Disability advocacy group TASH recently sent recommendations regarding disability employment policy to Senator Harkin (D—IA), Chair of the Health Education Labor and Pensions (HELP) Committee in the US Senate, Michael Yudin, Assistant Secretary of the Office of Special Education and Rehabilitaion Services (OSERS) in the Department of Education (ED), and Barbara Edwards, Director of Disabled and Elderly Health Programs Group (DEHPG) at the Centers for Medicare and Medicaid Services (CMS).  The recommendations, titled “Non-Legislative Changes to Improve Integrated Employment Outcomes,” recognizes the “importance of work in the lives of all people as an element of full participation and inclusion in society” and “affirms the right of all people with significant disabilities to full participation in community life with supports tailored to individual abilities and needs.” The document offers a set of policy recommendations to achieve “rapid and immediate development of individualized and integrated employment for all people with disabilities” and “the rapid and permanent replacement of segregated activity centers and sheltered workshops.” TASH describes their set of proposals as “a tempered approach that moves the system to a point where sheltered, sub-minimum wage work becomes the employment option of last resort rather than the most common employment option and where integrated employment becomes what we expect first and plan to achieve first.”

TASH makes the following recommendations, which the organization points out “do not need congressional approval,” for Medicaid Home and Community Based Services (HCBS) waivers:

1. Through regulatory change, eliminate sheltered work as a covered form of prevocational services under the Medicaid HCBS waiver for all youth and other new entrants.
2. Create a time limit on prevocational services, only if an individual is not otherwise working in integrated employment (ideally, at least an average of 15 hours per week) or actively pursuing an integrated job (ideally of at least 15 hours per week) with assistance funded by VR, Medicaid, Ticket to Work or the Workforce Investment system.
3. If necessary, compromise by not applying the time limit described in (2) above to people already in prevocational services at the point of the change.
4. Modify regulation/guidance for Day Habilitation/Day Services to reflect an expected focus on helping people explore and advance toward community employment.

Regarding the Department of Labor’s (DOL’s) 14(c) program, TASH suggests:

1. Establish a moratorium on new sub-minimum wage licenses for sheltered workshops or similar segregated facilities that do not currently hold a license.
2. Allow no new youth (age 16-26) to be covered under a sub-minimum wage license unless the youth is employed at (and the license is held by) a mainstream employer (not a sheltered workshop or similar facility, or an entity legally related to a sheltered workshop or similar facility).

TASH recommends that the Rehabilitation Services Administration (RSA) take the following administrative actions “as soon as possible:”

1. Issue policy guidance to state Vocational Rehabilitation (VR) directors, clarifying expectations regarding application of the “presumption of benefit” provisions in existing federal law. In particular, clarification should be provided on “clear and convincing evidence” standards that must be met in order to determine a VR applicant unable to benefit from VR services. The law states that prior to determining that a person with a disability is incapable of benefiting from VR services because of the severity of the person’s disability, the state VR agency must explore the individual’s work potential through a variety of trial work experiences, with appropriate supports, that must “be of sufficient variety and over a sufficient length of time” to determine whether the individual is eligible. RSA should provide guidance that clarifies what constitutes a “sufficient variety” and “sufficient length of time” (we suggest at least forty hours for each work trial). RSA should also require states to utilize best and evidence-based practices by adding Discovery as a required step in meeting the “clear and convincing evidence” standard; and trial work experiences with the intent of identifying a path to employability for each individual, rather than using these services with the intent of proving a person is incapable of benefiting from VR services.
2. Require every state VR agency to conduct a review of their data on closures of VR applicants/consumers with most significant disabilities before the development of an IPE. A determination of the reasons for these closures should be done and a plan to reduce the number of these closures by 50% within two years should be put into place immediately by each state VR agency.
3. Through policy guidance to state VR directors, clarify that every state VR agency is expected to have effective policies and procedures in place to fully and successfully serve individuals with the most significant disabilities even if they may have access to Medicaid HCBS waiver funding to prepare them for entry into VR services and to sustain the competitive employment outcomes that the state VR agency helps them achieve. The guidance memo should clarify the intent of existing Payer of Last Resort regulations when a VR applicant/consumer is also receiving services through a Medicaid HCBS waiver.
4. Facilitate capacity building by temporarily lifting the maintenance of effort requirement for state match, allowing state VR agencies to utilize innovation and expansion funds to increase supported employment provider capacity by targeting investments to facilitate expansion by existing supported employment providers demonstrating best performance to date, and allowing state VR agencies to apply for partial waivers of performance standards if it is making sufficient commitment to develop service provider capacity in best and emerging practices.
5. Through targeted technical assistance, offer state VR agencies support for updating and strengthening state policies, regulations, service standards, provider standards and rate/reimbursement strategies in order to support and incentivize supported employment services and outcomes for individuals with the most significant disabilities.

FMI: The recommendations document is available at http://tash.org/wp-content/uploads/2013/03/Final-TASH-Recommendations-for-Incremental-Change-to-Improve-Employment-Outcomes.pdf.