Analysis of WIA Section 188 Methods of Administration Plans from a Disability Perspective
Historically, people with disabilities have faced attitudinal, physical, and institutional barriers that prevent them from fully participating in the mainstream of life in this country, including access to public services and programs and employment. Over the last quarter of a century, our Nation's policymakers have enacted laws and amended existing law designed to break down these barriers and replace them with ladders and ramps of opportunity for persons with disabilities.
The centerpieces of this effort are Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act of 1990 (ADA), civil rights statutes for persons with disabilities. The ADA, however, is more than a civil rights statute. The ADA articulates our Nation's goals regarding public policy relating to persons with disabilities:
- Equality of opportunity
- Full participation
- Independent living
- Economic self-sufficiency
On August 7, 1998, the Workforce Investment Act (WIA) was signed into law. The overall goal of WIA is to increase employment, retention, and earnings of persons participating in employment-related activities supported by an integrated workforce investment system, and in so doing improve the quality of the workforce, sustain economic growth, enhance productivity and competitiveness, and reduce welfare dependency. The cornerstone of the legislation is the establishment of the One-Stop service delivery system, which must be "seamless" i.e., "one right door and no wrong door approach."
WIA specifies that the State plan must describe how the State will meet the needs of major customer groups, including individuals with disabilities. The State Workforce Investment Board has numerous responsibilities, including development of the State plan, review of the local plans, continuous improvement of statewide activities, development of State performance measures, and issuance of policies. With respect to persons with disabilities, the State Workforce Investment Board is responsible for determining how best to organize the service system to most effectively serve customers with disabilities.
The Local Workforce Investment Board sets policy for the portion of the statewide workforce investment system within the specified local area and develops the local workforce investment plan. Specifically, the Local Board is responsible for making critical decisions, including how best to organize the service system to most effectively serve customers with disabilities, and carry out the local plan consistent with the State plan.
Section 188 of WIA prohibits discrimination on the ground of disability as well as race, color, religion, sex, national origin, age, political affiliation or belief, and, for beneficiaries only, of citizenship on the basis of an individual's status as a citizen or national of the United States, or as an individual lawfully authorized to work in the United States, or of his or her participation in any WIA Title I-financially assisted program or activity. Interim final regulations implementing Section 188 were issued by the Department of Labor on November 12, 1999, Part 37 of Title 29 of the Code of Federal Regulations (29 CFR Part 37).
In accordance with the Section 188 regulations, the Governor is responsible for oversight of all WIA Title I-financially assisted programs. This responsibility includes ensuring compliance with the nondiscrimination and equal opportunity provisions. The Section 188 regulations specify that each Governor must establish and adhere to a "Methods of Administration" (MOA) for State programs under WIA Title I. The MOA must give a reasonable guarantee that all recipients will comply and are complying with the nondiscrimination and equal opportunity provisions of WIA and the implementing regulations. The MOA must be in writing (with narrative and documentation), reviewed and updated periodically, and signed by the Governor.
The Section 188 regulations include nine elements that must be addressed in a State's MOA:
- Designation of Equal Opportunity Officer
- Notice and Communication
- Universal Access
- Obligation not to Discriminate on the Basis of Disability
- Data and Information Collection and Maintenance
- Monitor for Compliance
- Complaint Processing Procedures
- Corrective Actions/Sanctions
On June 18, 2001, President Bush signed Executive Order No. 13217 "Community-Based Alternatives for Individuals with Disabilities." The Executive Order states, among other things, that the Federal government must assist States and localities to implement swiftly the Olmstead decision decided by the U.S. Supreme Court so as to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently, to engage in productive employment, and to participate in community life. The Executive Order also directed the Secretaries of various Federal departments to evaluate the policies, programs, statutes, and regulations to determine whether any should be revised or modified to improve the availability of community-based services for qualified individuals with disabilities. Further, the Executive Order directed each Secretary to report to the President with the results of the evaluation.
The government-wide Report to the President is entitled "Delivering on the Promise." Secretary of Labor Elaine L. Chao, on behalf of the Department of Labor, recognized that the multiple barriers to employment and economic empowerment of adults with disabilities include the fragmentation of existing employment services and the isolation and segregation of people with disabilities from mainstream programs and services.
The Secretary recognized that an important step in addressing the needs of individuals with disabilities was the creation of the Office of Disability Employment Policy (ODEP). The Secretary also recognized the critical need to build capacity of the generic workforce development system to provide meaningful opportunities to people with disabilities.
In partial fulfillment of the Secretary's "Plan of Action" set out in "Delivering on the Promise," on July 25, 2003, Patrick Pizzella, the Assistant Secretary for Administration and Management, W. Roy Grizzard, Jr., the Assistant Secretary for Disability Employment Policy, and Emily Stover DeRocco, the Assistant Secretary for Employment and Training issued a compliance assistance "Checklist" designed to ensure nondiscrimination against and equal opportunity for persons with disabilities under Section 188 of WIA. The Checklist was sent to all WIA program operators who receive government financial assistance.
