The U.S. Department of Education is expected to issue a proposal this month changing how the federal Workforce Innovation and Opportunity Act is implemented.
The 2014 law requires that individuals with disabilities age 24 and younger pursue competitive integrated employment before they can work in jobs paying less than minimum wage. Those already working for what’s known as subminimum wage can continue to do so, but must receive regular career counseling and information about training opportunities.
Regulations spelling out the rules were finalized and took effect under the Obama administration. However, last year the Education Department signaled that it would issue a notice of proposed rulemaking in September 2018 to “amend” the regulations. Nothing materialized at that time, but a fall agenda for the agency indicated that the new proposal is now slated for January.
“We were disappointed that the rule showed up on the fall agenda,” said Alison Barkoff, director of advocacy for the Center for Public Representation, one of more than two dozen disability advocacy groups that wrote to Secretary of Education Betsy DeVos late last year opposing any changes. “Putting a regulation on the unified agenda is a first stop in rulemaking, but doesn’t necessarily mean that the agency must do rulemaking.”
The groups said they were especially surprised to see that the Education Department is still pursuing plans to alter the regulations given that two recent federal reports — one from the National Council on Disability and another produced by the U.S. Senate Health, Education, Labor and Pension Committee — indicated that technical assistance is needed instead.
“We believe that opening the WIOA regulations will undermine implementation of the law, which establishes competitive integrated employment (CIE) as a clear national priority built on the goal of economic self-sufficiency established in the bipartisan Americans with Disabilities Act,” the advocates wrote. “We strongly believe that opening the regulations is unnecessary and that any concerns that the department may have, or misinformation that exists in the field, can be addressed most effectively through technical assistance and other sub-regulatory guidance.”
Qualms with the regulations emerged in a 2017 letter from a group of Republican members of Congress who worried that the rules were leading state vocational rehabilitation agencies to no longer refer individuals with disabilities to the federal AbilityOne Program which provides employment opportunities for those who have significant disabilities, typically in segregated settings.
The letter indicated that the current regulations are limiting “the ability of individuals with disabilities to find and keep employment.”
Kate McSweeny, vice president of government affairs and general counsel for ACCSES, a Washington, D.C. organization that represents disability service providers across the country, said her group believes that the current regulations are too narrow.
Since the rules took effect, McSweeny said that about 20 states stopped referring people with disabilities to AbilityOne jobs, many of which pay at least minimum wage and offer full benefits. At issue is what’s considered an integrated setting. For example, she noted that some vocational rehabilitation agencies may not be referring those with disabilities to a building maintenance position in a courthouse because the crew is exclusively comprised of workers with disabilities even though the work is conducted in a public setting and might offer interactions with judges, lawyers, and others.
“We just support keeping a full array of options,” McSweeny said. “We don’t want to see options taken away.”
While her organization would welcome guidance from the Education Department, McSweeny said that changes to the regulations themselves are needed.
Image credit: Photo by Author