ForIndividualswithIntellectualand DevelopmentalDisabilitiesinDay ProgramsinNewYorkState
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The Shift from Day Habilitation to Competitive Integrated Employment for Adults with Intellectual and Developmental Disabilities: Opportunities and Obstacles in New York State April 2024
People with intellectual and developmental disabilities (ID/DD) are a highly underutilized workforce. Instead of engaging in competitive employment or effective employment training programs, many people with ID/DD spend their days in segregated day habilitation programs or languishing in their homes. This Report, commissioned by the Strong Center for Developmental Disabilities as part of its “Successful Transition to Employment Partnership” project to create a sustainable, high quality, community-based transition plan for adults with ID/DD across New York State, examines the challenges and barriers to competitive employment for people with ID/DD in New York State.
Among the findings identified by Disability Rights New York as part of this effort, the most fundamental is the lack of comprehensive and relevant data collection regarding the use of the array of programs offered in New York and measurable outcomes for participants. Other barriers include: the underutilization of customized employment, assistive technology, and remote work opportunities; the scarcity of accessible transportation; misinformation about the impact of employment on public benefits; and the lack of robust efforts to educate employers regarding the unique value employees with ID/DD bring to the job.
These findings reveal concrete action steps New York policymakers and state agencies can take to improve meaningful inclusion of people with ID/DD languishing in segregated day settings in competitive employment.
• Improve data collection by ACCES-VR, OPWDD, NYSCB, and other programs that provide training, support, and other assistance specific to people with ID/DD; use such data to assess and improve employment initiatives; and make it publicly available.
• Ensure no disincentives exist for people with ID/DD who attend day habilitation programs who wish to seek competitive employment.
• Promote the use of assistive technology assessments for people in day habilitation programs to develop even greater employment opportunities for people with ID/DD and other disabilities.
• Expand and promote the use of the EmployAbility toolkit created by the New York State Employment First Commission which connects employers and business owners with resources on how and why to hire people with disabilities.
• Expand the efforts of ACCES-VR and NYSCB to seek out contracted service providers who are able to provide increased availability of customized employment and on the job training opportunities.
• Develop flexible and reliable transportation options for people with ID/DD to access employment, including utilizing ride-share services (UBER, Lyft, etc.).
• Updating the Vehicle Modification policy with ACCES-VR.
• Expand remote work opportunities for people with disabilities.
• Ensure that provider agencies serving people with ID/DD are sufficiently educating their employees about the availability of employment programs, protections, and incentives.
People with intellectual and developmental disabilities (ID/DD) are a consistently underused and undervalued workforce. Despite fairly robust anti-discrimination laws, work incentive programs, developments in assistive technology, and a host of state and federal employment initiatives, the vast majority of people with ID/DD continue to spend their adult lives unemployed. Many of these individuals spend their days in day habilitation programs with limited exposure to the possibility of employment. This is precisely the challenge embraced by the Strong Center for Developmental Disabilities (SCDD), a leader in New York State in identifying and addressing the systemic barriers to successful employment faced by day habilitation participants. SCDD developed the “Successful Transition to Employment Partnership” (STEP) project to create a sustainable, high quality, community-based transition plan for adults with ID/DD across New York State. As a Step partner, Disability Rights New York (DRNY) prepared this Report and was funded, in part, by SCDD as part of this effort.
In support of the STEP project, this Report examines the programs available to people with ID/DD who are interested in seeking competitive employment as an alternative to remaining in a day habilitation program, as well as offering recommendations for systemic change. The Report updates and expands on the 2017 Report, New York State Facilitators and Barriers to Competitive, Integrated Employment for Youth with Intellectual and Developmental Disabilities – an outcome of the New York State Partnerships in Employment (NYS PIE) Systems Change project. New York was one of eight states to receive funding through the federal Administration on Intellectual and Developmental Disabilities to participate in PIE. The PIE project, which began in 2011, aimed to enhance collaboration between state agencies, the Federal Developmental Disabilities Partners, and other key stakeholders such as self-advocates, families, school districts, and employers. This Report describes changes that have occurred since the NYS PIE project and recommends additional system changes that are needed to foster employment of people with ID/DD in New York State. It is noteworthy that woefully insufficient data remains an obstacle to adequately assessing many of the individual programs’ success or lack thereof. This was identified by the NYS PIE Systems Change project and continues to be a factor for employment programs targeting people with ID/DD.
It is our hope that this Report will provide individuals with ID/DD in day habilitation programs and the people who support them an understanding of the employment services and incentives currently available, as well as a roadmap to aid in the building of a better and more efficient system to provide employment services in New York State.
The importance of employment in the lives of people with ID/DD cannot be overstated. Employment is an essential element of achieving full inclusion in all aspects of community living. Competitive employment bolsters self-esteem, improves quality of life, expands opportunities for social interaction, and enables people with disabilities to maintain their physical and mental health. Without employment, people with disabilities who live in their communities are forced to live at or below the poverty line. Recognizing the importance of competitive employment for people with ID/DD, New York State funds vocational rehabilitation and independent living services to evaluate, prepare, place, and support individuals with disabilities in a variety of employment settings. 1 However, significant systemic practices largely undermine effective use of employment services by many people with ID/DD receiving day habilitation services.
A staggering 70% of people with ID/DD accessing employment services in New York State participate in day habilitation programs certified by the Office of People with Developmental Disabilities (OPWDD). In 2022, OPWDD reported that 38,312 people with ID/DD attended day habilitation programs, which amounted to a cost of $130,588,225. 2 Day habilitation programs are costly and have significant physical and mental health implications for people with ID/DD. Many people languish in day habilitation programs rather than transitioning to full or part-time competitive, integrated employment. Efforts to transition people out of day habilitation services in NYS have been largely unsuccessful. 3
Lack of a clear path to transition from day habilitation programs to competitive employment combined with other systemic barriers has resulted in many individuals with disabilities who are seeking competitive employment remaining unemployed. In 2022, according to the United States Department of Labor, the unemployment rate for people with disabilities across the country was
1 Disability Rights New York, “New York State Facilitators and Barriers to Competitive, Integrated Employment for Youths with Intellectual and Developmental Disabilities” Available upon request.
2 OPWDD Services Funded by Fee-for-Service Medicaid in 2022 (https://opwdd.ny.gov/data/services-funded-fee-service-medicaid-2022) [Accessed 8 August 2023].
3 SCDD Mission Statement, https://www.urmc.rochester.edu/strong-center-developmentaldisabilities.aspx [Accessed 12 September 2022]
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8.2%, but in New York, the rate was much higher at 11.9%. 4 When looking at these numbers, we must remember that most persons with disabilities who are not employed or unemployed are not even calculated as a part of this statistic. This is because the Department of Labor only includes people who were actively looking for work within the four weeks prior to the Department of Labor’s statistical reporting period. Furthermore, statistics are not readily available on how many people with ID/DD are seeking employment and have been largely unsuccessful.
Despite these sobering statistics on unemployment among people with disabilities, an increase in remote work since the start of the COVID-19 pandemic may be creating some positive employment trends. In October 2021, 10.1% of people with disabilities were unemployed. 5 By October 2022, the US. Bureau of Labor Statistics (BLS) reported that the national rate of unemployment for people with disabilities had decreased to 7.4%. 6 This was closely watched by many to see if the increase in employment for people with disabilities would continue or fall off as pandemic shutdowns eased. In October 2022, BLS reported that nationally, 7.4% of people with disabilities were unemployed compared to 3.2% of people without disabilities. 7 This represents an increase in of about 500,000 jobs for people with disabilities from September 2021 to October 2022. 8 The rise in employment numbers is certainly a move in the right direction for people with disabilities. When speculating where these employment opportunities are coming from, there are a few thoughts. In the wake of the COVID-19 pandemic, there was a significant labor shortage which likely opened many doors to people with disabilities. In addition, the COVID19 pandemic caused many employers to adapt creatively by designing and transitioning to remote positions. Remote work can be favorable for people with disabilities with reduced stamina. It is far easier for a remote worker to take a break and come back to work when able.
4 NY Office of Budget Policy and Analysis, Employment Recovery is Slow for New Yorkers with Disabilities (April 2023) at 2, https://www.osc.state.ny.us/files/reports/pdf/disabilitiesemployment-recovery.pdf [Accessed 8 August 2023].
5 https://www.bls.gov/news.release/pdf/disabl.pdf [Accessed 6 December 2022].
6 https://www.bls.gov/
7 https://www.bls.gov/
8 https://www.shrm.org/ResourcesAndTools/hr-topics/behavioral-competencies/global-andcultural-effectiveness/Pages/Remote-Work-Helps-People-with-Disabilities-LandJobs.aspx?utm_source=marketo&utm_medium=email&utm_campaign=editorial~HR%20Daily~ NL_2022-10-24_HR-Daily&linktext=Remote-Work-Helps-People-with-Disabilities-LandJobs&mktoid=50078772&mkt_tok=ODIzLVRXUy05ODQAAAGHqYg07hwSphFY9Y0Wu0WY8dePdE-yC1buGlBEtEetMWmZmQ9pglIKp_49k99rn46P1jvqlII1d20XX5O4WcrRhrFiudcutUf1a8s5ny5mIwDoTo [Accessed 6 December 2022].
Although working remotely indefinitely cannot be seen as an entitlement, it may prove cost effective for many industries. If employers can offer their employees greater flexibility and employees are able to fulfill the functions of their job roles remotely, there is a good chance remote work will be here to stay. While the current available data on the impact of remote work does not specifically account for people with ID/DD, remote work opportunities should be carefully tracked by vocational services providers in the coming years.
Competitive employment is work that is performed on either a full or part-time basis in which individuals are compensated for their work. The compensation paid must be at or above the set minimum wage, but not less than the wages paid to individuals without disabilities performing work that is the same or similar. The individual must be employed in an integrated setting in which the individual can interact with individuals without disabilities. 9 Some individuals with ID/DD continue to work in what are called sheltered workshops. These sites are segregated employment settings where people with disabilities are paid sub-minimum wages. Advocates have tirelessly worked to change the laws that allow these settings to continue to operate. Currently, New York State is in the process of closing its last remaining sheltered workshops. In preparation for these closings, current participants are meant to be asked if they want to seek competitive employment or transition to a day habilitation program. This policy of asking individuals if they would like to seek competitive employment is specifically referenced in a 2014 federal law called the Workforce Innovation and Opportunity Act (WIOA). Many sheltered workshop participants have been in a segregated environment for upwards of 20 years. Even when asked, it is often far easier to choose a day habilitation program over seeking competitive employment. Transitioning from what is often a fully segregated work environment to a competitive job in the community is bound to be challenging, but not impossible with access to accurate information and the right supports.
OPWDD defines day habilitation as services that can assist people to acquire, retain, or improve their self-help, socialization, and adaptive skills, including communication, travel, and other areas
9 Krainski, D.J. (2013). Competitive Employment. In: Volkmar, F.R. (eds) Encyclopedia of Autism Spectrum Disorders. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-1698-3_1792
[Accessed 6 December 2022].
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in adult education. 10 Day habilitation programs are known colloquially as “day habs.” People with ID/DD participate in activities of their choice such as cooking, use of computers, recreation, artistic expression, exercise, music, and more with the goal of gaining skills in safety, personal care, and money management. Day habilitation activities are designed to foster the development of skills and appropriate behavior, greater independence, community inclusion, relationship building, self-advocacy, and informed choice. Day habilitation services are often based at a brickand-mortar single site. Another variation is “Day Habilitation without Walls” or “Program without Walls” (PWW) where participants start their day at a meeting place in the community and then travel to different locations. This concept is meant to expose individuals to various community locations, services, and events.
Additionally, people accessing day habilitation sometimes contribute to their communities through volunteer work. Although day habilitation programs do not fall within the category of employment programs, it is quite common for people in these programs to say they are “going to work” since they may be performing volunteer work.
Unfortunately, there is no transition program built into the day habilitation model to assist people in moving from volunteer work to competitive employment. Yet volunteer work is often a natural step for a person to take when seeking paid work. Furthermore, there is no formalized assessment process within the day habilitation model to evaluate a person’s performance during volunteer assignments. People with disabilities and their support staff often lack knowledge about employment options as an alternative to day habilitation. It is frequently assumed that day habilitation programs are the only viable alternative to spending the day at home.
People with ID/DD often face several barriers when they decide to seek employment. These barriers can be directly related to an individual’s disability such as difficulty accessing reliable, accessible transportation to a job interview or to and from work, or concerns about whether a given workplace is accessible or could be made accessible with accommodations. Even when a person is able to communicate a desire to move from day habilitation to an employment program, they face challenges. Who will support the individual to determine what type of job they want and then help them apply for the programs that will allow them to attain the needed
10 Office for People with Developmental Disabilities. 2022. Day Services. [online] Available at: https://opwdd.ny.gov/types-services/day-services[Accessed 6 December 2022].
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skills to reach their goals? Who will suggest needed accommodations and assist the individual with applying for them? Who will help to set up needed transportation to and from a job site? Who will be aware of all the different vocational support programs available?
Barriers can also be more systemic in nature. Systemic barriers to employment can include things such as facing employers who have negative attitudes about hiring people with disabilities or other forms of discrimination, or concerns about losing access to vital benefits like Medicaid or Supplemental Security Income (SSI) if they make too much money. Although there is no one size fits all solution to these issues, knowing where and how to access information will help clear the path toward employment.
Both the New York State Education Department Office of Adult Career and Continuing Education Services - Vocational Rehabilitation (ACCES-VR) and the New York State Commission for the Blind (NYSCB) offer benefits counseling to inform people about the various programs they can utilize to protect their eligibility for Medicaid and SSI while engaging in competitive employment. However, the most recent federal data available on the actual use of these services confirms that benefits counseling is greatly underutilized. In 2020, the latest year for which data was available, ACCES-VR provided benefits counseling to only 1,164 people. 11 The number is even smaller for NYSCB; in 2020 only 30 people received benefits counseling services. 12 It is also important to note that, these numbers include people with all types of disabilities; the number of people with ID/DD cannot be determined because the type of disability is not recorded.
Of all the barriers which a person with ID/DD faces when seeking competitive employment, transportation is one of the toughest to overcome. While many programs exist to assist people with ID/DD with finding a job, most programs do not offer transportation. Without access to reliable transportation, competitive employment can become impossible. People with disabilities have few options when it comes to transportation. While public transportation can be an option in urban areas, there are often no accessible options in rural areas. Outside of a city, paratransit services are extremely limited. The main drawbacks to paratransit services are reliability and
11 https://rsa.ed.gov/webform/rsa_2/submissions/9930 [Accessed 6 December 2022].
12 https://rsa.ed.gov/webform/rsa_2/submissions/9836 [Accessed 6 December 2022].
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utility. Paratransit services funded by Medicaid might be fairly reliable but can only be used to transport a person to certain approved locations, like a doctor’s office or therapist. Medicaidfunded transportation cannot be used for transportation to a work site offering competitive employment.
To assist with transportation to and from employment, ACCES-VR assists with funding vehicle modifications for eligible clients who are obtaining or maintaining employment. Many people, whom work with ACCES-VR, face barriers getting their vehicles modified. Disability Rights New York (DRNY) has found that people that seek funding from VR agencies to obtain these modifications face significant barriers with the approval process. Without access to an accessible vehicle people are unable to maintain employment. To address these systemic barriers DRNY has leveraged other outside resources. DRNY has hosted brainstorming and problem-solving sessions with three ACCES-VR vendors that regularly conduct vehicle modifications. DRNY has also engaged with 16 other Client Assistance Programs (CAPs) across the nation to discuss matters related to the vehicle modification process in their respective states. Through this process DRNY has learned more about the causes for these barriers, and ways around them. DRNY is currently working on addressing the systemic issue impacting people with disabilities throughout New York state.
The problem does not end there. Lack of transportation can also act as a disincentive to seeking competitive employment. Where a person in a day habilitation program is provided with transportation to and from the program, a person who chooses competitive employment must make their own transportation arrangements. The lack of transportation could be the persuasive deciding factor for a person who might be on the fence about seeking employment or going to a day habilitation program.
While it does not appear there are legal barriers to receiving day habilitation services while being employed on a part time basis, it can be challenging. There are fiscal disincentives for agencies that offer day habilitation programs to permit part-time attendance. Day habilitation agencies can bill OPWDD for their services as a full unit or half unit (full day or half day). 13 If an individual only attends day habilitation for a half day the agency will need to work to find another
13 OPWDD Administrative Memorandum-#2006-01 available at https://opwdd.ny.gov/system/files/documents/2020/01/group-day-hab-documentationrequirements_memo200601.pdf [Accessed 6 December 2022].
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participant to attend the other half of the day to maximize reimbursement for all available slots. This can be logistically difficult for agencies if they are trying to piece together multiple individuals who only attend half days. This can result in a loss of revenue for the agency if they are not able to fill the other half of the day. Also, even if they fill in the other half of the day, it is additional work for the agency. Agencies will need to coordinate things such as transportation and staff for two individuals, instead of one individual for the same amount of revenue. If an individual wanted to both work and attend their day habilitation program half days, they may have difficulty finding an agency that will accept them. If they are already receiving full day habilitation services from an agency, they may find it difficult to reduce their services to half days with the same agency. In practice, it may be difficult to work and attend a day habilitation program.
