LIMITATIONS ON THE USE OF SUBMINIMUM WAGE
Effective 7/22/16
The addition of Section 511 demonstrates the intent that individuals with disabilities, especially youth with disabilities, must be afforded a full opportunity to prepare for, obtain, maintain, advance in, or reenter competitive integrated employment.
Section 511 imposes limitations on employers who hold special wage certificates, commonly known as 14(c) certificates, under the Fair Labor Standards Act (FLSA) that must be satisfied before the employers may hire youth with disabilities at subminimum wage or continue to employ individuals with disabilities of any age at the subminimum wage level.
Iowa Vocational Rehabilitation Services (IVRS) / Iowa Department of Education(DE) / Community Rehabilitation Providers/”Entities”
(CRP) / Case Managers
(CM) / Iowa Client Assistance Program
(CAP)
Limits Youth with Disabilities (YWD) age 24 or younger from beginning work that pays subminimum wage unless they complete and produce documentation indicating the completion of:
- Received Pre-Employment Transition services (PETS) as a student with a disability or transition services,
- Applied for IVRS and been found ineligible for services,
- Was determined eligible for IVRS but has not been successful after receiving services for a reasonable period of time,
- Received information and referral and career counselingto other appropriate resources for services
Must consult with DE to develop a plan or utilize an existing process to document the completion of required activities by YWD.
Provides YWD documentation upon completion of PETS prior to starting subminimum wage employment.
Age 24 and above
Review every six months for the first two years of a person’s subminimum wage employment and annually thereafter for the duration of such employment.(p308, 449)
Career Counseling and Information & Referral services:
- Must be provided in a manner that facilitates independent decision-making and informed choice; and
- May include benefits counseling
For individuals hired at subminimum wage on or after 7/22/16, career counseling and information & referral services must be carried out every 6 months for the first year, then annually for as long as the individual receives subminimum wage.
For individuals employed at subminimum wage prior to 7/22/16, the services must be carried out once before 6/22/17 and annually thereafter.
THE APPLICABLE INTERVALS WILL BE CALCULATED BASED UPON THE DATE THE INDIVIDUAL BECOMES KNOWN TO THE DSU.
IVRS Requirements for Documentation
IVRS must provide services to individuals known to IVRS who want to continue employment at subminimum wage. p487
Requirementsfor documentation of determinations made or the completion of an activity must show an individual exercised informed choice.p525
When IVRS transmits documentation of the last determination made of an activity completed, a cover sheet that itemizes all documentation is provided of following (p529, 974):
- Career Counseling
- Information & Referral services designed to promote opportunities for competitive integrated employment to PWD regardless of age.
If an individual exercising informed choice refuses to participate in an activity, IVRS must provide documentation of the refusal within 10 calendar days.
Must provide an individual referred by a CRP with fewer than 15 employees of self-advocacy, self-determination and peer mentoring opportunities available in the community. p976 / Prohibits a local educational
agency or a state educational agency from entering into
a contract with an entity that employs individuals at
subminimum wage for the purpose of operating aprogram under which a youth with a disability isengaged in subminimumwage employment.
Ensures availability of PETS for as long as the student remains in an educational program and meets the definition of a “student with a disability.”
Ensures responsibilities are met that include providing and/or paying for job coaching services when needed as part of the instructional component of a student’s Educational Program (IEP).
Additional responsibilities are outlined in the Memorandum of Understanding between DE and IVRS at this link:
Consistent with confidentiality requirements of FERPA and/or IDEA, the appropriate school official responsible for the provision of transition services must provide IVRS documentation of transition services when a student has completed all transition services in the IEP. (p522, 528)
Must maintain records of the provision of transition services to students through an IEP and requires the educational agency to retain copies of all documentation provided to IVRS. (p528, 539, 544)
If a student completes a required activity provided by the educational agency, the documentation must be transmitted to IVRS within 45 days calendar days. p521
Transmittal of documentation to IVRS should be within 30 days after completion of transition services (60 days in extenuating circumstances). p545, 970
Provide IVRS notice of any youth refusing to participate in transition services within 5 days (p545)
Provide cover sheet that itemized all documentation transmitted to IVRS about youth. (providing the youth documentation does not appear necessary). p545, 547
DE TO DETERMINE IMPLEMENTATION PROCESS! / Imposes limitations on employers who hold 14(c) special wage certificates which must be satisfied before the employer may hire Youth with Disabilities (age 24 and under) at subminimum wage.
INDIVIDUALS OF ANY AGE
If an individual with a disability REGARDLESS OF AGE wants to maintain his or her employment at subminimum wage, he or she must be:
- Provided career counseling and information & referral by IVRS or another provider of such services in the community. (see IVRS column 1 - Career Counseling and Information & Referral services)
- Informed by the CRPof self-advocacy, self-determination and peer mentoring training opportunities provided by an entity that does not have a financial interest in the person’s employment outcome (Independent Living Centers, Family Support Groups, etc.). p577, 581
CRPs cannot employ at less than minimum wage any students with disabilities who are enrolled with a school district.
If asked to attend a student’s Individual Education Plan meeting, provide schools this information on Section 511 requirements.
REVIEWS
A review is only needed on a person who is known to IVRS.
