Overview of the Workforce Innovation and Opportunity Act - Implications for Persons with Disabilities

Overview of the Workforce Innovation and Opportunity Act - Implications for Persons with Disabilities

Tuesday, March 17, 2015


Great. Thank you very much and I hope everybody has an understanding of the system, and any problems that you have, please let Claudia know and she will assist you.

So welcome to our session today, which is going to focus on the Workforce Innovation and Opportunity Act or WIOA. It will be coming from a disability perspective. We are very fortunate today that we have Bobby Silverstein, who will be presenter today. Claudia, can you please advance the slide for me?

And Bobby is a former U.S. Staff Director and Chief Counsel for the Committee on Disability Policy of the Committee on Labor and Human Resources under the leadership of Senator Tom Harkin. He was also very much a behind-the-scenes architect, more than 20 bills that were enacted into law, including the landmark Americans with Disabilities Act and its amendments, as well as to the Section 503 of the Rehabilitation Act. He is a trusted advisor to many organizations and entities, including the Business Leadership Network and other corporations and has worked with many other disability-related organizations as well. He is a—considered to be a leading legal policy expert on Section 503. He has conducted extensive research, focusing on identifying best practices for [inaudible] advancing of people with disabilities. Bobby was also very active during the crafting of the legislation for WIOA and was doing a lot of complication along the way with organizations and entities who were vying for and encouraging changes for—in—how the court system behaves and responds to people with disabilities. He is an attorney with over 36 years of disability policy experience and he currently serves as a principal in the law firm of Powers Pyles Sutter & Verville in Washington, DC, area.

At this time, I am going to go ahead and turn over the microphone to Bobby as our presenter today, and he will give our—his presentation, and we will then be asking for your questions. Please feel free to submit questions throughout the session today. You can put them into the chat area, and we will be able to respond to you when we are ready for the questions and answers. Those of you on the telephone, we will be giving you instructions later on as to how to ask your questions, so please save your questions, write them down so that you don't forget them or whatever, and we’ll be ready to take those questions at the conclusion of Bobby's presentation. So at this time, Bobby, I am going to hand over the microphone to you.


Thank you so much, Robin. The real purpose of this presentation is not only to give you a summary overview of the Workforce Investment Act as amended—now we call it the Workforce Innovation and Opportunity Act—and also Title IV of the Amendments to the Rehab Act, particularly those dealing with the state VR program. In addition to giving you this overview, the real purpose, from my perspective, is to give you material that you can use to share with others so that the disability community, the consumer, understands the very significant changes that were made by Congress in this legislation. So my real hope is that you will take these PowerPoint and use them to make presentations in your local community.

To help you with the script that would go along with these—the PowerPoint, is the document that all of you should have, which is a Policy Brief, which is entitled Summary of Major Policies Included in Titles I and IV of the Workforce Innovation and Opportunity Act, and in addition, all of you should have a copy of what's called a TEGL, a Training and Employment Guidance Letter from the Employment and Training Administration (coughing)—excuse me—dated February 19, 2015. So with the PowerPoint and the Policy Brief, you should be in a position to be able to do this presentation to your local colleagues, friends, advocates, in your community. From my perspective, if you want to turn this all into—and put your letterhead on the front, there's no problem with that, as long as someplace you recognize the LEAD Center, which is the National Center on Leadership for Employment and Economic Advancement of People with Disabilities, the LEAD Center, which is funded by the Office of Disability Employment Policy. So with some recognition of that, that would be appreciated.

Let's jump right in, in terms of the legislative history. What you have here is the important points to recognize is the original Workforce Investment Act was passed in many, many years ago. And it actually expired in 2004. It was passed in 1998 and it technically expired in 2004. And a number of Congresses passed bills or considered bills, but they never got to the finish line. In March of 2013, the House passed HR 803. This was totally a bill voted on totally in a partisan basis. There were basically, I believe, no Democrats who supported the bill.

In July of 2013, the Senate HELP Committee—not the full Senate floor—reported out a bill called S. 1356, the Workforce Investment Act of 2013.

Now the interesting thing began to occur. The staff from the Senate and the House began informal negotiations, and this was extensive negotiation over a significant number of months and finally, they actually reached an agreement, and on June 25th, the Senate passed a complete substitute to H.R. 803 and called it the Workforce Innovation and Opportunity Act, and this bill was that bipartisan, bicameral compromise that was agreed to. On July 9th, the House passed the substitute amendment. And on July 22nd, the President signed WIOA into law as Public Law 113-126. The effective date for many of the provisions in the law, particularly dealing with one-stop career centers, is July 1, 2015, but the Amendments to the Rehab Act went into effect on the date of enactment.

Now, in general, when you look at the purpose of WIOA—and again, I’m looking at it from the perspective of people with disabilities—the general purpose is to modernize and improve the existing system; to help workers attain skills and connect to businesses. And then from a disability perspective, a phrase that is repeated maybe five, ten times in the legislation dealing with American Job Centers is to “ensure physical, programmatic, and technology accessibility for individuals with disabilities in order to facilitate entry and retention into competitive integrated employment. This is a very key phrase that is repeated over and over in the legislation.

