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Public Comment — TWC regarding State Use Program

TCDD Letterhead

Via email: TWCPolicyComments&twc.state.tx.us

December 21, 2016

TWC Policy Comments
Workforce Policy and Service Delivery
Attn.: Workforce Editing
101 East 15th Street
Room 440T
Austin, TX 78778

To Whom It May Concern:

RE: Comments on Proposed New Rules, Texas Administrative Code, Title 40, Social Services and Assistance, Part 20. Texas Workforce Commission, Chapter 806. Purchases of Products and Services from People with Disabilities, Subchapters A-I, §§806.1–806.92

Thank you for the opportunity to comment on proposed §§806.1–806.92, which implements the requirements of Senate Bill (SB) 212 of the 84th Texas Legislature, Regular Session (2015), which abolished the Texas Council on Purchasing from People with Disabilities (the Council) and transferred all former Council powers and duties to the Texas Workforce Commission (TWC) effective September 1, 2015. Also in accordance with SB 212, the rules of the Texas Comptroller of Public Accounts were transferred to TWC and placed in 40 Texas Administrative Code, Chapter 806. Additionally the Council was replaced with an advisory committee appointed by TWC, the Purchasing from People with Disabilities Advisory Committee.

Please note that the Texas Council for Developmental Disabilities (TCDD) is represented on the Purchasing from People with Disabilities Advisory Committee. In the capacity of the TCDD representative, I have had the opportunity to work with Mr. Edward Serna, TWC Deputy Executive Director, and he has proven receptive to comments concerning the rules and related standards.

Note also that a number of the following comments are made to increase the general accessibility of information that is contained in the rules.

  • Subchapter A. General Provisions Regarding Purchases of Products and Services From People With Disabilities
    • §806.1. General.
      Recommendation: Please insert the word “competitive” as follows:

      • “(1) further the state’s policy of encouraging and assisting individuals with disabilities to achieve maximum personal independence by engaging in useful productive competitive employment activities;” Please add the word “competitive” before each use of “employment” throughout all of the rules in Chapter 806.

    • Discussion: References are made throughout the rules to employment. In most cases, TCDD would recommend that the term “competitive employment” be used instead of simply “employment” to reinforce the importance TWC is placing on phasing out subminimum wage positions.

    • §806.2 Definitions.
      Recommendation: For purposes of accessibility, please clarify that “Agency” refers to the staff of the Texas Workforce Commission and “Commission” refers to the Texas Workforce Commission govern ing body comprising three commissioners.

    • Discussion: Because of the prominent role that the central nonprofit agency plays in the administration of the State Use Program, as well as the fact that the general public may not be attuned to differences between staff and the governing body of an agency, it would be helpful to make this clarification in simple terms in this rule. Referencing another rule in which definitions are contained is not helpful, and the definitions contained in §800.2 are not easily understandable.

    • Recommendation: In paragraph (2), please amend the definition of “Advisory Committee” to indicate the exact name of the committee, i.e., the Purchasing from People with Disabilities Advisory Committee.

    • Discussion: Given the numbers of advisory committees in state government, and the general inaccessibility of referenced laws for many people, this specificity would assist individuals in obtaining more information about the committee, its membership and meetings, and staff contacts on the internet or through the TWC switchboard.

    • Recommendation: In paragraph (5), the definition of “Community rehabilitation program (CRP)” uses the word “severe” to describe disabilities; this definition of CRP is statutory (Human Resources Code §122.002(3)):

      • Please use the term “severe disability” consistent with statute wherever the term “disability” is used and define “severe disability” in this rule:

        • (10) Severe disability — A severe, chronic disability attributable to mental or physical impairment, or a combination of mental and physical impairments, that:

          • (A) is likely to continue indefinitely; and
          • (B) results in substantial functional limitation in three or more of the major life activities.

      • Please consider whether the term and definition of “disability” in paragraph (8) is needed, given that the statute prescribes that CRPs in the State Use Program should be serving people with “severe disabilities.” Inclusion of the term “disability” alone may contribute to confusion.

    • Discussion: The stated purpose of the State Use Program in statute (Human Resources Code §122.001, concerning Purpose) and in the proposed rule (§806.1, relating to General) is:

      • To further the state’s policy of encouraging and assisting individuals with disabilities to achieve maximum personal independence by engaging in useful productive employment activities, and

      • To provide state agencies, departments, and institutions and political subdivisions of the state with a method for achieving conformity with requirements of nondiscrimination and affirmative action in employment matters related to persons with disabilities.

      It is evident from the 2016 State Use Program annual report that a significant number of CRPs are not in compliance with the following provision in proposed rules:

      • §806.41. Certification and Recertification of Community Rehabilitation Programs.

