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  1. Essential Eligibility Requirements and Direct Threat Issues The Job Corps Admissions Process: Denise M. Sudell, Esq., USDOL Civil Rights Center Senior Policy Advisor Debbie M. Jones, Disability Specialist, Humanitas Valerie R. Cherry, Ph.D., Principal Mental Health Consultant, Humanitas

  2. Purpose • In partnership with CRC, Job Corps is revising its admissions process to ensure that admission criteria are as objective as possible, and that the admissions process complies with disability nondiscrimination law  • In this workshop, we will discuss the draft Essential Eligibility Requirements (EERs) and direct threat assessment guidelines that are being developed by a Job Corps/CRC “brainstorming team” Purpose/Background – EERs & Direct threat

  3. Legal Requirements • Congressional and administrative mandates require Job Corps to: • Enroll and serve applicants who meet the eligibility requirements imposed by Congress (as interpreted by USDOL in the Job Corps regulations), regardless of a particular applicant’s disabilities • Provide reasonable accommodations for applicants and students with disabilities Purpose/Background – EERs & Direct threat

  4. Legal Requirements • Among these requirements: • Sections 144 and 145 of the Workforce Investment Act of 1998 (WIA) – contain general eligibility requirements for Job Corps • USDOL/ETA’s Job Corps regulations at 20 CFR 670.400 and 670.410 – implement eligibility requirements in WIA statute • WIA Section 188 – contains nondiscrimination and equal opportunity provisions -- and USDOL/CRC’s implementing regulations at 29 CFR part 37 • Section 504 of the Rehabilitation Act of 1973 and USDOL/CRC’s regulations at 29 CFR part 32 Purpose/Background – EERs & Direct threat

  5. Background • “Brainstorming team” comprised of Job Corps staff, Job Corps contractor staff, and staff of DOL Civil Rights Center (CRC) have been meeting on an ongoing basis, beginning in August 2006, to develop EERs and resolve related issues • CRC was invited to partner with Job Corps to ensure that the revised admissions process complies with applicable nondiscrimination requirements and provides equal opportunity for applicants in protected groups (particularly applicants with disabilities) Purpose/Background – EERs & Direct threat

  6. Essential eligibility requirements

  7. What are EERs? • Essential Eligibility Requirements (EERs) are the requirements that are necessary for participation in the Job Corps program • Disability nondiscrimination law prohibits Job Corps (and other programs and activities) from applying eligibility criteria that unnecessarily screen out applicants with disabilities • Therefore, Job Corps must apply only those eligibility requirements that are necessary Essential Eligibility Requirements

  8. Background – Job Corps Eligibility Criteria • Under regulations and current PRH – two sets of criteria • “Eligibility criteria” • Factors such as age, income, barriers to education/employment, etc. • “Additional factors” – examples: • “Needs can best be met” • “Participate successfully in group situations” • “Not likely to engage in actions . . .” • Covered in ACAT Essential Eligibility Requirements

  9. Concerns about “additional factors” • Criteria were subjective • Few specifics re: how to determine if applicant met these “factors” • Left considerable discretion to ACs • Concerns were raised • National Job Corps workgroup – recommended development of specific criteria • CRC – concerned that discretion was excessive, might result in discrimination (intentional or unintentional) Essential Eligibility Requirements

  10. Which requirements are “essential?” • Requirements imposed by Congress (in WIA) • Objective criteria – e.g., age (including waivers), income, specific barriers • Subjective criteria – “needs can best be met,” “participate successfully,” etc. • Requirements imposed by other laws, e.g.: • Registration with Selective Service • Permission of parent or guardian Essential Eligibility Requirements

  11. What our team was asked to do • Develop specific standards for determining whether an applicant meets the subjective “essential eligibility requirements” • We’ve only revised some of the standards – others remain the same – we will not be discussing those in this presentation • Make sure the process complies with legal requirements • Example – requiring that disability-related info (such as IEPs) be kept in separate files, stored securely Essential Eligibility Requirements

  12. Overall Changes • We have developed specific questions that ACs will ask applicants • “Do you understand that . . .? For example, you will be expected to . . .?” • “Knowing this about Job Corps, are you willing to go forward with your application?” • Change in Exhibit 1-1 to make it easier to use • For each EER, the exhibit asks: “Does applicant meet?” • “If yes, go on to next EER; if no, applicant does not meet eligibility requirements.” Essential Eligibility Requirements

