April 8, 2021
Mr. David Cantrell, Deputy Director
Office of Special Education and Rehabilitative Services
U.S. Department of Education
400 Maryland Avenue SW, Room 5153,
Potomac Center Plaza,
Washington, DC 20202-5076
Re: RSA’s Proposed Frequently Asked Questions: Criterion for an Integrated Employment Location in the Definition of “Competitive Integrated Employment” and Participant Choice
Docket ID: ED–2021–OSERS–04
Dear Mr. Cantrell:
On behalf of the National Council on Disability (NCD), I write to thank the Rehabilitation Services Administration (RSA) for its frequently asked questions (FAQ) guidance regarding competitive integrated employment as well as to express concerns specific to Question 21 (“What if an individual with a disability is unsure if he or she wants to pursue a job position in “competitive integrated employment”?).
We first express our gratitude to the Office of Special Education and Rehabilitation Services (OSER) for re-examining its 2017 guidance to assist vocational rehabilitation agencies to understand the meaning of “competitive integrated employment” and improve the services provided to individuals with disabilities in obtaining their employment goals. We sincerely appreciate OSERS’s ongoing commitment to remove barriers that have historically misled individuals with disabilities receiving vocational rehabilitation services to believe they were exercising informed choices about their employment goals.
However, as it relates to Question 21, in what we believe can be a targeted but imperative fix to that FAQ, NCD recommends that RSA readdress, clarify, and correct information provided in response to Question 21. NCD, as an independent federal agency that provides advice to the President, his Administration, Congress, and federal agencies based on our comprehensive and objective analyses to inform policy development, improvement, and enforcement efforts, is not the first federal agency to conclude that sheltered work has historically failed to prepare individuals with disabilities to enter competitive integrated employment. A 2001 investigation by the Government Accountability Office found that only approximately 5 percent of sheltered workshop employees left to take a job in the community. The Centers for Medicare & Medicaid Services raised similar concerns after finding that Medicaid-financed pre-vocational services to sheltered workshops were intended to be time-limited services to help someone obtain competitive employment, however no specific limit was given. NCD reached similar and related conclusions in our 2012 investigation into the topic of subminimum wage employment. We found that many people remained in segregated training programs for decades and never obtained a job, justifying significant scrutiny and objection to the premises that sheltered workshops are productive prevocational training grounds and are reasonably limited in their span of time as purported temporary stops along a vocational pathway.
For those reasons, NCD believes that OSERS’s current response to Question 21 is overbroad, vague, and too ambiguous to serve as a consistent methodology for VR agencies to rely upon to determine when community rehabilitation providers’ (CRPs) non-integrated job training or work experience programs are “needed,” as well as with respect to the length of time permitted for these programs.
Currently, the proposed response to Question 21 states in relevant part:
A VR agency may provide job training or work experience to an eligible individual if such services are needed to achieve an employment outcome under the VR program and the service is listed on the individual’s IPE…Because the Rehabilitation Act and its regulations do not mandate that services be provided in an integrated setting, both the VR counselor and eligible individual could agree that job training or work experiences would be provided by a CRP in an activity that would otherwise not be considered “competitive integrated employment.” It is important to note, however, that these opportunities must be treated as training opportunities (e.g., be time limited) that will lead to an employment outcome under the VR program.
Given the long-standing concerns that non-integrated programs under CRPs have historically kept individuals with disabilities in a perpetual state of rehabilitation and training, NCD strongly encourages OSERS to clarify that non-integrated job training or work experience programs provided by a CRP may only provide services to individuals with disabilities upon demonstrating that its program has a documented curriculum that will provide specific skill(s) necessary to obtain competitive integrated employment under a program within a specified length of time (for example, not to exceed two years).
As your federal advisor, NCD requests the opportunity to meet with your staff in the near future to discuss this concern further. I encourage you to have your staff contact NCD’s Executive Director, Anne Sommers McIntosh (firstname.lastname@example.org), and NCD’s General Counsel and Director of Policy, Joan Durocher (email@example.com), to arrange a time to meet in the next couple weeks.
Thank you again for your leadership on these issues.
Andrés J. Gallegos
 Government Accountability Office, Special Minimum Wage Program, Centers Offer Employment and Support Services to Workers with Disabilities, But Labor Should Improve Oversight (Washington, DC: U.S. General Accounting Office, GAO-01-886, September 2001), 4.
 Centers for Medicare & Medicaid Services, Center for Medicaid, CHIP and Survey & Certification, “Updates to the Section 1915(c) Waiver Instructions and Technical Guide regarding Employment and Employment-Related Services,” CMCS Informational Bulletin (September 16, 2011): 2
 National Council on Disability, Subminimum Wage and Supported Employment (2012), available at: https://www.ncd.gov/publications/2012/August232012. (emphasis added).
 Frequently Asked Questions: Criterion for an Integrated Employment Location in the Definition of “Competitive Integrated Employment” and Participant Choice, 86 Fed. Reg. 13511 (proposed March 9, 2021) (to be codified at 34 CFR Part 361).