New Governor’s Report; Senate Takes Action on Workforce Investment Bill and Rehabilitation Services Commissioner Nomination

The summer winds down with several important new developments related to the employment of people with disabilities.

1. National Governors Association Issues Report on Employment for People with Disabilities

At the National Governors Association (NGA) meeting on August 2, 2013, outgoing NGA Chair Governor Jack Markell (DE) wrapped up his year-long Chair’s Initiative, “A Better Bottom Line: Employing People with Disabilities.” The initiative focused on “the employment challenges that affect individuals with intellectual and other significant disabilities and the role that both state government and business can play in facilitating and advancing opportunities for these individuals to be gainfully employed in the competitive labor market.” At the NGA meeting, Governor Markell released a final Blueprint for Governors summarizing the initiative’s activities, findings, and recommendations. The blueprint presents five topic areas with examples of actions governors can take in each area:

  • Make disability employment part of the state workforce development strategy.
  • Find and support businesses in their efforts to employ people with disabilities.
  • Be a model employer by increasing the number of people with disabilities working in state government.
  • Prepare youth with disabilities for careers that use their full potential, providing employers with a pipeline of skilled workers.
  • Make the best use of limited resources to advance employment opportunities for people with disabilities.

Governor Markell appeared recently on the PBS NewsHour to talk about the initiative and Blueprint.

Additionally, incoming NGA Chair Governor Mary Fallin (OK) has announced that her Chair’s Initiative will also focus on employment: “America Works: Education and Training for Tomorrow’s Jobs.”

2. Senate HELP Committee Marks Up Bill to Reauthorize Workforce Investment Act

On July 31st the Senate Health, Education, Labor and Pensions (HELP) Committee marked up S. 1356, the Workforce Investment Act of 2013, approving the bill by a vote of 18 to 3.  This bipartisan legislation would reauthorize the Workforce Investment Act, including the Rehabilitation Act. Proposed changes to the Rehabilitation Act would provide greater emphasis on community employment outcomes as well as on services to help youth with disabilities transition from school to work. Additionally, the legislation proposes moving the Rehabilitation Services Administration from the Department of Education (ED) to the Department of Labor (DOL); transferring the Independent Living program from ED to the Department of Health and Human Services (HHS) as part of the Administration for Community Living; and shifting the National Institute on Disability and Rehabilitation Research from ED to HHS. Visit the Committee web site to view video of the mark up.

3. Senate Confirms Janet LaBreck as Commissioner of the Rehabilitation Services Administration, Department of Education

On August 1st the U.S. Senate confirmed the nomination of Janet LaBreck, who had been nominated by President Obama to serve as Commissioner of the Rehabilitation Services Administration in February. According to a biography released by the White House:

“Janet L. LaBreck was the Commissioner of the Massachusetts Commission for the Blind (MCB), a position she held since 2007. Ms. LaBreck joined the MCB in 1985 as Consumer Advocate. She has served in a number of positions at the MCB since then, including Independent Living Coordinator, Vocational Rehabilitation Counselor, and Regional Director of Central Massachusetts. Since 2005, she has worked as an Adjunct Professor at Assumption College, where she teaches courses in rehabilitation of the blind and case management in rehabilitation. She was awarded an honorary Doctorate of Humane Letters from the New England College of Optometry. She received a B.A. from the University of Massachusetts and an M.Ed. from Springfield College.”

Senate Holds Full Committee Hearing on Reauthorizing the Workforce Investment Act

Last week, the Senate Committee on Health Education, Labor and Pensions held a full committee hearing on “Developing a Skilled Workforce for a Competitive Economy: Reauthorizing the Workforce Investment Act.” The hearing covered reauthorization of the Workforce Investment Act as well as the Rehabilitation Act which authorizes vocational rehabilitation, supported employment, and other vital employment services for people with disabilities. To review testimony as well as archived video, visit the committee website.

Department of Housing and Urban Development Issues Guidance on Olmstead

On June 5, 2013, the U.S. Department of Housing and Urban Development (HUD) issued new guidance to HUD-assisted housing providers on how they can support state and local efforts to increase the integrated housing opportunities for individuals with disabilities who are transitioning from, or at serious risk of entering, institutions and other restrictive, segregated settings. The guidance provides background information about the integration mandate under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act and the Supreme Court decision in Olmstead v. L.C. The guidance also includes a question and answer section addressing the definition of integrated setting and the role HUD agencies play in Olmstead implementation planning.

DOJ Intervenes in Oregon Employment Lawsuit

Last week, the United States moved to intervene in the class action lawsuit, Lane v. Kitzhaber, No. 12-cv-138 (D. Or.).  The United States’ complaint in intervention alleges that the State has violated Title II of the ADA and Section 504 of the Rehabilitation Act by unnecessarily segregating thousands of individuals with intellectual and developmental disabilities (I/DD) in sheltered workshops, and by placing them at risk of such segregation, when they could be served in integrated employment settings.  Individuals who are at risk of unnecessary segregation include youth with I/DD who are referred for admission to sheltered workshops after graduating from or exiting Oregon secondary schools.