        • (f) An applicant for certification must submit a completed application and the required documents to the Agency through the CNA for the state use program. Upon receipt, the CNA will verify the completeness and accuracy of the application. No application will be considered without the following documents:

          • (9) Notarized statement that the CRP agrees to maintain compliance with the requirement that at least 75 percent of the CRP’s total hours of direct labor, for each contract, necessary to perform services or reform raw materials, assemble components, manufacture, prepare, process and/or package products will be performed by individuals with documented disabilities consistent with the definition set forth in this chapter. If a CRP intends to seek a waiver from the 75 percent requirement of the CRP’s total hours of direct labor for a contract, the waiver request must be submitted with the application for approval.

      As the implementing entities for Chapter 122, the Commission and Agency will assist CRPs in complying with the law by providing a clear definition of “severe disability” and using consistent terms throughout the subchapter.

    • Recommendation: In paragraph (10), please briefly indicate what “Texas Government Code, §2155.138 and §2155.069” are, e.g., “Texas Government Code, §2155.138, concerning exemption from bidding, and §2155.069, concerning testing and inspection of products …”

    • Discussion: The addition of these phrases is explanatory for individuals who may not be easily able to access the code.

  • Subchapter B. Advisory Committee Responsibilities, Meeting Guidelines
    • §806.21 Advisory Committee.
      Recommendation: Concerning paragraphs (c)(2) and (3), please consider the following changes to language:

      • (2) The average hourly wage earned by each an individual, with and without disabilities, participating in the program;
      • (3) The average annual salary earned by each an individual, with and without disabilities, participating in the program;

    • Discussion: When the earnings of individuals with and without disabilities are conflated, both for average hourly wage and for average annual salary, essential information about differences in wages is lost. The resulting averages obscure the gap in wages paid to individuals with and without disabilities. The recommended language makes it clear that collection of averages must be done on an individual basis.

    • Recommendation: Concerning paragraph (c)(5), please change “an” to “each.”

    • Discussion: This is for purposes of clarity, as previously discussed.

    • Recommendation: Concerning paragraph (c)(6), please add “The number and percentage …” Also, in this paragraph and throughout this subsection, please clarify if the timeframe for data collection and reporting is annual.

    • Discussion: The percentage of individuals placed in competitive employment can have vastly different implications depending on the number of individuals that the percentage represents. For example, if 50% of 442 individuals with disabilities obtain competitive employment, that is a very different accomplishment than 50% of 100 individuals.

    • Recommendation: In paragraph (c)(7), please clarify “percentage of work performed.” Does this mean by each individual or by all individuals together? Is it quantified in time spent? Is it based on actual job performance or job description?

    • Discussion: As written, the paragraph refers to “work performed by individuals with disabilities …” In the aggregate, collection of this data will not reflect any given individual who spends 100% of work time on repackaging.

    • Recommendation: Please change subsection (d) as follows:

      • “The Committee shall provide input to the Commission on rules in adopting rules applicable to the program …”

    • Discussion: Please note that the committee as a whole was not involved in providing input in the adoption of these rules. Given the possibility that it may be years before the rules are reopened for comment as a result of further legislation or sunset review, it is urged that committee participation in commenting on the rules not be represented as being limited only to those periods of time when they are proposed for public comment.

    • Recommendation: Regarding subsection (e), please add language as follows:
      (e) The Agency shall provide administrative support to the committee including accommodations and supports as needed by committee members who have disabilities.

    • Discussion: Individuals with disabilities can make significant contributions at meetings and can bring a perspective that might otherwise not be considered or understood. Some individuals with disabilities require accommodations or supports to meaningfully participate in meetings. These include assistive aids and technology, communication aids, coaching prior to a meeting (such as explaining the agenda, going over topics that will be discussed, or documenting areas of interest for which the individual has input), and support during a meeting (help explaining different topics, assistance with speaking at the meeting, help remembering areas of interest and delivering input) and travel assistance.

    • Recommendation: In subsection (f), please add explanatory phrase as follows:

      • The Committee is not subject to Texas Government Code, Chapter 2110, concerning state agency advisory committees.

    • Discussion: As previously discussed, relating to accessibility.

  • Subchapter C. Central Nonprofit Agencies
    • §806.31. Contracting with Central Nonprofit Agencies.
      Recommendation: Please add language to this section requiring the Agency to publicly post information provided in subsections (f) and (g) within 30 days of receipt.

    • Discussion: The State Use Program is a public program. Information related to the program should be made publicly available.

    • §806.32. Performance Standards and Goals for a Central Nonprofit Agency.
      Recommendation: Please change the title of this section to “Performance Standards and Goals for the State Use Program.”

