My Comments underlined   Tom Spelman 414 403 1341 with questions 

May 9, 2015

 

 

Rosa Miriam Spellman

By Thomas Spellman her father and guardian

210 N 2nd St

Delavan WI   53115

 

 

 

Dept of Education

 

 

Re:   Docket ID ED-2015-OSERS-OOO1

 

See below for detailed comments and suggested inclusions on the substance of proposed regulation.

 

While these regulations relate to DVR services they set a tone for addressing services for all those who are disabled.  The preparers of these regulations have moved away from using segregation as the reason for eliminating sheltered workshops and are using a more neutral term “competitive integrated employment”. They continue their MANTRA that “competitive integrated employment” is the ONLY CHOICE that is acceptable to the agency and this has been so for a number of years now. Because of a Senate hearing note of 1999 it has been DECREED that ONLY INTEGRATED employment will be acceptable and it matters little how long it takes to get to such a place.

 

They also continue their effort by attacking “subminimum wages” wherever they can as well. While they make little mention of minimum wages they know they do not need to address that as that is the base wage that all employees must be paid. While the law was very specific about the employment opportunities that were to be provided individuals who are NOT ELIGIBLE for vocational rehab (VR) services the preparers of these regulations go out of their way to ignore even mentioning, THOSE INDIVIDUALS who are not VR eligible, and that part of the law.

 

The preparers of the regulations do in fact make a frontal attack on sheltered workshops by declaring in section   361.5(c)(9)(ii)(B)    see below    

 

Therefore, we continue to maintain the long-standing Department policy that settings established by community rehabilitation programs specifically 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.  

 

Considering the new regulations by CMS (approved March 2014) which it now seems CMS has backed off some on, but knowing the opposition as we just witnessed here in Wisconsin where Disability Rights Wisconsin (DRW) not only called for closing the two remaining Centers (South and Central) one for the severely disabled medically fragile and the other for severely disabled behavioral challenged, WE CANNOT REST!!!  DRW has continued their effort to close sheltered workshops and continues to attack the “subminimum wage” as well. (long story) 

 

On a personal note DRW has refused to represent Rosa Spellman’s interest in these matters and as the result she has not been able to find any effective counsel who would prepares these comments in her name and so she was left with her father and guardian to prepare them.  They are sometime angry and pointed and not the measured comments of someone who has some distance from the subject. It is very simple to me if they/you (depending on who is reading this) are successful at the ploy that “subminimum wages” are to be ELIMINATED AT ALL COST and “community integrated employment” is the END ALL AND BE ALL FOR her then they/you have signed her death note. 

 

Without the meaningful WORK that she does at her SAFE (see Gifts of the sheltered workshop to see all the benefits that for whatever reason the great minds of the prepares of these regulations seem not to even have a clue about) (sorry there I go again) sheltered workshop we would not be a family. The insecurity would have been unbearable, but they/you think you KNOW with every OUNCE IN THEIR/YOUR BODIES that “community integrated employment” and minimum wages jobs with ADVANCEMENT is the ONLY WAY TO GO!!!!!!!!!!!!    

 

 

begin regulatory text

Part 361—State Vocational Rehabilitation Services ProgramBack to Top

Organizational ChangesBack to Top

Although the proposed regulations maintain the current structure of subparts A, B, and C, we propose organizational changes to other subparts within this part. First, we propose to reserve subparts within part 361 where we plan to incorporate the three subparts we are proposing in a separate, but related, NPRM (the joint regulations proposed by the Departments of Education and Labor implementing changes to title I of WIOA) published elsewhere in this issue of the Federal Register. Please see that NPRM for more information about how these subparts will be incorporated into part 361. Second, we propose to remove §§ 361.80 through 361.89, since the VR-specific standards and indicators are no longer applicable given amendments made by WIOA. Finally, we propose to eliminate Appendix A to current part 361—Questions and Responses. We will consider issuing guidance after the publication of the final regulations.

Purpose (§ 361.1)Back to Top

Statute: Section 100(a)(1)(C) of the Act, as amended by WIOA (29 U.S.C. 720(a)(1)(C)), highlights competitive integrated employment as the type of employment that individuals with disabilities, including individuals with the most significant disabilities, are capable of achieving if appropriate supports and services are provided. This section, as revised, also incorporates economic self-sufficiency as a criterion to consider when providing VR services to an individual. The focus on competitive integrated employment is also reflected in changes made to section 100(a)(3)(B) of the Act.

Current Regulations: Current § 361.1(b) refers only to gainful employment, not competitive integrated employment. It also does not include economic self-sufficiency as a criterion to consider when providing VR services.

