March 31, 2021
The Honorable Carol Dobak
Rehabilitation Services Administration
United States Department of Education
400 Maryland Avenue, SW
Washington, DC 20024
Re: FAQ 21-03
Dear Deputy Commissioner Dobak:
The National Federation of the Blind welcomes the opportunity to comment on the revised Frequently Asked Questions (FAQ 21-03).
The National Federation of the Blind is the premier nationwide civil rights organization of blind Americans. Headquartered in Baltimore, Maryland, the National Federation of the Blind has affiliates, chapters, and divisions in all fifty states, the District of Columbia, and Puerto Rico.
The National Federation of the Blind applauds the Department of Education’s (Department) efforts to provide clarification regarding its subregulatory guidance to vocational rehabilitation (VR) agencies and community rehabilitation programs (CRPs) in order for those entities to better assist individuals with disabilities in achieving high quality employment and making informed choices based on their employment goals. Furthermore, the National Federation of the Blind appreciates the careful and systematic linking of the information contained in the FAQs to statutory and regulatory requirements together with long-standing Department subregulatory policy interpretations
While sheltered workshops still exist, many CRPs have adopted new models, including supported employment, which work to place people with disabilities in competitive and integrated settings with necessary supports. The need to separate integrated from segregated work is still critical. Given the blurring of integrated and segregated employment models, the ability to identify one from another is more crucial than ever before.
Individuals who prefer segregated employment settings represent a very small proportion of blind people and others with disabilities. Blind people want to be competitively employed, to earn a living wage, and to be considered for promotions and advancements.
Comments on Q1. What constitutes “competitive integrated employment”?
The National Federation of the Blind appreciates the clear definition of competitive integrated employment. Specifically, we appreciate the language that, “To be considered ‘competitive integrated employment,’ a job position must satisfy three criteria related to wages/benefits, integration, and opportunities for advancement.” The criteria makes clear that no one criterion is sufficient to consider a job competitive integrated employment. The criterion that individuals with disabilities may interact with the public to some degree is not sufficient to be classified as competitive and integrated employment. To meet the competitive integrated employment definition, all criteria must be considered.
Comments on Q2. Why is it important to know whether a job position is considered “competitive integrated employment” for purposes of the VR program?
The Department points out that the Rehabilitation Act “… makes clear that the VR program must be carried out in such a way that individuals with disabilities are provided with the opportunity to obtain competitive integrated employment.” While an individual may elect segregated work, the purpose of the VR program is not to encourage or recruit blind people and others with disabilities for sheltered workshops. Individuals with disabilities are not eligible for VR services unless they are capable of and intend to achieve competitive integrated employment. This is a policy interpretation consistent with law and regulations and one that supports the aspirations of blind people and others with disabilities.
Comments on Q3. Must an individual with a disability choose competitive integrated employment?
The FAQs clarify that VR programs are responsible for providing eligible individuals with information about available employment opportunities while limiting VR services to training and supports that lead to competitive integrated employment.
Comments on Q4. Who decides whether a job position is “competitive integrated employment” – RSA or the VR agency?
National Federation of the Blind agrees that the determination of whether a job position meets the definition of competitive integrated employment must be made by the VR agency based on an evaluation of the position in question.
Comments on Q5. What standards must an employment location meet to be considered an integrated employment location for purposes of “competitive integrated employment?”
The Department’s response to Question 5 restates federal law. We believe the language is clear and emphasizes the distinguishing characteristics of competitive integrated employment as contrasted with segregated work.
Comments on Q6. Must an employment location meet both prongs of the criterion to be considered an integrated location for purposes of “competitive integrated employment?”
The National Federation of the Blind appreciates the emphasis on the need to satisfy both parts of the two-part criterion for an integrated location for purposes of competitive integrated employment.
Comments on Q7. Is the criterion for an integrated employment location in the regulatory definition of “competitive integrated employment” consistent with the statutory definition?
The National Federation of the Blind believes the regulatory and statutory definitions of competitive integrated employment are consistent, and is heartened to see this addressed in the FAQs.
Comments on Q8. What is meant by “typically found in the community,” as used in the definition of “competitive integrated employment?”
The National Federation of the Blind is encouraged to find a clear description of what is meant by “typically found in the community” in the Department’s response to Question 8. Specifically, we agree that “employment location settings established specifically for the purpose of employing individuals with disabilities are not considered “typically found in the community.”
Comments on Q9. How does a VR agency know whether a job position was formed for the purpose of employing individuals with disabilities?
The National Federation of the Blind understands the Department wishes to avoid blanket statements which may not account for specific situations between client and agency. All the same, VR agencies would be better served if the Department explicitly stated that jobs under the AbilityOne program (or comparable state use authorities) are not competitive integrated employment unless the VR agency determines otherwise. There is no productive reason for VR agencies to review thousands of jobs offered by AbilityOne and other similar programs when nearly all of those positions do not meet the criteria for competitive integrated employment.
