Respect of Florida Regulatory Training

Respect of FloridaRegulatory Training Tamara Balenger Senior Regulatory Specialist NISH tbalenger@nish.org

JWOD UPDATE Regulatory Reviews

NISH Regulatory Reviews • Same focus on Compliance • Changes Include: • Random payroll selection of files • Increased number of files reviewed • More scrutiny of disability documentation • Large agencies can expect significantly more time on site. • Corrective Actions required and monitored • Follow-up visits may be warranted

Random File Selection • CRP will provide NISH Regulatory Staff with a list including all employees counted as Disabled Direct Labor. • Names will be picked randomly to determine which files will be reviewed. • 10% of JWOD files and Agency files will be reviewed or 20 JWOD files and 20 Agency files which ever is greater.

File Review • NISH reviewer will pick the files so that each contract has representation and will also include files from all agency locations in cases where a CRP has more than one location.

Direct Labor DefinitionJWOD Regulations (41CFR51-1.3) • Direct labor means all work required for preparation, processing, and packing of a commodity or work directly related to the performance of a service, but not supervision, administration, inspection or shipping.

Severe Disability DefinitionJWOD Regulations (41CFR51-1.3) • A person other than a blind person who has a severe physical or mental impairment (a residual, limiting condition resulting from an injury, disease, or congenital defect) which so limits the person's functional capabilities (mobility, communication, self-care, self-direction, work tolerance or work skills) that the individual is unable to engage in normal competitive employment over an extended period of time.

Regulatory Requirements 41CFR 51-4.3c • (1) A written report signed by a licensed physician, psychiatrist, or qualified psychologist, reflecting the nature and extent of the disability or disabilities that cause such person to qualify as a person with a severe disability, or a certification of the disability or disabilities by a State or local governmental entity.

Regulatory Requirements 41CFR 51-4.3c • (2) Reports which state whether that individual is capable of engaging in normal competitive employment. These reports shall be signed by a person or persons qualified by training and experience to evaluate the work potential, interests, aptitudes, and abilities of persons with disabilities and shall normally consist of preadmission evaluations and reevaluations prepared at least annually.

Regulatory Requirements 41CFR 51-4.3c • The file on individuals who have been in the nonprofit agency for less than two years shall contain the preadmission report and, where appropriate, the next annual reevaluation. The file on individuals who have been in the nonprofit agency for two or more years shall contain, as a minimum, the reports of the two most recent annual reevaluations.

Competitive Employment • The Committee has traditionally defined it as: The ability of an individual to find, obtain and maintain a job with a commercial company with no supports from a nonprofit agency.

Competitive Employment • Capability for normal competitive employment shall be determined from information developed by an ongoing evaluation program conducted by or for the nonprofit agency and shall include as a minimum, a preadmission evaluation and a reevaluation at least annually of each individual's capability for normal competitive employment.

Competitive Employment • A person with a severe mental or physical impairment who is able to engage in normal competitive employment because the impairment has been overcome or the condition has been substantially corrected is not "other severely handicapped" within the meaning of the definition.

Increased Focus on Competitive Employment Evaluations • The Competitive Employment Statement alone is not enough. • Information that supports the barrier(s) created by the individuals disability that has made competitive employment unattainable as well as what supports the agency provides that would not be provided in normal competitive employment needs to be documented in files.

Conducting Assessments for Competitive Employment • Questions to ask: • Is the individual severely disabled? • Is the individual Competitively employable? • Does the documentation support the evaluation? • Is the reason for considering the individual explained?

Documentation – Critical! • CRP staff can usually verbally list off all of the individuals limitations but they are not always documented in the file.

Disability Related Limitations • The documentation should support any functional limitations in: • Self-care • Work Skills • Work Tolerance • Communication • Mobility Must be a result of the Documented Disability

Disability Related Supports • To justify determinations of non-competitive employability the individual will have to receive supports that are not normally provided by employers. • Document the supports provided to the individual by the CRP.

Annual Evaluations • Things to consider: • Has there been any change in the individual’s disability? • Do the functional limitations still exist? • What supports or accommodations are still required?

Committee PowerPoint Presentation • Presented at the 2006 NISH Training Conference Available on NISH.org NPA Regulatory Assistance Page

JWOD UPDATE Direct Labor Ratio Requirements

Compliance Memorandum 4 • Overall rations below 75% after second quarter will receive a warning letter outlining the process that will be initiated should the CRP finish the year below 75%. • Phase-In Requirements • Report ration to two decimal places – ratios above 74.51 will be counted as 75%.

