Transition and the Workforce Innovation and Opportunity Act

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Employment First

In 2013, Texas was first in the nation to pass legislation making Employment First a state law. The achievement was largely the result of the leadership of the Texas Council for Developmental Disabilities, as the recommendation was originated in the Public Policy Committee. Senate Bill 1226 (2013) established that it is the policy of Texas that earning a living wage through competitive employment in the general workforce is the priority and preferred outcome for working-age individuals with disabilities who receive public benefits. Texas is joined by at least 42 other states with Employment First efforts.

SB 1226 required the Health and Human Services Commission (HHSC), the Texas Education Agency (TEA), and the Texas Workforce Commission (TWC) to jointly adopt and implement an Employment First policy. Through the Employment First Task Force established by the new law, the first step was to develop recommendations that addressed a broad range of matters regarding policy, procedures, and rule changes necessary to allow the Employment First policy to be jointly adopted and implemented by HHSC, TEA, and TWC.

The Workforce Innovation and Opportunity Act (WIOA)

In the past two years, the Task Force’s work across state agencies has been integral to understanding policy barriers to increasing innovation and getting people to work. It has provided an excellent proving ground from which to go forward with implementing the provisions of WIOA, many of which require the collaboration of HHSC, TEA, and TWC in providing pre-employment services and supports to students and youth transitioning to postsecondary education or employment. A central provision in ensuring collaboration is the requirement that the agencies submit a unified/combined strategic plan.

WIOA, which was signed into law in July 2014, is a landmark federal act that comprehensively reauthorizes, updates, and adds to existing federal statutes (principally the Workforce Investment Act and the Rehabilitation Act of 1973). Its provisions affect state and local area workforce development systems as well as a number of national programs for youth and special populations, including persons with disabilities.

The new law defines and uses the term “competitive integrated” to describe desired employment outcomes for individuals with disabilities, including individuals with the most significant disabilities. It defines competitive integrated employment as employment meeting three criteria:

  1. Income — The higher of the minimum wage rate established by federal or state law. In jurisdictions with minimum wage rates higher than those provided under federal or state law, the earnings must be at least equal to the legally established local minimum wage.
  2. Integration — A setting found in the community, where a person interacts with employees and others who are not persons with disabilities to the same extent that employees without disabilities interact in the work unit and work site:
    1. Community rehabilitation programs specifically established for the purpose of employing individuals with disabilities (e.g., sheltered workshops) do not constitute integrated settings because these settings are not typically found in the competitive labor market.
    2. The requirement for interaction is applicable regardless of whether the individual with a disability is an employee of the work site or a community rehabilitation program hires the individual with a disability under a service contract for that work site.
  3. Advancement — The employee with a disability must be provided the same opportunities for advancement as employees without disabilities in similar positions.

Most importantly, WIOA significantly expands states’ commitment to ensuring that students and youth seeking to transition to higher education or employment are provided the services and supports that have proven critical to postsecondary success. It does this in part by requiring that at least 15 percent of each state’s vocational rehabilitation allocation be used in support of students and youth under the age of 24. At the April 2015 meeting of Rehabilitation Council, it was estimated that the amount to be spent on transition services by DARS would be at least $29.4 million for DRS and $7.25 million for DBS.

WIOA authorizes the provision of five specific pre-employment services that are to be delivered in preparing students and certain youth for transition:

  1. Job exploration counseling;
  2. Work based learning experiences;
  3. Counseling on opportunities for higher education;
  4. Workplace readiness training; and
  5. Self-advocacy, self-determination, and peer mentoring.

Through proposed regulations at 34 CFR Part 397, WIOA establishes that the VR program can provide pre-employment transition services to any student with a disability who needs these services, regardless of whether the student has applied for or been determined eligible for VR services. In the same way, the VR agency can provide transition services to groups of youth with disabilities, regardless of whether they have applied for or been determined eligible for services.

If either a student or youth with a disability requires more intensive services, he or she would apply for VR services. Once determined eligible, an individualized plan for employment would be developed, which would outline the specific services that he or she may need in order to achieve the desired employment outcome.

In this way, the VR program can provide a range of services, from most basic to the most individualized and intensive service, to better meet the evolving needs of a student or a youth with a disability who is transitioning from school to post-school life.