In its response to Question 9, the Department states in part, “One factor that often signals a distinction between those job positions that are “typically found in the community” and those that are not is whether the job position is open to all applicants regardless of disability status. For example, if a job position is required by law to comply with a direct labor-hour ratio of individuals with disabilities, it is likely not considered “typically found in the community.”
Comments on Q10. What job positions could be “typically found in the community”?
As noted in our comments on Question 9, very few positions under an AbilityOne contract would meet the definition of competitive integrated employment. The National Federation of the Blind is not suggesting that all jobs within a CRP are segregated. Management positions, human resources positions, and so on may meet the definition of competitive integrated employment even though the CRP may exist in order to provide jobs for people with disabilities.
Comments on Q11. Why is the level of interaction between individuals with and without disabilities important in determining whether a job position is in an integrated employment location for purposes of “competitive integrated employment?”
The National Federation of the Blind agrees with the Departments response to Question 11 that “the best measure of integration in an employment setting for individuals with disabilities is to require parity with the integration experienced by workers without disabilities in similar positions.” Integration alone is only one criterion, and the law requires that at least three criteria are met in order for a VR client to be considered integrated and competitively employed.
Comments on Q12. What level of interaction is needed to satisfy the criterion for an integrated employment location?
The Department’s response to Question 12 provides important details on how to determine whether a specific job is in an integrated employment location. The National Federation of the Blind agrees that the intent is to ensure parity in the level of interaction between employees with and without disabilities.
Comments on Q13. What does “for the purpose of performing the job duties” mean with respect to the level of interaction needed for “competitive integrated employment?”
The National Federation of the Blind agrees that “the best measure of whether an employment setting is integrated is based on the level of interaction that occurs between employees with disabilities and non-disabled persons during the performance of job duties as compared to the interactions that occur between non-disabled workers performing the same or similar work and others. We appreciate the clarification “that these interactions, for purposes of a case-by-case analysis conducted by the VR agency, should not take into consideration casual and social conversations between individuals with disabilities and nondisabled persons at the workplace (e.g., those conversations that occur in the hallways and lunchroom when the employees are not performing work duties).”
Comments on Q14. What do “work unit” and “worksite” mean, as used in the definition of “competitive integrated employment?”
The National Federation of the Blind appreciates the Department’s detailed response to Question 14. Work may be performed at a commercial work setting, but that does not ensure the work performed by people with disabilities is competitive integrated employment. For example, we believe that the Department’s response to Question 14 makes clear that a janitorial crew primarily comprised of people with disabilities that cleans after hours when the building is mostly empty would not satisfy competitive integrated employment even though the work is performed in an ordinary place of business.
Comments on Q15. Do group employment settings, such as janitorial and landscaping crews in which individuals with disabilities earn competitive wages, satisfy the definition of “competitive integrated employment”?
The Department’s response to Question 15 states in part, “As noted in Q1, only those job positions that satisfy all three criteria related to wages/benefits, integrated employment location, and opportunities for advancement would be considered “competitive integrated employment.” The National Federation of the Blind supports and appreciates this important clarification.
Comments on Q16. Is there a ratio of individuals with disabilities to non-disabled individuals at an employment setting that would cause a job position to satisfy the criterion for an integrated employment location to be considered “competitive integrated employment?”
A statutorily required minimum ratio of people with disabilities should be regarded as inconsistent with competitive integrated employment unless specific circumstances reasonably lead to determining otherwise. Still, we understand and agree with the intent of the Department’s response that, “Rather than using a numerical standard as the measure, an ‘integrated setting’ is best viewed in light of the quality of the interaction among employees with disabilities and persons without disabilities, when compared to that of employees without disabilities in similar positions with other persons.” The National Federation of the Blind does not think it is productive for VR agencies to be pressured to make a “case-by-case” determination when there is no reason to think that such a determination is needed. Some CRPs object to the competitive integrated employment requirement in the Rehabilitation Act and would like VR agencies to stretch the definition to categorize jobs as competitive integrated employment even when they are clearly segregated, in some cases by statutorily required ratio requirements.
Comments on Q17. Is it possible for a VR agency to determine that a job position at an employment location satisfies the definition of “competitive integrated employment,” but another job position at the same location does not?
The National Federation of the Blind understands the Department’s reasoning for emphasizing a case-by-case evaluation. Circumstances at one job worksite may meet the definition of competitive integrated employment while another job at the same worksite may not. The National Federation of the Blind urges the Department to clarify that the case-by-case assessment is not intended to minimize pressure on a VR agency to make an erroneous determination of competitive integrated employment. Many have questioned why a segregated job paying $25 an hour with full benefits is a bad job while an integrated minimum wage job with no benefits is considered to be a good job. The “good jobs vs. bad jobs” argument has been widely used to pressure VR agencies to bend the rules or look the other way when making the case-by-case determination. Categorizing jobs as competitive integrated employment or not is not the same as categorizing the jobs as good jobs or bad jobs. The National Federation of the Blind supports the concept, but wishes to draw attention to the fact that VR agencies are faced with the responsibility of administering a technical definition of competitive integrated employment within the context of external (often political) pressure to define jobs as competitive integrated employment when they are not.
