Proposed Position Paper: Rehabilitation Act Reauthorization and Supported Employment

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1 Proposed Position Paper: Rehabilitation Act Reauthorization and Supported Employment The Consortium for Citizens with Disabilities (CCD) is drafting recommendations for reauthorization of the Rehabilitation Act, the Federal legislation that authorizes the formula grant programs of vocational rehabilitation, supported employment and independent living. The Act also includes a variety of provisions focused on rights, advocacy and protections for individuals with disabilities. The Rehabilitation Act was initially enacted in 1973, but has not been revised or reauthorized since With Democrats in the majority in Congress and with a Democrat in the White House, the prospects for reauthorization are more promising than any in the past decade. However, mainly because of the extensive healthcare reform efforts, it is unlikely that the Act will be reauthorized this year. Initially advocates were hopeful that they could see a draft bill before Congress adjourns in December and the introduction of legislation next spring. However, it is possible that only a draft reauthorization language for WIA Title I will be available this year. Although this might give the impression that WIA and the Rehab Act will move separately, we believe it is likely, based on past history, that the bills will be moved together. Supported Employment The CCD Employment and Training Task Force created a supported employment workgroup, of which ACCSES is a member, to discuss potential revisions to the definition of that term. Although the workgroup might not be able to reach a consensus on the definition of supported employment, it is expected that the workgroup will meet at least one more time. The Rehabilitation Act defines supported employment as: competitive work in integrated work settings, or employment in integrated work settings in which individuals are working toward competitive work, consistent with the strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individuals, for individuals with the most significant disabilities (1) for whom competitive employment has not traditionally occurred; or (2) for whom competitive employment has been interrupted or intermittent as a result of a significant disability; and (3) who, because of the nature and severity of their disability, need intensive supported employment services for the period, and any

2 extension, described in paragraph (36)(C) and extended services after the transition described in paragraph (13)(C) in order to perform such work. The Rehabilitation Act defines supported employment services as: " ongoing support services and other appropriate services needed to support and maintain an individual with a most significant disability in supported employment, that (1) are provided singly or in combination and are organized and made available in such a way as to assist an eligible individual to achieve competitive employment; (2) are based on a determination of the needs of an eligible individual, as specified in an individualized plan for employment; and (3) are provided by the designated State unit for a period of time not to extend beyond 18 months, unless under special circumstances the eligible individual and the rehabilitation counselor or coordinator involved jointly agree to extend the time in order to achieve the employment outcome identified in the individualized plan for employment. The CCD workgroup is discussing possible changes to aspects of the supported employment definition, as well as specific policy recommendations related to providing supported employment services. The following is a summary of the issues and recommendations discussed, as well as suggested positions for ACCSES. The recommendations described in this paper have been made by individual organizations that are also members of the CCD supported employment workgroup. The workgroup will attempt to reach consensus on some of the recommendations and will submit those to all members of the task force, including ACCSES, who will continue to have opportunities to discuss and change the recommendations. 1) The 18 month time limit A few members of the workgroup (the Association for Persons in Supported Employment, the Bazelon Center for Mental Health Law) are advocating for the elimination of the 18 month time limit on supported employment services. Members of the workgroup have contacted the State Medicaid Directors to gain an assessment of how changing this policy could affect Medicaid eligibility for the individuals receiving supported employment services under waiver authority. Some workgroup members also have questions about the source and origination of the 18 month time limit. CCD attempted to tackle this issue in A compromise that was suggested but not agreed to at that time was: [SE Services] Are provided by the designated state unit for a period of time as agreed upon by the rehabilitation counselor and the eligible individual, and may be extended, as necessary, in order to achieve the employment outcome identified in the individualized plan for employment. This compromise included the suggestion (in 2007) from ARC/UCP that the following construction clause be added: 2

