Section 3 / Part 13
Effective Date: April 10, 2006
Extended (sheltered) employment
Synopsis of federal regulations
The regulatory definition of employment outcome under the vocational
rehabilitation (VR) program has been amended to refer to outcomes that
occur in integrated settings. Here are several pertinent
definitions:
Employment outcome means, with respect to an
individual, entering or retaining full-time or, if appropriate, part-time
competitive employment in the integrated labor market,
supported employment, or any other type of employment in an integrated
setting, including self-employment, telecommuting, or business
ownership, that is consistent with an individual's strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice.
Reference: Sec. §361.5 (b) (16)
Extended employment means work in a non-integrated
or sheltered setting for a public or private nonprofit agency
or organization that provides compensation in accordance with the Fair
Labor Standards Act.
Reference: Sec. §361.5 (b) (16)
Competitive employment means work:
(i) In the competitive labor market that is performed on a full-time or
part-time basis in an integrated setting; and
(ii) For which an individual is compensated at or above the minimum wage,
but not less than the customary wage and level of benefits paid by the
employer for the same or similar work performed by individuals who are
not disabled.
Reference: Sec. §361.5 (b) (11)
Integrated setting means, with respect to an employment
outcome, a setting typically found in the community in which applicants
or eligible individuals interact with non-disabled individuals, other
than non-disabled individuals who are providing services to those applicants
or eligible individuals, to the same extent that non-disabled individuals
in comparable positions interact with other persons.
Reference: Sec. §361.5 (b) (33) (ii)
In addition, the federal regulations now:
Require Rehabilitation Services (RS) to refer to local extended employment
providers:
a. Any individual with a disability who makes an informed choice to pursue
extended employment as his or her long-term employment goal.
b. Any individual who is determined ineligible (through the clear and
convincing evidence standard) based on a finding that the individual is
incapable of achieving an employment outcome in an integrated setting.
c. Any individuals who were initially found eligible for VR services,
but are later determined unable to work in an integrated setting.
Require that, before referring to local extended employment providers
an individual with a disability who chooses to pursue extended employment,
RS must:
a. Explain to the individual that the purpose of the vocational rehabilitation
program is to assist individuals to achieve an employment outcome in an
integrated setting.
b. Provide the individual with information concerning the availability
of employment options, and of vocational rehabilitation services, in integrated
settings.
c. Inform the individual that services under the vocational rehabilitation
program can be provided to eligible individuals in an extended employment
setting if necessary for purposes of training or otherwise preparing for
employment in an integrated setting.
d. Inform the individual that, if he or she initially chooses not to pursue
employment in an integrated setting, he or she can seek services from
the designated State unit at a later date if, at that time, he or she
chooses to pursue employment in an integrated setting.
e. Refer the individual, as appropriate, to the Social Security Administration
(SSA) in order to obtain information concerning the ability of individuals
with disabilities to work while receiving benefits from the SSA.
Permit State VR agencies to serve individuals in extended employment
settings for purposes of preparing those individuals for employment in
integrated settings. The key change is that extended employment, for purposes
of participating in the VR program, represents an interim step in the
rehabilitation process rather than an end point of that process. Justification
for providing services in non-integrated settings must be included in
the Individualized Plan for Employment (IPE). Participants in the VR program
who receive VR training services on a transitional basis in an extended
employment setting may also receive other VR services necessary for their
rehabilitation.
Acknowledge that some persons with disabilities may prefer to work
in extended employment facilities long-term. In recognition of that fact,
the regulations assure that those wanting to work in extended employment
can access the services they need directly from local extended employment
facilities.
Acknowledge that many jobs obtained by individuals with disabilities
under certain types of set-aside contracts authorized by the Javits-Wagner-O'Day
Act (JWOD) satisfy the definition of “employment outcome”
under the VR program. More specifically, those service-related and other
jobs performed under JWOD contracts or other programs that satisfy the
definition of “integrated setting” would constitute an “employment
outcome” for purposes of the VR program under these regulations.
State that the determination as to whether any job, including those
obtained under JWOD contracts, meets the regulatory definition of “integrated
setting”, and therefore qualifies as an “employment outcome”
for purposes of the VR program, must be made by State units on a case-by-case
basis.
Require annual reviews when:
a. An individual achieves an employment outcome in which the
individual is compensated in accordance with section 14(c) of the Fair
Labor Standards Act.
b. The State unit closes the record of services of an individual in
extended employment on the basis that the individual is unable to achieve
an employment outcome as defined by regulations.
c. An eligible individual through informed choice chooses to remain
in extended employment.
For each of these circumstances, RS must:
- Annually review and reevaluate the status of each individual for
2 years after the individual's record of services is closed (and
thereafter if requested by the individual or, if appropriate, the
individual's representative) to determine the interests, priorities,
and needs of the individual with respect to competitive employment
or training for competitive employment.
- Enable the individual or, if appropriate, the individual's representative
to provide input into the review and reevaluation and must document
that input in the record of services, with the individual's or,
as appropriate, the individual's representative's signed acknowledgment
that the review and reevaluation have been conducted.
- Make maximum efforts, including identifying and providing vocational
rehabilitation services, reasonable accommodations, and other necessary
support services, to assist the individual in engaging in competitive
employment.
RS policy
Determination as to whether any job meets the regulatory definition of
integrated setting, and therefore qualifies as an “employment outcome”
for purposes of the VR program, must be made on a case-by-case basis.
There is no set ratio of people with disabilities to people without disabilities
in the workforce that would by definition constitute an integrated work
setting. Level of pay and benefits, while they are often measures of quality
and consumer choice, are not pertinent to the determination of whether
a workplace meets the criteria for an integrated setting.
The counselor makes this determination of whether a workplace meets the
criteria for an integrated setting. Factors to be considered and documented
in the record of services include the following:
- Is the employment environment similar to that of the typical workplace
in the community? (Compare similar industries. For example, compare
a manufacturing firm to a typical manufacturing firm in the community.
Compare a retail outlet to a typical retail outlet in the community.
Compare a fast food restaurant to the typical fast food restaurant,
etc.)
- How does the percentage of workers with disabilities compare to
other typical workplaces in the community? Consider how employees
are assigned to specific production lines, work teams, or shift work.
(Again, compare similar industries.)
- Do workers with disabilities have the opportunity to routinely
interact with co-workers who are not disabled?
- Are the non-disabled workers functioning as typical co-workers,
or as job coaches, or in some other support capacity?
- Are the opportunities for social interaction inherent in the workplace
integrated? (For example, break schedules, break rooms, company functions.)
Federal ruling regarding Center Industries, Wichita
The U.S. Office of Special Education and Rehabilitation Services has
ruled that Center Industries Corporation, Wichita, satisfies the requirements
for the definition of “integrated setting.” Therefore, placements
at Center Industries constitute allowable employment outcomes (Status
26s) under the VR program when the conditions for Status 26 have otherwise been met. This ruling applies to Center Industries
only, and may not be applied to other entities. When placing individuals
in employment at Center Industries, the analysis and documentation requirements
specified in the RS Policy section above are waived. (Reference:
correspondence from John H. Hager, received February 24, 2005.)
Referance: Federal Technical Assistance Circular RSA-TAC-06-01: Factors State Vocational Rehabilitation Agencies Should Consider When Determining Whether a Job Position Within a Community Rehabilitation Program is Deemed to be in an "Integrated Setting"
(See Section 13 / Part 12)
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