Comments on Q18. What factors should a VR agency consider when conducting a case-by-case analysis to determine whether a job position is “competitive integrated employment” for purposes of the VR program?
The National Federation of the Blind believes that the Department has developed helpful and well-articulated answers to the most common and important questions surrounding the definition of competitive integrated employment and its component characteristics. We especially like the explanation that competitive integrated employment may not be determined by a casual look at the number of people with disabilities working in a specific employment setting. For example, the National Federation of the Blind employs a relatively large number of blind individuals and others with disabilities. Still, the National Federation of the Blind clearly meets the definition of competitive integrated employment. This distinction is well-articulated in the Department’s response to Question 18.
Comments on Q19. Do the requirements of “competitive integrated employment” prevent an individual from exercising informed choice in deciding on a job position?
The National Federation of the Blind has been an active proponent of competitive integrated employment for many years. That does not mean that the National Federation of the Blind believes that individuals who wish to have segregated work should be denied the opportunity. It is falsely implied that blind people and others with disabilities had a range of options available to them and, after careful consideration, selected sheltered work as their preferred choice. In practice, it is our experience that most people who are working in segregated settings are not there because they chose to be there; they are there because they were given the choice of sheltered work or no work at all.
While we agree that the VR program may not, and should not, tell people where they may and may not work, the concept of choice only has relevance if the individual has more than one option available. For choice to matter, VR agencies must offer a range of services, training, and supports to make competitive integrated employment a meaningful and available option.
Comments on Q20. How can a VR agency help an individual with a disability to exercise informed choice in choosing a job position?
In its response to Question 20, the Department says in part:
“Despite the Rehabilitation Act’s heightened emphasis on the achievement of competitive integrated employment as an employment outcome under the VR program, we recognize there are times when an individual with a disability, after discussing all available employment options with a VR counselor … will choose to pursue work that is not considered “competitive integrated employment” and will not result in an “employment outcome” under the VR program.”
As previously stated, the National Federation of the Blind believes that choice must include more than one option. The National Federation of the Blind recommends the Department encourage VR agencies to offer services that will lead to competitive integrated employment even if the individual is working in a segregated setting.
The Department addresses this point by saying:
“Additionally, individuals may find it helpful when exercising informed choice to know that it is permissible under the VR program to participate in both integrated and non-integrated training and work experiences.”
An individual’s immediate need for a paycheck must not lead to a lifetime of segregated employment. VR agencies must actively and affirmatively reach out to individuals who are employed in sheltered work and encourage them to engage in training that may lead to competitive integrated employment.
Comments on Q21. What if an individual with a disability is unsure if he or she wants to pursue a job position in “competitive integrated employment”?
The National Federation of the Blind appreciates the Department’s explanation of the allowability of segregated work as training preparatory to competitive integrated employment. Unfortunately, this justification for sheltered work has been that sheltered work gives the individual valuable work experience and the opportunity to acquire skills that may lead to competitive integrated employment. Experience shows that this is a depiction not rooted in reality. Very few individuals leave sheltered work for competitive integrated employment.
While we understand that sheltered work is an option, we encourage the Department to stress the interim or short-term nature of segregated work. Congress defined an employment outcome as competitive integrated employment, and we believe the system must encourage competitive integrated employment, not simply offer it as “an option.” We recognize that there is a fine line between respecting the individual’s choice and pushing our values on an individual. Still, competitive integrated employment has demonstrable benefits and the VR system should not feel compelled to be neutral in its presentation of segregated work versus competitive integrated employment. They are not equal options.
Comments on Q22. What if an individual with a disability makes an informed choice not to pursue “competitive integrated employment”?
The National Federation of the Blind appreciates the Department’s explanation that an individual’s choice of a segregated work setting is not a one-time immutable decision. Individuals with disabilities want real jobs: the same jobs others have. Of course, that does not mean all people with disabilities, but the fact that specific circumstances may make sheltered work a desirable option for a small number of people with disabilities does not place segregation on a par with integration. Segregation is allowed, and the National Federation of the Blind has deep and sincere respect for all people who work regardless of the employment setting. We especially appreciate the Department pointing out that blind people and others with disabilities may always return to VR if the individual decides to pursue competitive integrated employment.
Once again, the National Federation of the Blind appreciates the opportunity to comment on the Department’s revised FAQ 21-03. Furthermore, if any additional clarification is required for any of our comments above, please do not hesitate to contact me at [email protected], or 410-659-9314.
Mark A. Riccobono, President
National Federation of the Blind