If an individual is receiving their services through Self-Direction, they may also have difficulties receiving both day habilitation services and supported employment. 14 This is because there is a finite amount of funds that someone has for their Self-Direction budget, and it may be difficult for an individual to afford the cost of both day habilitation and a vocational program such as supported employment. As a practical matter, this means that if someone would like to have supported employment services, they may need to give up something else in their budget like a day habilitation program. As it is difficult to procure a day habilitation program currently due to staffing shortages across the state, an individual may not want to take the risk of losing their spot in their day habilitation program for a potential job opportunity. Thus, while there may not be legal barriers, there are significant practical barriers to being in both a day habilitation program and being employed.
Advances in the field of assistive technology are helping to bring the possibility of competitive employment to a broader subset of people with ID/DD; however, assistive technology is markedly underutilized. Assistive technology is any piece of equipment, product, or system that helps a person with disabilities function in the world. Assistive technology can help a person address any number of areas of daily living which can be impacted by a disability: speaking, walking, typing, dressing, sitting comfortably, etc. Assistive technology does not necessarily have to be “high-
14 “Self-Directed Services” or “Self-Direction” refers to an OPWDD program through which an eligible person with ID/DD is given a budget for services and supports that allows the person to choose services and manage staff. For additional information, see OPWDD. 2022. Self Direction [online] Available at: https://opwdd.ny.gov/types-services/self-direction [Accessed 6 December 2022].
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tech” or expensive. In the context of employment, the majority of assistive technology can be obtained as a reasonable accommodation under the Americans with Disabilities Act (ADA) 15 In New York State, the Technology-Related Assistance for Individuals with Disabilities, or TRAID program is administered through the Justice Center for the Protection of People with Special Needs. 16 The TRAID Program provides access to assistive technology to any New Yorker with a disability through Regional TRAID Centers. Regional TRAID Centers provide device loans as well as hands-on training to people with disabilities. 17
Assistive technology can also be acquired by a person with disabilities through ACCES-VR or NYSCB. An evaluation is conducted to determine what type(s) of assistive technology would be needed for the person to be gainfully employed. In 2020, 1,047 people were provided assistive technology through ACCES-VR and 1,049 through NYSCB. 18 These numbers are considerably low in comparison to the total number of people who received vocational supports through these state agencies (50,783 through ACCES-VR and 6,008 through NYSCB in 2020). 19 While the field of assistive technology continues to grow worldwide, New York State needs to take a closer look at how this area can benefit people with ID/DD to make the transition from day habilitation to competitive employment.
More widespread use of assistive technology in various workplaces would open the door to employment for many people who might not otherwise be able to work without it. A 2019 blog post from the Administration for Community Living (ACL) summed up the possibilities afforded by assistive technology: “From offices to warehouses to farms, technology is everywhere in today's workplaces. Yet many people with disabilities cannot use the keyboards or touchscreens required to use much of this technology. One way to resolve this problem is to create new "addons" that enable people with specific disabilities to interact with technology. Assistive devices now make it possible for people with disabilities to interact with technology using our voices, switches, foot pedals, eye movements, subtle muscle movements, and even our brains ” 20
15 https://www.atia.org/home/at-resources/what-is-at/ [Accessed 6 December 2022].
16 https://www.justicecenter.ny.gov/traid-program [Accessed 6 December 2022].
17 Id.
18 https://rsa.ed.gov/data/view-submission-rsa-2?webform_submission_value=2 [Accessed 6 December 2022].
19 Id.
20 https://acl.gov/news-and-events/acl-blog/how-technology-creating-new-employmentopportunities-people-disabilities [Accessed 6 December 2022].
New York State has not ignored the importance of assistive technology for individuals with disabilities. For example, in the latest available WIOA Statewide Performance report (2020), it was noted that “[b]y 2020 all NYS Career Centers were equipped with a range of assistive technology that includes text scanning and reading software for individuals who are blind or visually impaired, adaptive computer systems, and accessible workstations.” 21 This is a good start, but more needs to be done.
For all the possibilities surrounding the use of assistive technology, the same systemic fragmentation and lack of information about how assistive technology works and how one goes about accessing, it hampers its more widespread use. If people who attend day habilitation programs were made more aware of what assistive technology is and how to obtain it, more people with disabilities would know that competitive employment is a possibility.
Several state agencies in New York provide oversight, funding, or both for vocational rehabilitation and employment services for people with ID/DD. The availability of services through these programs is dependent on whether an individual with a disability meets the prescribed eligibility criteria. The primary New York state agencies providing services to promote employment are:
A. New York State Education Department Office of Adult Career and Continuing Education Services - Vocational Rehabilitation (ACCES-VR)
B. New York State Commission for the Blind (NYSCB)
C. New York State Office for People with Developmental Disabilities (OPWDD)
D. New York State Department of Civil Service
E. New York State Department of Labor (NYS DOL)
A. Office of Adult Career and Continuing Education Services- Vocational Rehabilitation
1. Eligibility
To qualify for ACCES-VR services, an individual must meet three eligibility requirements. First, the individual must have a physical or mental impairment that is a substantial impediment to 21https://www.dol.gov/sites/dolgov/files/eta/performance/pdfs/PY2020/NY_PY20%20WIOA%2 0Annual%20Report%20Narrative.pdf pg 22. [Accessed 6 December 2022].
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employment. 22 Second, the individual must also be able to benefit from services by achieving an employment outcome consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. 23 Finally, the individual must require vocational rehabilitation services to prepare, secure, retain, or regain employment. 24 However, if an applicant has current documentation demonstrating they are a recipient of either SSI or Social Security Disability Insurance (SSDI), they will be presumed eligible. ACCES-VR cannot delay an eligibility determination to request additional documentation of a physical or mental impairment when the applicant is a social security beneficiary. 25
It is important to note that certain people with ID/DD may be diverted from ACCES-VR to OPWDD’s prevocational training programs. This typically includes people eligible for OPWDD services who can only work for short periods of time, people whose support needs require intensive services beyond what ACCES-VR can provide, or people who need a longer period of support to develop their work capacity. 26 ACCES-VR and OPWDD have a Memorandum of Understanding regarding the responsibility of each agency in providing employment services for such individuals. 27 However, the OPWDD and ACCES VR agreement letter also states that both agencies will make efforts to ensure that people with higher needs can apply for and receive ACCES-VR services once they reach a point where ACCES-VR can effectively serve them. 28
Once a person applies for ACCES-VR, they will be assigned a Vocational Rehabilitation Counselor (VRC). The VRC will decide if the information is sufficient to determine eligibility. This includes: (1) establishing the disability or disabilities; (2) identifying the impediment to employment; and (3) determining that there is a need for vocational rehabilitation services. If the individual does
22 N.Y. Office of Adult Career & Continuing Educ. Svcs. Vocational Rehabilitation, 202.00 Eligibility for Services Policy 1 (2009), http://www.acces.nysed.gov/common/acces/files/vr/policy202.pdf [Accessed 6 December 2022].
23 Id.
24 Id.
25 Adult Career and Continuing Education Services | NYS Education Department. 2017. 210.00P Serving Individuals Who Receive SSDI/SSI Procedure. [online] Available at: http://www.acces.nysed.gov/vr/21000p-serving-individuals-who-receive-ssdissiprocedure#serving [Accessed 6 December 2022].
26 See generally Agreement Letter https://eleversity.org/wp-content/uploads/2021/01/2014OPWDD-and-ACCES-VR-Agreement-Letter.pdf [Accessed 6 December 2022].
27 Id.
28 Id.
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not present enough information to establish the disability, ACCES-VR will obtain the required information as part of the assessment process. Existing information will be considered adequate if, in the counselor's judgment, it provides sufficient information to document the person's disability, employment factors, resulting impediments to employment, and the ability to benefit from services and requirements for services. Establishing the need for services is a critical decision because it is final. The decision relies heavily on the professional judgement of the ACCES-VR counselor. 29 One may see this as a subjective process and therefore, applicants must be aware of their rights when they are denied services.
When a person is found eligible for ACCES-VR services, the VRC will meet with them to discuss their goals and aspirations related to employment. Under ACCES-VR’s policies, the VRC will encourage individuals to be involved in the development of their Individualized Plan for Employment (IPE). The VRC can assist an individual with creating the IPE. The IPE will map out all the services needed for an individual to reach their employment goal. The IPE must be signed by both the service recipient and the VRC to be valid. 30
If an applicant with ID/DD is informed that they are being denied services based on the VRC’s determination that the applicant will not benefit from the services available through ACCES-VR, there is an appeals process. 31 Prior to being determined ineligible for ACCES-VR services, applicants must be offered a Trial Work Experience (TWE) to further determine if the applicant can benefit from vocational rehabilitative services. 32 During the TWE, the applicant will be placed in work settings in line with the person’s employment goals to observe the person’s interests, abilities, concerns, and capacities to perform successfully. The TWE must be provided in a variety of settings and should continue until the applicant exhibits that they can or cannot benefit from VR services. The VRC must consider if the individual needs a reasonable accommodation to help them perform to the best of their ability during the TWE. Services may include job coaching, rehabilitation technology, and other support services that would allow the individual to benefit from the experience. The TWE process generally lasts no more than 16 weeks and progress is
29 http://www.acces.nysed.gov/vr/20200-eligibility-services-policy [Accessed 6 December 2022].
30 New York State Department of Education Adult Career and Continuing Education Services, “Vocational Rehabilitation Services” http://www.acces.nysed.gov/vr/vocational-rehabilitationservices [Accessed 6 December 2022].
31 202.00P Eligibility Procedure http://www.acces.nysed.gov/vr/20200p-eligibilityprocedure#qualified [Accessed 6 December 2022].
32 Id.
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reviewed every four weeks. Supported employment agencies that ACCES-VR contracts with can be sought to assist with locating and developing the TWE. Decisions regarding whether services are required, what services are required, and why the services are required are based on the assessment of the VRC. If the TWE results in clear and convincing evidence that the individual cannot benefit from vocational rehabilitation services in terms of achieving an employment outcome, a determination of ineligibility will be made.
If the applicant is determined ineligible, they may appeal the ACCES-VR decision by requesting one or more of the following due process options: 33
• Informal Review: The applicant meets with a counselor and the counselor’s supervisor.
• Administrative Review: The applicant communicates concerns to the District Office Manager or other staff person.
• Mediation: The applicant communicates concerns to an Impartial Mediator.
• Impartial Hearing: The applicant states concerns before an Impartial Hearing Officer.
Staff from the Client Assistance Program (CAP) may represent the applicant or assist them in representing themselves at any due process review selected. In some cases, CAP can provide legal advice if the due process review proves unsuccessful. More information on Due Process Rights can be found in this brochure provided by ACCES-VR.
People who are eligible to receive ACCES-VR services must always remember to ask for the supports they need as the VRC may not readily offer services they may be eligible for. Applicants are encouraged to maintain records of calls and emails with their counselor as these may assist in the event that the person chooses to exercise their due process rights.
As the State vocational rehabilitation agency, ACCES-VR provides critical services to individuals with disabilities who are trying to transition from day habilitation programs to competitive employment. 34 These include:
33 ACCES-VR Due Process Rights http://www.acces.nysed.gov/common/acces/files/vr/dueprocess-brochure.pdf [Accessed 6 December 2022].
34 See generally Adult Career & Continuing ED Services (Vocational Rehabilitation) 010.00 Employment Outcome Policy http://www.acces.nysed.gov/vr/vocational-rehabilitation-services [Accessed 6 December 2022].
• Vocational Counseling and Guidance – The VRC will offer basic support and guidance on employment options, goals, and services.
• Assessments and Evaluations – The VRC will arrange for appropriate evaluations to be provided to help determine what the individual’s strengths and weakness are. Standardized tests and specialized evaluations can be arranged to measure cognitive abilities, sensory/motor skills, and aptitudes compared to a sample population. Customized career exploration assessments can look at the individual’s past education and work experience and provide a labor market analysis. Community based situational evaluations are also available and often help individuals determine if the employment goal is still what they want to do.
• Rehabilitation Technology – Rehabilitation technology is the use of technology to meet the needs of people with disabilities. Rehabilitation technology cuts barriers and gives more opportunities to people with disabilities in education, rehabilitation, employment, transportation, living at home, and recreation. Assistive/rehabilitation technology evaluations are used by ACCES-VR to determine how a device or service can enable a person with disabilities to successfully participate more fully in aspects of employment. Examples include eyeglasses, cochlear implants, and voice activated software.
• Special Transportation – Special transportation can be provided to access a service provided by ACCES-VR.
• Adaptive Driver Training – ACCES-VR may provide classroom instruction or driving classes on the road. Individuals will first attend an assessment to determine their abilities and/or potential to become a safe independent driver and/or identify vehicle modification requirements.
• Work Readiness – Work readiness is a series of classes where the participant works on developing job-related skills. Areas of focus can include social skills in a work setting, daily hygiene, effective communication, work behaviors, and tolerance. These soft skills classes can be held in community-based facilities or, when possible, in an integrated community setting.
• Training including tuition, related fees, required textbooks – These supports can be provided related to college or vocational training programs that fall in line with the agreed upon employment goal. Participants must first apply for federal and state financial aid before ACCES-VR will finance related expenses.
• Tutor, Reader, and Note Taker services – Participants that need additional help in a subject they are struggling with can be approved for a limited number of weekly tutoring
New York’s Protection & Advocacy System and Client Assistance Program
services. Readers and note takers can be funded through ACCES-VR if the college or vocational program does not have one available.
• Modifications to homes, vehicles, and worksites – Possibilities could include a ramp to exit the home, a lift to be able to get into a vehicle, or a specialized chair or desk in the workplace.
• Job Development and Placement – This service allows the participant to work with a provider that will assist an individual with securing an employer-based (unpaid or paid) work experience opportunity.
• Work Try Out & On the Job Training – A work try-out will give the participant an opportunity to explore his/her vocational choices and potential career paths through real work experience. On the job training is a hands-on method of teaching the skills, knowledge, and competencies needed for employees to perform a specific job within the workplace.
• Job Coaching – This service is typically provided as a component of supported employment services. ACCES-VR is only authorized to provide up to 48 months of supported employment services for individuals up to age 25. Adults over age 25 are eligible for up to 18 months but can request a waiver if additional months are needed. Should the participant require extended supported employment and has exceeded the limits as outlined by ACCES-VR, OPWDD can provide supplementary supports for the participant to continue to receive job coaching and other supported employment services.
• Occupational tools and equipment – Tools and equipment can be funded by ACCES-VR if required by a class that ACCES-VR is sponsoring in line with the participant’s agreed upon employment goal.
• Goods, inventory, equipment, and supplies for self-employment – If the participant is interested in operating their own business, ACCES-VR may support the participant with startup costs or equipment that may be needed to make the business a success.
• Occupational and business licenses 35 - ACCES-VR may provide the funding for an occupational or business license if it is required for the participant to achieve their employment goal.
35 Acces.nysed.gov. 2021. [online] Available at: http://www.acces.nysed.gov/common/acces/files/vr/crs2programguidelines.pdf [Accessed 6 December 2022].
New York’s Protection & Advocacy System and Client Assistance Program
Although ACCES-VR does not charge recipients for VR services, some services will only be available based upon the service recipient’s and/or their family’s financial need. 36 Since the vast majority of people utilizing OPWDD’s day habilitation services are Medicaid recipients, most of them are also recipients of SSI or SSDI. If a person receives SSDI/SSI, they are automatically presumed eligible for ACCES-VR. However, certain services can and cannot be provided. Assistive Technology and evaluations will be provided regardless of family income while college funding will not be if family makes too much This is important to be aware of to best understand the services people with ID/DD will have available to them through ACCES-VR.
Although ACCES-VR does not publicly provide a breakdown of services provided to specific disability categories, it is clear there are many missed opportunities for people with ID/DD. One of the most glaring “missed opportunities” is the seeming neglect of people using customized employment services. Customized employment is an approach to hiring, retention, and return to work that matches a job seeker’s strengths, the conditions under which they will be successful, and their interests to the needs of an employer.
37 Customized employment became a part of federal law with the passage of WIOA in 2014. Customized employment creates an arrangement between a worker with a disability and the employer that benefits both, while focusing on the strengths of the employee. For example, customized employment principles were used with a person with autism who was extremely meticulous. During a person-centered discovery process, it was learned that this person wanted to work in a hospital. A job developer was able to negotiate with a hospital for the person to set up the surgical trays. The person would go in weekly and set up the trays which freed up time for medical staff to devote to other tasks. Other examples may include wrapping plastic utensils in paper napkins to be included with take-out orders at a local restaurant or distributing faxes in a busy law firm as soon as they were received.
36 Adult Career and Continuing Education Services | NYS Education Department. 2022. Vocational Rehabilitation Services. [online] Available at: http://www.acces.nysed.gov/vr/vocational-rehabilitation-services [Accessed 6 December 2022].