  13. proposed revisions of “eligibility criteria”

  14. EER – Program Suitability • Can the applicant’s educational and training needs best be met through the Job Corps program? • If applicant has not graduated from high school, s/he wants to earn a high school diploma or GED and participate in career technical training. • If applicant has graduated from high school, s/he wants to obtain career technical training. • After graduation from Job Corps, applicant wants to obtain employment, or enter the military, and/or continue his or her education. Essential Eligibility Requirements

  15. EER – Program Suitability (cont’d) • Applicant is able to complete/answer basic Job Corps application questions (e.g., birth date, address, phone number, last school attended, last grade completed) with or without communication assistance/reasonable accommodation. • For instance, an applicant’s parent or guardian may help explain what an applicant with a disability that impairs his/her speech is saying in response to a question; however, the parent or guardian should not supply the content of the answers to the questions on the applicant’s behalf. Essential Eligibility Requirements

  16. EER – Group Participation • Can the applicant participate successfully in group situations and activities? • Sample question: • Team player: “Do you understand that in order to succeed in Job Corps, you will need to function as part of a team? For example, you will share a dormitory room, you will be responsible for cleaning your living area, and you will need to rely on staff and other students to complete tasks and assignments.” • Applicant either expresses willingness, or does not express active unwillingness. Essential Eligibility Requirements

  17. EER – Group Participation (cont’d) • Another sample question: • Multi-cultural environment: “Do you understand that if you are admitted to Job Corps that you will be living and working with members of various races, ethnic groups, political or religious affiliations or beliefs, sexual orientations, and gender identities, and people with disabilities?” • Applicant either expresses willingness, or does not express unwillingness to live with (or make negative statements about), members of these groups. Essential Eligibility Requirements

  18. EER – Understanding of Rules • Has the applicant has been informed about, and does he/she appear to understand, the center’s rules and the consequences of failing to follow those rules? Essential Eligibility Requirements

  19. EER – Understanding of Rules (cont’d) • Question: • “Do you understand that if you are accepted into Job Corps, you will be expected to comply with the rules and regulations of Job Corps? For example . . .” • Sample examples: • “If you live on center, you will have to follow a curfew.” • “Your center may have rules about cell phone use.” • “You may not be permitted to smoke on center.” • “You may be required to wear a uniform.” Essential Eligibility Requirements

  20. EER – Understanding of Rules (cont’d) • Applicant either states that s/he is willing to follow the rules of the Job Corps program, or does not: • Make statements such as, “No one tells me what to do.” • Express strong objection to one or more of the rules that are described to him/her. Essential Eligibility Requirements

  21. EER - Interference with Other Students’ Participation • Is the applicant likely to engage in actions that would potentially prevent other students from receiving the benefit of the Job Corps program? • Does the applicant display disruptive and/or threatening behavior during the application process? Examples: • Possession of a gun or other illegal weapon • Attempts to destroy/steal property • Assault or threatened assault • Inappropriate sexual behavior Essential Eligibility Requirements

  22. EER – Community Relations • Is it likely that the applicant’s behavior will impede satisfactory relationships between the Job Corps center to which the individual might be assigned and its surrounding community? • Applicant expresses a willingness to: • Participate in community services. • Behave in a manner that reflects positively on Job Corps. • Applicant agrees that s/he will not participate in gang-related activities while s/he is enrolled in Job Corps Essential Eligibility Requirements

  23. EER – Community Services/Positive Representations of Job Corps • Sample Question: • “Every center calls on its students to participate in community service activities at least twice a year. • “Students may also participate in OJT, job shadowing, other activities in which they interact with local employers. • “Are you willing to participate in these kinds of activities? • “Do you understand that while you participate in these activities, you are representing the Job Corps program and must behave in a manner that reflects positively on Job Corps?” Essential Eligibility Requirements

  24. EER – Community Services/Positive Representations of Job Corps • Examples of community service activities to describe to applicant: • Help build, clean up or repair local community facilities • Provide companionship and/or services to people in the community • Participate in environmental clean up Essential Eligibility Requirements