Now, this phrase is not—unfortunately—defined in the legislation. However, in the previous Congress, in the Senate report accompanying the previous version of the legislation, there is a bipartisan consensus definition, and for those of you who are familiar with Section 504 of the Rehab Act and the Americans with Disabilities Act, you won't be surprised on the definition. Basically, the way the term is defined is policies, practices, and procedures providing effective and meaningful opportunity for people with disabilities to participate in career and training and support services.

What is "programmatic access"? Programmatic access was defined in the Senate report as including reasonable accommodations, most integrated setting appropriate, accessible communication, provision of appropriate auxiliary aids and services, and assistive technology devices and services where necessary to afford individuals with disabilities that effective and meaningful opportunity to participate and enjoy the benefits of the various programs and activities. So the word "programmatic access" is a generic term for the phrases that we are familiar with of reasonable accommodations, modifications, auxiliary aids and services, access to assistive technology. And notice also here, though, that there is a reference to technology accessibility, another very significant phrase that is included in the document. And from my perspective, this is meaning that websites, intranet/Internet, online systems must be accessible, a very important provision.

In terms of the topics that we are going to cover with respect to Title I of WIOA, is first we'll talk that the Workforce Investment Act was repealed. We'll get some key definitions from a disability perspective, looking at the work state boards, the submission of the state plan, local boards, local plan, performance accountability, establishment of the one-stop delivery system, identification of eligible providers, funds for youth, funds for adults, national programs, and nondiscrimination. So these are the topics that I plan on discussing in the next 20 minutes or so.

Let's start with appeal of WIOA. WIA, I am sorry. The Workforce Innovation and Opportunity Act, WIOA, actually totally repeals the Workforce Investment Act of 1998 and replaces it with new authorizing language. So all of the provisions dealing with the workforce investment system have been repealed, and so we have a whole new set of policies, practices, and procedures, although many of them are borrowed from the previous legislation. So the new phrase for describing Title I of WIOA is the Workforce Development Activities.

Now, here are some key definitions for—from a disability perspective. On numerous places, the legislation makes reference to "core programs." Core programs is defined as including the state VR programs. Another key definition used is describing individuals with a barrier to employment. Previously, this important phrase did not include people with disabilities. It was amended to include people with disabilities. So you will note in many places in the legislation there's a phrase like "all individuals, including individuals with a barrier to employment." So to emphasize that “all” means all, and sometimes it says "including individuals with a barrier to employment." Sometimes it will say "including an individual with a disability." But the important notion here is those with barriers to employment now include individuals with disabilities. The term "individual with disability" is defined consistent with the ADA.

In terms of board membership, the legislation specifies that the membership must include state officials with primary responsibility for core programs which, again, include the state VR program. The legislation then has—permits the board, the state board, to include community-based organizations, such as organizations that provide or support competitive integrated employment for the employment of people with disabilities. That's permissive.

In terms of functions of the state board, the state board must assist the governor in generically supporting career pathways; identifying best practices—and then here's one of the places where it says "including strategies for serving individuals with disabilities—so best practices, including best practices for serving people with disabilities—and strategies to ensure technology is accessible to individuals with disabilities.” Now, this is a very important phrase. Many of you are familiar with the fact that the Department of Justice has an advance Notice of Proposed Rulemaking dealing with ADA and websites. And so they have asking questions as to whether or not they should amend the ADA regs to require websites and other online systems be accessible. They ask that as a question. But some of you may not be aware of the fact that DOJ has entered into numerous settlement agreements under which they are requiring covered entities to ensure that their websites and online application systems and other online systems are accessible and usable by people with disabilities in accordance with international standards, WCAG 2.0AA. So for advocates, the use of the phrase "technology is accessible" in my opinion can and should be construed as requiring accessibility of websites, intranet, Internet, online systems consistent with either of Section 508 standards or international WCAG 2.0.

In terms of the state plan, the new provision requires a unified state plan, which would include state plan submitted with respect to the state VR program other than the CAP program and the American Indian VR services.

Then there is a key provision for advocates that they really need to focus on. The legislation says that the unified plan must—must—describe how the lead state agency for—responsibility for administration of core programs will implement the strategy for aligning core programs, including a description of how the one-stop delivery system will comply with Section 508 of the Workforce Innovation Act, which is the nondiscrimination provision; the applicable provisions of the ADA regarding physical and programmatic access; and to applicable programs, facilities, programs, services, and technology to meet the needs of people with disabilities. So for those of you who are advocates, consumer advocates, this provision is critical to ensure that the state plan describes with specificity how the state will address and meet the needs of people with disabilities to ensure effective and meaningful opportunity. There are also assurances for compliance with 188, the nondiscrimination provision, and with respect to the VR state plan component of the unified plan, it has to be approved by the Commissioner of RSA, Secretary of Education, and the Secretary of Labor. With respect to local boards, membership must include an appropriate representative of the state VR program and, just like at the state level, may include community-based organizations that provide or support competitive integrated employment.

Here is an interesting provision in the legislation because the phrasing is a little strange. The statute says "at a minimum" which sounds like a requirement "the local board may" not shall, but may—" designate a Standing Committee." And then it describes what should the Standing Committee should be focusing on. And it lists compliance with Section 188, nondiscrimination; ADA, physical and programmatic accessibility; training of staff; finding employment opportunities. But here again, here's a handle for advocates and consumers to either get on the committee, the Standing Committee, that local boards may designate—although it's at a minimum—again, a little confusing. But, if these Standing Committees are established, here is a place to get on this committee to impact implementation of the Workforce Innovation and Opportunity Act from a disability perspective.