Certified letter placing agency on probation Suspend any proposed additions for the CRP Require reporting quarterly to Committee Failure to submit reports will result in withdrawal of Authorization 5. On-site Compliance visits will be made if determined appropriate Extreme situations my warrant withdrawal Disqualification will cease future orders. Failure to meet Agency Direct Labor Ratio Requirements

Failure to meet Agency Ratio Requirements during second year • CRP will present specific circumstances • Committee Vote • If allowed to remain producing- reports required quarterly directly to the Committee • On-site Compliance Reviews as soon as practical • Disqualification removes JWOD contracts and future orders

Memorandum No. 5 • Covers JWOD Program Direct Labor Ratio Requirements • Cumulative JWOD Ratio > 75% • Individual Contracts > 60% as long as cumulative is > 75% • Enforcement effective FY07

Considerations • If a CRP’s Cumulative JWOD Ratio is Below 75% the Committee will take into consideration the following: • Approved Phase-In in effect • Projects with fewer than 5 workers • National Emergencies/Wartime Surge • Projects previously approved at lower ratios • Effect of promotion or competitive placement of severely disabled employees

Committee Memorandums • Both Available on NISH.org NPA Page

Department of LaborMost Common Mistakes • Certificate Filing • Prevailing Wage Surveys

Most Common Mistakes when filing for DOL 14c Certificates • Failure to Complete all parts of the application • Failure to submit required attachments • Failure to renew in a timely manner

Prevailing Wage SurveysMost Common Mistakes • Failure to use “comparable work” sources • Use of only one source • Use of entry level rates • Using Minimum Wage

Prevailing Wage SurveysMost Common Mistakes • Failure to conduct annually or when minimum wage changes • Math and rounding errors • Deskilling • Fail to implement in a timely manner (1st pay period)

Setting Standards and Performance Measurement Most Common Mistakes • Using individuals who are disabled for the work to set standards • Setting standards based on significantly short cycle timings- should be 20-25 minutes or use multiple timings and average

Setting Standards and Performance Measurement Most Common Mistakes • Failure to define the work and the quality expectations • Failure to re-examine the standards periodically for changes in work method • Failure to perform Hourly evaluations at least every 6 Months • Using weights other than 90/10

Setting Standards and Performance Measurement Most Common Mistakes • Combined use of 90/10 and rework with reduction of quality measurement • Math and rounding errors • Averaging productivity over an extended period of time • Deskilling • Using behavioral factors to adjust wages

Calculation of Piece RatesMost Common Mistakes • Failure to incorporate PF&D • Use of incorrect PF&D (must use a allowance factor of at least 1.675 some use 1.20) • Using improper prevailing wage rate to calculate piece rate

Service ContractsMost Common Mistakes • Use of wrong Wage Determination Rate- issued to Contractor by Contracting Officer. • Failure to pay full Health & Welfare

Determining Commensurate Wages for Hourly Employees How to set Standards and Perform Productivity Ratings

The Process • Define the Worker • Determine Wage for Job • Define the Work • Measure the Work • Measure the Worker • Adjust Payroll

Fair Labor Standards ActFLSA • Regulation – • Title 29, Part 525 CFR This regulation covers the employment of Workers with Disabilities under Special Certificate Enforced by Department of Labor

Prevailing Wage Surveys

Prevailing WagesSection 525.10 (a-g) Determining prevailing wage rate is the first step toward establishing the correct commensurate wage

Definition Experienced Worker: A worker who has learned the basic elements or requirements of the work to be performed. Typically, a worker will have received at least one pay raise after completion of the probationary or training period.

Survey must be completed annually MINIMUM of 3 firms Similar methods and equipment Cannot be less than minimum wage Document Date of contact Name Address Phone number Individuals name Wage information provided Job Description Prevailing Wages

Definition • A comparable firm is one that is similar in size in terms of employees or competes for or bids on contracts of a similar size or nature.

Prevailing Wage-continued • If data for the specific job to be performed cannot be found, it is acceptable to use the wage paid to experienced workers employed in similar jobs that require the same general skill levels.

If similar work cannot be found in the vicinity- • The closest comparable community may be used

Prevailing Wage • Employer may contact other sources such as the Bureau of Labor Statistics, private or State employment services where surveys are not practical. • The prevailing wage rate may never be LESS the applicable State or Federal Minimum Wage and will usually be higher.

Prevailing Wage • “De-skilling” of prevailing wage rates (arbitrary downward adjustments made in prevailing wage rates to account for differences in duties, methods, equipment and responsibilities between the work of the worker with disabilities and the work done by employees who do not have disabilities in competitive industry) is not permitted by the Wage & Hour Division.

Must be able to prove Wage is for an experienced worker • Get starting wage • Clearly state in writing when requesting the definition of an experienced worker

Calculations • Weighted or Straight Average • Rounding

Respect of Florida Regulatory Training