3 nothing in this Act shall be interpreted to allow states to establish, by policy or practice, arbitrary limits on SE that apply across the board (trying to get at the 6 month issue) RSA should monitor the SE changes to ensure that states are making individualized determinations and not finding an increased number of individuals with very significant disabilities ineligible. NIDRR should provide funding for a grant to more closely follow a few states over a period of years to assess the impact of the changes to determine if fewer people are accessing the service, if VR or the Medicaid state agency is cutting back etc. And the following was the (2007) suggestion for report language (also from ARC/UCP): We should work on report language that clarifies the intent that other systems such as Medicaid, State Line Item Funding, Mental Health and DD Funding and natural supports must also share in the cost of supported employment services, especially at the point where an individual has stabilized in their employment. Position: ACCSES is concerned that eliminating the time limit would have negative unintended consequences the continued use of Medicaid waiver funds to pay for ongoing supports. In addition, eliminating the 18 month time limit on all participants could result in less participants being served over time, as more funding is targeted at those already receiving services. 2) Enclaves and Customized Employment APSE recommends changing the definition of supported employment so that it excludes subcontracted enclaves or groups. Specifically, APSE recommends that supported employment be defined as placement in positions that are employer-paid (i.e., not a subcontract via a service provider), individual, (not enclave or group placements) at or above minimum wage, with comparable benefits as other employees. APSE adds that supported employment cover customization of the employment process as necessary, with such elements as negotiation with an employer, including negotiation of options for customizing a job description, set of job duties or tasks, work schedule (including hours worked), location of a job, job arrangement (such as job carving, job sharing, or a split schedule), or specifies of supervision. APSE recognizes that eliminating enclaves from supported employment would be unpopular with some stakeholders. However, APSE believes that workers in enclaves and work crews should be paid by employers and not rehabilitation providers. According to APSE, rehabilitation providers should be providing customized employment, which is, according to APSE, individualized. The second part of APSE s recommendation is that the definition for supported employment be the same as the definition for customized employment. That is, that supported employment services would be directed towards the individual (and not groups), as customized employment is. 3

4 Position: ACCSES believes that supported employment services are meant to be available to all workers with disabilities that need the services, regardless of the wage or the setting. ACCSES believes that the result of separating enclave and other group settings from the definition of supported employment would be to deny supported employment services to workers currently receiving those services in group settings. ACCSES also believes that vocational rehabilitation providers are appropriate and proficient providers of supported employment services and ACCSES believes they should continue to provide supported employment services across employment settings. If the joining of the terms supported employment and customized services would unduly restrict rehabilitation providers from providing services in certain settings, than ACCSES advocates for a separate definition for supported employment. 3) Transitioning from segregated settings to supported employment At the most recent meeting, there was a discussion about converting sheltered workshops into supported employment programs. There was also a discussion about the need to separate wage issues (whether an individual is making below minimum wage) from setting questions (whether the individual is working in an integrated setting.) Julie Ward from the ARC/UCP drafted CCD recommendations to provide support to community rehabilitation providers wishing to convert their sheltered workshops to supported employment models: CCD recommends two strategies for assisting providers who want to expand and improve their individualized competitive employment placement rates. The legislative authority for VR services to groups of individuals that permit funding for the establishment, development or improvement of community rehabilitation programs (Section 103(b)(2)(A)) should be revised to only permit activities that expand individualized competitive employment strategies. Secondly, CCD recommends that a national grant program be developed to provide assistance to individual community rehabilitation programs or groups of CRPs to build their internal capacity to provide individualized services and supports leading to competitive employment. (Likely a Title III recommendation) Position: ACCSES supports discretionary funding for CRPs to voluntarily adopt supported employment models that lead to higher individualized competitive employment placement rates. 4) Employment Outcomes The Task Force planned to create a separate employment outcomes workgroup, but that has yet to meet. The supported employment workgroup expects to tackle employment outcome questions in a supported employment setting, but that discussion hasn t yet happened. Although the group has yet to discuss the topic, some members have submitted recommendations in writing. The National Industries for the Blind is requesting that Congress clarify its definition 4