For students and youth who need more intensive services, the following are required to be made available:

  • Assessment for determining eligibility and priority for services by qualified personnel, including, if appropriate, an assessment by personnel skilled in rehabilitation technology.
  • Vocational rehabilitation assessment by qualified personnel, including, if appropriate, an assessment by personnel skilled in rehabilitation technology.
  • Vocational rehabilitation counseling and guidance, including information and support services to assist an individual in exercising informed choice.
  • Referral and other services necessary to assist applicants and eligible individuals to secure services from other agencies and advise those individuals about client assistance programs.
  • Physical and mental restoration services, to the extent that financial support is not readily available from a source other than TWC (such as health insurance or a comparable service or benefit).
  • Vocational and other training services, including personal and vocational adjustment training, advanced training in a field of science, technology, engineering, or mathematics (including computer science), medicine, law, or business; books, tools, and other training materials. The only exception is that no training in an institution of higher education (universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing or any other postsecondary education institution) may be paid for unless maximum efforts have been made by TWC and the individual to secure grant assistance from other sources to pay for that training.

A key facet of the law places new obligations on vocational rehabilitation agencies to ensure that students and youth are not placed in sheltered workshops or other segregated, subminimum wage settings. Individuals age 24 or younger may not begin work that pays subminimum wages unless the individual has completed, and documentation indicates completion of, pre-employment transition services or transition services under IDEA, and an application for VR services.

A student or youth who has not been found ineligible for services, or has been determined eligible for VR services but has not been successful, must have been provided career counseling and information and referral to other appropriate resources for services designed to assist the individual in attaining competitive integrated employment.

Furthermore, entities holding 14(c) certificates may not continue to employ an individual at subminimum wage, regardless of age, unless the individual is:

  • Provided career counseling, information, and referrals by the VR agency; and
  • Informed by the employer of self-advocacy, self-determination, and peer mentoring training opportunities provided by an entity that does not have a financial interest in the individual’s employment outcome (independent school districts can no longer contract with sheltered workshops or other 14(c) certificate holders to accept students).

A significant provision of WIOA is required establishment of a multiagency group at the federal level to develop recommendations and report to the Secretary of Labor regarding issues related to the 14(c) certificate program. The Advisory Committee for Increasing Competitive Integrated Employment for Individuals with Disabilities delivered an interim report to Secretary Thomas Perez on September 1, 2015, with the final report due in September 2016. Many of the committee’s recommendations relate to eliminating 14(c) programs and have resulted in federal and nonprofit advocacy, as well as 14(c) certificate holders, providing public testimony at each meeting.

WIOA is a complex piece of legislation that presents new opportunities for agencies to work together to make community life and work the rule, not the exception, for people with disabilities.

The Value of Integrated Competitive Employment

The passage of WIOA is greatly encouraging. Work is a fundamental part of adult life for people with and without disabilities. It provides a sense of purpose, shaping who we are and how we fit into our community. Meaningful work is associated with positive physical and mental health benefits and is a part of building a healthy lifestyle as a contributing member of society. Because it is essential to economic self-sufficiency, as well as self-esteem and well-being, people with disabilities who want to work should be provided the opportunity and support to work competitively within the general workforce. Individually tailored and preference based job development, training, and support should recognize each person’s employability and potential contributions to the labor market.

Individuals with disabilities are much less likely to have a job than individuals without disabilities. According to the Census Bureau American Community Survey, in 2014 about 75% of working-age Americans without disabilities were employed, in contrast to only 34% of people with disabilities. Less than 24% of individuals with cognitive disabilities were employed. Data for Texans is similar. Yet, the majority of non-employed people with disabilities would like to be working, and their job preferences are well within the mainstream — 80% said they would like a paid job now or in the future, which is comparable to the 78% of non-disabled, working-age people who are not employed. And like all workers, individuals with disabilities value job security, income, flexibility and chances for advancement and career.

These numbers challenge the idea that the low employment rate of people with disabilities is due to low motivation or job preferences — this data suggests the supply is there. With the coming labor shortages as baby boomers retire; people with disabilities represent a valuable and underutilized resource. Technology advances foster greater ease in integrating workers with disabilities in the workplace.

