Feds Mull Changes To Disability Employment Rules

by Michelle R. Davis in Disability Scoop

The Trump administration is planning to alter existing regulations aimed at steering individuals with disabilities away from sheltered workshops.

The U.S. Department of Education expects to “amend” rules established under the 2014 Workforce Innovation and Opportunity Act that made sweeping changes to the employment landscape for those with disabilities.

Under the law, individuals with disabilities age 24 and younger must first try pursuing competitive employment before they can work for what’s known as subminimum wage. Employees already earning less than minimum wage are permitted to retain their jobs, but must receive regular career counseling and information about training opportunities.

The Trump administration is planning to alter existing regulations aimed at steering individuals with disabilities away from sheltered workshops.

Supporters of the existing regulations worry that the Department of Education, which administers the program, is attempting to roll back what they see as a transformative policy.

In a letter this month to Secretary of Education Betsy DeVos, 38 advocacy groups urged that the regulations not be reconsidered. The provisions express clear support for “jobs where people with disabilities are paid the same wages, have the same opportunities for advancement and work alongside their co-workers without disabilities,” the letter stated.

“It really changed the paradigm,” Alison Barkoff, director of advocacy for the Center for Public Representation, said of the current law which emphasizes “competitive integrated employment” or the payment of at least minimum wage and the opportunity for people with disabilities to create and build important connections in the community.

Barkoff said the existing regulations can be tweaked or clarified to address concerns through guidance, but that opening them up for revision is an attempt to “roll back” gains.

But groups advocating for the revamp of the regulations say sheltered workshops and other segregated environments — while often not paying minimum wage — play an important role for some individuals with disabilities who value their work and the relationships they form there. They said some states are effectively failing to refer potential employees to such programs because of their interpretation that these jobs don’t fit under “competitive integrated employment.”

Kate McSweeny, vice president of government affairs and general counsel for ACCSES, an advocacy group that represents organizations providing services and work opportunities for those with disabilities, including jobs paying less than minimum wage, called the existing regulations “well intended” but said they should “be expanding employment opportunities, not taking them away.”

In a public notice issued in May, the Department of Education said it plans to issue a notice of proposed rulemaking related to the regulations in September. In an email, spokeswoman Liz Hill told Disability Scoop that the definition of competitive integrated employment is “under review” and the department continues to meet with stakeholders to discuss it.

The Workforce Innovation and Opportunity Act was passed by a bipartisan group of lawmakers in 2014 and regulations clarifying its implementation around jobs for those with disabilities took effect in 2016.

At the time the regulations were established, Barkoff said there was negotiation and compromise among various disability advocacy groups. So she said she was surprised when a 2017 letter from a group of Republican members of Congress petitioned for another look. The letter raised concerns about the failure of state vocational rehabilitation agencies to refer individuals with disabilities to the federal AbilityOne Program, which taps nonprofit groups to provide employment for individuals who are blind or have significant disabilities, typically in segregated settings.

The regulations limit “the ability of individuals with disabilities to find and keep employment” the letter said.

In response, disability advocacy groups wrote their own letter emphasizing that AbilityOne was not competitive employment, but those placements were still permitted if they are in integrated settings.

Barkoff said the regulations have not been in place long enough to warrant change, and more data needs to be collected on their implementation. “These are brand new regulations,” she said. “It’s way too soon to say they’re not working.”