5 of "employment outcome" to support "employment outcomes" for jobs in "non-integrated" settings as well as those in "integrated settings" as long as the job is chosen by the individual and pays at least minimum wage, regardless of the number of other people with disabilities who may be employed in that facility. (NIB is concerned that various state VR agencies are reporting differently to RSA a similar production or management job in a NIB nonprofit business facility, resulting in inequity, sometimes even within a state, in providing financial support for rehabilitation services if an individual identifies an employment goal as work in a not-for-profit business manufacturing products for the federal government under the AbilityOne program.) Bazelon would like CCD to recommend that appropriate outcomes for SE services include competitive employment. Bazelon also suggests the addition of an explicit performance indicator on implementation of and outcomes associated with supported employment programs, including: number of persons receiving SE services (and the type of disability they have); and competitive employment outcomes. According to Bazelon, RSA can send a message to states that existence and effectiveness of supported employment programs will be a part of their annual review and monitoring of voc rehab programs, and that funds may be withheld from states without effective programs. Position: ACCSES believes that there are multiple employment outcomes that can successfully meet the criteria for supported employment. ACCSES is concerned that the discussion around employment outcomes can lead to attempts to restrict successful outcomes to situations in which an individual enters competitive employment. Members of the ACCSES Legislative Team will weigh in on this discussion. 5) Competitive Employment APSE argued early on in the discussion there should only be closures of supported employment services when a participant reached competitive employment (at minimum wage or higher.) Therefore, APSE recommended the terminology working towards competitive employment be eliminated from the supported employment definition. There was a discussion on competitive employment, and whether there were enough opportunities for individuals with disabilities to transition from supported employment to competitive employment. To provide constructive support for that transition, the following recommendation was suggested: CCD recommends that a grant program be developed to provide states agencies with multi-year funding to implement employment first initiatives to significantly increase competitive employment outcomes for people with developmental disabilities. Employment first strategies consist of a clear set of guiding principles and practices promulgated through state statute, regulation and operational procedures that target employment in typical work settings as the priority for state developmental disability funding. Applications must be jointly submitted by the state developmental disability agency and the vocational rehabilitation agency. The grant would require the lead state agencies to bring together other relevant state agencies, individuals with intellectual disabilities, their family members, advocacy organizations and service providers to plan and implement the initiatives. All stakeholders would be involved in setting goals for the 5

6 state and identifying and removing barriers to implementing the goals. (Likely a Title III recommendation) Position: ACCSES believes that the language working towards competitive employment should remain in the definition of supported employment. ACCSES supports funding for employment first initiatives. However, ACCSES opposes employment first initiatives that include recommendation for eliminating or phasing out (1) the section 14(c) program and/or (2) center-based employment programs that address the needs of individuals with significant disabilities. 6) Data collection The Association for Persons in Supported Employment (APSE) recommended the collection of longitudinal data on supported employees across the country. APSE argues that if better data on supported employment could be gathered nationally, disability advocates would be in a stronger position to demonstrate supported employment s strengths and identify potential areas for its improvement. Empirical evidence could then help the formation of future policy-related decisions. Bazelon also thought that the definition of supported employment should indicate that effectiveness of SE services is assessed continuously. Position: ACCSES supports the collection of data on supported employment. 7) Funding Bazelon and ARC/UCP believe that the supported employment state grant should be indexed to the cost of living. The Council of State Administrators of Vocational Rehabilitation thinks that Congress should maintain line-item funding for Supported Employment as complementary programs to the Rehabilitation Act. Position: ACCSES supports continued and increased funding for supported employment services. 8) Informed Choice Although the issue of informed choice is not necessarily specifically directed at supported employment services, the topic has been discussed at supported employment meetings. The American Council of the Blind is requesting that Congress reflect that Informed Choice applies at all stages of the rehabilitation process, including the actual development of Individual Plans for Employment. ACB believes that provisions should require state rehabilitation agencies to provide newly eligible consumers with information about the services that may be available to them, the options available to furnish those services (including resources in the local community and out of state, consumer and disability organizations, public and private agencies) as well as the means that the consumer and counselor will use to determine the options that are most appropriate for inclusion in the consumer's plan for employment. 6

7 Position: ACCSES believes that consumers should be informed of their choices during every step of the employment process. Please contact PPSV Legislative Assistant Theresa Morgan with questions or comments. 7