Comments in response to the Workforce Innovation and Opportunity Act Proposed Regulations

June 9, 2015

 

Janet LaBreck
U.S. Department of Education
400 Maryland Avenue SW, Room 5086
Potomac Center Plaza
Washington, DC 20202-2800

 

RE:      Comments in response to the Workforce Innovation and Opportunity Act Proposed Regulations
To whom it may concern:

Disability Rights Arkansas (DRA) submits the following comments in response to the Notice of Proposed Rulemaking (April 16, 2015) of the Office of Special Education and Rehabilitative Services (OSERS), U.S. Department of Education (ED), to amend regulations governing the State Vocational Rehabilitation Services program, the Client Assistance Program and the State Supported Employment Services program in order to implement changes to the Rehabilitation Act of 1973, as amended by the Workforce Innovation and Opportunity Act (WIOA) enacted on July 22, 2014.

DRA is the independent, private, nonprofit organization designated by the governor of Arkansas to implement the federally funded and authorized protection and advocacy (P&A) and Client Assistance Program (CAP) throughout the state. DRA is submitting the following comments in keeping with our vision of a society in which people with disabilities are full and equal members, which by definition includes the opportunity to work in competitive, integrated settings alongside people without disabilities.

DRA endorses the following changes made in the proposed regulations:

Definition of Employment Outcome (361.5(c)(15)) [p.21068]

  • VR must provide referrals to other appropriate programs if the individual chooses not to pursue VR services or is found ineligible for these services. DRA endorses the emphasis on competitive wages and referral requirements.

 

Eligibility for VR Services [361.42; p.21074]

  • DRA endorses these changes that will strengthen the presumption of eligibility. Currently, many individuals with disabilities, especially those with the most significant disabilities, are determined ineligible for services.

 

Pre-Employment Transition/Transition (361.5(c)(42))

  • Permitting pre-employment transition services to be provided to all students with disabilities regardless of whether they have applied for VR services would clarify that similar transition services are available to youth with disabilities under proposed 361.48(b) when specified in an individualized plan for employment.  DRA endorses this regulation with the recommendations listed below.


Supported Employment (361.5(c)(54))

  • Defining supported employment makes clear that supported employment outcomes must be in competitive integrated employment
  • Extending the time frame from 18 months to 24 months for the provision of supported employment services unless a longer time is established in the IPE. DRA endorses this change.

 

Notice Requirements

  • A VR agency must provide written notice to individuals about the right to seek review of a VR decision at certain times during the VR process as contained in 29 U.S.C.§ 722(c)(2).  WIOA added subparagraph (iv) to this notice requirement.  This new provision requires that in the written notice about the due process requirements, the VR agency must now state any deadline the State imposes by which an individual must request mediation or an impartial hearing, and the required procedures the individual must follow in order to request mediation or an impartial hearing. DRA endorses this regulation.

Sub-Minimum Wages à Section 511

  • Proposing a new set of regulations to implement Section 511 to set forth requirements the Designated State Units (DSUs) and State and local educational agencies must satisfy to ensure that individuals with disabilities, especially youth with disabilities, have a meaningful opportunity to prepare for, obtain, maintain, advance in, or regain competitive integrated employment, including supported or customized employment.
  • Prohibiting employers from hiring youth with disabilities at a subminimum wage level unless the youth are afforded meaningful opportunities to access services, including transition services under the Act or IDEA, so they may achieve competitive integrated employment in the community.
  • Specifying that the individual with a disability, or the individual’s parent or guardian, if applicable, must receive certain information and career counseling-related services from the DSU every six months during the first year of such employment and annually thereafter for as long as the individual receives compensation at the subminimum wage level.
  • If employed at sub-minimum wage rates, documentation of career counseling, regardless of the individual’s age. DRA endorses these changes with the recommendations below.

