The Workforce Innovation and Opportunity Act (WIOA) and the Vocational Rehabilitation (VR) Program WIOA Regional Forums October 2016

Introduction Title IV of WIOA made more than 100 changes to the Vocational Rehabilitation (VR) program – the most significant changes to the program in more than three decades Changes to WIOA Title IV were effective when the President signed the Act on July 22, 2014; however, final regulations were not published until August 2016 Among the major changes to the VR program: Definition and expectations for competitive, integrated employment; Pre-employment transition services for students with disabilities Restrictions on payment of sub-minimum wage to individuals with disabilities for 14(c) certificate holders

Competitive, Integrated Employment Employment Outcome — Definition “Employment Outcome” means: Competitive integrated employment; or Supported Employment.

Competitive Integrated Employment— Components of Definition To satisfy the definition of “competitive integrated employment,” which is one of the types of employment outcomes permitted under the VR program, the employment must satisfy the requirements for all three components: Competitive earnings; Integrated Location; and Opportunities for advancement. This means that if an individual’s employment fails to satisfy any one of the above components, the employment will not meet the definition of “competitive integrated employment.

Competitive Integrated Employment, Competitive Earnings Component Under the definition of “competitive integrated employment,” earnings must be: Equal to or greater than the Federal, State, or local minimum wage rate, whichever is higher, where the place of employment is located; and Comparable to the customary rate paid by the employer to employees without disabilities in similar positions with comparable skills, experience, and training. The employee with the disability also must receive benefits comparable to those of employees without disabilities in similar positions.

Competitive Integrated Employment— Competitive Earnings Component (cont.) A self-employed individual with a disability in the start-up phase of a business venture who is making less than the applicable minimum wage can meet the definition of “competitive integrated employment.” VR agencies may use supplemental wage information for individuals who achieve self- employment outcomes when calculating levels of performance on the performance accountability measures under section 116 of title 1 of WIOA.

Competitive Integrated Employment— Integrated Location Component VR agencies must determine on a case-by-case basis whether the employment satisfies two criteria: A. It is in a setting typically found in the community; and B. It is in a setting in which the individual with the disability interacts while performing his or her job duties with employees without disabilities in the work unit and the entire employment site, and other persons (e.g., vendors and customers) without disabilities to the same extent that employees without disabilities in similar positions interact with these persons.

Competitive Integrated Employment— Opportunities for Advancement Component The employee with the disability must be eligible for the same opportunities for advancement as are available to employees without disabilities in similar positions.

Competitive Integrated Employment: Impact to Texas VR programs Texas VR does not place individuals with disabilities in subminimum wage employment Texas VR will carefully review some placement settings to ensure that they meet the definition of an integrated setting

Pre-Employment Transition Services for Students with Disabilities WIOA emphasizes the provision of services to students and youth with disabilities to ensure they have opportunities to receive the training and other services necessary to achieve competitive integrated employment; WIOA expands the population of students with disabilities who may receive services and the kinds of services that the VR agencies may provide to youth and students with disabilities who are transitioning from school to postsecondary education and employment;

Pre-Employment Transition Services for Students with Disabilities (cont.) WIOA increases opportunities to practice and improve workplace skills, such as through internships and other work-based learning opportunities; and WIOA requires VR agencies to reserve not less than 15 percent of the Federal VR allotment to provide, or arrange for the provision of, pre-employment transition services for students with disabilities transitioning from school to postsecondary education programs and employment in competitive integrated settings, and that these services be coordinated with local educational agencies (LEA).

Definition of “Student with a Disability” A student with a disability is an individual who: Is in an educational program; and Meets certain age requirements; and Is eligible for and receiving special education or related services under IDEA; or Is an individual with a disability for purposes of section 504 of the Act.

Definition of “Student with a Disability” (cont.) Educational programs include: Secondary education programs; Non-traditional or alternative secondary education programs, including home schooling; Postsecondary education programs; and Other recognized educational programs, such as those offered through the juvenile justice system.

Definition of Student with a Disability (cont.) Age range requirements for a student with a disability: Minimum age: Not younger than the earliest age to receive transition services under IDEA; or Not younger than the earliest age, if determined by the State as being different, to receive pre-employment transition services. Maximum age: Not older than 21 years old; or Not older than the highest age determined by the State to receive services under IDEA, if older than 21 years of age.

Population to Receive Pre-Employment Transition Services Pre-employment transition services are provided to “students with disabilities” who are: Eligible for VR services; or Potentially eligible for VR services (i.e. all students with disabilities, including those who have not applied or been determined eligible for VR services).