When individuals with disabilities are provided the appropriate supports to earn competitive wages alongside their non-disabled peers, they are given the opportunity to build wealth and assets, which lead to a higher quality of life and a greater degree of independence. The poverty rates of people with disabilities are much higher than that of the general population. Approximately 34% of people with disabilities live on a household income of less than $15,000 per year, compared to 12% of people without disabilities. High levels of poverty lead to people with  disabilities being dependent on government funded programs. An Employment First policy that holds individuals with disabilities to the same employment standards and responsibilities of any working-age adult can help individuals with disabilities be independent in the community, build assets, reduce dependence on public funds and services, and avoid the costs associated with current programs.

Data from the National Core Indicators Project suggest that only 14.7% of working age adults supported by state I/DD agencies participated in integrated employment. Community rehabilitation providers (CRPs) reported that only 27% of individuals with I/DD supported by their organization worked in integrated jobs, including both individual jobs and group supported employment. Those who are employed typically work limited hours with low wages. At the same time, participation in facility-based and non-work services has grown, suggesting that employment services remain an add-on rather than a systemic change.

Purchasing from Persons with Disabilities Advisory Committee (PPDAC)

At the state level, the abolition of the Texas Council for Purchasing from Persons with Disabilities, and the transfer of responsibilities to the Texas Workforce Commission, signals public recognition of the need for closer scrutiny and evaluation of the “State Use Program.” Under state law, governmental entities at state and local levels and well as certain others, can elect to forego bidding out contracts for goods and services by purchasing them directly from State Use Program providers. The providers employ thousands of people with disabilities, and with the exception of providers whose employees are blind, generally pay workers pennies on the dollar using 14(c) certificates. The group that manages this process charges a 6 percent fee on all sales, amounting to an annual income of well over one million dollars.

Part of TWC’s responsibilities has involved the appointment of members to the newly formed Purchasing from People with Disabilities Advisory Committee (PPDAC). The committee is charged with the development of performance standards for community rehabilitation programs, a large number of which currently hold special certificates and employ people with disabilities for subminimum wages.

Currently there are 116 certificate programs in Texas, employing more than 9,950 people at subminimum wages. Of these, at least 350 are working on federal contracts. TCDD is one of two VR advocates represented on the PPDAC and recently invited the director of the Department of Labor’s San Antonio Regional Office of Federal Contract Compliance Programs (OFCCP) to address the committee. OFCCP is responsible with enforcing Section 504 of the Rehabilitation Act, which prohibits discrimination against people with disabilities by federal contractors.

During the 2015 Texas Legislative Session a bill was introduced that would have set out timelines for the elimination of 14(c) programs from participation in the State Use Program. TCDD staff continue to respond to related legislative inquiries as part of its advocacy for Employment First and competitive integrated employment for all people with disabilities. Legislation likely will be reintroduced during the 2015 Texas Legislative Session.

Texas Workforce Investment Council (TWIC)

TCDD reviewed and commented on the TWIC state plan, leading to clarification in several portions of text that “employment” is “competitive integrated employment.” TWIC is the designated state agency for implementing WIOA in Texas (February TCDD Binder).

Day Habilitation Services

Earning a living wage through competitive employment in the general workforce is the priority and preferred outcome for working-age individuals with disabilities who receive public benefits. Texas is a long way from reaching this goal for people with disabilities and some Texans may choose not to work.

Day habilitation facilities provide services in a group setting during weekday work hours and are offered to DADS clients through community-based I/DD waiver and intermediate care facility programs. Day habilitation services are designed to help individuals make connections within their communities. Texas and other states developed day habilitation programs, work activities centers and sheltered workshops recognizing the need to have viable day program options for individuals with I/DD. While these programs were developed to meet real needs, these services are not inclusive and as currently designed, isolate individuals from meaningful involvement in community activities.

In fiscal year 2013, Texas spent more than $96 million on day habilitation services. DADS requires program providers to ensure their subcontractors, including day habilitation facilities, provide safe and adequate services. However, these requirements vary across programs, and contracts between facility owners and providers are not required to include basic quality and safety measures.

Despite rising use of these facilities, DADS only recently has started to collect basic information on how many of its clients attend day habilitation, where the facilities are located, or problems at these facilities. Directing providers to include basic requirements in day habilitation contracts may improve services and add a layer of protection for clients who attend the facilities; however, it is important to note that some long-term services and supports providers also operate day habilitation facilities. Thus, the improvement would be minimal if a provider is put in a position to hold itself accountable to contract requirements. Tracking day habilitation information would allow the agency to identify trends and problems at these facilities and help its clients and providers choose a day habilitation facility.