What are some of the functions of the Workforce Development Board? Adopting promising strategies, including specifically specified in the legislation, including providing physical and programmatic access, consistent, again, with 188 and the ADA. Develop strategies for using technology to maximize accessibility. Again, another specific reference to accessibility of technology. And then annual assessment of physical and programmatic accessibility of all One-Stop Centers. So the function of the Board, local Board, has significant provisions dealing with access for people with disabilities. And that Standing Committee will probably take a leadership role in implementing this function.

In terms of the local plan, again, the plan must describe how it will comply with 188, nondiscrimination; the ADA regarding physical and programmatic accessibility; again, facilities, programs and services, technology, and materials. This is, again, another handle to make sure that the local plan implemented by the Board consistent with recommendations by the Standing Committee provides all kinds of opportunities for advocates to ensure that all means all, including people with disabilities.

The legislation includes a number of performance—performance accountability system with specific indicators for adults, separate ones for youth; the ability to adjust levels of performance based on the numbers of people with disabilities among others served; local performance accountability measures; performance reports, which include disaggregation of the data by, among other things, disability; training providers performance reports; and sanctions that apply at the state and local level.

In terms of the establishment of the one-stop delivery system, also referred to as American Job Centers, we have one-stop required partners, which include VR agencies, VR programs. We have one-stop operators who must be designated or certified by the local board. We have certain mandatory services that are included in the legislation, which I will get into a little later in my presentation. There's also a requirement, on the next—that there be a memorandum of understanding entered into between the core programs, including the state VR program, and the local one-stops so that you are figuring out how much the VR program will be responsible for funding the infrastructure of the American Job Centers. And you can have either an MOU or there are a maximum—maximum amount of contribution by the state VR program that are actually specified in the legislation, and they change over time, starting from the second year, .75%, up to 1.5% of VR allotment.

In terms of training providers, the governor, after consultation with the Board, establishes criteria, and the local board may establish additional criteria.

In terms of use of funds for youth, we have youth and then a separate for adults. We have certain eligibility provisions. We also have a priority that is established for out-of-school youth, for any program year, not less than 75% of the funds available for statewide activities and not less than 75% of funds available for local areas must be used to provide youth workforce investment activities for out-of-school youth, with certain exceptions to that general rule. We have certain required activities, including evaluations, dissemination of list of eligible providers. And then we have a number of allowable statewide youth activities that are listed, one of which—which is very important, particularly for the LEAD Center—is supporting financial literacy, and the legislation provides numerous examples of what is meant by "financial literacy," such as supporting the ability of participants to create household budgets, initiating savings plans, make informed financial decisions about education, retirement, homeownership, wealth building, et cetera.

In terms of funds for adults, we have required programs, and we have—or activities—and we have permissive activity. The required activities, again, from a disability perspective, include disseminating information on physical and program access. Permissive statewide employment training activities include coordination with local activities and financial literacy.

Now, next we have certain required local and training activities. Previously, we had a phrase "core intensive and training services." We now have the phrase "career services" and "training services." And one of the key provisions that was included in the legislation is a construction clause that says nothing in the Act shall be construed to mean an individual must receive career services before receiving training services.

What happened, there was an interpretation under the old legislation where you had to first go through core before you did intensive and go through intensive before you get training, and that was—created a lot of confusion and concern, and this legislation clarifies that based on an assessment, if you need training services, you do not have to first get career services. And the legislation has extensive list of what is meant by career services and training services. I do not have the time now to get into that, but again, for those of you who are following along on the Policy Brief, page 11 includes, through page 12, includes 13 examples of career services. On page 12 through 13, includes 11 examples of training services.

In addition, the legislation describes permissible activities, including navigating multiple services and activities, which obviously is very important for people with disabilities who might benefit from multiple programs, whether it's the generic system, the VR program, Medicaid, home and community-based services, et cetera.

Next in the legislation, they describe authorized funding for national programs by DOL, and this authorization includes establishing a system of promising improving practices.

Then you have what, from a disability point of view, is an incredibly important provision. This is Section 188 of the legislation, the nondiscrimination provision. This is critical. There are specific extensive regs dealing with 188, including the submission by the state of how the state will administer the program, methods of administration from a nondiscriminatory perspective. Many of you may be aware that there was a Section 188 Disability Checklist that was issued—official checklist—by the Department of Labor, and there are efforts to update this to make this into more of a training and technical assistance guide of best practices.

Now, on February 19, 2015—just last month—the Employment and Training Administration issued what they refer to as a TEGL, a Training and Employment Guidance Letter, and the focus of it was to establish the vision of the workforce system and initial implementation ideas. And what you will see here in terms of the vision, they identified three areas—needs of businesses and workers should drive solutions; we should be excellent customer service; and the system supports strong regional economies. And in describing each of these, again, what ETA does, it makes specific reference to individuals with disabilities. So they will make a general statement, job seekers and workers, and then they will say including those with barriers to employment such as individuals with disabilities, must have the information and guidance to make informed decisions. So in this TEGL, in three or four different occasions, again, they make specific reference to individuals with disabilities.

And then they have a number of provisions dealing with implementation, and the last statement is start taking action now. Don't wait. Implementation is just around the corner in terms of July of 2015.