The Checklist identifies basic requirements under Section 188 of WIA, including portions of the regulations implementing Section 504 of the Rehabilitation Act. The Checklist includes lists of questions for each element of the MOA. In addition, for some of the elements, the questions are followed by bullet points describing examples of concrete action that comply with some of the basic requirements imposed by Section 188 and the regulations. Similarly, the Appendix to the Checklist includes examples of policies, procedures, and other recommended steps that are not mandatory but that Local Workforce Investment Area grant recipients can take to ensure that people with disabilities have equal access to WIA Title I programs and activities.
B. PURPOSES OF THE RESEARCH
The original purpose of the research, commenced in Spring 2002, was to provide a baseline for assessing the nature and extent of changes over time to the policies and procedures described and/or attached to MOAs developed by six States regarding the implementation of Section 188 for persons with disabilities. The research project was initially conceived in part to carry out the mission of two Rehabilitation and Research Training Centers funded by the National Institute on Disability and Rehabilitation Research--The Center on Workforce Investment and Employment Policy for Persons with Disabilities operated by the Law, Health Policy and Disability Center at The University of Iowa School of Law and the Center on State Systems and Employment Outcomes operated by the Institute for Community Inclusion at the University of Massachusetts, Boston.
In the process of gathering the data from the Civil Rights Center (CRC) in the U.S. Department of Labor (the agency organizationally located in the Office of the Assistant Secretary for Administration and Management that is responsible for Federal implementation of Section 188 of WIA), the Director of the Office asked the author to provide technical assistance in the development of the Section 188 Disability Checklist consistent with his role as a partner in The National Center on Workforce and Disability/Adult operated at the Institute for Community Inclusion, University of Massachusetts, Boston and funded by the Office of Disability Employment Policy. Consistent with this request, the second purpose of the research was to provide State-based examples of policies, procedures, and other recommended steps included in State MOAs that Local Workforce Investment Area grant recipients can take to ensure that people with disabilities have equal access to WIA Title I-financially assisted programs and activities.
The Section 188 Disability Checklist was completed and released after completing the research and providing technical assistance to the CRC staff regarding the development of the Section 188 Disability Checklist. The paper was drafted after issuance of the Checklist and is based on the research conducted for this paper and for the Checklist, and also discussion during technical assistance activities with CRC.
C. RESEARCH APPROACH AND METHODOLOGY
The research methodology included the following components. First, a comprehensive review was undertaken of the WIA legal framework, including the statute, and regulations and guidelines issued by the U.S. Department of Labor. Second, six State MOAs were identified for review. The Director of CRC and her staff recommended the particular State MOAs for review based on the primary consideration of which MOAs contained the most comprehensive policies specifically related to persons with disabilities. The States included in the review were: Maryland, Minnesota, New Jersey, New York, Texas, and Washington. This approach (rather than selecting a representative sample of States) was taken in order to ensure that the research would produce State-level data to better inform DOL policymakers regarding possible examples for inclusion in the Checklist.
Third, a template was developed for categorizing the State information in the MOAs pertaining specifically to persons with disabilities. The template was based on key elements set out in the WIA legal framework. Fourth, all references in and policy issuances appended to the MOAs in each of the six States relating specifically to persons with disabilities were copied, reviewed, indexed, and summarized in memos to the files. The review was undertaken at one point in time�the original submission of MOAs for review and approval by CRC. Fifth, additional memos to the files were drafted organized by each of the key elements identified in the template pertaining specifically to persons with disabilities. Finally, the person in each State responsible for implementing the MOA as well as key experts in the field (including DOL staff, persons with disabilities and their representatives, researchers, service providers, and others working on WIA) reviewed drafts of the paper to validate the various findings and conclusions. This paper reflects the input of these experts.
D. REPORT STRUCTURE
This report has five sections.
Section I is the introduction, which includes background, purposes of the research, research approach and methodology, and report structure. Section II provides an overview of the Section 188 regulations pertaining specifically to persons with disabilities.
Section III includes a State-by-State analysis of the Section 188 MOAs. The following topics were included for each State:
- State agencies responsible for implementation of WIA in general and Section 188 in particular
- Key policy directives
- Designation of State and local Equal Opportunity Officers
- Notice and communication
- Universal access
- Obligation not to discriminate on the basis of disability (General prohibitions, Reasonable accommodation/reasonable modification, Programmatic and architectural accessibility, Most integrated setting appropriate, Effective communication)
Section IV includes an analysis of key elements identified in the template. The analysis includes references to policies included in the six State MOAs. The following topics are included in the analysis:
- Designation of State and local Equal Opportunity Officers
- Notice and communication
- Universal Access
- Obligation not to discriminate on the basis of disability (General prohibitions, Reasonable accommodations/reasonable modifications, Administer programs in the most integrated setting appropriate, Communicate with persons with disabilities as effectively as with others, Programmatic and architectural accessibility)
Section V includes conclusions and recommendations.