37 National Disability Institute. 2022. DISCOVERY & CUSTOMIZED EMPLOYMENT. [online] Available at: https://www.nationaldisabilityinstitute.org/employment/discovery-andcustomized-employment [Accessed 6 December 2022].
New York’s Protection & Advocacy System and Client Assistance Program
38 Data from 2019 is the most recent data available, aside from 2020. 2020 data was heavily impacted by the pandemic and thus not considered a reliable measure.
39 Rsa.ed.gov. 2019. RSA-2 for FY-2019: Submission #1078 | Rehabilitation Services Administration. [online] Available at: https://rsa.ed.gov/webform/rsa_2/submissions/6855 [Accessed 3 February 2023].
In 2019, ACCES-VR supported a total number of 117,539 individuals with all disabilities throughout New York State. 40 It is noteworthy that in 2019, ACCES-VR provided customized employment supports to only 15 people. 41 Even where an initiative like customized employment seems ideal for helping people with ID/DD move from day habilitation to competitive integrated employment, one must question if employers are even aware that this service exists. The extremely low number of people taking advantage of customized employment suggests a lack of information and supports to facilitate its use. Another barrier to obtaining a customized employment arrangement may exist due to a lack of vocational programs offering the service.
On-the-job training was another underused service. On-the-job training is a hands-on method of teaching skills, knowledge, and competencies needed for employees to perform a specific job within the workplace. Many people with ID/DD are kinesthetic learners. This means they learn best by performing a task "hands-on." Increased use of on-the-job training is another opportunity to promote transition to competitive employment. 42
Finally, staff knowledge and training on working with people with ID/DD is also a likely barrier to robust access of people in day habilitation programs In a 2021 NYSCB Needs Assessment, 55% of NYSCB District Office Staff reported they need additional training or resources to effectively serve people with cognitive or developmental disabilities. 43 This was the highest training need of the 14 sub-populations identified Clearly, agencies responsible for facilitating access to vocational services would benefit from training specific to supporting people with ID/DD.
The NYSCB provides vocational services to people who are blind or have low vision. 44 It operates within the NYS Office of Children and Family Services (OCFS). NYSCB provides direct services
40 Id.
41 Rsa.ed.gov. 2019. RSA-2 for FY-2019: Submission #1078 | Rehabilitation Services Administration. [online] Available at: https://rsa.ed.gov/webform/rsa_2/submissions/6855 [Accessed 3 February 2023].
42 Effective Teaching Methods for People With Intellectual Disabilities https://www.mentalhelp.net/intellectual-disabilities/effective-teaching-methods [Accessed 6 December 2022].
43 Apter & O’Connor, New York State Commission for the Blind 2021 Needs Assessment (Sept. 20, 2021), at 35, available at https://ocfs.ny.gov/programs/nyscb/reportcard.php [Accessed 8 August 2023].
44 What is NYSCB https://ocfs.ny.gov/main/cb/about.asp [Accessed 6 December 2022].
through District Offices located throughout New York State. NYSCB’s vocational rehabilitation services may be applied for either online at www.visionloss.ny.gov, or in person at any one of the NYSCB offices.
To be eligible for vocational rehabilitation services through NYSCB, a person must meet two criteria: (1) they must be legally blind such that they face a substantial impediment to employment and (2) vocational rehabilitation services could help them gain or regain employment. 45 Applicants who are considered blind or have low vision as well as ID/DD can seek vocational services through NYSCB, provided the visual disability is the primary disability creating the greatest impediment to employment. If the applicant is legally blind and their ID/DD is their primary disability, they must seek services through OPWDD or ACCES-VR. NYSCB has primary responsibility for providing services to individuals who are legally blind and eligible for VR services regardless of any other documented secondary disability. Individuals with a primary disability other than legal blindness are always referred to the local ACCES-VR District Office. 46 In the event that NYSCB denies eligibility based on primary disability, NYSCB will provide the applicant with a VR Ineligibility closure letter along with an explanation on their rights regarding appealing NYSCB decisions.
A person who is blind or visually impaired, as determined by the Social Security Administration, is presumed to be eligible for NYSCB vocational rehabilitation services, provided that the individual intends to achieve an employment outcome consistent with their unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. 47 These individuals will be determined eligible unless there is clear and convincing evidence that the individual cannot achieve employment due to the severity of their disability. 48 The NYSCB VRC is
45 2021. NYSCB Handbook. [ebook] New York State Office of Children and Family Services /Commission for the Blind. Available at: https://ocfs.ny.gov/programs/nyscb/publications.php#pub5148 [Accessed 6 December 2022].
46 2021. NYSCB Handbook. [ebook] New York State Office of Children and Family Services /Commission for the Blind. Available at: https://ocfs.ny.gov/programs/nyscb/publications.php#pub5148 [Accessed 6 December 2022].
47Presumption of Eligibility https://ocfs.ny.gov/programs/nyscb/vr-manual/Ch.04.00Determination-of-Eligibility.pdf [Accessed 6 December 2022].
48 Id.
New York’s Protection & Advocacy System and Client Assistance Program
responsible for determining an individual's eligibility or ineligibility for VR services, including the need for trial work. This responsibility cannot be delegated. 49
Trial work is only offered when the VRC is unable to determine whether the applicant can benefit from VR services due to the severity of their disability. The applicant must be given the opportunity to work in realistic work situations to determine if they are “too severely disabled” to benefit from NYSCB’s vocational rehabilitation services. These realistic work situations are called trial work. Trial work must be provided in the career field the applicant is interested in and the NYSCB must provide any needed reasonable accommodations. Transportation must also be provided for the applicant to get to and from the trial work site. 50
An eligibility determination must be made within 60 days from the date that an application is received by NYSCB unless the individual agrees that an extension is warranted because of unforeseen circumstances beyond the control of NYSCB, or a trial work period is needed. Services necessary to determine eligibility are provided without regard to economic need status. 51
Similar to ACCES-VR, staff from CAP may represent the applicant or assist them in representing themselves at any due process review selected. CAP may be able to provide legal advice if the due process review is unsuccessful. 52
49 Eligibility for VR Services https://ocfs.ny.gov/programs/nyscb/vr-manual/Ch.04.00Determination-of-Eligibility.pdf [Accessed 6 December 2022].
50 4.00 (.02) Determination of Eligibility – Overview https://ocfs.ny.gov/programs/nyscb/vrmanual/ [Accessed 6 December 2022].
51 Id.
52 https://ocfs.ny.gov/publications/NYSCB/NYSCB-Pub5148.pdf [Accessed 6 December 2022].
New York’s Protection & Advocacy System and Client Assistance Program
The statistics above were provided by NYSCB’s federal oversight agency, the Rehabilitation Services Administration (RSA). In 2019, NYSCB provided vocational services to a total of 7,238 people who had a visual impairment or were blind. Like ACCES-VR, NYSCB does not publicly
53 Data from 2019 is the most recent data available, aside from 2020. 2020 data was heavily impacted by the pandemic and thus not considered a reliable measure.
54 Rsa.ed.gov. 2019. RSA-2 for FY-2019: Submission #1079 | Rehabilitation Services Administration. [online] Available at: https://rsa.ed.gov/webform/rsa_2/submissions/6856 [Accessed 3 February 2023].
provide a breakdown of services provided to specific disability groups. It is also noteworthy that both customized employment and on-the-job training were again underutilized services.
2017 55 56
190 people received occupational or vocational training
12 people received on the job training
175 people received job search assistance
191 people received job placement assistance
Also noteworthy is that in 2019, NYSCB reported to RSA that it provided vocational rehabilitation counseling to not one person. It is unclear what NYSCB considers vocational rehabilitation counseling as it is not identified in the NYSCB Vocational Rehabilitation Policy Manual. However, NYSCB does identify counseling and guidance as a service all counselors provide participants throughout a participant’s entire rehabilitative program. Additional clarity regarding available services is needed. Data was unavailable to measure successful outcomes of people with ID/DD who also receive vocational services through NYSCB. Data was also unavailable to determine the frequency of applicants denied services that are legally blind, but determined to have a primary disability of ID/DD.
OPWDD has several programs to facilitate the successful transition of individuals from day habilitation to competitive employment. This includes the Pathways to Employment program (PTE), Supported Employment (SEMP), and the Employment Training Program (ETP). Prevocational services are also available to qualified individuals needing additional assistance with more general training Customized employment is an approach that has become a facet utilized by each of OPWDD’s vocational programs. Customized employment principles are often more useful for individuals with ID/DD who have more complex needs. Unfortunately, statistics on the success rate of people with ID/DD finding employment using customized employment is not readily available through OPWDD
55 Data from 2017 is the most recent data available.
56 RSA-2 for FY-2019: Submission #1079 https://rsa.ed.gov/webform/rsa_2/submissions/6856 [Accessed 3 February 2023].
New York’s Protection & Advocacy System and Client Assistance Program
People with ID/DD who receive OPWDD services will learn about the various services available to them through what is called a “Care Manager.” The Care Manager will work to ensure that people with ID/DD receive the services they need to meet their goals. Along with the person’s Care Manager, other natural supports like family or friends may take part in the discovery process called “person centered planning.” Person centered planning is a set of approaches designed to assist an individual in planning their life and supports. This planning process is supported by state regulations. 57 Furthermore, all OPWDD recipients will have what is called a Life Plan. This document takes all information learned through the discovery process of person-centered planning and lays it out into a set of valued outcomes mirroring the person’s goals OPWDD mandates that “quality review needs to be ongoing and plans of support need to be adjusted to ensure outcomes are achieved.” 58 During the annual Life Plan meeting, the person with a disability is asked how they feel about where they live, the activities they enjoy, and if they want to seek employment. Although this sounds productive, staff, family, and others that support the person may inadvertently answer those questions on the person’s behalf. Robust discussion of the possibilities around employment may not occur. This can often result in the person with a disability remaining in the same programs they have been in when in fact they want change.
OPWDD’s Pathway to Employment program (PTE) came into effect in July 2014. PTE is a one-year program available to Home and Community Based Services (HCBS) Medicaid waiver participants with ID/DD who need assistance with transitioning to, keeping, or advancing in competitive employment. 59 Individuals receiving PTE services may also receive prevocational, day habilitation, and Supported Employment at the same time.
PTE participants receive assistance in identifying career goals, developing skills that will allow them to succeed in the workplace, and developing a detailed plan for competitive employment. 60 This includes services such as job discovery, job coaching, travel training, evaluation for assistive technology, benefits counseling and education, customized job development, and assistance with self-employment. 61 Over the course of the program, participants have three different community-based job exploration opportunities: paid jobs, paid internships, or volunteer
57 14 NYCRR 636-1.2.
58 https://opwdd.ny.gov/providers/person-centered-planning [Accessed 6 December 2022].
59 14 NYCRR § 635-10.4(h)(2)(ii).
60 14 NYCRR § 635-10.4(h).
61 Id. § 635-10.4(h)(1)(i).
New York’s Protection & Advocacy System and Client Assistance Program
The one-year period can be extended by OPWDD if warranted. If the service provider considers that an individual needs more than 12 months and/or additional hours of PTE services, the service provider may submit a written request to OPWDD, in the form and format specified by OPWDD, for an extension(s) of a period of time and/or numbers of hours. 63 OPWDD’s decision to approve an extension request will be based on the following:
• Whether the individual engaged (or will engage) in an internship or volunteer opportunity, and has the potential to be hired within six (6) months of the scheduled completion of the PTE service;
• Whether there is (or will be) a break in the provision of the PTE service due to an individual’s extended medical absence or personal hardship;
• Whether unforeseen circumstances prevent (or will prevent) the service provider from maintaining continuous delivery of the PTE service;
• The best interests of the individual; and/or
• The timeliness of the service provider’s request for an extension. 64
If an extension(s) is authorized by OPWDD, the extension(s) must not exceed an additional 12 months and an additional 278 hours of service. Additionally, there is a lifetime limit of a maximum of 556 hours of service delivery per individual receiving PTE services. 65
62 Id. § 635-10.4(h)(1)(i)(l).
63 OPWDD ADM https://opwdd.ny.gov/system/files/documents/2020/03/adm2015-07_0.pdf [Accessed 6 December 2022].
64 OPWDD ADM https://opwdd.ny.gov/system/files/documents/2020/03/adm2015-07_0.pdf [Accessed 6 December 2022].
65 Id.
New York’s Protection & Advocacy System and Client Assistance Program positions. 62 Transportation to and from community experiences is provided. When the one-year period of the service has ended, the participant will have developed a solid career plan that can be used to make progress toward their employment goals. The PTE service provider must share the career/vocational plan with ACCES-VR. Individuals with ID/DD will often transition to ACCESVR at this point where they will enroll in both OPWDD and ACCES-VR supported employment services. If it is determined that the person needs additional employment experience and/or training, they may enroll in other community-based programs to continue building community experience, skills, independence, career opportunities, etc.
The Supported Employment Program (SEMP) program provides individual supports needed to obtain, maintain, and advance in paid competitive jobs or self-employment in the community. 66 Much like the PTE Program, SEMP may be combined with other OPWDD programs to assist people to prepare for employment. For example, individuals receiving SEMP services may also receive prevocational, day habilitation, and PTE. The service takes place in integrated work settings in the community, which provides opportunities for regular interactions with individuals who do not have disabilities and who are not paid to provide services to people with a developmental disability. SEMP includes many of the same services available through the PTE program, as well as additional supports such as communicating with employers to negotiate potential jobs, reviewing an employee’s progress, and addressing the individual’s ongoing challenges in the workplace. 67 Individuals with ID/DD will typically transition to SEMP after they have received supported employment services through ACCES-VR when they still require assistance to successfully maintain their position.
There are two types of SEMP services available: Intensive SEMP and Extended SEMP. Intensive SEMP is available on a short term basis to assist job-seekers with ID/DD in finding a job or establishing self-employment and to put initial supports in place. 68 If someone continues to need job coaching services after 365 days, or needs assistance in reevaluating or changing the direction of their career, they may receive extended SEMP services. 69 People with ID/DD can receive either type of SEMP services on a one-on-one basis, or in groups of up to eight people. 70 SEMP is also available under OPWDD’s Self-Direction Program as a self-directed service, for which individuals with disabilities can hire their own staff. 71
A third employment program offered through OPWDD is the Employment Training Program (ETP). ETP offers job readiness skill development, job development, job coaching, and assistance
66 Id. § 635-10.4(j).
67 Id. § 635-10.4(j)(1).
68 14 NYCRR § 635-10.4(j)(2)(i)(a), (b).
69 Id. § 635-10.4(j)(2)(ii)(a), (b).
70 Id. § 635-10.4(j)(2)(i)(c), (ii)(c).
71 OPWDD Self-Direction https://opwdd.ny.gov/types-services/self-direction [Accessed 6 December 2022].
as needed to acquire other skills necessary to achieve a successful employment outcome. 72 ETP utilizes an internship where the individual’s salary is initially paid for by the ETP program while the individual continues to learn the skills necessary to satisfactorily perform the job. 73 In 2019, ETP provided services for more than 1,100 New Yorkers including high school students. OPWDD pays the wages of the individuals while they are learning the job, with the expectation that the business will then hire the person. 74
While statistics on participant numbers and costs of services by ACCES-VR and NYSCB are readily available on the RSA’s website, OPWDD is not as forthcoming Although SEMP and PTE appear to be designed to effectively lead people with ID/DD to employment, a lack of data makes it difficult to measure how impactful these programs truly are. In 2020, OPWDD reported that 44,739 people with ID/DD attended day habilitation programs, but only 9,680 people participated in SEMP and only 690 in PTE. When looking at these numbers, it appears that OPWDD’s employment programs should be utilized more. It should be noted, like ACESS VR and NYSCB, participation in OPWDD’s employment programs was heavily impacted by the COVID-19 pandemic. OPWDD reports in their strategic plan that pre-pandemic employment rates of people with disabilities was 34.4% for people ages 18-64 and 76.4% for people without disabilities. 75 Because we were only able to find data relating to SEMP and PTE from 2020, it is difficult to gauge whether these figures are representative of normal usage of OPWDD’s employment programs.
Alongside the various programs available to help New Yorkers with disabilities find employment, there are also several programs which serve to incentivize people with disabilities to want to seek employment. Various sources report that people with disabilities often forgo seeking employment because they are concerned that if they were to make too much money, they would lose access to critical benefits such as SSI and Medicaid.
72 OPWDD Employment and Training Supports. https://opwdd.ny.gov/typesservices/employment-training-and-supports [Accessed 6 December 2022].
73 Id.
74 https://static.prod01.ue1.p.pcomm.net/umass/content/state-accomplishmentreports/NY_V2-02-2021.pdf [Accessed 6 December 2022].
75https://opwdd.ny.gov/system/files/documents/2022/05/opwdd-507-draft-final5.6.22_acc.pdf [Accessed 6 December 2022].
