by Marc Maurer
From the Editor: Many Monitor readers will remember when a major complaint of blind people throughout the country was that they were being placed in sheltered workshops in lieu of good jobs in competitive industry. Often placement was advertised as being short-term for the purpose of evaluation and training, but, when the evaluations lasted for months and the training lasted for decades, it was clear that the goal of these shops was embodied in the name of their parent organization, National Industries for the Blind.
In 2001 the blind helped to bring about a major change in the law when Dr. Fredric K. Schroeder, the commissioner of the Rehabilitation Services Administration, implemented a change in regulation that said that placement in a sheltered workshop would not count as a successful employment outcome and that this designation would be reserved for placements where blind people were hired in competitive, integrated settings. This change ignited a firestorm of controversy with sheltered shops and National Industries for the Blind claiming this would shut down their operations and leave many blind people on the streets without any means of self-support. The Clinton administration, the Rehabilitation Services Administration, and the National Federation of the Blind said the rule change would have no such effect, and indeed we are not aware of any sheltered workshops for the blind that have closed as a result of this regulatory change.
Although almost a decade has passed since the enactment of this progressive regulatory change, individual workshops and National Industries for the Blind have continued to pressure the executive and legislative branches once again to allow placement in a sheltered facility to carry the same weight as placement of a blind person in the aerospace industry. Below is a letter from President Maurer to Secretary Alexa Posny arguing clearly and forcefully for the retention of the regulation as it now exists. This is what he said:
May 27, 2010
The Honorable Alexa Posny
Assistant Secretary for Special Education
and Rehabilitative Services
United States Department of Education
Dear Assistant Secretary Posny:
I serve as president of the National Federation of the Blind (NFB), the nation’s oldest and largest organization of blind Americans. The NFB has over 50,000 members comprising fifty-two affiliates (one in each state, the District of Columbia, and Puerto Rico), over seven hundred local chapters, and a number of special interest divisions. Since its founding in 1940, the NFB has advocated for better employment opportunities for the blind, and I am writing to you in support of that fundamental goal.
Because we are determined that blind Americans should be given full opportunity to enter the careers of their choice and because we are determined to assist blind people to find employment that is suited to their skills and aspirations, we are deeply concerned that National Industries for the Blind (NIB) has recently requested that you “issue new guidelines clarifying that the definition for ‘employment outcomes’ includes individuals who are blind and are working in the AbilityOne Program through National Industries for the Blind’s nationwide network of nonprofit agencies.” (I am attaching correspondence from NIB to this effect for your convenience.) The NFB strongly opposes the dramatic change in policy that is inherent in this request.
Although NIB currently supports a policy that blind people should be paid at least the minimum wage, several of the NIB workshops do not universally adhere to this policy. NIB officials have expressed the view that they cannot require the workshops to abide by the policy. In the past the placement policies of a number of state vocational rehabilitation agencies have emphasized placing blind individuals in NIB workshops because this placement was simpler and easier than finding employment for the blind in an integrated setting. The effect of such policies in the past has been to dump blind people into NIB agency workshops unless extraordinary pressure was brought to bear to prevent it. The result of dumping the blind into such workshops has been to doom blind clients to dead-end positions without opportunity for upward mobility or full opportunity for the employment of their talent. Although a few blind people have recently found their way into management positions in NIB workshops, the promotion of blind individuals into management in NIB is notable mostly for its failure rather than its success. NIB is hoping that you will use your power to assign blind people to the workshops. We believe that this is contrary to the policy of full employment opportunity contained in the Rehabilitation Act.
On January 22, 2001, the Office of Special Education and Rehabilitative Services (OSERS) issued final regulations to redefine the term “employment outcome” as it applies to the State Vocational Rehabilitation Services Program (VR program). Under these regulations “employment outcome” means an outcome in which an individual with a disability enters full- or part-time competitive employment in an integrated setting (66 Fed. Reg. 7250 et seq., codified at 34 CFR Part 361). The NFB endorsed these regulations during the rule-making process and continues to support them. We believe the revised and now current definition of “employment outcome” [34 CFR 361.5(b)(16)] properly reflects the Rehabilitation Act’s strong emphasis on the integration into society of persons with disabilities and on the ability of individuals with disabilities to achieve employment in integrated settings if necessary services and supports are provided.
One of the effects of the revised definition is that disabled persons in sheltered employment, extended employment, or other employment in non-integrated settings are no longer considered to have achieved an employment outcome in the VR program. This does not mean, however, that no individual participating in an AbilityOne job program can be considered to have achieved an employment outcome. In discussing these changes, OSERS noted that many jobs obtained by disabled persons under certain types of set-aside contracts authorized by the Javits-Wagner-O’Day Act (JWOD) (41 USC 46–48) would satisfy the definition of “employment outcome” as long as those jobs were performed in “integrated settings” as defined elsewhere in the regulations [34 CFR 361.5(b)(33)(ii)]. OSERS also stated:
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 [VR] units on a case-by-case basis. (66 Fed. Reg. 7251)
We urge you to retain this policy position. The determination of when an individual has achieved an employment outcome in the VR program is made jointly by the individual and a qualified rehabilitation counselor employed by the State VR agency after they agree that the individual is satisfied with and performing well in employment [34 CFR 361.56(c)]. OSERS should not issue any new policy that persons obtaining employment through JWOD contracts are automatically considered to have achieved an employment outcome in the VR program. To do so would interdict the joint decision-making between the disabled individual and rehabilitation counselor and would undermine the goal of competitive employment in integrated settings for people with disabilities.
Blind people must be able to decide for themselves when they have reached their employment goals; their cases should not automatically be closed by virtue of being employed in an NIB facility. NIB’s primary motivation in requesting this policy change is to give incentives to rehabilitation counselors to place consumers in its programs and facilities. We have nothing against NIB, and its record of employing blind individuals at or above minimum wage has certainly improved, but blind people must be allowed to determine for themselves whether an NIB placement is their desired employment outcome. The proper goal of rehabilitation is the successful employment of blind Americans in jobs that they find personally and professionally fulfilling, not the closing of rehabilitation cases or the support of NIB.
Thank you for your consideration of this critically important matter. If you have any questions, please do not hesitate to contact me.
Marc Maurer, President
NATIONAL FEDERATION OF THE BLIND