This TEGL also gives a schedule for hopefully there will be a proposed reg issued in the next month or two. There will be another proposed reg by DOL and ED on issues which are joint activities. There will be—Department of ED will issue proposed regs covering the Rehab Act. And final regs are expected a year from now.

So if I could summarize in just a few bullets the workforce Innovation Act, amendments to Title I from a disability perspective, it is whatever programs, projects, and activities are operated by American Job Centers, they must be physically accessible, programmatically accessible, technologically accessible for people with disabilities. And we must be identifying and adopting best promising and emerging practices for addressing and meeting the needs of individuals with disabilities.

Now I am going to take a breath, and then we are going to switch gears. We are going to move now to the overview of the amendments to the Rehab Act, particularly focusing on amendments to the Title I of the Rehab Act, which is, again, the state VR program. We are going to look at some structural changes that were made, the relationship of the VR program to the workforce development system, the theme—one of the themes of the legislation to ensure that the VR program is focusing on competitive, integrated employment, some key new definitions, some changes to supported employment. Another major theme, new mandates for youth with disabilities. Strengthening the provision for determining eligibility for VR services. State plan provisions, a new provision dealing with limitations on the use of subminimum wage, a new advisory committee that's established, and changes to the National Council on Disability.

So these are the topics that I will be covering in the next 15 or 20 minutes.

Let's start with the structural changes. Many of you who were following the reauthorization are aware that there were some efforts, particularly on the House side, to move the state VR program to the administration—I am sorry. Move it to the Department of Labor. The Congress decided not to move RSA and to keep it in the Department of education. However, Congress did make a number of changes, structural changes. It moved the National Institute on Disability and Rehabilitation Research and renamed it the National Institute on Disability, Independent Living, and Rehabilitation Research, moved it to the Administration for Community Living in HHS. It moved the independent living programs, and it moved the assistive technology state program as well to ACL. It eliminated a couple of programs, including projects with industry.

In terms of the relationship to the workforce development system, again, the key is there will be a unified state plan or a different option to have a combined state plan, and in the unified plan—this is important—the VR program remains distinct. But it is part of a generic workforce system. But the VR program remains distinct.

The plan, as I said earlier, must be approved first by RSA, then by ED, and then the Secretary of DDOL, and there's got to be a single four-year strategic plan that covers all the various core programs, including the VR program.

Now, as I said, one of the major themes of the legislation, which is repeated in numerous places throughout Title I, is to make crystal clear that the focus of the VR program is on increasing competitive integrated employment. And the legislation includes a definition, which is basically combining two phrases from the regulations. I am not going to read this whole definition. You could look at it later. But there is a definition of competitive integrated employment.

There is also a new provision dealing with customized employment that is included in the Rehab Act. And it is basically competitive integrated employment for an individual with a significant disability. Here are some of the key phrases—based on the strength and abilities of the individual and—key—negotiations with an employee—between an employee and carried out throw flexible strategies. And this negotiation is between the employer and the employee.

And then the legislation lists a number of flexible strategies for this negotiation between the employer and the employee. And they include things such as job exploration, working with an employer to facilitate placement, including customizing a job description, developing a set of job duties, work schedules that are specific to the individual. Representation by a professional chosen by the individual or self-representation to facilitate placement and providing services and support at the job location.

Supported employment has been in the legislation since, I believe, 1986, and there is just a minor change to the definition. One of the provisions said supported employment means competitive integrated employment, and now we've added "including customized employment, or employment in an integrated work setting in which individuals are working—"it used to say "toward competitive integrated employment." Now it says, "working on a short-term basis" time limited—"towards competitive integrated employment."

In addition, the legislation modifies a certain provision about how long supported employment services may be provided without a case-by-case extension. Currently, the legislation says 18 months. It would be modified to 24 months. So you can provide these services without a case-by-case extension for 24 months.

Then the next major theme of the legislation—which, again, is critical—is that there's a real focus on youth with disabilities—a significant focus. So what you have now is a mandate that the VR agency must reserve at least 15% of its allotment for what is now referred to as "pre-employment transition services." This is a new term. And pre-employment transition services must include things such as job exploration, work-based learning experience, workplace readiness training, self-advocacy. Again, those of you who are following with me, these are described more extensively in the Policy Brief. And the legislation also lists a number of permissive activities. These are all designed to help youth achieve an outcome of competitive integrated employment. In addition, there are some specific directives to maximize implementation of this, so there's a focus for coordination at the Secretary's level, requirements in the state plan to specifically describe how they are meeting the needs of youth with disabilities and the need for a designation of a local pre-employment transition coordinator.

In terms of supported employment, Title VI, you will all remember that in addition to supported employment under Title I, the legislation includes, under Title VI, additional funds for supported employment. A significant change is that half of the allotment under Title VI must be for youth, to assist them achieve the outcome of supported employment.

And then there is another important provision. For those of you who are familiar with supported employment, you know that there are time-limited supported employment services. As we said before, it used to be 18 months, 24 months, unless there's an extension. And then there was an obligation to identify extended services that would be provided to the individual after the time-limited provision. The legislation says for youth, you can actually use Title VI money to pay for extended services. Not to exceed four years. This is a major change included in the legislation.