New York’s Protection & Advocacy System and Client Assistance Program
The Medicaid Buy-In Program for Working People with Disabilities is a program that allows working New Yorkers with disabilities to earn income above the income limit of $16,800 (for an individual) without the risk of losing their Medicaid coverage. 76 Prior to the existence of the Medicaid Buy-in Program, New Yorkers with disabilities were forced to “spend-down” excess resources in order to keep their Medicaid coverage. The Medicaid Buy-in program allows eligible New Yorkers to avoid having a spend-down while allowing them to keep their Medicaid Coverage. 77
To be eligible for New York State’s Medicaid Buy-in Program a person must:
• Have a paying job:
• Reside in New York State;
• Be between the ages of 16 and 65;
• Be classified as having a disability by either the Social Security Administration (SSA) or the State or the New York State Medicaid Disability Review Unit;
• Be a U.S. citizen, a national, a Native American or an immigrant with satisfactory immigration status;
• Meet the income and resource limits; and
• Pay a premium, if required. 78
As of the date of this Report, New York State is not collecting premiums for the Medicaid Buy-In Program. Applying for the Medicaid Buy-In Program is relatively simple. The form can be found online at: https://www.health.ny.gov/forms/doh-4220_dd_access.pdf
The New York State Employment First Commission’s EmployAbility initiative provides information on financial and tax incentives, how and why hiring people of all abilities is good for businesses,
76 https://www1.nyc.gov/assets/ochia/downloads/pdf/all_populations_medicaid.pdf [Accessed 6 December 2022].
77 https://www.health.ny.gov/health_care/medicaid/program/buy_in/docs/working_people_with _disabilities.pdf [Accessed 6 December 2022].
78 Id.
New York’s Protection & Advocacy System and Client Assistance Program
and where to find qualified employees. 79 The EmployAbility Toolkit was compiled by a consortium of New York State agencies and disability organizations including the Inclusive Workforce Alliance (IWA) and Our Ability, Inc. Employers can utilize the handbook to learn about various financial incentives and tax credits for businesses that employ people with ID/DD and other disabilities. 80
Some tax credits outlined in this toolkit include:
• Work Opportunity Tax Credit (WOTC),
• NYS Workers Employment Tax Credit (WETC),
• NYS Workers with Disabilities Tax Credit (WDTC),
• Disabled Access Tax Credit,
• Barrier Removal Tax Deduction
The EmployAbility Handbook also outlines incentive programs for businesses who want to work with ACCES-VR, NYSCB, and ETP. Additionally, there are resources included to dispel myths and misconceptions about hiring people with disabilities. This Toolkit can help businesses drive performance by leveraging disability inclusion in the workplace, supply chain, and marketplace. 81 More information about the EmployAbility Toolkit can also be found on the OPWDD website.
PASS is a program operated by the SSA to assist people with disabilities become financially selfsufficiency through employment. People who receive SSI or SSDI, or who would be eligible to receive SSI if they had fewer countable resources, are eligible to participate in PASS. A person must have other income or resources besides SSI in order to participate in PASS. PASS is a written plan which allows a person to set aside income or other resources to help them achieve their employment goals.
79 https://opwdd.ny.gov/community-involvement/about-employability [Accessed 6 December 2022].
80 https://opwdd.ny.gov/community-involvement/about-employability [Accessed 6 December 2022].
81 https://opwdd.ny.gov/community-involvement/about-employability [Accessed 6 December 2022].
New York’s Protection & Advocacy System and Client Assistance Program
Money set aside under a PASS plan does not count against the $2,000 resource limit for SSI. This allows a person to keep up to their full SSI payment while pursuing employment. A PASS plan can help a person pay for transportation to and from work, purchase a vehicle, pay tuition and fees related to education or job training, pay for childcare, attendant care, and other expenses. 82
A PASS plan must be in writing and must be approved by the SSA.
A PASS plan must:
• Identify a career goal;
• Outline all the steps necessary to reach that goal;
• Specify what things or services a person will need to reach their employment goal;
• Identify “several” cost estimates for the things and services needed to reach the goal;
• Provide a plan to keep PASS funds separate from any other money (e.g., a separate bank account);
• Include completed form SSA-545-BK; and
• Must include a detailed business plan if a person intends to use the PASS plan to achieve self-employment. 83
It is possible to make changes to a PASS plan, but they must be submitted in writing and approved.
PASS plans could be very powerful tools for helping people with disabilities obtain employment, but the most recent available data shows that the number of people utilizing PASS plans is low. This is possibly due to the relative complexity of enrolling in the PASS program. In addition, programs like ACCES-VR and the NYSCB may not actively educate their participants about the program. No data exists offering information on how many people with ID/DD are utilizing PASS plans.
ABLE Accounts were created as a result of the Achieving a Better Life Experience Act of 2014- also known as the ABLE Act. To open an ABLE account the following criteria must be met:
82 https://www.ssa.gov/pubs/EN-05-11017.pdf [Accessed 6 December 2022].
83 https://www.ssa.gov/pubs/EN-05-11017.pdf [Accessed 6 December 2022].
New York’s Protection & Advocacy System and Client Assistance Program
• The applicant must be diagnosed with a disability before age 26 and must receive SSI or SSDI, or
• a disability must be present before age 26 and at least one of the following requirements must be met: 84
• The individual has a written diagnosis from a licensed physician documenting a medically determinable physical or mental impairment which results in marked and severe functional limitations, which can be expected to last for at least a year or can cause death, OR
• The individual is classified as blind (as defined in the Social Security Act), OR
• The individual has a disability that is included on the Social Security Administration’s List of Compassionate Allowances Conditions
ABLE accounts are a special type of savings account which allows a person with a disability to save money without going over the SSI resource limit of $2000. Unlike a special needs trust, an ABLE account does not need to be managed by a third-party trustee, giving an individual direct control of their money. The total allowable yearly contribution to an ABLE account is $16,000 per year. Money can be placed into an ABLE account by the individual who creates the account, family, or friends. 85
The money placed into an ABLE account is tax free as long as it used for specific statutorily listed expenses such as education, housing, transportation, assistive technology, employment training and support, financial management, and health care expenses. 86
There are limits to how much money a person can have in an ABLE account. The maximum allowable amount in New York is $520,000.
Additionally, if a person with an ABLE account is employed, but does not participate in an employer sponsored retirement account, they can make an additional contribution up to the lesser of: (1) the ABLE account owner’s compensation for the tax year, or (2) the poverty line amount which, in 2022,
84 https://www.mynyable.org/home/what-is-ny-able/faqs.html [Accessed 6 December 2022].
85 https://www.mynyable.org/home/what-is-ny-able/faqs.html [Accessed 6 December 2022].
86 Id.
York’s Protection & Advocacy System and Client Assistance Program
is $12,880. In New York State a person can open an ABLE account online by going to: https://www.mynyable.org/nyabletpl/uii529enroll/gettingStarted.do
Ticket to Work (TTW) is a free and voluntary program funded through the SSA that allows people with disabilities between the ages of 18 and 64 to receive SSI or SSDI while pursuing competitive employment. 87 Employment Networks (ENs) are state agencies or private organizations that the SSA has approved to provide services through the TTW program. 88 As New York’s VR agencies, ACCES-VR and NYSCB act as ENs for the purposes of the TTW program. 89 Beneficiaries work with the EN of their choice to develop an Individual Work Plan (IWP). 90 This plan can include services such as career counseling, job placement, and ongoing employment support. 91 The most recent TTW Evaluation Report available concludes: “Ticket to Work . . . [is] having a limited but positive effect on the employment of Social Security disability beneficiaries and has motivated some beneficiaries to pursue employment.” However, the report goes on to conclude that “[a]lthough we find evidence that TTW is targeting individuals interested in employment, rigorous impact analyses failed to provide strong evidence of its impact on employment. [This] confirms earlier findings that TTW has had a significant and positive impact on service enrollment but found no consistent evidence that TTW affected employment and benefit receipt.” 92
The main take away seems clear: the TTW Program has great potential to help people with ID/DD find and keep employment, but too few people are utilizing it People with ID/DD and their service providers require more education on the many work incentive programs of SSA.
87 Social Security Admin., Ticket to Work Program Overview, https://www.ssa.gov/work/overview.html [Accessed 6 December 2022].
88 Id.
89 https://nyess.ny.gov/docs/nyessbrochure.pdf [Accessed 6 December 2022].
90 Ticket to Work, Individual Work Plan, https://yourtickettowork.ssa.gov/employmentnetworks/individual-workplan.html#:~:text=The%20Individual%20Work%20Plan%20(IWP,achieve%20the%20beneficiary' s%20employment%20goal. [Accessed 6 December 2022].
91 Ticket to Work Program Overview https://yourtickettowork.ssa.gov/employmentnetworks/individual-work-plan.html [Accessed 6 December 2022].
92 Executive Summary of the Seventh Ticket to Work Evaluation Report available at: www.ssa.gov/disabilityresearch/documents/Report%207%20Exec%20Summary%20Final%20v2. pdf [Accessed 6 December 2022].
New York’s Protection & Advocacy System and Client Assistance Program
In addition to employment programs specifically tailored to people with disabilities, New Yorkers are also able to utilize a variety of programs administered by the New York State Department of Labor and the New York State Department of Civil Service.
New York State DOL operates a single point of access to all employment related services and supports known as New York Employment Services System (NYESS). 93 Among the services provided by NYESS is the One-Stop Operating System which connects job seekers to employers and employment supports. 94 Providers of employment-related supports and services licensed by or contracting with one of the participating state agencies can utilize the NYESS system. Participating agencies include ACCES-VR, NYSCB, New York State Office for the Aging (NYSOFA), Office of Addiction Services and Supports (OASAS), Office of Mental Health (OMH), OPWDD, and the NYS DOL. NYESS also states that these agencies will be required to use the system for reporting purposes.
In addition to centralizing employment-related information, NYESS provides job matching with approximately 90,000 jobs currently posted by employers in the New York State Job Bank. NYESS performs functions such as assisting with resume development and generating documentation for government programs including TTW and employer tax credits. 95 Data was unavailable to determine the frequency of people with ID/DD utilizing NYESS or the New York State DOL’s OneStop operating system.
93 N.Y. Employment Svcs. System, What is NYESS, https://nyess.ny.gov/docs/nyessbrochure.pdf [Accessed 6 December 2022].
94 N.Y. Employment Svcs. System, About NYESS, https://nyess.ny.gov/about.html [Accessed 6 December 2022].
95 Id.
New York’s Protection & Advocacy System and Client Assistance Program
The Civil Service Law of New York State creates three different employment mechanisms designed to assist people with disabilities with obtaining gainful employment in the public sector at both the state and local level. Two of these programs are directly relevant to people with ID/DD: Section 55-a and Section 55-b of the Civil Service Law.
Section 55-a of Civil Service Law (55-a) provides for the employment of persons with disabilities by municipalities. 96 Each municipal civil service agency in the state may, by rule, determine a prescribed number of positions, not to exceed seven hundred, with duties which can be performed by individuals with physical or mental disabilities who are qualified to perform such duties satisfactorily. 97
Each municipal civil service agency has policies and procedures regarding appointments pursuant to 55-a. 98 It is typically up to the discretion of an appointing authority to decide whether to fill an entry-level competitive class position from an open-competitive civil service examination eligible list or appoint a qualified individual with a disability on a non-competitive basis. 99 Individuals appointed under 55-a have the same status and rights as people hired through a competitive hiring process. 100
To be employed under 55-a in a municipality, individuals with disabilities should apply directly to the appointing authority of interest for any entry-level position for which they meet the required minimum qualifications. 101 If the appointing authority is interested in appointing the individual with a disability, it must send a nomination for the individual for a position pursuant to 55-a to the municipal civil service commission or personnel officer. 102 The personnel officer or municipal civil service commission will request the duties and responsibilities of the position for review by either of the state vocational rehabilitation offices (NYSCB or ACCES-VR) to determine if the person with the disability is able to perform the duties of the position. 103 If the person is able to
96 See generally N.Y. Civil Service Law § 55-a.
97 Id. § 55-a(1).
98 N.Y. Dep't of Civil Svc., Workers with Disabilities Interested in Local Government Appointment, https://www.cs.ny.gov/dpm/55a.cfm [Accessed 7 December 2022].
99 Id.
100 N.Y. Civil Service Law § 55-a(4), (5) https://www.nyc.gov/site/dcas/employment/55-aprogram.page#:~:text=Section%2055%2Da%20of%20the,having%20to%20take%20an%20exam [Accessed 7 December 2022].
101 Id.
102 Id.
103 Id.
perform the job duties, NYSCB or ACCES-VR will certify to the municipal civil service agency that the person is eligible for an appointment. 104 However, while certification by these organizations is required to be employed under 55-a, such certification is not a guarantee of a job. 105
55-a creates up to 700 local civil service positions for qualified individuals with disabilities. 106 Local civil service commissions identify and designate certain positions as 55-a positions. However, it is the responsibility of the person with a disability to identify a particular job for which he or she may be qualified, and then sell the idea to the local civil service commission, who then must designate the position as 55-a. This can be a long and tedious process and, depending on the locality, negative attitudes regarding the general employability of persons with disabilities may make it even harder.
Similar to 55-a, Section 55-b of the Civil Service Law (55-b) permits the New York State Civil Service Commission to designate up to 1,200 positions with duties that can be performed by otherwise qualified persons with physical or mental disabilities. 107 Upon such determination, these positions are classified in the non-competitive class and may only be filled by persons who have been certified by the Employee Health Service of the Department of Civil Service as being a person with either a physical or mental disability. 108 A person eligible for a 55-b appointment does not have to take the civil service examination to be appointed to a position that they are otherwise qualified for. 109
Applicants will ordinarily be found to meet the definition of a disability under the program if they have a permanent physical or mental disability that substantially limits a major life activity. 110 This definition is in line with the definition of a disability under the ADA. 111 Individuals must also meet the minimum qualifications for the position with or without reasonable
104 Id.
105 Id.
106 N.Y. Civil Service Law § 55-a(1).
107 § 55-b(1).
108 Id.
109 N.Y. Dep't of Civil Svc., Workers with Disabilities Interested in Local Government Appointment, https://www.cs.ny.gov/rp55/ [Accessed 7 December 2022].
110 N.Y. Dep’t of Civil Svc., Policy Bulletin # 18-01, https://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%201801.pdf [Accessed 7 December 2022].
111 42 U.S.C. §§ 12102(1)(A).
accommodations. 112 After submitting the application for the 55-b program, if approved, the individual will receive a letter of eligibility from the Department of Civil Services. 113 If the individual is found not to be eligible, the individual may appeal the determination to the Civil Services Commission. 114 Once an individual has received their letter of eligibility they can submit their application to the positions they meet the minimum qualifications for and are interested in on the State Jobs New York website. 115 When an individual submits their application they must include their 55-b eligibility letter. 116 Once enrolled in the program, participants will be asked to renew their interest every three years by responding to an e-mail inquiry from the Department of Civil Services. 117
For people with ID/DD, there are a number of challenges in this process. The procedures required by state agencies to designate and fill a 55-b position by a qualified candidate are complicated and overly detailed such that they pose a barrier for both the agency and candidate. In addition, the onus of finding a position is placed on the person with a disability. There are limited opportunities to connect eligible 55-b applicants with appropriate positions based on their abilities. Further, while an individual may not be required to take a civil services test or examination to qualify for a position, a skills assessment may be required. 118 Finally, there is a lack of publicly available information about the 55-b program. This makes it difficult to determine how successful the program is at getting 55-b candidates appointed to open positions.
Applying for 55-a and 55-b positions can be challenging for employers as well as applicants. Employers need to be well-educated to ensure they comply with program requirements. The programs do have some supports in place to assist employers throughout the process. State vocational programs like NYSCB and ACCES-VR can also assist with needed accommodations to secure 55-a and 55-b positions. Further, the Job Accommodation Network (JAN) is available to both employees and employers who are trying to navigate all incentive programs and processes including 55-a and 55-b. JAN provides free consulting services for all employers, regardless of size
112 N.Y. Dep’t of Civil Svc., Policy Bulletin # 18-01.
113 Id.
114 N.Y. Comp. Codes R. & Regs. Tit. 4 § 58.3.
115 55-b/c Program- Frequently Asked Questions, https://www.cs.ny.gov/rp55/faq.cfm [Accessed 7 December 2022].
116 Id.
117 N.Y. Dep’t of Civil Svc., Policy Bulletin # 18-01.
118 N.Y. Dep’t of Civil Svc., Policy Bulletin # 18-01.
New York’s Protection & Advocacy System and Client Assistance Program
or type (e.g., private, federal, state, or local government, etc.). 119 Services include individualized consultation about all aspects of job accommodations, including the accommodation process, accommodation ideas, product vendors, referral to other resources, and ADA compliance assistance. 120
Again, because there is no readily available data on the number of people with ID/DD who are utilizing 55-a and 55-b, it is not clear that people with ID/DD are being made aware of programs that can be used to assist them with transitioning from day habilitation to competitive employment.
Programs to support employment for individuals with disabilities are also present at the federal level. In particular, the Workforce Innovation and Opportunity Act and the Social Security Administration both provide employment initiatives.