  25. EER – Gang-Related Activity • Sample questions: • If applicant does not show any signs of gang activity/participation: • “Students enrolled in the Job Corps program are barred from participating in any type of gang-related activities. • “Do you agree that you will not participate in any gang activity while you are in the Job Corps program? • “Do you agree that you will not display or use gang paraphernalia, symbols, gestures, handshakes, colors, dress, and/or any other gang-related activities or items while you are in the Job Corps program?” Essential Eligibility Requirements

  26. EER – Gang-Related Activity (cont’d) • More sample questions: • If applicant uses or displays gang-related behavior or symbols: • “I see that you have [describe gang-related behavior, symbol, activity]. Students enrolled in the Job Corps program are barred from participating in any type of gang-related activities. . . .” (Same questions as on previous slide) Essential Eligibility Requirements

  27. EER – Gang-Related Activity (cont’d) • More sample questions: • If applicant has a gang-related tattoo, scar, or other form of permanent body art: • “I see that you have a [tattoo, scar, etc.] related to the [name of gang]. Students enrolled in the Job Corps program are barred from participating in any type of gang-related activities. • “Do you agree that you will not participate in any gang activity while you are in the Job Corps program? • “Do you agree that while you are in the Job Corps program, you will keep your [tattoo, scar, etc.] covered at all times?” Essential Eligibility Requirements

  28. EER – Current Court Involvement and/or Agency Supervision • Is the applicant facing pending criminal court action? Is the applicant on probation or parole, under a suspended sentence, or under the supervision of any agency as a result of court action or institutionalization? Does the applicant have court fines in excess of $500? Essential Eligibility Requirements

  29. EER – Maintenance of Sound Discipline • Is the applicant’s behaviors incompatible with the maintenance of sound discipline? • Criteria: • Criminal history review: • Does not disclose any disqualifying offenses. • If any non-disqualifying offenses are disclosed, AC will make reasonable judgment of eligibility. • Applicant agrees to comply with specific Job Corps rules Essential Eligibility Requirements

  30. EER – Criminal History Review • AC will complete criminal history review as described in revised Appendix 104 • Review will use applicant addresses from past three years • Disqualifying offenses will be listed in Appendix 104 • Lack of Information: If courts/agencies refuse or fail to supply information and the applicant: • Admits court involvement/an offense, the AC will make a reasonable judgment of eligibility consistent with the type of offense admitted to by the applicant. • Denies any court involvement, the AC will inform the applicant that concealing a criminal history is grounds for immediate discharge from Job Corps for fraudulent enrollment. Essential Eligibility Requirements

  31. EER – Applicant Agreement • AC will ask series of questions – “Do you understand that . . .?” • Applicant must agree to each • Sample questions (not a complete list): • “. . . violence, bullying and harassment are not tolerated in Job Corps” • “. . . you will be tested for illegal use of drugs when you arrive at the center, and if you test positive, specific actions [listed] will be taken” • “. . . you will have to leave the Job Corps program if convicted of illegal drug use, possession or sale off-center” • “. . . you must abide by Job Corps rules and policies to stay in the program” Essential Eligibility Requirements

  32. EER Example 1 • EER “I” - Can the applicant’s educational and training needs best be met through the Job Corps program? Program suitability Example

  33. Scenario • Applicant comes to the Outreach and Admissions office interview with his case manager from a local community services program. • Case manager answers questions for the applicant. • The Admissions Counselor (AC) instructs the case manager and the applicant that the applicant should answer the questions. • The AC asks another question about basic personal information and the student appears unable to answer the question. Program suitability Example

  34. What should happen next? Program Suitability Example

  35. Scenario • The AC should remind the case manager and the applicant that if he/she is a person who has a physical or mental impairment that substantially limits one or more of his/her major life activities (e.g. is a person with a disability), then he is entitled to reasonable accommodation. Program suitability Example

  36. Scenario • Applicant discloses a cognitive disability and the case manager explains that the applicant needs the language in the questions to be simplified and the questions to be repeated to aide in understanding. • The AC simplifies the questions and repeats each question at least twice before the applicant is expected to respond. Can the applicant now answer the questions independently? Program suitability Example