In terms of an eligibility determination, there has been some question as to whether or not individuals with the most significant disabilities were being served by the program. It was also a concern that folks with developmental/intellectual disabilities, were often determined too disabled to benefit from VR. So this legislation makes it crystal clear that you cannot make decisions based on assumptions; they have to be individually based, and the determination of eligibility must be based on clear and convincing evidence, meaning—which is the, the highest civil standard. That means before you can deem somebody ineligible because they can't benefit, there has to be clear and convincing evidence.

In terms of the state plan, a significant new provision was added. Currently there is something called "order of selection." If there's not enough money to go around for all people who apply for VR, the VR agency must develop an order of selection and serve those first priority, those with the most significant disabilities.

The legislation includes a—we'll call it an exception to order of selection. It permits—it doesn't require; it permits—the state VRA agency to elect to serve eligible individuals, whether or not they are receiving VR services—whether or not they are receiving VR services—who require specific services or equipment to maintain current employment. To use VR money for that purpose. So a state may look at an individual who is currently employed but determine that that individual who is otherwise eligible but does not have an IPE, an Individual Plan for Employment, that individual can receive services or equipment to help them maintain employment.

There were significant changes made to the comprehensive system of personnel development, modifying what constitutes appropriate and adequate training. I, again, do not have the time now to be able to go into that in detail, but do know that changes were made there.

In terms of extended employment, the state must now report information to the Department of Labor Wage and Hour Division for individuals in extended employment. And then for the VR program, we are incorporating by reference the performance standards that are applied to adults and youth for the generic system.

There's also requirements for coordination with employers, with the Medicaid program, with the Ticket program.

Then there is a new provision, and the title of it is Limitations on the Use of Subminimum Wage. This is called Section 511 of the Rehab Act, and it is also referred to euphemistically as the kick in the butt provision.

This provision—before I go into the details—does not go into effect until two years after the effective date, so that would be July of 2016.

Let me try to, in the next five minutes or so, describe the key policies included in this provision. First of all, the provision applies to those entities that hold certificates under 14(c) of the fair labor standard Act, which allow the payment of special or subminimum wages. And what this says is no Ticket holder may compensate an individual who is age 24 or younger—so this is for youth—24 or younger—the first part of this provision—at a wage that is subminimum wage or less than the minimum wage unless one of the following conditions are met. You cannot pay a subminimum wage to youth age 24 or younger unless, one, the individual is currently employed as of the effective date of this section—that would be July 2016; two, the individual, before beginning work, has completed and produces documentation indicating that they've received available pre-employment transition services or transition services under IDEA; has applied for VR services and has either been deemed ineligible or, if deemed eligible, has an IPE and is working towards an employment outcome for a reasonable period of time without success and the case is closed.

So for youth 24 or younger, the entity holding the certificate, 14(c), cannot pay a subminimum wage unless they are currently employed as of the effective date; before beginning they have gone through—have received pre-employment transition services or transition services IDA; have applied and deemed ineligible by the VR agency or deemed eligible, has an IPE, working towards an employment outcome for reasonable period of time without success and the case is closed. In addition, the individual must be provided career counseling and information and referral, and it specifies who can provide these services. In addition, there is a construction clause, and it makes it clear that this provision in no way changes the focus of Title I of the Rehab Act VR program. Nothing changes the focus of the VR program to be on competitive integrated employment. There's another construction clause that prohibits a school district or a state agency from entering into a contract or other arrangement with a certificate holder for the purpose of operating a program for an individual who is age 24 or younger under which the individual is compensated at a subminimum wage. In other words, a school system cannot contract with a 14(c) certificate holder to operate for the school system a program under which work is compensated below the minimum wage.

Then there is another provision dealing with not the youth for the kick in the butt, but a provision for those who are in a certificate program who are receiving a subminimum wage, and this provision says you can't continue to pay the subminimum wage unless the individual is provided by the VR agency counseling, information, and referral that facilitates independent decision-making and is informed about self-advocacy, self-determination, and peer mentoring, training opportunities available, provided by entities that do not have a financial interest in the individual's employment outcome.

And this should be twice during that first year, where they are in the program, and annually thereafter. And then there are documentation and verification requirements. Again, the effective date is two years from after the date of enactment.

In addition, the legislation establishes—in addition, the legislation establishes an Advisory Committee on Increasing Competitive Integrated Employment. This Committee was established in January. It has already met once and is scheduled to meet again. I believe it is March 23 and 24. Yes, that's correct. And its duties are to find ways to increase employment opportunities for people with intellectual or developmental disabilities and other significant disabilities in competitive integrated employment; to look at the use of the 14(c) program and ways to improve oversight of the certificates.

Finally, the National Council on Disability, which is established to help provide guidance to Congress and the President on disability policy. They reduced the number of members from 15 to 9 and changed the process for appointment.

We're exactly at 3:00, and I'll now open it for questions.


Ladies and gentlemen, if you have a question or comment at this time, press the * key and then 1 on your touchtone telephone. If your question has been answered or you wish to remove yourself from the queue, press the # key. Again, for questions or comments, press the * key and then 1. One moment for questions.


Great. For those of you on the telephone, if you will just follow those instructions that were just given you on how to ask questions, then we’ll come back to you, and we will give you a moment to be able to do that.

