(Question from a counselor) Some community rehabilitation centers hire people competitively to do production work on their production line. If a DVR Wisconsin Division of Vocational Rehabilitation consumer is so hired, would this qualify as a successful closure (competitive in an integrated setting)?

(Opinion of DVR Policy Analyst) This is an excellent question.  I am including with my response several citations from federal regulations, the definitions of competitive employment, of employment outcome, of integrated setting, and the discussion of competitive employment.

It seems to me you need to ask 3 questions to determine if the work at the community rehabilitation center is competitive and integrated.  These three questions cannot really be separated.

1 - is the salary at or above minimum wage and customary to that received by non-disabled employees?

2 - does the position give the individual the same opportunities to interact with non-disabled people that exist for non-disabled employees?

3 – is this job considered a job for people with disabilities, or a job for any qualified person in the community?  Is this the kind of job your non-disabled neighbor might consider if he/she was layed-off from their current job?

The issue is not so much the number of non-disabled people the consumer interacts with as it is the normalcy (relative to non-disabled employees) of the position.  In other words, does the consumer have the same opportunities and full range of choices which exist for the non-disabled general public?

Another way of looking at it is what is the mission of the employer?  If the mission of the employer is to provide a service or good to the public then they are probably an integrated setting.  If the mission is to provide employment to people with disabilities, then they are probably not an integrated setting.

Sec. 361.5  Applicable definitions.

(b)(11) Competitive employment means work--

   (i) In the competitive labor market that is performed on a full-time or part-time basis in an integrated setting; and

   (ii) For which an individual is compensated at or above the minimum wage, but not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by individuals who are not disabled.

(b)(16) Employment outcome means, with respect to an individual, entering or retaining full-time or, if appropriate, part-time competitive employment in the integrated labor market to the greatest extent practicable; supported employment; or any other type of employment, including self-employment, telecommuting, or business ownership, that is consistent with an individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

(b)(33) Integrated setting,--

   (i) With respect to the provision of services, means a setting typically found in the community in which applicants or eligible individuals interact with non-disabled individuals other than non-disabled individuals who are providing services to those applicants or eligible individuals;

   (ii) With respect to an employment outcome, means a setting typically found in the community in which applicants or eligible individuals interact with non-disabled individuals, other than non-disabled individuals who are providing services to those applicants or eligible individuals, to the same extent that non-disabled individuals in comparable positions interact with other persons.

Competitive employment

Comments: One commenter questioned the basis for the requirement that ``competitive employment'' be limited to employment outcomes in integrated settings. A second commenter asked that we broaden the definition of ``competitive employment'' in the proposed regulations to include employment under the Javits-Wagner-O'Day (JWOD Javits-Wagner-O'Day (JWOD) Program or Act) program if that employment is chosen by the eligible individual.

Discussion: The proposed definition of ``competitive employment'' was the same as that found in the previous regulations.

Although the term is not defined in the Act, section 7(11), the statutory definition of ``employment outcome'' does refer to competitive employment in the integrated labor market. On that basis, and in light of the great emphasis that the Act places on maximizing the integration into society of persons with disabilities, it has been our longstanding policy to define ``competitive employment'' to mean employment in an integrated setting (at or above minimum wage). For further information on the integrated setting (and wage) components of the ``competitive employment'' definition, please refer to the relevant discussion in the preamble to the previous regulations (62 FR Federal Register 6310 through 6311). Whether an employment outcome meets the regulatory definition of ``competitive employment'' is to be determined on case-by-case basis. If a particular job, including a job secured under the JWOD program, is integrated (i.e., the individual with a disability interacts with non-disabled persons to the same extent that non-disabled individuals in comparable positions interact with other persons; Sec. 361.5(b)(33)(ii) of the final regulations) and the individual is compensated at or above the minimum wage (and not less than the customary wage and benefit level paid by the employer for the same or similar work performed by individuals who are not disabled; Sec. 361.5(b)(11)(ii) of the final regulations), then that position would be considered competitive employment. In fact, we expect that many jobs secured under JWOD service contracts would meet these criteria. On the other hand, employment in a non-integrated setting such as a sheltered workshop would not qualify as competitive employment regardless of whether the position is obtained under a JWOD contract or another program or arrangement.

Changes: None.

The federal regs of January 22, 2001 contain some additional language on this topic.  The purpose of these regs was to convey the message to the states that sheltered employment was no longer appropriate for VR to consider as a successful outcome.

I have mixed feelings about the situation you are describing.  I think you need to weigh, on a case by case basis, the extent to which this is the best employment outcome for the individual, relative to all of the criteria listed below.  To what extent does the consumer want this job?  Since it is not subsidized by the county and since it is minimum wage or higher, you don't have a problem there.  But you and the counselor will need to decide how comfortable you are with the appropriateness of this job for this particular consumer.  The next paragraph is from the introduction to the regulations:

The chief purpose of these regulations is to ensure, as we believe Title I of the Act intends, that participants in the VR program, particularly those with significant disabilities, are afforded a full opportunity to integrate within their communities and participate in jobs that are available to the general population.

Sec. 361.5  Applicable definitions.

* * (b) * * *

   (16) Employment outcome means, with respect to an individual, entering or retaining full-time or, if appropriate, part-time competitive employment, as defined in Sec. 361.5(b)(11), in the integrated labor market, supported employment, or any other type of employment in an integrated setting, including self-employment, telecommuting, or business ownership, that is consistent with an individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.