Proposed Regulations: We propose to amend current § 361.1(b) by: (1) Replacing the term “gainful employment” with “competitive integrated employment”; and (2) incorporating “economic self-sufficiency” as a new criterion that must be considered to ensure that the VR services provided are consistent with the individual's unique circumstances.

Reasons: The regulatory changes are necessary to implement statutory amendments to section 100 of the Act that emphasize the ability of individuals with disabilities, including individuals with the most significant disabilities,

What is meant by “with the most significant disabilities”? It is used often and really makes NO SENSE   ie it surely seems that someone with the MOST SIGNIFICANT DISABILITY is a person who is significantly brain impaired and WE KNOW their limits (for some it only is a smile) using this language is an attempt to INTENIONALLY MISLEADS us!!!  It totally IGNORES those individuals who are IN FACT the ones who are “the most significantly disabled” who suffer significant brain impairment.   So the new MANTRA so far is “COMPETITIVE INTEGRATED EMPLOYMENT and  MOST SIGNIFICANT DISABILITIES!!  Let’s see how many times they use it PS is Steven Hawking disabled?? Surely he is and yet Yes he and other with their abilities are what these regulations are addressed to  NOT Rosa Miriam Spellman who NEED many of the Gifts that Sheltered Workshops offer to her!!

 

to achieve competitive integrated employment, not “gainful employment,” the term previously used under the Act, as amended by WIA. We believe this change is significant given that section 7(5) of the Act, as amended by WIOA, includes a new term, “competitive integrated employment,” that includes mandatory criteria related to, among other things, compensation, advancement, and the integrated nature of the workplace. We also believe it is significant that Congress added economic self-sufficiency to the list of areas that must be considered when providing VR services to an individual because it reinforces a key element of “competitive integrated employment,” namely requirements related to compensation and benefits.

See the discussion of the term “competitive integrated employment” in thisSignificant Proposed Regulations section of the notice for a full explanation of this term for purposes of the VR program.

 

CUT

Assessment for Determining Eligibility and Vocational Rehabilitation Needs

Statute: Section 7(2)(B)(v) of the Act, as amended by WIOA (29 U.S.C. 705(2)), adds a new requirement that VR agencies must, to the maximum extent possible, rely on information from the individual's experiences obtained in an integrated employment setting in the community or in other integrated community settings when using existing information or conducting a comprehensive assessment for determining eligibility and the need for VR services for an individual with a disability.

Current Regulations: Current § 361.5(b)(6) defines “assessment for determining eligibility and vocational rehabilitation needs,” but does not include the requirement related to reliance on information about the individual's experiences in integrated settings because this is a new statutory requirement.

Proposed Regulations: We propose to amend the current regulations to conform to the statute in section 7(2)(B) of the Act by adding language to the definition of “assessment for determining eligibility and vocational rehabilitation needs” in proposed § 361.5(c)(5)(ii)(E) that would make clear that a comprehensive assessment, to the maximum extent possible, relies on information obtained from the eligible individual's experiences in integrated employment settings in the community and other integrated settings in the community.     This is all good except it ignores that there are some 10% to 15% of all disabled individuals who will not be eligible for DVR services for a whole variety of reasons.  Discussion and providing direction on how to deal with them WOULD BE appropriate to say the least.  THEY SHOULD NOT BE IGNORED or is it EXCLUDED!!!!

 

Reasons: WIOA places a heightened emphasis on the achievement of competitive integrated employment by individuals with disabilities. To that end, amendments made by WIOA require that assessments for determining eligibility and VR needs of individuals with disabilities must rely on information about the individual's experiences in integrated employment and in other integrated community settings. The Act clearly places an emphasis on integrated settings by requiring that VR agencies rely on information learned from the individual's experiences in these settings, to the maximum extent possible, when conducting an assessment. Nonetheless a DSU is not precluded from determining an individual's eligibility for VR services based on other information obtained through the assessment process when the individual cannot participate in integrated community-based work experiences.   SORRY  What does this mean???

 

CUT

Competitive Integrated Employment

Statute: WIOA adds a new term, “competitive integrated employment,” in section 7(5) of the Act (29 U.S.C. 705(5)). Although this is a new statutory term, the term and its definition generally represent a consolidation of two separate definitions and their terms in current regulations—“competitive employment” and “integrated setting.” In addition, the new statutory definition incorporates a criterion related to advancement in employment that is not included in either of the two current regulatory definitions.

Current Regulations: Current § 361.5(b)(11) defines “competitive employment” and current § 361.5(b)(33) defines “integrated setting.” Current regulations do not define “competitive integrated employment” since this is a new statutory term.