The Department opened an investigation in October 2011 into whether Oregon is violating Title II of the ADA by placing persons with I/DD in segregated sheltered workshops when such persons are capable of working in integrated workplaces with appropriate supports and services, i.e., supported employment.  The Center for Public Representation (CPR) and Disability Rights Oregon (DRO), along with two private law firms, filed Lane v. Kitzhaber to challenge segregated workshop placements under Olmstead.  On August 6, 2012, the court certified a class defined as “all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops” and “who are qualified for supported employment services.”  In June 2012, the Division filed a Statement of Interest in support of class certification and issued a Letter of Findings concluding that Oregon’s sheltered workshop system violated Title II of the ADA and Olmstead.   This information was provided by The Department of Justice.

TEAM Act reintroduced

Rep. Gregg Harper (R-MS) has reintroduced three bills collectively known as the “Transition toward Excellence, Achievement and Mobility Act” or “TEAM Act.” The bills seek to redesign federal programs for youth with intellectual disability as they transition from secondary school to the workforce. The bills were introduced during the last Congress (112th Congress), but did not advance.

  • The TEAM Education Act (H.R. 510) seeks to streamline the transition process at the high-school level and require coordination between the state education authority and the state I/DD authority. It would amend the Individuals with Disabilities Education Act (IDEA).
  • The Team Empowerment Act (H.R. 511) seeks to increase coordination between state educational agencies and state intellectual and developmental disability agencies to successfully transition youth with significant disabilities from high school into meaningful employment and post-secondary education opportunities. It would amend the Developmental Disabilities Assistance and Bill of Rights Act.
  • The TEAM Employment Act (H.R. 509) seeks to realign preferred outcomes for people with significant disabilities, and streamlines public funding by requiring the Vocational Rehabilitation system to actively engage with other state entities. It would amend the Rehabilitation Act.

The bills were referred to the House Committee on Education and the Workforce.

Schools must provide students with disabilities equal access to extracurricular sports

The U.S. Department of Education’s Office for Civil Rights has issued guidance on the legal responsibilities of school districts to provide equal access to extracurricular athletic activities to students with disabilities. The letter urges school districts to work with community organizations to increase athletic opportunities, and provides examples of types of reasonable accommodations schools may need to make. Students with disabilities have the right, under Section 504 of the Rehabilitation Act, to an equal opportunity to participate in their schools’ extracurricular activities.

Visit Disability.gov for more information about laws that protect the rights of students with disabilities.

Report from the Department of Justice on Section 508 of the Rehabilitation Act

The Department of Justice released a report on the federal government’s compliance with Section 508 of the Rehabilitation Act, which requires federal agencies to ensure that the electronic and information technology (EIT) they procure, develop, maintain, and use is accessible to people with disabilities.  The last report on Section 508 compliance was issued in 2004; the current report covers fiscal year 2010.  Overall, the report found that agencies of the federal government continue to experience challenges in fully complying with Section 508.  Only slightly over 50% of agencies had policies in place to implement the accessibility requirements.  The great majority of agencies that developed software, videos, or multimedia products did not have a process to ensure accessibility of those products.  Agencies also reported great difficulty in ensuring that federal contractors and programs that receive federal funds provide EIT that is accessible.

Civil Rights & Technology

The Administration is seeking input on how the federal government can improve compliance with Section 508 of the Rehabilitation Act. Section 508 requires all of the federal government’s websites and electronic information to be accessible to people with disabilities. People can submit ideas, vote on existing ideas, or add comments on the Section 508 website. The comment period has been extended indefinitely while the administration addresses accessibility issues with the website.

Oregon Class Action Lawsuit Seeks an End to Sheltered Workshops

A class action lawsuit, filed in U.S. District Court, charges Oregon state officials with violating the Americans with Disabilities Act and the Rehabilitation Act by failing to provide supported employment services to more than 2,300 state residents with disabilities who currently work in segregated sheltered workshops. The lawsuit, Lane v. Kitzhaber, seeks an injunction requiring the state to provide “an adequate array of integrated employment and supported employment services, as to avoid unnecessary segregation” and to provide supported employment services in integrated settings for all state residents currently employed in sheltered workshops. Review the complaint.

ADA Amendments Act

The Office for Civil Rights in the Department of Education issued a letter and Frequently Asked Question (FAQ) document to school districts that explains the changes made to broaden the definition of “disability” by the Americans with Disabilities Act Amendments Act (ADAAA) of 2008 and implications for elementary and secondary schools. The ADAAA amended the ADA and Section 504 of the Rehabilitation Act. Essentially, the letter and FAQ document advise school districts to protect the rights of all children with disabilities, including those who, in the past, may not have been considered to have a disability but who, under the expanded definition of disability under the ADAAA, may now qualify as a student with a disability.