    • Discussion: Standards and goals should encompass all elements of the program.

    • Recommendation: Amend paragraphs (b)(1) and (2) as follows:

      • (1) Increase competitive employment opportunities for individuals with disabilities by requiring, and providing training for, the development of a person-centered plan including employment goals for each employed individual promoting employment counseling and placement services by every CRP CRPs.
      • (2) Increase competitive employment …

    • Discussion: Direct focus on achieving competitive employment through use of the person-centered plan. Suggest word search on employment to find all instances in which “competitive” could be inserted.

    • Recommendation: Amend paragraph (b)(3) to add “and conduct an annual customer needs assessment.”

    • Discussion: The contracts undertaken should support the identified needs of customers.

    • Recommendation: Delete paragraph (b)(4).

    • Discussion: The State Use Program does not need to be promoted given that its use is mandated in law.

  • Subchapter D. Community Rehabilitation Programs
    • §806.41. Certification and Recertification of Community Rehabilitation Programs.
      Recommendation: In subsection (d) delete the word “severe” and add the word “competitive” before “compensation.”

    • Discussion: “Severe” is not defined in the subchapter. “Competitive” is the emphasis.

    • Recommendation: Add the following language to paragraph (e)(2):

      • Ensure that documentation includes approved disability determination forms completed and signed by a credentialed vocational rehabilitation counselor and signed by the employee who has been determined to have a disability that shall be subject to review at the request of the Agency or the CAN under authority from the Commission …

    • Discussion: The current process allows for a determination of disability to be made in a number of ways and by a range of individuals of varying qualifications but does not require the individual being employed to be told of the determination.

    • Recommendation: Please expand paragraph (f)(8) as follows:

      • (8) Copy of the wage exemption certificate (WH-228) if below minimum wages will be paid to customers or to individuals with disabilities who will be employed, a plan to pay every individual minimum wage or higher before an application for recertification, and a statement of explanation of circumstances requiring subminimum wages including the following: ; and

        • (i) The individual’s person-centered employment plan;
        • (ii) Evidence that the individual could not meet the goals on their person-centered employment plan;
        • (iii) Evidence that the individual cannot do another job at minimum wage or higher;
        • (iv) A plan to transition the individual to minimum wage or higher within one year;
        • (v) A plan to provide, at prescribed intervals (every six months for the first year of the individual’s subminimum wage employment and annually thereafter for the duration of such employment) career counseling, peer counseling, and information and referral services, designed to promote employment-related services and supports designed to enable the individual to explore, discover, experience, and attain competitive integrated employment, regardless of age; and
        • (vi) For individuals 24 years of age or younger, documentation that the individual exercised all available services prior to being employed for less than minimum wage.

    • Discussion: The additional language provides the context for having the exemption certificate and the steps being taken to eliminate its use.

    • Recommendation: Add new (n) and renumber the follow subsections:

      • (n) A CRP shall promptly report to the Agency an instance of a state agency or organization using the State Use Program in a manner that does not meet its intended purpose to increase competitive integrated employment opportunities for individuals with disabilities.

    • Discussion: This requirement clarifies program focus and provides a means of enforcing it.

  • Subchapter F. Complaints, Vendor Protests, Resolutions
    • §806.61. Consumer Information; Complaints and Resolutions.
      Recommendation: Please amend subsection (d) as follows:

      • (d) The Agency shall create an accessible process for employees of the CRP to file a complaint in a way that protects the individual’s privacy and keeps the individual safe from retaliation. The process shall be posted in plain view at each CRP and described to each employee in a way that is accessible to them. Each employee shall be provided with a copy of the complaint process upon hire. The Agency shall make public a detailed report of the complaints listed by type, frequency, and outcome no later than December 1 of each year. The Agency shall provide to the individual filing the compliant, and to each individual who is a subject of a complaint, a copy of the Agency’s policies and procedures relating to complaint investigation and resolution.

    • Discussion: The process by which a person with a disability can file a complaint should be more accessible.

  • Subchapter G. Disclosure of Records
    • §806.71. Records.
      Recommendation: Amend (d) as follows:

      • (d) No records belonging to a CNA or a CRP may be accessed or released to anyone except as authorized, including advisory committee members, outside entities, and individuals, unless disclosure is required under the Texas Public Information Act.

    • Discussion: The determination of whether material can be released requires a close reading of the law. The law gives consideration to a much broader range of potential requestors than the rule as proposed anticipates. It is necessary to consult the law and not rely on this rule for guidance around the release of information.

Thank you again for the opportunity to comment on these important rules.

Sincerely,

 

Linda Logan, MPAff
Public Policy Specialist