Proposed Regulations: We propose to replace the term “competitive employment” in current § 361.5(b)(11) with the new term “competitive integrated employment” in proposed § 361.5(c)(9). The proposed definition of “competitive integrated employment” would mirror the statutory definition in section 7(5) of the Act, as amended by WIOA, as well as provide two clarifications with respect to the criteria for integrated work locations.

First, proposed § 361.5(c)(9)(ii)(A) would clarify that the employment location must be in “a setting typically found in the community.” Second, proposed § 361.5(c)(9)(ii)(B) would clarify that the employee with a disability's interaction with other employees and others, as appropriate (e.g., customers and vendors), who are not persons with disabilities (other than supervisors and service providers) must be to the same extent that employees without disabilities in similar positions interact with these same persons. This interaction must occur as part of the individual's performance of work duties and must occur both in the particular work unit and the entire work site, as applicable. We further propose to amend the definition of “integrated setting” in proposed § 361.5(c)(32)(ii) to conform to the clarifications provided in the proposed definition of “competitive integrated employment” in proposed § 361.5(c)(9)(ii) to ensure consistency between the two terms.

Finally, we propose to replace the terms “competitive employment” and “employment in an integrated setting,” as appropriate, with “competitive integrated employment” throughout this part.

Reasons: These proposed changes are necessary to implement and to clarify statutory amendments made by WIOA. Because the proposed definition of “competitive integrated employment” reflects, for the most part, a consolidation of two existing regulatory definitions, the substance of this proposed definition is familiar to DSUs and does not represent a divergence from current regulations, long-standing Department policy, practice, and the heightened emphasis on competitive integrated employment throughout the Act, as amended by WIOA.

In implementing these proposed regulations and determining whether an individual with a disability has achieved an employment outcome in “competitive integrated employment,” a DSU must consider, on a case-by case-basis, each of the criteria described in the proposed definition of “competitive integrated employment.” While most of the criteria are familiar and self-explanatory, we believe additional guidance is warranted here to explain those few new criteria contained in the statutory and proposed regulatory definitions, especially with regard to the criteria for an integrated employment setting. As a result, we further explain these criteria, highlighting those aspects that historically have raised the most questions from DSUs.

Competitive Earnings: The compensation criteria of the proposed definition of “competitive integrated employment,” which mirror the statutory definition, are consistent with those found in the current regulatory definition of “competitive employment” in § 361.5(b)(11). Proposed § 361.5(c)(9)(i)(A) would continue to require that, to be considered “competitive integrated employment,” the individual must perform full- or part-time work in which he or she earns at least the higher of the minimum wage rate established by Federal or applicable State law. Because several jurisdictions have established minimum wage rates substantially higher than those provided for under Federal or State law, the statutory definition and proposed § 361.5(c)(9)(i)(A) would require that the individual's earnings be at least equal to the legally established local minimum wage rate if that rate is higher than both the Federal and State rates. Also, as has been the case under the current definition of “competitive employment,” section 7(5) of the Act requires and proposed § 361.5(c)(9)(i)(D) would require that the individual with the disability must be eligible for the same level of benefits provided to employees without disabilities in similar positions. In implementing the statute, the proposed definition would establish additional criteria with respect to competitive earnings. First, proposed § 361.5(c)(9)(i)(B) would require that the DSU take into account the training, experience, and level of skills possessed by the employees without disabilities in similar positions. Second, the proposed definition recognizes that individuals, with or without disabilities, in self-employment may not receive an income from the business equal to or exceeding applicable minimum wage rates, particularly in the early stages of operation. Hence, proposed § 361.5(c)(9)(i)(C) would clarify that self-employed individuals with disabilities can be considered to be receiving competitive compensation if their income is comparable to that of individuals without disabilities in similar occupations or performing similar tasks who possess the same level of training, experience, and skills. Finally, to ensure consistency with the American Indian Vocational Rehabilitation Services program under part 371, we interpret subsistence employment as a form of self-employment common to cultures of many American Indian tribes.

Integrated Location: While the integrated setting criteria of the proposed definition of “competitive integrated employment” are consistent with the statutory definition in section 7(5)(B) of the Act, as amended by WIOA, and the current definition of “integrated setting” in § 361.5(b)(33)(ii), the proposed definition would provide important clarifications that are necessary to ensure consistency with expressed congressional intent and current Departmental guidance.