WIOA was signed into law on July 22, 2014. WIOA defines, for the first time, “competitive integrated employment” (CIE) and prioritizes the maximum opportunity for each individual served to experience and participate in employment that is both competitive (compensated at or above the minimum wage) and integrated. WIOA places a focus on the word “integrated” in creating systems where people with disabilities interact with and get the same opportunities for career successes as non-disabled co-workers. WIOA was designed to help job seekers with disabilities access employment, education, training, and support services to succeed in the labor market and to match employers with the skilled workers they need. WIOA also requires state agencies – including Medicaid agencies, developmental disabilities agencies, vocational rehabilitation programs, and education agencies – to enter into unified agreements to prioritize CIE. 121
119 https://askjan.org/ [Accessed 7 December 2022].
120 Id.
121 https://www.centerforpublicrep.org/initiative/federal-employment-policy [Accessed 7 December 2022].
New York’s Protection & Advocacy System and Client Assistance Program
WIOA provides funding to VR programs to support competitive integrated employment instead of subminimum wage work under section 14(c) of the Fair Labor Standards Act. This funding supports individuals who would like to transition out of subminimum wage jobs, such as workers in sheltered workshops, to competitive integrated employment. WIOA also establishes an advisory committee within the United States Department of Labor to provide counsel on achieving CIE for individuals with disabilities participating in workforce training and employment programs across federal agencies. 122
The WIOA Adult Program provides workforce services for eligible adults through one of the six core programs authorized by WIOA: Adult, Dislocated Worker, Youth, Adult Education and Family Literacy Act (AEFLA), Wagner-Peyser, and the Vocational Rehabilitation (VR) programs. 123 WIOA establishes a priority requirement with respect to funds allocated to a local area for adult employment and training activities. WIOA Adult Services (title I of WIOA) provides funding for skills training, soft skills development, financial literacy, career counseling, and individual training accounts. 124 American Job Center staff, when using WIOA Adult funds to provide individualized career services and training services, must give priority to recipients of public assistance, other low-income individuals, and individuals who are basic skills deficient. People with ID/DD can find more information on how to access these programs by visiting their local Career One Stop. 125
In November 2021, the NYS Department of Labor provided a WIOA Annual Statewide Performance Report Narrative 126 for the 2020 program year. The report confirmed that the lack of data collection is problematic along with the lack of a unified case management system within New York and with federal partner agencies. It noted that the reporting requirements under WIOA are difficult at best because each core partner uses a different system to collect and report data. It explained that the systems do not communicate with one another, which makes
122 https://garamendi.house.gov/sites/garamendi.house.gov/files/documents/WIOATItleIV.pdf [Accessed 7 December 2022].
123 https://www.dol.gov/agencies/eta/workforce-investment/adult [Accessed 7 December 2022].
124 https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEN/2022/TEN%200722/2.%2043410-FAQs- CIE%20%28Attachment%20I%29.pdf (pg. 3) [Accessed 7 December 2022].
125 www.careeronestop.org [Accessed 7 December 2022].
126https://www.dol.gov/sites/dolgov/files/eta/performance/pdfs/PY2020/NY_PY20%20WIOA% 20Annual%20Report%20Narrative.pdf [Accessed 7 December 2022].
collecting and aggregating data from multiple partners challenging. As a result, New York established the WIOA Data Integration workgroup to address data and reporting challenges and determine a strategy moving forward. 127 The group will be researching and investigating what other states are doing to successfully share data and create a way to jointly report outcomes. This is a positive step towards more collaborative efforts between state partners resulting in systems that better highlight the employment needs of people with ID/DD.
SSA offers beneficiaries “work incentives,” which are defined as special rules which make it possible for people with disabilities receiving SSI or SSDI to work while still receiving monthly payments as well as Medicare or Medicaid. 128 One such work incentive is the Unsuccessful Work Attempt safety net. This comes into play when an individual with a disability wants to attempt to work at a substantial level but is fearful that the attempt may be unsuccessful and cause havoc on the SSA benefits they receive Under the Unsuccessful Work Attempt provision, SSA will not stop payments to a beneficiary who tries to perform substantial work, only to find they are unable to sustain that effort for up to six months. The beneficiary’s earnings must have decreased or stopped as a result of the individual's disability or the elimination of special services or assistance that the individual needed in order to work. Unsuccessful Work Attempts are not factors when SSA calculates a person’s SSI payment amount. 129
Trial Work Period is another SSA work incentive for people receiving SSDI who participate in the TTW program to allow them to “test the waters.” SSA allows the person to try to return to work while keeping their full disability benefits and health insurance during the trial period months. SSA allows for nine trial period months. A month in 2022 is counted as a trial if earnings exceed $970 a month. If the person becomes employed and earns $970 or more within one month, they will not lose their benefits. A person can retain their benefits for each month their earnings exceed $970 for up a maximum of nine months. 130
127Id.
128 https://www.ssa.gov/disabilityresearch/wi/detailedinfo.htm#UWA [Accessed 7 December 2022].
129 Id.
130 https://www.myemploymentoptions.com/faq/ [Accessed 7 December 2022].
Another SSA work incentive is called Impairment-Related Work Expenses (IRWE). SSI and SSDI beneficiaries are eligible to receive IRWE. IRWE allows SSA to deduct the cost of certain impairment-related items and services that are needed to work from the person’s gross earnings. The item or service must enable the person with disabilities to work. Some examples of IRWE are transportation costs to get to the place of employment, personal care services needed to help a person prepare for work, service animals, and medical devices including wheelchairs, respirators, braces, etc. IRWE also include assistive technology that people with disabilities use for employment–related purposes, such as software applications, computer support services, and special tools which have been specifically designed to accommodate the person’s impairment. 131
SSA also offers a Student Earned Income Exclusion for SSI. A blind or disabled child, who is a student regularly attending college, or university, or a course of vocational or technical training, can have limited earnings that are not counted against his or her Supplemental Security Income (SSI) benefits. 132 The student should contact SSA or review the website annually as earned income exclusion amounts may vary from year to year.
Additional information about employment related provisions of SSDI and SSI can be found in the SSA publication known as The Red Book – A Guide to Work Incentives. 133
New York State is an employment-at-will state. This means that an employer can terminate an employee at any time for any reason without incurring legal liability, as long as the termination does not violate federal, state, or local laws. Importantly, terminating an individual on the basis of disability is prohibited. Federal, state, and local laws guarantee the civil rights of individuals with disabilities and prohibit disability-based discrimination in employment. These include the ADA, 134 section, 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 135 the New York State
131 https://www.ssa.gov/redbook/eng/ssdi-and-ssi-employments-supports.htm?tl=1%2C2%2C3 [Accessed 7 December 2022].
132 https://www.ssa.gov/oact/cola/studentEIE.html (Accessed 19, April 2023)
133 https://www.ssa.gov/redbook/index.html [Accessed 7 December 2022].
134 42 U.S.C. §§ 12112–12117.
135 29 U.S.C. § 794.
New York’s Protection & Advocacy System and Client Assistance Program
Section 504 of the Rehabilitation Act of 1973 (Section 504) was the first civil rights statute to protect the rights of individuals with disabilities relating to employment. Generally, the Rehabilitation Act bars disability discrimination in employment by the federal government, federal contractors, and programs and activities receiving federal financial assistance. 138 Section 504 prohibits these entities from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services. The Rehabilitation Act has the same definition of disability, reasonable accommodation, major life actives, and standards for determining employment discrimination as the ADA (Section B, infra) 139
In the employment context, Section 504 requires employers to provide reasonable accommodations to job applicants and employees to ensure the applicant or employee has equal access to the work environment and activities that are part of the work environment. Accommodations are any adjustments or modifications to the work environment that allow an individual to perform the essential functions of the position or equally benefit from other employment-related activities. Some examples of accommodations include assistive technology, a modified work schedule, adjustment to work policies, and many others. Accommodations must be reasonable- an employer is not required to provide accommodations that would alter a fundamental aspect of the work environment or job responsibilities, nor is an employer required to provide accommodations would cause undue hardship such as those that are excessively costly in light of the employer’s size, financial resources, or type of operation.
Additional information about accommodations in the workplace is available from numerous resources, including the Job Accommodation Network
136 N.Y. Executive Law §§ 290–301 (Exec. Law).
137 N.Y.C. Admin. Code §§ 8-101–8-703.
138 29 U.S.C. 791,793, 794.
139 Pub. L No. 110-325.
New York’s Protection & Advocacy System and Client Assistance Program (NYSHRL), 136 and New York City Human Rights (NYCHRL). 137 Though each of these laws varies slightly, they all protect people with disabilities from employment discrimination and promote equity of opportunity in employment.
The ADA expanded the rights and concepts that were established under Section 504 to include employers regardless of whether or not they receive federal financial assistance. Title I of the ADA relates to employment and it covers both public and private employment. The ADA prohibits covered entities from discriminating against qualified individuals with disabilities in employmentrelated activities. In general, an employer must comply with the ADA if it has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 140
The term “disability” in the ADA is defined as an individual who has (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) the individual is regarded as having such an impairment. 141 Physical or mental impairments apply to a wide variety of disabilities such as learning disabilities, physical disabilities, mental illness, heart conditions, vision, and hearing disabilities, as well as many others. Major life activities include things such as caring for oneself, walking, eating, sleeping, reading, learning, communicating, and many other things. The definition of disability under the ADA is construed in favor of broad coverage and interpreted consistently with the findings of the ADA Amendments Act of 2008. 142
The ADA protects qualified individuals with disabilities. A qualified individual is a person who, with or without accommodations, can perform the essential functions of the employment position. For example, an essential function of a lifeguard may be the ability to swim as that may be fundamental to the performance of that particular job. Under the ADA, an employer may not consider disability when deciding to hire, fire, pay, give job assignments, promote, lay off, train, change benefits, or affect any other condition of employment. 143 Discriminatory acts under the ADA also include a covered employer's failure to provide reasonable accommodations to qualified employees with disabilities. 144
140 42 U.S.C. § 12111(5).
141 42 U.S.C. § 12102.
142 42 U.S.C § 12102(4)(A)(B).
143 42 U.S.C. §12112 (a); 42 U.S.C. 12111(8).
144 42 U.S.C. 12112(b)(5).
The U.S. Equal Employment Opportunity Commission (EEOC) is the primary government agency that enforces both Section 504 and the ADA.
The New York State Human Rights Law (NYSHRL) is a state law that prohibits, among other things, discrimination on the basis of disability. 145 With regard to employment, it covers all employers regardless of size and it also includes protections from discrimination for independent contractors. 146 The New York City Human Rights Act (NYCHRA) is a law that applies only in the five boroughs of New York City. It covers employers with four or more employees, and, like the NYSHRL, it includes protections for independent contractors. 147 An independent contractor is someone who provides goods or services according to the terms of a contract they have negotiated with an employer and are generally not considered an employee. Both NYSHRL and NYCHRA are very similar to the ADA and Section 504 of the Rehabilitation Act but provide further protection from discrimination based on disability. Both define disability more broadly and are very inclusive of what is considered a disability and thereby cover additional types of disabilities. 148 Both also require employers to provide reasonable accommodations to individuals with disabilities.
Victims of disability discrimination in employment can seek assistance from either the EEOC or the New York State Division of Human Rights (DHR). 149 While discrimination claims, including ADA /504 can be filed at both the EEOC and the NYSDHR, the process that follows is different. If you file an administrative claim first with the DHR your claim will also be filed with the EEOC, and vice versa (“dual filing”). The primary difference is that if the DHR investigates, and ultimately dismisses, your claim you will be precluded from pursuing any potential claims under New York State law in court. If you file your claim with the EEOC, however, the result of a dismissal is not the same. If the EEOC dismisses your claim you will be issued a “Right to Sue,” which then allows you to pursue your claims under Federal law in court. 150 In addition, the New York City
145 N.Y. Executive Law §§ 290–301 (Exec. Law).
146 N.Y. Executive Law §§ 292(5), 296-d.
147 N.Y.C. Admin. Code §§ 8-102.17.
148 Exec. Law §292(21); N.Y.C. Admin. Code §§ 8-102.16.
149 Exec. Law § 297(9).
150 https://www.doraziopeterson.com/2015/06/13/the-eeoc-or-division-of-human-rightswhich-is-appropriate [Accessed 7 December 2022].
Commission on Human Rights can provide assistance and information on violations of the NYCHRA. There are strict timelines for filing complaints related to employment discrimination. For example, you must file NYSHRL complaints within one year of the most recent act of alleged discrimination. It is best to act on these issues as soon as possible. An attorney is not needed to file a NYSHRL complaint. The New York State Division of Human Rights was created to enforce this important law. A member of the Division staff will investigate and may agree to assist complainants throughout the hearing process, free of charge. 151 Even though the EEOC and NYSDHR are designed to assist individuals without counsel, the considerations in selecting the appropriate venue, how to approach that venue, and the long-term implications of that selection and approach, can be confusing. If you believe you may have a claim for employment discrimination speaking with an experienced employment attorney before making any decisions may be an important step to consider. 152 All of the statutes listed above- the ADA, the Rehabilitation Act, the NYSHRL, and the NYCHR- protect against disability discrimination from covered employers. When an employer makes an employment decision based on an individual’s disability and not their skills, qualifications, or how well they do their job, it can be deemed as discrimination. In general, these protections cover an individual at every stage of employment, from the application process to a situation where an individual may have been passed over for a promotion due to their disability.
It is unclear if people with ID/DD are being provided with information about the various protections in place to avoid employment discrimination. Information about rights, such as the right to request reasonable accommodations, may be the difference between an individual applying for a position or not. An individual may be intimidated by an unnecessary hurdle that could be easily adjusted simply by their request for reasonable accommodations. For individuals who would like to transition from day habilitation to competitive employment, information about rights, legal protections, and how to obtain such information is essential.
151 https://dhr.ny.gov/ [Accessed 7 December 2022].
152 https://www.doraziopeterson.com/2015/06/13/the-eeoc-or-division-of-human-rightswhich-is-appropriate [Accessed 7 December 2022].
• Improve data collection by ACCES-VR, OPWDD, NYSCB, and other programs that provide training, support, and other assistance specific to people with ID/DD; use such data to assess and improve employment initiatives; and make it publicly available.
• Ensure no disincentives exist for people with ID/DD who attend day habilitation programs who wish to seek competitive employment
• Promote the use of assistive technology assessments for people in day habilitation programs to develop even greater employment opportunities for people with ID/DD and other disabilities.
• Expand and promote the use of the EmployAbility toolkit created by the New York State Employment First Commission which connects employers and business owners with resources on how and why to hire people with disabilities.
• Expand the efforts of ACCES-VR and NYSCB to seek out contracted service providers who are able to provide increased availability of customized employment and on the job training opportunities.
• Develop flexible and reliable transportation options for people with ID/DD to access employment, including utilizing ride-share services (UBER, Lyft, etc.).
• Updating the Vehicle Modification policy with ACCES-VR.
• Expand remote work opportunities for people with disabilities.
• Ensure that agencies providing services to people with ID/DD are sufficiently educating their employees about the availability of employment programs, protections, and incentives.
Although there are numerous resources available for people with ID/DD participating in day habilitation programs who wish to enter the workforce, they are largely uncoordinated and underutilized. The first essential step in combatting both issues is the use of data collection that targets participation rates, success rates, factors that lead to short- and long-term success, and barriers to success. For those agencies that are currently collecting all or some of this data, it should be made publicly available to foster transparency and coordination between all programs. In addition, given the memorandum of understanding between ACCES-VR and OPWDD, it is vital that ACCES-VR shares data related to the number of people with ID/DD that are being referred to OPWDD. People with ID/DD must be informed of and provided with the supports necessary to take advantage of employment programs in order to realize their employment goals. New York can do better.
People with intellectual and developmental disabilities (ID/DD) are a consistently underused and undervalued workforce. Despite fairly robust anti-discrimination laws, work incentive programs, developments in assistive technology, and a host of state and federal employment initiatives, the vast majority of people with ID/DD continue to spend their adult lives unemployed. Many spend their days in day habilitation programs with limited exposure to the possibility of employment. This is precisely the challenge embraced by the Strong Center for Developmental Disabilities (SCDD), a leader in New York State in identifying and addressing the systemic barriers to successful employment faced by day habilitation participants. SCDD developed the “Successful Transition to Employment Partnership” (STEP) project to create a sustainable, high quality, community-based transition plan for adults with ID/DD across New York State. As a partner in this project, Disability Rights New York, the Protection and Advocacy System for New York, developed this Guide as part of the STEP project.
This Guide describes the many programs available to people with ID/DD who are interested in seeking competitive employment as an alternative to remaining in a day habilitation program. It is our hope that this Guide will provide individuals with ID/DD in day habilitation programs and the people who support them an understanding of the employment services and incentives currently available, as well as a roadmap to aid in the building of a better and more efficient system to provide employment services in New York State.
Competitive employment is work that is performed on either a full or part-time basis in which individuals are compensated for their work. The compensation paid must be at or above the set minimum wage, but not less than the wages paid to individuals without disabilities performing work that is the same or similar. The individual must be employed in an integrated setting in which the individual can interact with individuals without disabilities.