Pre-Employment Transition Services includes 5 Required Services which can be provided in a group setting or on an individual basis: Job exploration counseling; Work-based learning experiences, which may include in-school, after school, or community- based opportunities; Counseling on opportunities for enrollment in comprehensive transition or postsecondary educational programs at IHEs; Workplace readiness training to develop social skills and independent living; and Instruction in self-advocacy, including peer mentoring.

Pre-Employment Transition Services: “Authorized” Activities If funds reserved for the provision of pre-employment transition services remain after all necessary “required” activities have been provided, the VR agency may provide other “authorized” activities that: Improve the transition of students with disabilities from school to postsecondary education or an employment outcome; and Support the arrangement or provision of the “required” activities.

Pre-Employment Transition Services: “Authorized” Activities (cont.) “Authorized” activities include, but are not limited to: Providing instruction to VR counselors, school transition personnel, and other persons supporting students with disabilities; Disseminating information about innovative, effective, and efficient approaches to achieve the goals of pre-employment transition services; and Applying evidence-based findings to improve policy, procedure, practice, and the preparation of personnel, in order to better achieve the goals of pre-employment transition services.

Reserved funds for Authorized Activities States must determine whether all students in need of required activities have been provided the necessary services, prior to utilizing funds for authorized activities and pre-employment transition coordination activities.

Pre-Employment Transition Services: Impact to Texas VR programs Texas has long served students and youth in the VR program. In FY 2016, both VR programs served more than 31,000 individuals age 10 to 24. Pre-employment transition services are a more narrowly defined subset of VR services Texas VR has made progress in implementing this WIOA requirement, and is currently working with the Commission to: update policy and guidance for staff identify and implement initiatives to increase provision of services to students with disabilities Increase partnerships leading to work-based learning experiences

Restrictions on Subminimum Wage Overview of Section 511— Purpose Section 511— Prohibits an “entity” that holds a special wage certificate under section 14(c) of the FLSA from compensating an individual with a disability at a subminimum wage unless certain conditions are met; and Focuses on the payment of subminimum wage, not the nature of the work setting.

14(c) Certificate Holders in Texas These include state supported living centers, community rehabilitation providers, county mental health facilities, and independent school districts Texas has 114 entities that hold 14(c) certificates as of August 2016 Over 9100 individuals employed by these entities are employed at subminimum wage

Overview of Section 511’s Provisions Section 511— Requires youth with disabilities to satisfy certain service-related requirements prior to starting work at subminimum wage; Requires individuals of any age to satisfy certain service-related requirements in order to continue work at subminimum wage; Requires VR agencies and LEAs to document the provision of the requisite services; and

Requirements Related to Youth with Disabilities “Youth with a disability” is an individual aged 14 to 24 (section 7(42) of the Act and §361.5(c)(58)). Some of these youth may satisfy the definition of a “student with a disability” (section 7(37) of the Act and §361.5(c)(51)). Before an “entity” may begin compensating a youth with a disability at subminimum wage, the youth must complete certain service-related activities and produce documentation showing completion.

Requirements Related to Youth with Disabilities (cont.) Prior to beginning work at subminimum wage, a youth with a disability must demonstrate, through documentation, completion of the following: Receipt, as applicable, of pre-employment transition services under the VR program; or transition services under IDEA; Application for VR services that results in determination of Ineligibility; or Eligibility.

Requirements Related to Youth with Disabilities (cont.) If the youth is determined eligible for the VR program, he or she must have: An approved IPE; Been working toward the employment outcome in the IPE, for a reasonable period of time and with appropriate supports without success; A closed VR service record; and Receipt of career counseling, and information and referral services.

Requirements Related to Youth with Disabilities (cont.) Career counseling and information and referrals must: Be provided by the DSU in a manner to facilitate informed choice and decision-making; Not be for subminimum wage employment by an entity holding a 14(c) certificate; Not be employment-related services compensated at a subminimum wage or that directly result in employment compensated at a subminimum wage provided by an entity; and Be provided within 30 calendar days of a determination for a youth known by the DSU to be seeking employment at subminimum wage.

Requirements Related to Youth with Disabilities (cont.) A determination of “reasonable period of time,” with respect to the youth’s inability to achieve an employment outcome, must be consistent with: Disability-related and vocational needs of the youth; Anticipated length of time to complete services in the IPE; and For supported employment goals, up to 24 months, or longer if the youth and counselor agree that an extension is needed to meet the goal.

Restrictions on Subminimum Wage: Impact to Texas VR programs VR is responsible for providing career counseling to all individuals employed in sheltered settings VR is responsible for providing pre-ETS for students with disabilities prior to them working in sub- minimum wage facilities VR has developed a strategy to reach out to 14(c) entities to provide career counseling