First, we propose to require that the work location be in “a setting typically found in the community” as required by current § 361.5(b)(33)(ii), meaning that an integrated setting must be one that is typically found in the competitive labor market. This particular criterion is included in the current definition of “integrated setting” and, thus, its incorporation in the proposed definition of “competitive integrated employment” would ensure consistency between the two terms. Furthermore, this long-standing Department interpretation is consistent with the expressed congressional intent throughout the Act, as well as with past legislative history. Specifically, integrated setting “. . . is intended to mean a work setting in a typical labor market site where people with disabilities engage in typical daily work patterns with co-workers who do not have disabilities; and where workers with disabilities are not congregated . . .” (Senate Report 105-166, page 10, March 2, 1998).

 

A lot of effort here to try and establish Community Work Place settings What does a Senate Report have to do with integrated settings  Hummmmmmm

 

 

Therefore, we continue to maintain the long-standing Department policy that settings established by community rehabilitation programs specifically 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.  

 

Now we get to the meat of the effort CLOSING SHELTERED WORKSHOPS  Ah with such certitude  “we cointinue to maintain the LONG STANDING Department POLICY ( Hummmm A DEPARTMENT POLICY) but NOT LAW. Who established this Department Policy  Yes what group of highly educated individuals who do not have any skin in the game are pontificating about what is GOOD for the rest of us????

 

 

We believe this criterion of the integrated setting component of the proposed definition of competitive integrated employment is the first of two thresholds that must be satisfied.   

Second, once the first threshold is met, we believe it is essential, consistent with the current definition of “integrated setting,” that individuals with disabilities have the opportunity to interact with non-disabled co-workers during the course of performing their work duties to the same extent that their non-disabled co-workers have to interact with each other when performing the same work.    

 

This is about as CRAZY as it gets  What is there hang up with folks being in the present of folks who in all likelihood have little desire to be with them.  IT is one thing when this happens and ENTIRELY another thing TO FORCE IT DOWN EVERYONE”S throat which is EXACTLY WHAT THEY (THE GODS) are doing.

 

Look at a high school where kids “hang out” with individuals that they can intellectually relate to.  That is the distribution of relationships in almost all employment settings. The ASSUMPTION is that a disabled person whose brain functioning does not give them much of a clue about what is being said will be able to relate to such conversations. What in fact such rules will lead to is significant isolation and NOT COMMUNITY. Using the word COMMUNITY does NOT MAKE COMMUNITY. If you want to see COMMUNITY go to VIP at lunch time and you will see COMMUNITY, loving caring family of people having a great time.

 

 

To that end, proposed § 361.5(c)(9)(ii)(B) would clarify that “other persons” as used in the statutory definition means other employees without disabilities with whom the employee with the disability works within the specific work unit and from across the entire work site. We want to make clear that this proposed clarification is contained, more generally, in the current definition of “integrated setting.” Furthermore, we believe this clarification is consistent with congressional intent, past legislative history, current Departmental guidance, and current regulations.

Historically, this element regarding integrated settings has raised many questions; therefore, we provide specific clarity with regard to certain job settings in which employees primarily interact with persons from outside the work unit, such as vendors and customers, rather than each other, while performing their job duties. We believe the focus of whether the setting is integrated should be on the interaction between employees with and without disabilities, and not solely on the interaction of employees with disabilities with people outside of the work unit. For example, the interaction of individuals with disabilities employed in a customer service center with other persons over the telephone, regardless of whether these persons have disabilities, would be insufficient by itself to satisfy the definition. Instead, the interaction of primary consideration should be that between the employee with the disability and his or her colleagues without disabilities in similar positions.

Nonetheless, we recognize that individuals who are self-employed or who telecommute may interact more frequently with persons such as vendors and customers than with other employees.  

 

They look at SELF-EMPLOYED individuals BUT THEY DO NOT EVEN ACKNOWLEDGE the thousands of individuals who are LIMITED by their individual BRAIN Function.   Why do the advocates for the disabled discriminate against those disabled whose brain function limits or significantly limits their abilities, by totally ignoring their specific needs???  The whole document reeks of this ATTITUDE!!

 

 

Since these persons often work alone from their own homes rather than together in a single location, and may have little contact with fellow employees, we have long maintained that self-employment and telecommuting are considered to meet the criteria for an integrated location, so long as the employee with the disability interacts with employees in similar positions and other persons without disabilities to the same extent that these persons without disabilities interact with others, though this interaction need not be face-to-face.

The proposed definition of “competitive integrated employment” would further clarify, consistent with the general principles contained in the current definition of “integrated setting,” that the DSU is to consider the interaction between employees with disabilities and those without disabilities that is specific to the performance of the employee's job duties, and not the casual, conversational, and social interaction that takes place in the workplace. As a result, it would not be pertinent to its determination of an integrated setting for a DSU to consider interactions in the lunchrooms and other common areas of the work site in which employees with disabilities and those without disabilities are not engaged in performing work responsibilities.   