So thank you very much, Bobby, for the comprehensive overview. This is a lot of information, and you know, as to how you actually present this information, because it has a legal policy context to it, and it's all right now pretty much just in regulatory language, and it will be interesting to see how this all plays out, definitely at the local level, with the states and the workforce boards and such.

We do have some questions that were submitted online, so I am going to start with those, then we'll switch over to the telephone to see what we have there as well.


Robin, if I could just—yeah, there's a lot of policy and legal mumbo jumbo, but really, this can be reduced to a couple very key principles that are not legal mumbo jumbo. People with disabilities are part of the generic system. When you say "all" are entitled to receive services, "all" means all. And "entitled to" means effective and meaningful opportunity. If you use a website, it should be accessible. If you use online systems, they should be accessible. If you have a physical location, it should be accessible. If you need to have accommodations or modifications to practices, to procedures, they must be done. And that, in a nutshell, is what it says. The rest of it is legal detail. In terms of Title I of VR, competitive integrated employment is a focus, with a particular focus on youth.


That's great. Thanks. That's good. I think that's a good way to boil that all down. So looking at our questions, one of them says the training that you spoke of in relationship to the requirements in that area, does that training also include how to determine workplace accommodations? I mean is there specificity in relationship to what the training itself is actually required?


Again, the training is generic to—in terms of the generic program of the American Job Centers to physical, programmatic, and technological. Now, programmatic would include accommodations in the workplace.


Okay. So will any of that be more specified or laid out in the regulatory language, do you think, or will that still be something that is left to the interpretation or assumption of, you know, at the local level? How will that—you know, when you use those terminologies and they are broad terminologies and we all kind of understand what all that means, will that be laid out in more specificity in any regulatory language?


Well again, if you will recall, what I said was the word “physical and programmatic access” was repeated maybe 10 times, but it is not defined in this legislation. It was defined in the Senate report accompanying the bill in the previous Congress. So for those of you who asked the question and others, I would strongly recommend that when the proposed reg comes out, you will see if they define that phrase, and if they do, compliment them. And if they don't, to recommend that the definition from the Senate report be included.


Great. Yes, I think that's—you know, I think some of us that have worked for a long time with the workforce system, there always is, you know, a difference in interpretation, and I think having those kinds of reports are great as long as people know they are there and use them. That's always the struggle, I think. And some states are better than others in how they roll these things out, too, in what they do and what they give to their folks.

Another question we have here is do the amendments apply to American Indian VR programs? For example, the new mandates for youth, would they apply across that particular program as well?


I do not know the answer to that question, but I would be glad to research and get the information back.


Great. If you could, Bobby, then we would be able to post that on the archive page so that people would be able to get that information. That would be perfect. Thank you. Appreciate it.

Just as a clarification—because we did have some people who were asking in the webinar room about the Policy Brief—the Policy Brief that Bobby alluded to was posted with your materials for today's session on the site prior to the start of the session. We do, then, post the recording of today's session, along with the handout materials, on the archive section of the website, so within 24 hours, you would be able to access that. But, you can also access that by just Googling the LEAD Center Policy Brief on WIOA, and you will actually come up with that link and you would be able to download it directly from the LEAD Center. So if you want to quicker than when it's going to be posted on our archive site, that would be another way to go ahead and go about getting that. I hope that's helpful to those of you that didn't do it prior or didn't see it on the materials side of the session.


Okay. Robin, if I can reiterate a point I made in the first three minutes of my presentation, my real hope here is that folks will take this PowerPoint, take the Policy Brief, and use that to help with the narrative to go along with the PowerPoint and use this and make presentations in your local community and share it with others. That's the real purpose of this. In an hour, we can't totally go through comprehensively, you know, a 500-page bill. But the real goal is the PowerPoint plus the Policy Brief will provide you with the outline in the PowerPoint and the text, the Policy Brief, for your own presentation.


That's great. Yeah, and I think that's important to outline. I don't think sometimes people realize the resources that are already out there that they can use for this kind of thing, and I think it is going to be really important. I appreciate you stressing that point, Bobby, that this is, you know, information that we need to get widely out to a greater audience of people, consumers, family members, service providers that work with people that may not be connected to some of these other systems like this, to get this information, so definitely at your local level, this is a great education opportunity for you to get this information out for sure.

We have somebody who has asked, Bobby, about where would they be able to locate any procedures and requirements applicable to the payment of the subminimum wage issue that you brought up. Is that something that's already out? Is that something that will be coming out? Is there anything additional that someone would be able to find out about that?


There is nothing additional at this point in time other than, again, in the LEAD Center Policy Brief there is an ex—much of that brief is bullets, but when it came to that section, it is very comprehensive in restating what was in the legislation. So there is no guidance with respect to implementation of that at this point in time.


And is there—from a timeframe-wise, what would you say that someone might start to look for something like that or see something like that?


Again, in the TEGL, at the end of the TEGL, they talked about the timeframe for anticipated regulations, and with respect to the Department of Education, they were talking, I think, the way I read it, in spring, so it should be in the next couple of months.


Depends on how you define spring and in what part of the country.


That's true too.


[laughter] Yeah, so great. Okay. Hopefully, then, people will look at that. Again, the ADA Center is keeping up with this stuff and will be putting information out, and we may be doing further training sessions down the road once some regulatory—once those regulations are released and such. But watch listservs and things of that nature for some of this information, for that more detailed stuff to actually come up.