 

Changes to the VR System

  • Proposing changes to the requirements for a comprehensive system of personnel development by establishing minimum educational requirements and experience and eliminating the requirement to retrain staff not meeting the VR agency’s personnel standards for qualified staff.
  • Proposing to revise 361.18(c)(1)(ii) to mirror the statute with regard to education and experience requirements for VR personnel.
  • Proposing to add a new 361.18(c)(2)(ii) to describe what it means for personnel to have a 21st-century understanding of the evolving labor force and needs of individuals with disabilities.
  • Providing examples (not all inclusive) of the skills that would demonstrate that personnel hired are appropriately qualified.
  • Amending 361.18(d)(1)(i) to require that the CSPD include training implemented in coordination with entities carrying out State programs under section 4 of the Assistive Technology Act of 1998.
  • Deleting provisions that are no longer applicable given statutory changes, such as those related to steps the State will take when personnel do not meet the highest standard in a State.
  • Describing education and experience requirements at the bachelor’s, master’s, and doctoral level, in fields related to rehabilitation that prepare the individual to work with individuals with disabilities and employers. Individuals hired at the bachelor’s level have a requirement for at least one year of paid or unpaid experience.
  • Proposing to require that the CSPD include training implemented in coordination with entities carrying out State programs under section 4 of the Assistive Technology Act of 1998.

 

DRA has the following concerns about the following regulations:

  • In WIOA under section (361.5(c)(15)) [p.21068], it states that Vocational Rehabilitation (VR) must provide referrals to other appropriate programs if the individual chooses not to pursue VR services or is found ineligible for these services. VR should be provided guidance on where to refer these individuals, and it would be beneficial if there were a list of potential resources that could be used for appropriate referrals.
  • We propose that there is clarification in current 361.42(c)(2) that a Designated State Unit (DSU) must not consider an applicant’s employment history, current employment status, level of education or education credentials when determining eligibility for services.
  • While DRA endorses (361.5(c)(42)), we recommend that VR be required to present the VR application package to the students at the beginning of the transition process. This early involvement in the transition process would help to ensure that the client and their families are involved in the informed choice process. It would also allow them to decide when to apply for VR services.
  • While DRA endorses (361.5(c)(54)), we support the change extending the timeframe from 18 to 24 months for the provision of supported employment services, unless a longer time is established in the IPE.
  • The VR agency must provide written notice to individuals about the right to seek review of a VR decision at certain times during the VR process as contained in 29 U.S.C.§ 722(c)(2).  WIOA added subparagraph (iv) to this notice requirement.  This new provision requires that in the written notice about the due process requirements, the VR agency must now state any deadline the State imposes by which an individual must request mediation or an impartial hearing, and the required procedures the individual must follow in order to request mediation or an impartial hearing.
  • RSA must add this new requirement among the other requirements for the written notice that currently exist in the regulations at 34 C.F.R. § 361.57(b)(1).  A new subparagraph (iv) to the regulations parroting the statutory language would be sufficient.
  • Under Section 511, Specifying that the individual with a disability, or the individual’s parent or guardian if applicable, must receive certain information and career counseling-related services from the DSU every six months during the first year of such employment and annually thereafter for as long as the individual receives compensation at the subminimum wage level:
  • There is a concern that CAP advocates will have appropriate access to ensure that the documentation is completed, especially for those individuals making sub-minimum wage who may not be VR clients. Another concern is how VR will implement and provide this career counseling, i.e. will it be individualized? Will it be meaningful?
  • In response to changes to the VR system, we propose that there needs to be a clear definition to describe what it means for personnel “to have a 21st-century understanding of the evolving labor force and needs of individuals with disabilities”. We propose that examples be provided of the skills that would demonstrate that personnel are appropriately qualified. We propose that there be a description of education and experience, as applicable, requirements at the bachelor’s, master’s and doctoral level, in fields related to rehabilitation that prepare the individual to work with individuals with disabilities and employers. Individuals hired at the bachelor’s level have a requirement for at least one year of paid or unpaid experience.

 

DRA is excited about the implementation of WIOA and what it can mean for the inclusion of people with disabilities in the workforce, and we hope that the recommendations as outlined above will address some of the concerns that the proposed WIOA regulations present in the delivery of VR services for the State of Arkansas.

 

Sincerely,

Tom Masseau
Executive Director