 

NO LUNCHROOM interaction!!!!!   Good these people are BAD. They truly have no brains themselves to write such ……….

 

This determination, particularly with regard to the level of interaction, would be 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. Specifically, individuals with disabilities hired by community rehabilitation programs to perform work under service contracts, either alone or in groups (e.g., landscaping or janitorial crews), whose interaction with persons without disabilities (other than their supervisors and service providers) is with persons working in or visiting the work locations (and not with employees of the community rehabilitation programs without disabilities in similar positions) would not be performing work in an integrated setting.  

 

Yes another example that these folks writing these regulations have never worked with their hands. To say that folks working cutting grass etc must be working together demonstrates the lack of understanding of work in the real world.  On top of this what is the description of the disabled individual who would be able to work with such a crew???  A lot of words for what???

 

 

In summary, the DSU must determine, on a case-by-case basis,  

 

Ah just what we need to have bureaucrats  “on a case by case”   WOW talk about making work for lawyers etc

 

that a work location is in an integrated setting if it both is typically found in the community, and is one in which the employee with the disability interacts with employees and other persons, as appropriate to the position, who do not have disabilities to the same extent that employees without disabilities interact with these persons. Finally, the DSU is to consider the interaction between the employee with the disabilities and these other persons that takes place for the purpose of performing his or her job duties, not mere casual and social interaction.

Opportunities for Advancement: To ensure that the employment of persons with disabilities is equivalent in all respects to that of persons without disabilities, section 7(5) of the Act, as amended by WIOA, establishes a new criterion not contained in current regulations. Proposed § 361.5(c)(9)(iii) mirrors the language in section 7(5) of the Act and would require that the employee with the disability have the same opportunities for advancement as employees without disabilities in similar positions. We believe this new criterion is consistent with current definitions of “competitive employment” and “integrated settings” and should pose no hardship on DSUs to implement.

As explained here, the definition of “competitive integrated employment” in section 7(5) of the Act, as amended by WIOA, and as proposed in § 361.5(c)(9) establishes three essential criteria of employment—income (earnings and benefits), integration, and advancement—thereby ensuring that individuals with disabilities are provided through the VR program the full opportunity to participate in the same jobs available to persons without disabilities in the public.

Again, we want to make clear that two of the criteria—those related to compensation and the integrated nature of the worksite—are similar, if not identical, to criteria contained in the current definitions of “competitive employment” and “integrated setting.” Thus, the substance of this definition is familiar to the DSUs and should pose no hardship to implement.

Customized Employment

Statute: Section 7(7) of the Act, as amended by WIOA (29 U.S.C. 705 (7)), adds and defines the term “customized employment,” which means, in general, competitive integrated employment designed to meet both the specific abilities of the individual with a significant disability and the business needs of an employer.  

And here they go again using “significant disability” as if there is any real possibility of a person who is significantly disabled working much less working in some plant setting with co-workers.  Oh it they mean that the person is significantly physically disabled then it would be a challenge but it might be doable but then again people who are disabled often have more than one disability which then makes it even that much harder.

Current Regulations: None.

Proposed Regulations: We propose to add § 361.5(c)(11), to define “customized employment” to mirror the statute.

Reasons: The proposed regulation is necessary to implement the new statutory term and definition because the Act, as amended by WIOA, uses the term in a variety of contexts, including incorporating it into definitions of employment outcome and supported employment, and incorporating it into the list of individualized services permissible under the VR program. Customized employment provides flexibility in developing individualized and customized strategies that are specific to an individual with a significant disability's unique needs, interests, and capabilities, through the use of flexible strategies that meet the needs of both the individual and the employer.

 

Must say that this is a good HUMMMMMMMM   They do not state all that is included in the LAW and go on to imply that “Customized employment” surely means that it is

 

“designed to meet both the specific abilities of the individual with a significant disability and the business needs of an employer.” 

 

Now I ask a very simple question and the before that just WHAT ARE THEY TALKING ABOUT WHEN THEY USE THE TERM “significant disability”  What level of BRAIN FUNCTION are they implying??? To me “significant disability” means moderate to severe Brain impairment. The rest of the statement on its face demonstrates the literal dysfunction of all of this   To think that some for profit employer is going to figure out how to pay someone minimum wage ($15 per hour) for WHAT output?????   Hummmmmmm

 

 

Employment OutcomeBack to Top

Statute: Section 7(11) of the Act, as amended by WIOA, revises the definition of “employment outcome” to include customized employment within its scope.

Current Regulations: Current § 361.5(b)(16) defines “employment outcome,” but does not include customized employment since this is a new statutory requirement.