So we have a question here—let me go to the phone and see if there are any questions on the phone before I continue with those that are coming from the electronic.

So operator, are there any questions that came from anyone who is on the phone today?


I am not showing any questions at this time.


Okay. So folks on the phone are either shy, or they might be submitting them on the webinar because they might be watching the webinar and listening on the phone. So we will go ahead and continue here with our questions.

So now I have somebody who is asking a question about the second part of your presentation where you started to talk about the Rehab Act, et cetera. I think there might be some confusion here, so maybe you can help clear up. So if all of the Rehab Act has been repealed and replaced, where did the old Section 508 accessibility regs end up? I think this is a misunderstanding of what actually happened with some of the changes to the Rehab Act.


Actually, this is—here’s a technical answer to that. What we have is the Workforce Innovation and Opportunity Act. Title I, which is the American Job Centers, the workforce development, was repealed and replaced. Then we have Title IV of the Workforce Innovation and Opportunity Act, and it did not repeal the Rehab Act. It had what is called "cut-and-bite" amendments. It added a sentence here, it added a phrase there, but it did not do anything to Title V, so no changes were made to 508.


Okay. And just as an FYI, there are new regulations coming out because Section 508, [inaudible] the U.S. Access Board, which was the agency responsible for the regulatory side of Section 508, they have gone through what they are calling a refresh of Section 508, and we actually have a webinar program scheduled for the 31st of this month, March 31, that we do in collaboration with the U.S. Access Board and the folks that are involved in information technology at the federal level, Section 508—I am sorry—yeah, 508 webinar—best practices webinar series. So if you are interested in finding out about that, that's actually going to be going through the one on March 31, which is going to be talking specifically about the changes to Section 508 through the refresh process. You can get that information on our website for potential participation and registration for that at www.ADAconferences.org/CIOC. And we'll get some more information out to people about that who might be interested in follow-up to that because there's lots of things going on in that regard as well.


So just a little addition, what the Access Board did is they had an Advisory Committee met. They had an advance Notice of Proposed Rulemaking asking a number of questions. They had a second Advanced Notice of Proposed Rulemaking asking an additional set of questions. And then within the last couple of weeks, there's now a Notice of Proposed Rulemaking that was published in the Federal Register, and it is now open for comments. I think it's through May, sometime?


Yeah, yes, it's in May, yeah. I can't remember. I think it's May 13 or something like that. I can't remember the exact date. I don't have that right in front of me right now. Yeah. And you can go onto the Access Board website and get all of the update, and they go through the whole process that they have been going through on Section 508, and you can get links there to all of that process as well. So that's another resource for you if you are interested in following what's happening with Section 508.

So here is an interesting question, Bobby—because, of course, this one always comes up—is there any new funding available or going to be made available to help carry out any of these new changes to this legislation? So what's the appropriation level, is there changes or anything happening in that regard?


In terms of the Rehabilitation Act, at least Title I VR, is a strange hybrid kind of law. It requires each year a certain increase, a minimum increase based on the cost of living. And that's all that's required. At the federal level, like at some states we have a distinction between the authorizing legislation, which authorizes, sets the rules and authorizes the appropriation of money. But the Appropriations Committee in a totally separate process appropriates the money. For the state VR program, there's a minimum that must be appropriated. Last year's plus cost of living. Then after that, it's total discretion with the Appropriations Committee, and we won't see those numbers or the answer to that question until the fall.


So that basically is a wait-and-see. So is it the anticipation that there will be additional funds allocated, or do you think it will be more of a level funding from what's previously been provided?


I think again, not level, but last year plus cost of living. To see more, we'll see. I just—I don't know. But I can tell you that the House Budget Committee issued its draft of what they would like to see in the House Budget this morning, and it called for dramatic—or no increases in domestic; significant increases in military; repealing Medicaid as we know it and make it into a block grant program, combine it with the CHIP program; change Medicare dramatically in terms of what it is and repeal Obamacare.

So we don't know what's going to happen in terms of because the budget kind of sets a blueprint for appropriations, and so we're just at the beginning of that process.


Great. Thank you. That's, I guess, a wait-and-see situation.

Okay. Here is another question. This one is what implementation advice would you give to state VR programs even though the regulations have not been finalized? What actions would you expect a state to be taking at this point in time?


I would be focusing primarily on their relationship with local school systems, state departments of education, and how they—the policy with respect to youth. Because that is the major thematic change.

The stuff on competitive integrated employment has been in place for the last ten years. There's just—and the provisions are in effect, and we really mean it. But the key changes are truly with respect to youth.

And so it's—that's where I would be focusing at this point in time.


Good advice. I think if anyone listened to you today, I couldn't tell them how many times that you, you know, talked about the changes that—(audio cut out)

(No audio coming through the webinar)


UKNOWN: Okay. I apologize.

(Overlapping speakers)

UKNOWN: Hold on, please. Again, I apologize.

UKNOWN: Testing, one, two, three. We are good to go.


Go ahead and bring her back in. Operator?


She's back in.


Okay. Thank you. So hopefully we are good here. So I apologize, folks. We had a little bit of problem with our telephone connection. So I am going to go back to the question here to Bobby. Sometimes technology isn't always our friend. So you've got a question here from someone who says that they are an independent—


They are an independent CAP?