Arrange with IVRS the six month and annual reviews to be completed for individuals’ being paid less than minimum wage for any person known to IVRS.
Work with IVRS to determine what works best within your organization in scheduling reviews. p566
Provide IVRS the list of individuals needing reviews. Inform the individual and their team of the review and provide meeting place for reviews.
Maintain documentation from the reviews.
Inform a person with a disability of any age seeking or continuing employment in a workshop how to access services to enable them to achieve competitive integrated employment in the community, including IVRS services.
Individuals seeking or who are already employed at subminimum wage on July 22, 2016must receive career counseling and information and referral services at least once a year.
The first annual career counseling and information and referral services must occur no later than July 22, 2017 and annually thereafter. p566
For individuals employed at subminimum wage prior to 7/22/16, the services must be carried out once before 6/22/17 and annually thereafter.
At any time, any individual who wants to pursue other employment options that would involve community employment at or above subminimum wage should be given information about IVRS.
CRP Requirements for Documentation
Please refer to IVRS-issued UPDATE FOR IVRS STAFF AND CRP PARTNERS 8/10/16 / Requires an assessment of a member to determine their needs appropriate to work.
Requires ongoing monthly contact and monitoring to ensure that as a member’s needs change, their service plans are updated accordingly.
Requires face-to face meetings with each member quarterly to monitor progress and service provision.
Requires annual redetermination of Level of Care (LOC) or Needs Based Eligibility to remain maintain program eligibility.
RequiresAnnual reassessment of needs to inform service plan.
Employment must be discussed and reflected in each member’s service plan.
Prevocational services are not a prerequisite for supported employment, many members will prefer to begin job seeking rather than participate in prevocational services.
Seeks authorization from the IME for Medicaid FFS members or the MCO partners for MCO enrolled Medicaid members prior to authorizing to a workshop at which subminimum wages are paid.
Prior authorization process for prevocational services must take into consideration a member’s age, work experiences, employment goals and duration in prevocational services.
Career Exploration services should engage a participant in identifying a career direction anddeveloping a planfor achieving competitive, integrated employment at or above the state’s minimumwage.
Documentation requirements must reflect a member’s employment needs and preferences.
Wrap-around services should be considered to support a member in employment.
Referrals to IVRS can be made for each member seeking employment, with special consideration for those under age 24 seeking SupportedEmployment Services.
Resource Sharing information between IVRS and DHS/IME can be found at this link:
The current MOA between IVRS and DHS/IME for Supported Employment Services link:
See Iowa’s Guidebook for Case Managers
/ Makes available due process rights to students and youth with disabilities to receive PETS and transition services even if they have not yet applied or been determined eligible for IVRS.
May assist and advocate for client or client-applicant by pursuing legal, administrative, or other appropriate remedies to protect their rights and ensure access to services.
May advocate on behalf of clients or client-applicants requesting assistance with issues arising under Section 511.
May review documentation if given permission from the individual and/or guardian if applicable.
INFORMED CHOICE
Individuals’ and their families’ initial response when offered integrated options may be reluctance or hesitancy.
Public entities must take affirmative steps to ensure that individuals have an opportunity to make an informed choice.
Such steps include providing information about the benefits of integrated settings: facilitating visits or other experiences in such setting; and offering to meet with other individuals with disabilities who are living, working and receiving services in integrated settings, with their families and with community providers.
Public entities also must make reasonable efforts to identify and address any concern or objections raised by the individuals or another relevant decision-maker.
Nothing in WIOA prohibits DE or IVRS from contracting with a CRP for transition services or PETS that are beneficial to students or youth with disabilities as long as they are not paid subminimum wages if compensation is provided.
IVRS must be aware that an individual with a disability is employed at the subminimum wage level in order to provide the services required by section 511. Such awareness may be made through the self-identification by the individual with a disability, the VR process, cooperative or coordinated activities with other agencies, or referral to IVRS, including referral by a CRP.
There is no mandate for IVRS to seek out or solicit individuals in Section 511. p570
There is no mandate for entities holding 14(c) certificates to refer to IVRS employees or individuals with disabilities seeking to enter subminimum wage employment as section 511 cannot require other agencies to make referrals. p571, 572
Under 511, career counseling and information and referral services are for any individual in subminimum employment, not just for individuals who have been applicants or recipients under IVRS. p565
Individuals with disabilities must be allowed to exercise informed choice throughout the vocational rehabilitation process. They may pursue any form of employment they chose, however if an individual wishes to receive VR services, they must intend to achieve an employment outcome (defined as “employment in competitive integrated employment or supported employment”). p52
An individual, including a YWD (or his or her parent or guardian as applicable), has the right to refuse to participate in activities required by section 511 and exercise informed choice regarding activities required. If a youth chooses not to participate in the activities required by section 511, or chooses to opt out of the vocational rehabilitation process entirely, such a choice will impact the permissibility of the youth to work in a subminimum wage and preclude him or her from obtaining subminimum wage employment. p526
It is anticipated that joint guidance from the Departments of Education and Labor will address, among other aspects of WIOA, the limitations of the use of subminimum wage if the required services have not been provided.p575
Further operational guidance regarding the requirements for collaboration, development and documentation process is coming from the Office of Special Education and Rehabilitation Services, in collaboration with the Department of Labor’s Wage and Hour Division. p518