Proposed Regulations: We propose to amend the definition of “employment outcome” in § 361.5(c)(15), as redesignated by other changes made in this part, to specifically identify customized employment as an employment outcome under the VR program. We also propose to amend the definition to require that all employment outcomes achieved through the VR program be in competitive integrated employment or supported employment, thereby eliminating uncompensated outcomes from the scope of the definition for purposes of the VR program.

 

And again they demonstrate their BIAS and THEIR AGENDA against stuff that WORKS FOR PEOPLE.  The LAW is clear that INFORMED CHOICE IS THE RULE OF THE DAY and yet where ever possible those CHOICES ARE BEING SYSTEMATICALLY ELIMINATED.

 

Furthermore, we propose to amend current § 361.37(b) to expand the scope of those circumstances when the DSU must provide referrals to other programs and service providers for individuals who choose not to pursue an employment outcome under the VR program. Similarly, we propose to amend current § 361.43(d) to expand the requirement for the referral of individuals found ineligible for VR services or determined ineligible subsequent to the receipt of services to also include appropriate State, Federal, and local programs, and community service providers better suited to meet their needs.

Reasons: The proposed changes are necessary, in part, to implement statutory changes to the definition of “employment outcome” that include reference to “customized employment.” See the discussion of “customized employment” earlier in this preamble for further information regarding this type of employment outcome.

The proposed change that would limit the scope of employment outcomes under the VR program to competitive integrated employment or supported employment is necessary to implement the heightened emphasis of the Act on the achievement of competitive integrated employment. The Act, as amended by WIOA, makes clear—from the stated purpose of the Act, the addition of new requirements governing the development of individualized plans for employment and the transition of students and youth from school to post-school activities, and new limitations on the payment of subminimum wages—that individuals with disabilities, particularly those with significant disabilities, are able to achieve the same high-quality jobs in the competitive integrated labor market as persons without disabilities if they are provided appropriate services and supports.

 

As surreal as it may seem a child with NO LEGS WILL WALK because these regulations ORDER IT!!! Yes it seems that is the ATTITUDE of THESE REGULATIONS to ORDER AND DEMAND that it will work!!!!! I am not sure when I came to terms with my daughter Rosa’s LIMITS BUT THEY ARE REAL and WANTING on my part WILL CHANGE THAT REALITY!!!!!  What are they saying and implying here.  These are highly educated individuals who are writing this stuff and they imply that with enough “appropriate services and supports” they can UNDO the brain impairment that my daughter suffers???   What fools are we dealing with here??????

 

 

The amendments made by WIOA are consistent with and further other changes made over the past four decades, with each reauthorization, that have placed increasing emphasis on the achievement of competitive employment in an integrated setting through the VR program. See the discussion regarding “competitive integrated employment” earlier in this preamble.

It is in this context that we propose to amend the definition of “employment outcome,” for purposes of the VR program, to include only those outcomes that meet the requirements of competitive integrated employment (including customized employment, self-employment, telecommuting or business ownership), or supported employment, thereby eliminating from the scope of the definition, under the VR program, uncompensated outcomes, such as homemakers and unpaid family workers. We believe this proposed change is consistent with the statutory definition of “employment outcome” in section 7(11) of the Act, as well as the pervasive emphasis in the Act on the achievement of competitive integrated employment by individuals with disabilities, including those with the most significant disabilities. Given this emphasis, we believe the proposed change, not to include, within the scope of employment outcomes, uncompensated outcomes, such as homemakers and unpaid family workers, is consistent with the provisions of the Act.

We believe the proposed changes to the definition, while essential to fulfilling the expectation in the Act that individuals with disabilities, particularly individuals with significant disabilities, are capable of pursuing competitive integrated employment, should not cause significant difficulty for most State VR units in their administration of the VR program. Nationally, only a relatively small number of individuals currently exit the VR program as homemakers or unpaid family workers. Over the past 35 years the percentage of such outcomes has steadily and significantly decreased. For example, in FY 1980 homemaker outcomes as a percentage of all employment outcomes reported nationally to the Department by VR agencies through the VR program Case Service Report for the years FY 1980 through FY 2013 approximated 15 percent. This percentage dropped to 5.2 percent in FY 1999, and to 3.4 percent in FY 2004. By FY 2013, the most recent year for which data is available, this percentage had declined to 1.9 percent. There has been a similar decline in reported unpaid family workers. According to data reported by VR agencies through the VR program Case Service Report, in FY 2000, 642 individuals were reported in the category of unpaid family worker. By FY 2013, the most recent year for which we have data, only 135 individuals were reported to have obtained an unpaid family worker outcome. National data indicates that approximately 0.2 percent or less of all the outcomes reported annually by DSUs are unpaid family worker outcomes.