Some individuals with ID/DD continue to work in what are called sheltered workshops. These sites are segregated employment settings where people with disabilities are paid sub-minimum wages. Advocates have tirelessly worked to change the laws that allow these settings to continue to operate. Currently, New York State is in the process of closing its last remaining sheltered workshops. In preparation for these closings, current participants are meant to be asked if they want to seek competitive employment or transition to a day habilitation program. This policy of asking individuals if they would like to seek competitive employment is specifically referenced in a 2014 federal law called the Workforce Innovation and Opportunity Act (WIOA). Many sheltered
workshop participants have been in a segregated environment for upwards of 20 years. Even when asked, it is often far easier to choose a day habilitation program over seeking competitive employment. Transitioning from what is often a fully segregated work environment to a competitive job in the community is bound to be challenging, but not impossible with access to accurate information and the right supports.
Several state agencies in New York provide oversight, funding, or both for vocational rehabilitation and employment services for people with ID/DD. The availability of services through these programs is dependent on whether an individual with a disability meets the prescribed eligibility criteria. The primary New York state agencies providing services to promote employment are:
A. New York State Education Department Office of Adult Career and Continuing Education Services - Vocational Rehabilitation (ACCES-VR)
B. New York State Commission for the Blind (NYSCB)
C. New York State Office for People with Developmental Disabilities (OPWDD)
D. New York State Department of Civil Service
E. New York State Department of Labor (NYS DOL)
To qualify for ACCES-VR services, an individual must meet three eligibility requirements. First, the individual must have a physical or mental impairment that is a substantial impediment to employment. 1 Second, the individual must also be able to benefit from services by achieving an employment outcome consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. 2 Finally, the individual must require vocational rehabilitation services to prepare, secure, retain, or regain employment. 3 However, if
1 N.Y. Office of Adult Career & Continuing Educ. Svcs. Vocational Rehabilitation, 202.00 Eligibility for Services Policy 1 (2009), http://www.acces.nysed.gov/common/acces/files/vr/policy202.pdf [Accessed 6 December 2022].
2 Id.
3 Id.
an applicant has current documentation demonstrating they are a recipient of either SSI or Social Security Disability Insurance (SSDI), they will be presumed eligible. ACCES-VR cannot delay an eligibility determination to request additional documentation of a physical or mental impairment when the applicant is a social security beneficiary. 4
It is important to note that certain people with ID/DD may be diverted from ACCES-VR to OPWDD’s prevocational training programs. This typically includes people eligible for OPWDD services who can only work for short periods of time, people whose support needs require intensive services beyond what ACCES-VR can provide, or people who need a longer period of support to develop their work capacity. 5 ACCES-VR and OPWDD have a Memorandum of Understanding regarding the responsibility of each agency in providing employment services for such individuals. 6 However, the OPWDD and ACCES VR agreement letter also states that both agencies will make efforts to ensure that people with higher needs can apply for and receive ACCES-VR services once they reach a point where ACCES-VR can effectively serve them. 7
Once a person applies for ACCES-VR, they will be assigned a Vocational Rehabilitation Counselor (VRC). The VRC will decide if the information is sufficient to determine eligibility. This includes: (1) establishing the disability or disabilities; (2) identifying the impediment to employment; and (3) determining that there is a need for vocational rehabilitation services. If the individual does not present enough information to establish the disability, ACCES-VR will obtain the required information as part of the assessment process. Existing information will be considered adequate if, in the counselor's judgment, it provides sufficient information to document the person's disability, employment factors, resulting impediments to employment, and the ability to benefit from services and requirements for services. Establishing the need for services is a critical decision because it is final. The decision relies heavily on the professional judgement of the ACCES-VR counselor. 8 Applicants must be aware of their rights when they are denied services.
When a person is found eligible for ACCES-VR services, the VRC will meet with them to discuss their goals and aspirations related to employment. Under ACCES-VR’s policies, the VRC will
4 Adult Career and Continuing Education Services | NYS Education Department. 2017. 210.00P Serving Individuals Who Receive SSDI/SSI Procedure. [online] Available at: http://www.acces.nysed.gov/vr/21000p-serving-individuals-who-receive-ssdissiprocedure#serving [Accessed 6 December 2022].
5 See generally Agreement Letter https://eleversity.org/wp-content/uploads/2021/01/2014OPWDD-and-ACCES-VR-Agreement-Letter.pdf [Accessed 6 December 2022].
6 Id.
7 Id.
8 http://www.acces.nysed.gov/vr/20200-eligibility-services-policy [Accessed 6 December 2022].
encourage individuals to be involved in the development of their Individualized Plan for Employment (IPE). The VRC can assist an individual with creating the IPE. The IPE will map out all the services needed for an individual to reach their employment goal. The IPE must be signed by both the service recipient and the VRC to be valid. 9
If an applicant with ID/DD is informed that they are being denied services based on the VRC’s determination that the applicant will not benefit from the services available through ACCES-VR, there is an appeals process. 10 Prior to being determined ineligible for ACCES-VR services, applicants must be offered a Trial Work Experience (TWE) to further determine if the applicant can benefit from vocational rehabilitative services. 11 During the TWE, the applicant will be placed in work settings in line with the person’s employment goals to observe the person’s interests, abilities, concerns, and capacities to perform successfully. The TWE must be provided in a variety of settings and should continue until the applicant exhibits that they can or cannot benefit from VR services. The VRC must consider if the individual needs a reasonable accommodation to help them perform to the best of their ability during the TWE. Services may include job coaching, rehabilitation technology, and other support services that would allow the individual to benefit from the experience. The TWE process generally lasts no more than 16 weeks and progress is reviewed every four weeks. Supported employment agencies that ACCES-VR contracts with can be sought to assist with locating and developing the TWE. Decisions regarding whether services are required, what services are required, and why the services are required are based on the assessment of the VRC. If the TWE results in clear and convincing evidence that the individual cannot benefit from vocational rehabilitation services in terms of achieving an employment outcome, a determination of ineligibility will be made.
If the applicant is determined ineligible, they may appeal the ACCES-VR decision by requesting one or more of the following due process options: 12
• Informal Review - The applicant meets with a counselor and the counselor’s supervisor
9 New York State Department of Education Adult Career and Continuing Education Services, “Vocational Rehabilitation Services” http://www.acces.nysed.gov/vr/vocational-rehabilitationservices [Accessed 6 December 2022].
10 202.00P Eligibility Procedure http://www.acces.nysed.gov/vr/20200p-eligibilityprocedure#qualified [Accessed 6 December 2022].
11 Id.
12 ACCES-VR Due Process Rights http://www.acces.nysed.gov/common/acces/files/vr/dueprocess-brochure.pdf [Accessed 6 December 2022].
• Administrative Review - The applicant communicates concerns to the District Office Manager or other staff person.
• Mediation - The applicant communicates their concerns to an Impartial Mediator.
• Impartial Hearing - The applicant states their concerns before an Impartial Hearing Officer.
Staff from the Client Assistance Program (CAP) may represent the applicant or assist them in representing themselves at any due process review selected. In some cases, CAP can provide legal advice if the due process review proves unsuccessful. More information on Due Process Rights can be found in this brochure provided by ACCES-VR.
People who are eligible to receive ACCES-VR services must always remember to ask for the supports they need as the VRC may not readily offer services they may be eligible for. Applicants are encouraged to maintain records of calls and emails with their counselor as these may assist in the event that the person chooses to exercise their due process rights.
As the State vocational rehabilitation agency, ACCES-VR provides critical services to individuals with disabilities who are trying to transition from day habilitation programs to competitive employment. 13 These include:
• Vocational Counseling and Guidance – The VRC will offer basic support and guidance on employment options, goals, and services.
• Assessments and Evaluations – The VRC will arrange for appropriate evaluations to be provided to help determine what the individual’s strengths and weakness are. Standardized tests and specialized evaluations can be arranged to measure cognitive abilities, sensory/motor skills, and aptitudes compared to a sample population. Customized career exploration assessments can look at the individual’s past education and work experience and provide a labor market analysis. Community based situational evaluations are also available and often help individuals determine if the employment goal is still what they want to do.
• Rehabilitation Technology – Rehabilitation technology is the use of technology to meet the needs of people with disabilities. Rehabilitation technology cuts barriers and gives
13 See generally Adult Career & Continuing ED Services (Vocational Rehabilitation) 010.00 Employment Outcome Policy http://www.acces.nysed.gov/vr/vocational-rehabilitation-services [Accessed 6 December 2022].
more opportunities to people with disabilities in education, rehabilitation, employment, transportation, living at home, and recreation. Assistive/rehabilitation technology evaluations are used by ACCES-VR to determine how a device or service can enable a person with disabilities to successfully participate more fully in aspects of employment. Examples include eyeglasses, cochlear implants, and voice activated software.
• Special Transportation – Special transportation can be provided to access a service provided by ACCES-VR.
• Adaptive Driver Training – ACCES-VR may provide classroom instruction or driving classes on the road. Individuals will first attend an assessment to determine their abilities and/or potential to become a safe independent driver and/or identify vehicle modification requirements.
• Work Readiness – Work readiness is a series of classes where the participant works on developing job-related skills. Areas of focus can include social skills in a work setting, daily hygiene, effective communication, work behaviors, and tolerance. These soft skills classes can be held in community-based facilities or, when possible, in an integrated community setting.
• Training including tuition, related fees, required textbooks – These supports can be provided related to college or vocational training programs that fall in line with the agreed upon employment goal. Participants must first apply for federal and state financial aid before ACCES-VR will finance related expenses.
• Tutor, Reader, and Note Taker services – Participants that need additional help in a subject they are struggling with can be approved for a limited number of weekly tutoring services. Readers and note takers can be funded through ACCES-VR if the college or vocational program does not have one available.
• Modifications to homes, vehicles, and worksites – Possibilities could include a ramp to exit the home, a lift to be able to get into a vehicle, or a specialized chair or desk in the workplace.
• Job Development and Placement – This service allows the participant to work with a provider that will assist an individual with securing an employer-based (unpaid or paid) work experience opportunity.
• Work Try Out & On the Job Training – A work try-out will give the participant an opportunity to explore his/her vocational choices and potential career paths through real work experience. On the job training is a hands-on method of teaching the skills, knowledge, and competencies needed for employees to perform a specific job within the workplace.
• Job Coaching – This service is typically provided as a component of supported employment services. ACCES-VR is only authorized to provide up to 48 months of
supported employment services for individuals up to age 25. Adults over age 25 are eligible for up to 18 months but can request a waiver if additional months are needed Should the participant require extended supported employment and has exceeded the limits as outlined by ACCES-VR, OPWDD can provide supplementary supports for the participant to continue to receive job coaching and other supported employment services.
• Occupational tools and equipment – Tools and equipment can be funded by ACCES-VR if required by a class that ACCES-VR is sponsoring in line with the participant’s agreed upon employment goal.
• Goods, inventory, equipment, and supplies for self-employment – If the participant is interested in operating their own business, ACCES-VR may support the participant with startup costs or equipment that may be needed to make the business a success.
• Occupational and business licenses 14 - ACCES-VR may provide the funding for an occupational or business license if it is required for the participant to achieve their employment goal.
Although ACCES-VR does not charge recipients for VR services, some services will only be available based upon the service recipient’s and/or their family’s financial need. 15 Since the vast majority of people utilizing OPWDD’s day habilitation services are Medicaid recipients, most of them are also recipients of SSI or SSDI. If a person receives SSDI/SSI, they are automatically presumed eligible for ACCES-VR. However, certain services can and cannot be provided. Assistive Technology and evaluations will be provided regardless of family income while college funding will not be if family makes too much This is important to be aware of to best understand the services people with ID/DD will have available to them through ACCES-VR.
The New York Commission for the Blind
14 Acces.nysed.gov. 2021. [online] Available at: http://www.acces.nysed.gov/common/acces/files/vr/crs2programguidelines.pdf [Accessed 6 December 2022].
15 Adult Career and Continuing Education Services | NYS Education Department. 2022. Vocational Rehabilitation Services. [online] Available at: http://www.acces.nysed.gov/vr/vocational-rehabilitation-services [Accessed 6 December 2022].
The NYSCB provides vocational services to people who are blind or have low vision. 16 It operates within the NYS Office of Children and Family Services (OCFS). NYSCB provides direct services through District Offices located throughout New York State. NYSCB’s vocational rehabilitation services may be applied for either online at www.visionloss.ny.gov, or in person at any one of the NYSCB offices.
To be eligible for vocational rehabilitation services through NYSCB, a person must meet two criteria: (1) they must be legally blind such that they face a substantial impediment to employment and (2) vocational rehabilitation services could help them gain or regain employment. 17 Applicants who are considered blind or have low vision as well as ID/DD can seek vocational services through NYSCB, provided the visual disability is the primary disability creating the greatest impediment to employment. If the applicant is legally blind and their ID/DD is their primary disability, they must seek services through OPWDD or ACCES-VR. NYSCB has primary responsibility for providing services to individuals who are legally blind and eligible for VR services regardless of any other documented secondary disability. Individuals with a primary disability other than legal blindness are always referred to the local ACCES-VR District Office. 18 In the event that NYSCB denies eligibility based on primary disability, NYSCB will provide the applicant with a VR Ineligibility closure letter along with an explanation on their rights regarding appealing NYSCB decisions.
A person who is blind or visually impaired, as determined by the Social Security Administration, is presumed to be eligible for NYSCB vocational rehabilitation services, provided that the individual intends to achieve an employment outcome consistent with their unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. 19 These individuals will be determined eligible unless there is clear and convincing evidence that the individual cannot achieve employment due to the severity of their disability. 20 The NYSCB VRC is
16 What is NYSCB https://ocfs.ny.gov/main/cb/about.asp [Accessed 6 December 2022].
17 2021. NYSCB Handbook. [ebook] New York State Office of Children and Family Services /Commission for the Blind. Available at: https://ocfs.ny.gov/programs/nyscb/publications.php#pub5148 [Accessed 6 December 2022].
18 2021. NYSCB Handbook. [ebook] New York State Office of Children and Family Services /Commission for the Blind. Available at: https://ocfs.ny.gov/programs/nyscb/publications.php#pub5148 [Accessed 6 December 2022].
19Presumption of Eligibility https://ocfs.ny.gov/programs/nyscb/vr-manual/Ch.04.00Determination-of-Eligibility.pdf [Accessed 6 December 2022].
20 Id.
responsible for determining an individual's eligibility or ineligibility for VR services, including the need for trial work. This responsibility cannot be delegated. 21
Trial work is only offered when the VRC is unable to determine whether the applicant can benefit from VR services due to the severity of their disability. The applicant must be given the opportunity to work in realistic work situations to determine if they are “too severely disabled” to benefit from NYSCB’s vocational rehabilitation services. These realistic work situations are called trial work. Trial work must be provided in the career field the applicant is interested in and the NYSCB must provide any needed reasonable accommodations. Transportation must also be provided for the applicant to get to and from the trial work site. 22
An eligibility determination must be made within 60 days from the date that an application is received by NYSCB unless the individual agrees that an extension is warranted because of unforeseen circumstances beyond the control of NYSCB, or a trial work period is needed. Services necessary to determine eligibility are provided without regard to economic need status. 23
Similar to ACCES-VR, staff from CAP may represent the applicant or assist them in representing themselves at any due process review selected. CAP may be able to provide legal advice if the due process review is unsuccessful. 24
OPWDD has several programs to facilitate the successful transition of individuals from day habilitation to competitive employment. This includes the Pathways to Employment program (PTE), Supported Employment (SEMP), and the Employment Training Program (ETP). Prevocational services are also available to qualified individuals needing additional assistance with more general training Customized employment is an approach that has become a facet utilized by each of OPWDD’s vocational programs. Customized employment principles are often more useful for individuals with ID/DD who have more complex needs.
21 Eligibility for VR Services https://ocfs.ny.gov/programs/nyscb/vr-manual/Ch.04.00Determination-of-Eligibility.pdf [Accessed 6 December 2022].
22 4.00 (.02) Determination of Eligibility – Overview https://ocfs.ny.gov/programs/nyscb/vrmanual/ [Accessed 6 December 2022].
23 Id.
24 https://ocfs.ny.gov/publications/NYSCB/NYSCB-Pub5148.pdf [Accessed 6 December 2022].
People with ID/DD who receive OPWDD services will learn about the various services available to them through what is called a “Care Manager.” The Care Manager will work to ensure that people with ID/DD receive the services they need to meet their goals. Along with the person’s Care Manager, other natural supports like family or friends may take part in the discovery process called “person centered planning.” Person centered planning is a set of approaches designed to assist an individual in planning their life and supports. This planning process is supported by state regulations. 25 Furthermore, all OPWDD recipients will have what is called a Life Plan. This document takes all information learned through the discovery process of person-centered planning and lays it out into a set of valued outcomes mirroring the person’s goals OPWDD mandates that “quality review needs to be ongoing and plans of support need to be adjusted to ensure outcomes are achieved.” 26 During the annual Life Plan meeting, the person with a disability is asked how they feel about where they live, the activities they enjoy, and if they want to seek employment. Although this sounds productive, staff, family, and others that support the person may inadvertently answer those questions on the person’s behalf. Robust discussion of the possibilities around employment may not occur. This can often result in the person with a disability remaining in the same programs they have been in when in fact they want change. Every person with a disability should be meaningfully informed of the array of employment training options available and encouraged to actively participate in Life Plan meetings.
