovation and Opportunity Act (WIOA). The purpose of the committee is to prepare a report for the Secretary of Labor on: ways to increase employment opportunities for individuals with intellectual or developmental disabilities or other individuals with significant disabilities in competitive integrated employment; use of 14(c) certificates; and how to improve the oversight of such certificates. The committee’s final report is due to the Secretary of Labor in September, 2016. The Arc provided testimony at the most recent meeting, and provided The Arc’s position statement on employment for context.
On March 18, the AbilityOne Commission issued a declaration in support of minimum wage for all people who are blind or who have significant disabilities. Excerpts from the declaration state: “The U.S. AbilityOne Commission®, which oversees the AbilityOne® Program, recognizes there are strongly held positions about paying special minimum wages to people with disabilities under Sec.14(c) of the Fair Labor Standards Act. … Our call to action is for all qualified nonprofit agencies participating in the AbilityOne Program to commit to, and begin (if not maintain), paying at least the Federal minimum wage, or state minimum wage if higher, to all employees who are blind or have significant disabilities working on AbilityOne contracts. Our ultimate goal is to foster the development and implementation of training and employment best practices that allow employees with disabilities to be compensated at the prevailing wage paid to all other employees working on AbilityOne contracts. In making this declaration, the Commission recognizes that Federal policies have changed since the Javits-Wagner-O’Day Act was passed into law in 1971. Today, the Commission and our society have higher expectations that, through increased emphasis on technology, rehabilitation engineering and other supports, people with disabilities will be able to participate as fully capable and productive workers. To remain viable, the AbilityOne Program must be recognized as effectively offering quality employment and equitable wages, including competitive integrated employment opportunities.”
The Equal Employment Opportunity Commission has issued a notice of proposed rulemaking (NPRM) that would establish new affirmative action obligations on federal government agencies. It would require agencies to adopt affirmative action plans with a goal of achieving a twelve percent representation rate of people with disabilities in their workforce and an additional goal of achieving a two percent representation rate of individuals with targeted disabilities. People with targeted disabilities are those listed on Form SF-256 of the Office of Personnel Management. Additionally, the agencies must provide personal assistants to employees with disabilities who require such assistance in order to work or participate in work-related travel, unless the provision of those services would impose an undue hardship on the agency. The proposed rule was published on Feb. 24; public comments are due on April 25.
The Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities (WIOA advisory committee) held its quarterly meeting via webinar on January 27-28, 2016. The agenda for the meeting included reports from all of the standing committees as well as further discussion of the use and oversight of the Section 14(c) certificates and reforms to the Ability One program. The meeting also included public testimony from stakeholders. The final report of this committee will be due to Congress in September of 2016.
In a precedent-setting opinion issued by an administrative law judge from the U.S. Department of Labor (DOL), three workers have been awarded minimum wage going forward and back pay from Seneca Re-Ad, a sheltered workshop run by the Seneca County Board of Developmental Disabilities. Joe Magers, Pam Steward, and Mark Felton had been paid an average of $2.50 an hour for more than three years and are among the first workers with disabilities ever to invoke the petition process to seek a review of their wages by the US DOL. The administrative law judge found that Seneca Re-Ad has not proven that the petitioners’ disabilities keep them from accomplishing the work. Further, the decision holds that their wages have not been calculated correctly. Therefore, Seneca must pay at least the minimum wage.
In late August 2015, the Centers for Medicare and Medicaid Services (CMS), announced new performance and outcome-based options for funding employment supports and services through a Section 1915(c) waiver. CMS announced that they will begin accepting payment structures that include outcome payments for: Discovery or Supported Employment Assessment Service and Report; or Job Development, Placement, Customized Employment Position, as a single unit of service. These outcome payments will be made as long as the service is time-limited, and has a defined tangible outcome. Under this new payment structure, states can also make milestone payments in addition to fee-for-service payments to reimburse providers when certain employment outcomes are achieved. This would allow states and service providers to capture funds for all phases of job placement based on outcomes.
On September 8, 2015, the Department of Justice (DOJ) announced that it has entered into a proposed settlement agreement with the State of Oregon. The proposed agreement will resolve violations of the Americans with Disabilities Act (ADA), as interpreted by the Supreme Court in Olmstead v. L.C. The agreement will impact more than 7,000 Oregon citizens with intellectual and developmental disabilities (I/DD) who can and want to work in community employment. The statewide agreement addresses the rights of people with disabilities to receive state-funded employment services in integrated settings, such as supported employment services provided in typical employment settings, rather than in segregated sheltered workshops. The agreement also provides relief to transition-age youth at risk of segregation.