While we recognize that some VR agencies have a greater percentage of homemaker and unpaid family worker outcomes than others, particularly those agencies serving individuals who are blind and visually impaired, it is also evident that the majority of DSUs have been placing increased importance and emphasis on competitive employment outcomes, in their policies and procedures, as the optimal employment outcome and deemphasizing uncompensated outcomes. This shift in practice has been the product of the DSUs responding to the intent of the Act and translating that intent into their administration of the VR program. Nevertheless, we recognize that this proposed change could represent a significant shift in practice for a few VR agencies, particularly those with high percentages of individuals achieving employment outcomes as homemakers or unpaid family workers. These agencies may be providing services to assist individuals to obtain homemaker and unpaid family worker outcomes at the time the final regulations become effective. To allow these agencies to complete the VR process for these individuals, we are considering a transition period of six months following the effective date of the final regulations for the implementation of this proposed change. We are interested in receiving comments about providing such a transition period.

Since FY 2004, through monitoring of the VR program, we have reviewed the attainment of homemaker outcomes and have found that VR agencies sometimes assist individuals to exit the program as homemakers to provide an alternate resource for the provision of independent living services that are otherwise available from the State Independent Living Services, Centers for Independent Living, and Independent Living Services for Older Individuals Who Are Blind programs. To ensure that individuals who choose to pursue homemaker and unpaid family worker outcomes, or who are determined ineligible for VR services either at the time of application or following the provision of services, are able to access independent living and other rehabilitation services, we propose to expand the scope of §§ 361.37(b) and 361.43(d) so that these circumstances would be among those when DSUs must refer these individuals to public and private agencies better suited to meet their needs. These current regulatory provisions are limited to those individuals who choose to pursue extended employment, which does not constitute an employment outcome under the VR program. As proposed, §§ 361.37(b) and 361.43(d) would be more broad, thus encompassing those individuals who choose to pursue uncompensated employment, such as homemakers and unpaid family workers, as well as those who choose to pursue extended employment.   

 

Where are these changes that seem to moderate some of what they are proposing but I do not see these changes.

 

The resources available through the independent living programs have expanded exponentially since FY 1992. Specifically, the number of Part C-funded centers for independent living has tripled since FY 1993, from 120 to 356 presently, including 20 new centers for independent living established in FY 2010 through funding under the American Recovery and Reinvestment Act of 2009. In addition, funding for the Independent Living Services for Older Individuals Who Are Blind program has increased since FY 1992, from $6,500,000 to approximately $33,000,000 in FY 2014. While we recognize that this proposed change would place the responsibility for making these referrals on DSUs, we believe that any burden associated with these requirements is outweighed by the benefit that individuals with disabilities would gain by having access to programs and services that can more appropriately meet their individualized needs.

Extended Services

Statute: Section 604(b) of the Act, as amended by WIOA, permits the expenditure of supported employment funds authorized under title VI, and the VR funds authorized under title I, on the provision of extended services to youth with the most significant disabilities for a period not to exceed four years. 

 

And after 4 year do they retire to the TV or what???

 

Current Regulation: Current § 361.5(b)(20) defines “extended services,” but does not mention that these services may be provided to youth with the most significant disabilities since this is a new statutory requirement.

Proposed Regulations: We propose to amend the definition in § 361.5(c)(19), as redesignated by other changes made in this part, to make clear that extended services may be provided to youth with the most significant disabilities for a period not to exceed four years. The changes proposed herein are consistent with those proposed for the Supported Employment program in part 363.

Reasons: The revisions are necessary to implement statutory changes to the Supported Employment program made by WIOA that also relate to the VR program since VR funds may be used to pay for allowable supported employment services. These proposed changes are consistent with those proposed in part 363 and discussed in more detail later in this NPRM.

 

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Supported Employment

Statute: Section 7(38) of the Act, as amended by WIOA, revises the definition of supported employment to, among other things, reference competitive integrated employment and customized employment, and requires that an individual who is employed in an integrated setting, but not in competitive integrated employment, must be working toward such an outcome on a short-term basis for such work to qualify as supported employment.

Current Regulation: Current § 361.5(b)(53) defines “supported employment” as the term was defined prior to the enactment of WIOA. There is no reference to “competitive integrated employment” or “customized employment” since these are new statutory requirements.

Proposed Regulation: We propose to amend the definition in § 361.5(c)(53),as redesignated by other changes made in this part, to require that supported employment means competitive integrated employment, including customized employment, or employment in an integrated setting in which the individual is working on a short-term basis toward competitive integrated employment. We also propose, in this context, that an individual be considered to be working on a “short-term basis” toward competitive integrated employment if the individual reasonably expects achieving a competitive integrated employment outcome within six months of achieving an employment outcome of supported employment.    