OPWDD’s Pathway to Employment program (PTE) came into effect in July 2014. PTE is a one-year program available to Home and Community Based Services (HCBS) Medicaid waiver participants with ID/DD who need assistance with transitioning to, keeping, or advancing in competitive employment. 27 Individuals receiving PTE services may also receive prevocational, day habilitation, and Supported Employment at the same time.
PTE participants receive assistance in identifying career goals, developing skills that will allow them to succeed in the workplace, and developing a detailed plan for competitive employment. 28 This includes services such as job discovery, job coaching, travel training, evaluation for assistive technology, benefits counseling and education, customized job development, and assistance with self-employment. 29 Over the course of the program, participants have three different
25 14 NYCRR 636-1.2.
26 https://opwdd.ny.gov/providers/person-centered-planning [Accessed 6 December 2022].
27 14 NYCRR § 635-10.4(h)(2)(ii).
28 14 NYCRR § 635-10.4(h).
29 Id. § 635-10.4(h)(1)(i).
community-based job exploration opportunities: paid jobs, paid internships, or volunteer positions. 30 Transportation to and from community experiences is provided. When the one-year period of the service has ended, the participant will have developed a solid career plan that can be used to make progress toward their employment goals. The PTE service provider must share the career/vocational plan with ACCES-VR. Individuals with ID/DD will often transition to ACCESVR at this point where they will enroll in both OPWDD and ACCES-VR supported employment services. If it is determined that the person needs additional employment experience and/or training, they may enroll in other community-based programs to continue building community experience, skills, independence, career opportunities, etc.
The one-year period can be extended by OPWDD if warranted. If the service provider considers that an individual needs more than 12 months and/or additional hours of PTE services, the service provider may submit a written request to OPWDD, in the form and format specified by OPWDD, for an extension(s) of a period of time and/or numbers of hours. 31 OPWDD’s decision to approve an extension request will be based on the following:
• Whether the individual engaged (or will engage) in an internship or volunteer opportunity, and has the potential to be hired within six (6) months of the scheduled completion of the PTE service;
• Whether there is (or will be) a break in the provision of the PTE service due to an individual’s extended medical absence or personal hardship;
• Whether unforeseen circumstances prevent (or will prevent) the service provider from maintaining continuous delivery of the PTE service;
• The best interests of the individual; and/or
• The timeliness of the service provider’s request for an extension. 32
If an extension(s) is authorized by OPWDD, the extension(s) must not exceed an additional 12 months and an additional 278 hours of service. Additionally, there is a lifetime limit of a maximum of 556 hours of service delivery per individual receiving PTE services. 33
30 Id. § 635-10.4(h)(1)(i)(l).
31 OPWDD ADM https://opwdd.ny.gov/system/files/documents/2020/03/adm2015-07_0.pdf [Accessed 6 December 2022].
32 OPWDD ADM https://opwdd.ny.gov/system/files/documents/2020/03/adm2015-07_0.pdf [Accessed 6 December 2022].
33 Id.
The Supported Employment Program (SEMP) program provides individual supports needed to obtain, maintain, and advance in paid competitive jobs or self-employment in the community. 34 Much like the PTE Program, SEMP may be combined with other OPWDD programs to assist people to prepare for employment. For example, individuals receiving SEMP services may also receive prevocational, day habilitation, and PTE. The service takes place in integrated work settings in the community, which provides opportunities for regular interactions with individuals who do not have disabilities and who are not paid to provide services to people with a developmental disability. SEMP includes many of the same services available through the PTE program, as well as additional supports such as communicating with employers to negotiate potential jobs, reviewing an employee’s progress, and addressing the individual’s ongoing challenges in the workplace. 35 Individuals with ID/DD will typically transition to SEMP after they have received supported employment services through ACCES-VR when they still require assistance to successfully maintain their position.
There are two types of SEMP services available: Intensive SEMP and Extended SEMP. Intensive SEMP is available on a short term basis to assist job-seekers with ID/DD in finding a job or establishing self-employment and to put initial supports in place. 36 If someone continues to need job coaching services after 365 days, or needs assistance in reevaluating or changing the direction of their career, they may receive extended SEMP services. 37 People with ID/DD can receive either type of SEMP services on a one-on-one basis, or in groups of up to eight people. 38 SEMP is also available under OPWDD’s Self-Direction Program as a self-directed service, for which individuals with disabilities can hire their own staff. 39
A third employment program offered through OPWDD is the Employment Training Program (ETP). ETP offers job readiness skill development, job development, job coaching, and assistance as needed to acquire other skills necessary to achieve a successful employment outcome. 40 ETP
34 Id. § 635-10.4(j).
35 Id. § 635-10.4(j)(1).
36 14 NYCRR § 635-10.4(j)(2)(i)(a), (b).
37 Id. § 635-10.4(j)(2)(ii)(a), (b).
38 Id. § 635-10.4(j)(2)(i)(c), (ii)(c).
39 OPWDD Self-Direction https://opwdd.ny.gov/types-services/self-direction [Accessed 6 December 2022].
40 OPWDD Employment and Training Supports. https://opwdd.ny.gov/typesservices/employment-training-and-supports [Accessed 6 December 2022].
utilizes an internship where the individual’s salary is initially paid for by the ETP program while the individual continues to learn the skills necessary to satisfactorily perform the job. 41 In 2019, ETP provided services for more than 1,100 New Yorkers including high school students. OPWDD pays the wages of the individuals while they are learning the job, with the expectation that the business will then hire the person. 42
Alongside the various programs available to help New Yorkers with disabilities find employment, there are also several programs which serve to incentivize people with disabilities to want to seek employment. Various sources report that people with disabilities often forgo seeking employment because they are concerned that if they were to make too much money, they would lose access to critical benefits such as SSI and Medicaid.
The Medicaid Buy-In Program for Working People with Disabilities is a program that allows working New Yorkers with disabilities to earn income above the income limit of $16,800 (for an individual) without the risk of losing their Medicaid coverage. 43 Prior to the existence of the Medicaid Buy-in Program, New Yorkers with disabilities were forced to “spend-down” excess resources in order to keep their Medicaid coverage. The Medicaid Buy-in program allows eligible New Yorkers to avoid having a spend-down while allowing them to keep their Medicaid Coverage. 44
To be eligible for New York State’s Medicaid Buy-in Program a person must:
• Have a paying job:
• Reside in New York State;
• Be between the ages of 16 and 65;
41 Id.
42 https://static.prod01.ue1.p.pcomm.net/umass/content/state-accomplishmentreports/NY_V2-02-2021.pdf [Accessed 6 December 2022].
43 https://www1.nyc.gov/assets/ochia/downloads/pdf/all_populations_medicaid.pdf [Accessed 6 December 2022].
44 https://www.health.ny.gov/health_care/medicaid/program/buy_in/docs/working_people_with _disabilities.pdf [Accessed 6 December 2022].
• Be classified as having a disability by either the Social Security Administration (SSA) or the State or the New York State Medicaid Disability Review Unit;
• Be a U.S. citizen, a national, a Native American or an immigrant with satisfactory immigration status;
• Meet the income and resource limits; and
• Pay a premium, if required. 45
As of the date of this Guide, New York State is not collecting premiums for the Medicaid Buy-In Program. Applying for the Medicaid Buy-In Program is relatively simple. The form can be found online at: https://www.health.ny.gov/forms/doh-4220_dd_access.pdf
The New York State Employment First Commission’s EmployAbility initiative provides information on financial and tax incentives, how and why hiring people of all abilities is good for businesses, and where to find qualified employees. 46 The EmployAbility Toolkit was compiled by a consortium of New York State agencies and disability organizations including the Inclusive Workforce Alliance (IWA) and Our Ability, Inc. Employers can utilize the handbook to learn about various financial incentives and tax credits for businesses that employ people with ID/DD and other disabilities. 47
Some tax credits outlined in this toolkit include:
• Work Opportunity Tax Credit (WOTC),
• NYS Workers Employment Tax Credit (WETC),
• NYS Workers with Disabilities Tax Credit (WDTC),
• Disabled Access Tax Credit,
• Barrier Removal Tax Deduction.
The EmployAbility Handbook also outlines incentive programs for businesses who want to work with ACCES-VR, NYSCB, and ETP. Additionally, there are resources included to dispel myths and misconceptions about hiring people with disabilities. This Toolkit can help businesses drive
45 Id.
46 https://opwdd.ny.gov/community-involvement/about-employability [Accessed 6 December 2022].
47 https://opwdd.ny.gov/community-involvement/about-employability [Accessed 6 December 2022].
performance by leveraging disability inclusion in the workplace, supply chain, and marketplace. 48 More information about the EmployAbility Toolkit can also be found on the OPWDD website.
PASS is a program operated by the SSA to assist people with disabilities become financially selfsufficiency through employment. People who receive SSI or SSDI, or who would be eligible to receive SSI if they had fewer countable resources, are eligible to participate in PASS. A person must have other income or resources besides SSI in order to participate in PASS. PASS is a written plan which allows a person to set aside income or other resources to help them achieve their employment goals.
Money set aside under a PASS plan does not count against the $2,000 resource limit for SSI. This allows a person to keep up to their full SSI payment while pursuing employment. A PASS plan can help a person pay for transportation to and from work, purchase a vehicle, pay tuition and fees related to education or job training, pay for childcare, attendant care, and other expenses. 49
A PASS plan must be in writing and must be approved by the SSA.
A PASS plan must:
• Identify a career goal;
• Outline all the steps necessary to reach that goal;
• Specify what things or services a person will need to reach their employment goal;
• Identify “several” cost estimates for the things and services needed to reach the goal;
• Provide a plan to keep PASS funds separate from any other money (e.g., a separate bank account);
• Include completed form SSA-545-BK; and
• Must include a detailed business plan if a person intends to use the PASS plan to achieve self-employment. 50
It is possible to make changes to a PASS plan, but they must be submitted in writing and approved.
48 https://opwdd.ny.gov/community-involvement/about-employability [Accessed 6 December 2022].
49 https://www.ssa.gov/pubs/EN-05-11017.pdf [Accessed 6 December 2022].
50 https://www.ssa.gov/pubs/EN-05-11017.pdf [Accessed December 6, 2022].
PASS plans could be very powerful tools for helping people with disabilities obtain employment, but the most recent available data shows that the number of people utilizing PASS plans is low. This is possibly due to the relative complexity of enrolling in the PASS program.
ABLE Accounts were created as a result of the Achieving a Better Life Experience Act of 2014- also known as the ABLE Act. To open an ABLE account the following criteria must be met:
• The applicant must be diagnosed with a disability before age 26 and must receive SSI or SSDI, or
• a disability must be present before age 26 and at least one of the following requirements must be met: 51
• The individual has a written diagnosis from a licensed physician documenting a medically determinable physical or mental impairment which results in marked and severe functional limitations, which can be expected to last for at least a year or can cause death, OR
• The individual is classified as blind (as defined in the Social Security Act), OR
• The individual has a disability that is included on the Social Security Administration’s List of Compassionate Allowances Conditions
ABLE accounts are a special type of savings account which allows a person with a disability to save money without going over the SSI resource limit of $2000. Unlike a special needs trust, an ABLE account does not need to be managed by a third-party trustee, giving an individual direct control of their money. In 2024, the maximum allowable contribution to an ABLE account is $18,000 per year, though more may be permitted for account owners who want to contribute the income they earn. Money can be placed into an ABLE account by the individual who creates the account, family, or friends. 52
51 https://www.mynyable.org/home/what-is-ny-able/faqs.html [Accessed April 9, 2024].
52 https://www.mynyable.org/home/what-is-ny-able/faqs.html [Accessed 6 December 2022].
The money placed into an ABLE account is tax free as long as it used for specific statutorily listed expenses such as education, housing, transportation, assistive technology, employment training and support, financial management, and health care expenses. 53
There are limits to how much money a person can have in an ABLE account. In 2024, the maximum allowable amount in New York is $520,000. Balances under $100,000 are excluded from the SSI resource limit.
Additionally, if a person with an ABLE account is employed, but does not participate in an employer sponsored retirement account, they can make an additional contribution up to the lesser of: (1) the ABLE account owner’s compensation for the tax year, or (2) the poverty line amount which, in 2022, is $12,880. In New York State a person can open an ABLE account online by going to: https://www.mynyable.org/nyabletpl/uii529enroll/gettingStarted.do
Ticket to Work (TTW) is a free and voluntary program funded through the SSA that allows people with disabilities between the ages of 18 and 64 to receive SSI or SSDI while pursuing competitive employment. 54 Employment Networks (ENs) are state agencies or private organizations that the SSA has approved to provide services through the TTW program. 55 As New York’s VR agencies, ACCES-VR and NYSCB act as ENs for the purposes of the TTW program. 56 Beneficiaries work with the EN of their choice to develop an Individual Work Plan (IWP). 57 This plan can include services such as career counseling, job placement, and ongoing employment support. 58 The most recent TTW Evaluation Report available concludes: “Ticket to Work . . . [is] having a limited but positive effect on the employment of Social Security disability beneficiaries and has motivated some beneficiaries to pursue employment.” However, the report goes on to conclude that it is
53 Id.
54 Social Security Admin., Ticket to Work Program Overview, https://www.ssa.gov/work/overview.html [Accessed 6 December 2022].
55 Id.
56 https://nyess.ny.gov/docs/nyessbrochure.pdf [Accessed 6 December 2022].
57 Ticket to Work, Individual Work Plan, https://yourtickettowork.ssa.gov/employmentnetworks/individual-workplan.html#:~:text=The%20Individual%20Work%20Plan%20(IWP,achieve%20the%20beneficiary' s%20employment%20goal. [Accessed 6 December 2022].
58 Ticket to Work Program Overview https://yourtickettowork.ssa.gov/employmentnetworks/individual-work-plan.html [Accessed 6 December 2022].
significantly underutilized. 59 The main take away seems clear: the TTW Program has great potential to help people with ID/DD find and keep employment, but too few people are utilizing it.
In addition to employment programs specifically tailored to people with disabilities, New Yorkers are also able to utilize a variety of programs administered by the New York State Department of Labor and the New York State Department of Civil Service.
New York State DOL operates a single point of access to all employment related services and supports known as New York Employment Services System (NYESS). 60 Among the services provided by NYESS is the One-Stop Operating System which connects job seekers to employers and employment supports. 61 Providers of employment-related supports and services licensed by or contracting with one of the participating state agencies can utilize the NYESS system. Participating agencies include ACCES-VR, NYSCB, New York State Office for the Aging (NYSOFA), Office of Addiction Services and Supports (OASAS), Office of Mental Health (OMH), OPWDD, and the NYS DOL. NYESS also states that these agencies will be required to use the system for reporting purposes.
In addition to centralizing employment-related information, NYESS provides job matching with approximately 90,000 jobs currently posted by employers in the New York State Job Bank. NYESS performs functions such as assisting with resume development and generating documentation for government programs including TTW and employer tax credits. 62
60 N.Y. Employment Svcs. System, What is NYESS, https://nyess.ny.gov/docs/nyessbrochure.pdf [Accessed 6 December 2022].
60 N.Y. Employment Svcs. System, What is NYESS, https://nyess.ny.gov/docs/nyessbrochure.pdf [Accessed 6 December 2022].
61 N.Y. Employment Svcs. System, About NYESS, https://nyess.ny.gov/about.html [Accessed 6 December 2022].
62 Id.
The Civil Service Law of New York State creates three different employment mechanisms designed to assist people with disabilities with obtaining gainful employment in the public sector at both the state and local level Two of these programs are directly relevant to people with ID/DD: Section 55-a and Section 55-b of the Civil Service Law.
Section 55-a of Civil Service Law (55-a) provides for the employment of persons with disabilities by municipalities. 63 Each municipal civil service agency in the state may, by rule, determine a prescribed number of positions, not to exceed seven hundred, with duties which can be performed by individuals with physical or mental disabilities who are qualified to perform such duties satisfactorily.
64
Each municipal civil service agency has policies and procedures regarding appointments pursuant to 55-a. 65 It is typically up to the discretion of an appointing authority to decide whether to fill an entry-level competitive class position from an open-competitive civil service examination eligible list or appoint a qualified individual with a disability on a non-competitive basis. 66 Individuals appointed under 55-a have the same status and rights as people hired through a competitive hiring process. 67
To be employed under 55-a in a municipality, individuals with disabilities should apply directly to the appointing authority of interest for any entry-level position for which they meet the required minimum qualifications. 68 If the appointing authority is interested in appointing the individual with a disability, it must send a nomination for the individual for a position pursuant to 55-a to the municipal civil service commission or personnel officer. 69 The personnel officer or municipal civil service commission will request the duties and responsibilities of the position for review by
63 See generally N.Y. Civil Service Law § 55-a.
64 Id. § 55-a(1).
65 N.Y. Dep't of Civil Svc., Workers with Disabilities Interested in Local Government Appointment, https://www.cs.ny.gov/dpm/55a.cfm [Accessed 7 December 2022].