Yes, agency. So folks that don't understand that, that's Client Assistance Program. Both our state—the state-level program by the Rehabilitation Act to provide individuals with an opportunity for appeals and such when they are having difficulties with VR services and such.

So anyway, what we are being asked here is besides what they already do with VR, are there any other things that these changes in the legislation will allow them to do? Are there any impacts specifically on CAP programs or services that CAP would be providing as a result of the changes to the legislation?


I think the answer is yes, but I am going to have to research it. I do believe the answer is yes in terms of the scope of their authority. But I don't have that jumping right out. I can, again, easily get back through somebody I know. I know exactly where I can find it. But given we have three or four minutes left, I don't—here is the Client Assistance Program. Reserve funds. Actually, the provisions here—it looks like it's just changing the funding levels and the authorization of appropriations for the CAP. Let me see if there's anything else. But why don't you ask the next question.

[Offline reading] It doesn't look like it. It looks like the changes to the CAP, Section 112, just look like they are money issues.



There are no questions on the line.


No questions on the telephone? Okay. So here's our next question. Section 1 ADA prohibits discrimination on the basis of disability. Why, then, are youth paid subminimum wage instead of minimum wage like everyone else?


Because the word "discrimination" applies to similarly situated folks, those who are qualified, which is defined as a person who, with or without reasonable accommodations, can perform the essential functions of the job. So if somebody can perform the essential functions of the job with or without accommodations, under current law, and that person has a disability and is treated differently, that's discrimination.

But the fair labor standard Act permits the payment of a subminimum wage, and Section 511 describes the circumstances under which that's permissible. So 14(c) permits subminimum wage and ADA and 188 prohibit discrimination, which, again, is defined as taking two similarly situated persons, one with a disability, one without, and if they are treated differently based on their qualifications, that's discrimination.


Yeah, so that's a good answer to that. The Fair Labor Act is another whole different issue in relationship to how it is written.

So we are getting close to the end of the hour. I have one last question which I think is a great way to kind of summarize and bring this all to a closure with a lot of the discussion we've had here today. So this is a person, was asking your personal opinion. They want to know, what's missing? What would you have preferred or would have liked to have seen included that would have potentially made WIOA better than it ended up as?


Wow! Having spent the last ten years trying to get some of these provisions in, I guess I am not sure I remember what I—ideally what I wanted. My major concern, to be quite frank, is that, first of all, I think we got a lot of the key provisions we needed in there in terms of physical, programmatic, technological access sprinkled throughout, making sure that all means all. That's critical.

But here's the point that still concerns me, even though I think they tried to address this. When I go out or in the past when I've gone out to visit American Job Centers, I'd get one answer, oh, of course we do programmatic access. Of course we comply with ADA. It's critical, absolutely essential. And then we go out for a beer, and after the second or third beer, they say let me tell you the truth here. I've got all these pressures to do these outcome performance measures, to show success, to show placements, to show increased income, et cetera. And in some cases I have to show cost benefit. Why would I serve people with the most significant barriers to employment? They'll just screw up my performance measures. Nobody's giving me enough money to do this. There are waiting lists.

So I guess my answer to that would be what I would have loved to have seen is ways to truly make those outcome performance measures, that criteria, recognize the legitimate need to have incentive to serve those with the most significant barriers, to not put pressure based on the criteria used to cream and serve those with the least needs. And I guess that's still the area that concerns me, even though they did make efforts to address that issue. I’m always concerned that of the unintended consequences of some of the provisions, in this case, some of the accountability provisions. I want to make sure that those with the most significant barriers are served, that providers are incentivized, not disincentivized, by serving those who are more expensive or who have more significant barriers to employment. And I am still not sure we are there.


Good points, and I think something that leaves all of us something to ponder. Those of us from state agencies and those that are advocating and working in that system, obviously something to take to heart as to what our agencies doing, and what are our agencies doing to make sure that everyone has access, and especially those that have significant disabilities, and what, you know, provide some new opportunities and what do we do to capitalize on those new opportunities for sure.

Well, thank you very much. We are at the bottom of our hour here, and I want to thank Bobby for his time and his willingness to share his expertise. As you can hear, he is a very well [inaudible] kind of a go-to person for a lot of these details and has been someone who has worked in this community on behalf of people with disabilities for a very, very long time. So again, thank you very much, Bobby. Everyone—


You are very welcome.


A reminder that the handouts, PowerPoint presentation as well as the two documents, were made available prior to today's session. If you had logged in onto the website. If you did not, they will be posted within the next 24 hours with the audio recording of today's session. A written transcript of today's session, edited transcript, will be published but not for the next seven business days because we need to go through and edit that. But the MP3 recording will be available.

I just want to remind people of our next month's session on April 21 of 2015. We will be looking at Punch-In, which is a resource for college and transition age students with disabilities regarding employment. We will be featuring that particular program and looking at that, so you will be able to register on the ADA—www.ada-audio.org website, or if you have questions, you can contact our office at 877-232-1990. So again, thank you on behalf of the ADA National Network for joining us for today's session, and at this time, you can disconnect. We will be sending out an email to you related to the evaluation and how to go about getting any of your continuing education recognition that you may need for today's session.

So again, thank you, everyone, and have a good rest of your day, and happy St. Patrick's Day for those of you that celebrate.


Ladies and gentlemen, thank you for participating in today's conference. This does conclude today's program. You may all disconnect.