 

Yes six month to change  You have 6 months and if you need longer is it the TV again??

 

 

These proposed changes are consistent with those proposed in part 363 for the Supported Employment program, discussed later in this NPRM.

Reasons: The revisions are necessary to implement the new statutory definition in section 7(38) of the Act, as amended by WIOA, which reflects the heightened emphasis on the achievement of competitive integrated employment.

We also propose to include a definition of “short-term basis,” in the context of supported employment, to give meaning to the phrase and ensure congressional intent. By limiting the timeframe, we ensure that individuals do not remain in subminimum wage employment for the purpose of achieving supported employment outcomes.  

And here again attack the subminimum wage.  This is a frontal attack on sheltered workshops.  They get all this language here and then it is just a simple matter of shifting it over to CMS who is chomping at the bit already.

 

The proposed changes also ensure consistency with the amendments proposed in part 363, implementing the Supported Employment program, discussed later in this NPRM.

Supported Employment Services

Statute: Section 7(39) of the Act, as amended by WIOA, revises the definition of “supported employment services” to extend the allowable timeframe for the provision of these services from 18 months to 24 months. The statute also makes other technical changes to the definition.

Current Regulation: Current § 361.5(b)(54) defines “supported employment services” to include a timeframe of 18 months.

Proposed Regulations: We propose to revise the definition in § 361.5(c)(54), as redesignated due to other changes made in this part, to extend the allowable timeframe for the delivery of these services from 18 months to 24 months. We also propose to make changes that clarify the individualized and customized nature of supported employment services.

Reasons: The revisions are necessary to implement the new definition of “supported employment services” in section 7(39) of the Act, as amended by WIOA. Most importantly, the proposed definition extends the allowable timeframe for the provision of supported employment services from 18 to 24 months. The proposed changes also ensure consistency with revisions proposed in part 363, implementing the Supported Employment program, discussed later in this NPRM.

 

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Assessment for Determining Eligibility and Priority for Services (§ 361.42)

Eligibility Criteria

Statute: Section 102(a)(1) of the Act, as amended by WIOA, makes clear that an individual with a disability, whose physical or mental impairment constitutes a substantial impediment to employment, may be determined eligible for VR services if he or she requires services to advance in employment. 

 

Is this real??? A person who has “substantial impediments to employment”  will be provided “services to advance in employment”   WOW  who makes this stuff up How many people are we talking about here?? 10 50 100 vs the 1000’s who will be ignored and mistreated because of such comments.  Again the attack on the moderate to severe brain impaired individuals!!

 

Current Regulations: Current § 361.42(a)(1)(iii) specifies that the applicant may be determined eligible if he or she meets all other eligibility criteria and requires VR services to prepare for, secure, retain, or regain employment. Current regulations do not reference advancing in employment since this is a new statutory requirement.

Proposed Regulations: We propose to amend current § 361.42(a)(1)(iii) to clarify that an applicant, who meets all other eligibility criteria, may be determined eligible if he or she requires VR services to advance in employment.

We also propose to clarify in current § 361.42(c)(2) that a DSU must not consider an applicant's employment history, current employment status, level of education or educational credentials when determining eligibility for services.

Reasons: The proposed changes are necessary, in part, to implement statutory amendments to section 102(a)(1) of the Act made by WIOA. The proposed changes also would ensure that individuals with disabilities are able to obtain through the VR program the skills necessary to engage in the high demand jobs available in today's economy. It has been the Department's long-standing policy that the VR program is not intended solely to place individuals with disabilities in entry-level jobs, but rather to assist them to obtain employment that is appropriate given their unique strengths, resources, priorities, concerns, abilities, capabilities, and informed choice. The extent to which DSUs should assist eligible individuals to advance in their careers through the provision of VR services depends upon whether the individual has achieved employment that is consistent with this standard.

Furthermore, the proposed additional factors that a DSU must not consider when determining an applicant's eligibility for VR services in proposed § 361.42(c)(2) would be consistent with longstanding policy. By specifically proposing the additional factors related to employment and education history in the regulation, we reinforce the requirement in section 102(a)(1)(iii) of the Act and proposed § 361.42(a)(1)(iii).

 

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Extended Evaluation

Statute: WIOA amends section 102(a)(2)(B) of the Act by removing the limited exception to trial work experiences, whereby VR agencies made extended evaluations available to applicants, prior to determining that an individual is unable to benefit from VR services due to the severity of the individual's disability and, thus, is ineligible for VR services.   

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