66 Id.
67 N.Y. Civil Service Law § 55-a(4), (5) https://www.nyc.gov/site/dcas/employment/55-aprogram.page#:~:text=Section%2055%2Da%20of%20the,having%20to%20take%20an%20exam [Accessed 7 December 2022].
68 Id.
69 Id.
either of the state vocational rehabilitation offices (NYSCB or ACCES-VR) to determine if the person with the disability is able to perform the duties of the position. 70 If the person is able to perform the job duties, NYSCB or ACCES-VR will certify to the municipal civil service agency that the person is eligible for an appointment. 71 However, while certification by these organizations is required to be employed under 55-a, such certification is not a guarantee of a job. 72
55-a creates up to 700 local civil service positions for qualified individuals with disabilities. 73 Local civil service commissions identify and designate certain positions as 55-a positions. However, it is the responsibility of the person with a disability to identify a particular job for which he or she may be qualified, and then sell the idea to the local civil service commission, who then must designate the position as 55-a.
Similar to 55-a, Section 55-b of the Civil Service Law (55-b) permits the New York State Civil Service Commission to designate up to 1,200 positions with duties that can be performed by otherwise qualified persons with physical or mental disabilities. 74 Upon such determination, these positions are classified in the non-competitive class and may only be filled by persons who have been certified by the Employee Health Service of the Department of Civil Service as being a person with either a physical or mental disability. 75 A person eligible for a 55-b appointment does not have to take the civil service examination to be appointed to a position that they are otherwise qualified for. 76
Applicants will ordinarily be found to meet the definition of a disability under the program if they have a permanent physical or mental disability that substantially limits a major life activity. 77 This definition is in line with the definition of a disability under the ADA. 78 Individuals must also meet the minimum qualifications for the position with or without reasonable accommodations. 79 After
70 Id.
71 Id.
72 Id.
73 N.Y. Civil Service Law § 55-a(1).
74 § 55-b(1).
75 Id.
76 N.Y. Dep't of Civil Svc., Workers with Disabilities Interested in Local Government Appointment, https://www.cs.ny.gov/rp55/ [Accessed 7 December 2022].
77 N.Y. Dep’t of Civil Svc., Policy Bulletin # 18-01, https://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%201801.pdf [Accessed 7 December 2022].
78 42 U.S.C. §§ 12102(1)(A).
79 N.Y. Dep’t of Civil Svc., Policy Bulletin # 18-01.
submitting the application for the 55-b program, if approved, the individual will receive a letter of eligibility from the Department of Civil Services. 80 If the individual is found not to be eligible, the individual may appeal the determination to the Civil Services Commission. 81 Once an individual has received their letter of eligibility they can submit their application to the positions they meet the minimum qualifications for and are interested in on the State Jobs New York website. 82 When an individual submits their application they must include their 55-b eligibility letter. 83 Once enrolled in the program, participants will be asked to renew their interest every three years by responding to an e-mail inquiry from the Department of Civil Services. 84
State vocational programs like NYSCB and ACCES-VR can also assist with needed accommodations to secure 55-a and 55-b positions. Further, the Job Accommodation Network (JAN) is available to both employees and employers who are trying to navigate all incentive programs and processes including 55-a and 55-b. JAN provides free consulting services for all employers, regardless of size or type (e.g., private, federal, state, or local government, etc.). 85 Services include individualized consultation about all aspects of job accommodations, including the accommodation process, accommodation ideas, product vendors, referral to other resources, and ADA compliance assistance. 86
Programs to support employment for individuals with disabilities are also present at the federal level. In particular, the Workforce Innovation and Opportunity Act and the Social Security Administration both provide employment initiatives.
80 Id.
81 N.Y. Comp. Codes R. & Regs. Tit. 4 § 58.3.
82 55-b/c Program- Frequently Asked Questions, https://www.cs.ny.gov/rp55/faq.cfm [Accessed 7 December 2022].
83 Id.
84 N.Y. Dep’t of Civil Svc., Policy Bulletin # 18-01.
85 https://askjan.org/ [Accessed 7 December 2022].
86 Id.
WIOA was signed into law on July 22, 2014. WIOA defines, for the first time, “competitive integrated employment” (CIE) and prioritizes the maximum opportunity for each individual served to experience and participate in employment that is both competitive (compensated at or above the minimum wage) and integrated. WIOA places a focus on the word “integrated” in creating systems where people with disabilities interact with and get the same opportunities for career successes as non-disabled co-workers. WIOA was designed to help job seekers with disabilities access employment, education, training, and support services to succeed in the labor market and to match employers with the skilled workers they need. WIOA also requires state agencies – including Medicaid agencies, developmental disabilities agencies, vocational rehabilitation programs, and education agencies – to enter into unified agreements to prioritize CIE.
87
WIOA provides funding to VR programs to support competitive integrated employment instead of subminimum wage work under section 14(c) of the Fair Labor Standards Act. This funding supports individuals who would like to transition out of subminimum wage jobs, such as workers in sheltered workshops, to competitive integrated employment. WIOA also establishes an advisory committee within the United States Department of Labor to provide counsel on achieving CIE for individuals with disabilities participating in workforce training and employment programs across federal agencies. 88
The WIOA Adult Program provides workforce services for eligible adults through one of the six core programs authorized by WIOA: Adult, Dislocated Worker, Youth, Adult Education and Family Literacy Act (AEFLA), Wagner-Peyser, and the Vocational Rehabilitation (VR) programs. 89 WIOA establishes a priority requirement with respect to funds allocated to a local area for adult employment and training activities. WIOA Adult Services (title I of WIOA) provides funding for skills training, soft skills development, financial literacy, career counseling, and individual training accounts. 90 American Job Center staff, when using WIOA Adult funds to provide individualized career services and training services, must give priority to recipients of public assistance, other
87 https://www.centerforpublicrep.org/initiative/federal-employment-policy [Accessed 7 December 2022].
88 https://garamendi.house.gov/sites/garamendi.house.gov/files/documents/WIOATItleIV.pdf [Accessed 7 December 2022].
89 https://www.dol.gov/agencies/eta/workforce-investment/adult [Accessed 7 December 2022].
90 https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEN/2022/TEN%200722/2.%2043410-FAQs- CIE%20%28Attachment%20I%29.pdf (pg. 3) [Accessed 7 December 2022].
low-income individuals, and individuals who are basic skills deficient. People with ID/DD can find more information on how to access these programs by visiting their local Career One Stop 91
SSA offers beneficiaries “work incentives,” which are defined as special rules which make it possible for people with disabilities receiving SSI or SSDI to work while still receiving monthly payments as well as Medicare or Medicaid. 92 One such work incentive is the Unsuccessful Work Attempt safety net This comes into play when an individual with a disability wants to attempt to work at a substantial level but is fearful that the attempt may be unsuccessful and cause havoc on the SSA benefits they receive. Under the Unsuccessful Work Attempt provision, SSA will not stop payments to a beneficiary who tries to perform substantial work, only to find they are unable to sustain that effort for up to six months. The beneficiary’s earnings must have decreased or stopped as a result of the individual's disability or the elimination of special services or assistance that the individual needed in order to work. Unsuccessful Work Attempts are not factors when SSA calculates a person’s SSI payment amount. 93
Trial Work Period is another SSA work incentive for people receiving SSDI who participate in the TTW program to allow them to “test the waters.” SSA allows the person to try to return to work while keeping their full disability benefits and health insurance during the trial period months. SSA allows for nine trial period months. A month in 2022 is counted as a trial if earnings exceed $970 a month. If the person becomes employed and earns $970 or more within one month, they will not lose their benefits. A person can retain their benefits for each month their earnings exceed $970 for up a maximum of nine months. 94
Another SSA work incentive is called Impairment-Related Work Expenses (IRWE). SSI and SSDI beneficiaries are eligible to receive IRWE. IRWE allows SSA to deduct the cost of certain impairment-related items and services that are needed to work from the person’s gross earnings. The item or service must enable the person with disabilities to work. Some examples of IRWE are transportation costs to get to the place of employment, personal care services needed to help a
91 www.careeronestop.org [Accessed 7 December 2022].
92 https://www.ssa.gov/disabilityresearch/wi/detailedinfo.htm#UWA [Accessed 7 December 2022].
93 Id.
94 https://www.myemploymentoptions.com/faq/ [Accessed 7 December 2022].
person prepare for work, service animals, and medical devices including wheelchairs, respirators, braces, etc. IRWE also include assistive technology that people with disabilities use for employment–related purposes, such as software applications, computer support services, and special tools which have been specifically designed to accommodate the person’s impairment. 95
SSA also offers a Student Earned Income Exclusion for SSI. A blind or disabled child, who is a student regularly attending college, or university, or a course of vocational or technical training, can have limited earnings that are not counted against his or her Supplemental Security Income (SSI) benefits. 96 The student should contact SSA or review the website annually as earned income exclusion amounts may vary from year to year.
Additional information about employment related provisions of SSDI and SSI can be found in the SSA publication known as The Red Book – A Guide to Work Incentives 97
New York State is an employment-at-will state. This means that an employer can terminate an employee at any time for any reason without incurring legal liability, as long as the termination does not violate federal, state, or local laws. Importantly, terminating an individual on the basis of disability is prohibited. Federal, state, and local laws guarantee the civil rights of individuals with disabilities and prohibit disability-based discrimination in employment. These include the ADA, 98 section, 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 99 the New York State (NYSHRL), 100 and New York City Human Rights (NYCHRL). 101 Though each of these laws varies slightly, they all protect people with disabilities from employment discrimination and promote equity of opportunity in employment.
Section 504 of the Rehabilitation Act of 1973
95 https://www.ssa.gov/redbook/eng/ssdi-and-ssi-employments-supports.htm?tl=1%2C2%2C3 [Accessed 7 December 2022].
96 https://www.ssa.gov/oact/cola/studentEIE.html (Accessed 19, April 2023)
97 https://www.ssa.gov/redbook/index.html [Accessed 7 December 2022].
98 42 U.S.C. §§ 12112–12117.
99 29 U.S.C. § 794.
100 N.Y. Executive Law §§ 290–301 (Exec. Law).
101 N.Y.C. Admin. Code §§ 8-101–8-703.
Section 504 of the Rehabilitation Act of 1973 (Section 504) was the first civil rights statute to protect the rights of individuals with disabilities relating to employment. Generally, the Rehabilitation Act bars disability discrimination in employment by the federal government, federal contractors, and programs and activities receiving federal financial assistance. 102 Section 504 prohibits these entities from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services. The Rehabilitation Act has the same definition of disability, reasonable accommodation, major life actives, and standards for determining employment discrimination as the ADA (Section B, infra). 103
In the employment context, Section 504 requires employers to provide reasonable accommodations to job applicants and employees to ensure the applicant or employee has equal access to the work environment and activities that are part of the work environment. Accommodations are any adjustments or modifications to the work environment that allow an individual to perform the essential functions of the position or equally benefit from other employment-related activities. Some examples of accommodations include assistive technology, a modified work schedule, adjustment to work policies, and many others. Accommodations must be reasonable- an employer is not required to provide accommodations that would alter a fundamental aspect of the work environment or job responsibilities, nor is an employer required to provide accommodations would cause undue hardship such as those that are excessively costly in light of the employer’s size, financial resources, or type of operation.
Additional information about accommodations in the workplace is available from numerous resources, including the Job Accommodation Network.
The ADA expanded the rights and concepts that were established under Section 504 to include employers regardless of whether or not they receive federal financial assistance. Title I of the ADA relates to employment and it covers both public and private employment. The ADA prohibits covered entities from discriminating against qualified individuals with disabilities in employmentrelated activities. In general, an employer must comply with the ADA if it has 15 or more
102 29 U.S.C. 791,793, 794.
103 Pub. L No. 110-325.
employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 104
The term “disability” in the ADA is defined as an individual who has (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) the individual is regarded as having such an impairment. 105 Physical or mental impairments apply to a wide variety of disabilities such as learning disabilities, physical disabilities, mental illness, heart conditions, vision, and hearing disabilities, as well as many others. Major life activities include things such as caring for oneself, walking, eating, sleeping, reading, learning, communicating, and many other things. The definition of disability under the ADA is construed in favor of broad coverage and interpreted consistently with the findings of the ADA Amendments Act of 2008. 106
The ADA protects qualified individuals with disabilities. A qualified individual is a person who, with or without accommodations, can perform the essential functions of the employment position. For example, an essential function of a lifeguard may be the ability to swim as that may be fundamental to the performance of that particular job. Under the ADA, an employer may not consider disability when deciding to hire, fire, pay, give job assignments, promote, lay off, train, change benefits, or affect any other condition of employment. 107 Discriminatory acts under the ADA also include a covered employer's failure to provide reasonable accommodations to qualified employees with disabilities. 108
The U.S. Equal Employment Opportunity Commission (EEOC) is the primary government agency that enforces both Section 504 and the ADA.
The New York State Human Rights Law (NYSHRL) is a state law that prohibits, among other things, discrimination on the basis of disability. 109 With regard to employment, it covers all employers regardless of size and it also includes protections from discrimination for independent
104
42 U.S.C. § 12111(5).
105 42 U.S.C. § 12102.
106 42 U.S.C § 12102(4)(A)(B).
107 42 U.S.C. §12112 (a); 42 U.S.C. 12111(8).
108 42 U.S.C. 12112(b)(5).
109 N.Y. Executive Law §§ 290–301 (Exec. Law).
contractors. 110 The New York City Human Rights Act (NYCHRA) is a law that applies only in the five boroughs of New York City. It covers employers with four or more employees, and, like the NYSHRL, it includes protections for independent contractors. 111 An independent contractor is someone who provides goods or services according to the terms of a contract they have negotiated with an employer and are generally not considered an employee. Both NYSHRL and NYCHRA are very similar to the ADA and Section 504 of the Rehabilitation Act but provide further protection from discrimination based on disability. Both define disability more broadly and are very inclusive of what is considered a disability and thereby cover additional types of disabilities. 112 Both also require employers to provide reasonable accommodations to individuals with disabilities.
Victims of disability discrimination in employment can seek assistance from either the EEOC or the New York State Division of Human Rights (DHR). 113 While discrimination claims, including ADA /504 can be filed at both the EEOC and the NYSDHR, the process that follows is different. If you file an administrative claim first with the DHR your claim will also be filed with the EEOC, and vice versa (“dual filing”). The primary difference is that if the DHR investigates, and ultimately dismisses, your claim you will be precluded from pursuing any potential claims under New York State law in court. If you file your claim with the EEOC, however, the result of a dismissal is not the same. If the EEOC dismisses your claim you will be issued a “Right to Sue,” which then allows you to pursue your claims under Federal law in court. 114 In addition, the New York City Commission on Human Rights can provide assistance and information on violations of the NYCHRA. There are strict timelines for filing complaints related to employment discrimination. For example, you must file NYSHRL complaints within one year of the most recent act of alleged discrimination. It is best to act on these issues as soon as possible. An attorney is not needed to file a NYSHRL complaint. The New York State Division of Human Rights was created to enforce this important law. A member of the Division staff will investigate and may agree to assist complainants throughout the hearing process, free of charge. 115 Even though the EEOC and NYSDHR are designed to assist individuals without counsel, the considerations in selecting the appropriate venue, how to approach that venue, and the long-term implications of that selection and approach, can be confusing. If you believe you may have a claim for employment
110 N.Y. Executive Law §§ 292(5), 296-d.
111 N.Y.C. Admin. Code §§ 8-102.17.
112 Exec. Law §292(21); N.Y.C. Admin. Code §§ 8-102.16.
113 Exec. Law § 297(9).
114 https://www.doraziopeterson.com/2015/06/13/the-eeoc-or-division-of-human-rightswhich-is-appropriate [Accessed 7 December 2022].
115 https://dhr.ny.gov/ [Accessed 7 December 2022].
discrimination speaking with an experienced employment attorney before making any decisions may be an important step to consider. 116All of the statutes listed above- the ADA, the Rehabilitation Act, the NYSHRL, and the NYCHR- protect against disability discrimination from covered employers. When an employer makes an employment decision based on an individual’s disability and not their skills, qualifications, or how well they do their job, it can be deemed as discrimination. In general, these protections cover an individual at every stage of employment, from the application process to a situation where an individual may have been passed over for a promotion due to their disability.
Although there are numerous resources available for people with ID/DD participating in day habilitation programs who wish to enter the workforce, they are often unknown. People with ID/DD must be informed of and provided with the supports necessary to take advantage of employment programs in order to realize their employment goals.
116 https://www.doraziopeterson.com/2015/06/13/the-eeoc-or-division-of-human-rightswhich-is-appropriate [Accessed 7 December 2022].