  37. Scenario Outcomes • Outcome #1: • The applicant cannot answer the AC’s questions independently even with reasonable accommodation. • The applicant does not meet this essential eligibility requirement and the application process stops. • Outcome #2: • The applicant can answer the AC’s questions independently with reasonable accommodation. • The application process continues and the AC determines whether the applicant meets the remainder of the essential eligibility requirements. Program suitability Example

  38. Direct Threat

  39. Direct Threat (DT) • New direct threat form and guidance for Job Corps are being developed • Job Corps requires that applicants and students not have conditions, disabilities, or behaviors that pose a direct threat to the health or safety of themselves, other students, or staff • If the direct threat is related to a disability, both Job Corps and the law require a determination of whether the threat could be eliminated or reduced by reasonable accommodations or modifications Direct Threat

  40. Direct Threat – Legal Standards • Disability nondiscrimination law defines a “direct threat” as a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation or modification • A “significant risk” means a high, not a slight, probability; a speculative or remote risk is insufficient Direct Threat

  41. Direct Threat – Legal Standards (cont’d) • The burden of proof is on Job Corps • This means that if evidence is equivocal or insufficient to prove direct threat, we must assume that no direct threat exists Direct Threat

  42. Direct Threat – Legal Standards (cont’d) • Legal standards are strict re: • When (the point in the process at which) a direct threat assessment may take place • What type of evidence may be considered • Must be considered: • The most current medical knowledge (if medical- or disability-related issue) • The best available objective evidence about the specific applicant or student’s: • Current condition, disability, or behavior • Present ability to safely participate in the program Direct Threat

  43. Direct Threat – Legal Standards (cont’d) • What type of evidence may be considered (cont’d): • Must not be considered: • Subjective perceptions • Irrational fears • Patronizing attitudes • Stereotypes • The law makes clear that an individual does not pose a direct threat simply because s/he has a history of psychiatric disability, or is currently receiving treatment for a psychiatric disability Direct Threat

  44. Direct Threat - Process • During admissions process: • Applicant responds to revised ETA 6-53 • AC does not ask any additional questions/make DT judgments – just sends file to center • Health & Wellness Manager does initial review • If information indicates possible direct threat, file will be referred to appropriate staff for direct threat assessment, as described on next slide Direct Threat

  45. Direct Threat – Process (File Referral) • If H&W Manager finds that possible direct threat (as defined on previous slides) is posed by a disability, or a medical-related condition or behavior, Mgr will send file to appropriate licensed clinical health provider • If information indicating possible direct threat is not related to disability or medical-related condition or behavior, Mgr will send file to Center Standards Officer/Behavior Management Officer • Objective information must support this referral, or no subsequent steps (assessment, etc.) will be authorized by law Direct Threat

  46. Direct Threat – Process (The Assessment) • Assessor must consider four specific factors required by law: • Duration of risk • Nature and severity of the risk • Likelihood that the potential harm will occur • Imminence of the potential harm • On direct threat form, must list specific facts that provide evidentiary support for assessor’s judgment Direct Threat

  47. 1. Nature and severity of the risk – in the professional judgment of the assessor: a. What kind of harm is potentially posed by this applicant’s condition, disability, or behavior? b. What is the seriousness of the potential harm in this particular case (e.g., death, incapacitation, serious injury, minor injury/emotional distress)? 2. Duration of the risk — in the professional judgment of the assessor, how long is the risk likely to last? 3. Likelihood that the potential harm will occur – in the professional judgment of the assessor, is the likelihood that potential harm will occur high, moderate, or low? 4. Imminence of the potential harm – in the professional judgment of the assessor, how soon is the harm likely to occur? Closer Look at the DT Factors Direct Threat

  48. DT Assessment – Relevant Evidence • Relevant evidence in making the assessment may include: • Input from the individual with a condition, disability, or behavior • The medical history of the individual, including his/her experience in previous situations similar to those he/she would encounter in the program • Opinions of medical doctors, rehabilitation counselors, or therapists who have expertise in the condition involved and/or direct knowledge of the individual Direct Threat

  49. Direct Threat Considerations • Each of the four factors should be taken into consideration, however depending upon the individual situation, one factor may have more significance than another in the assessment

  50. If Assessor Finds Possible Direct Threat… • If assessor determines possible direct threat that is related to a disability or a medical-related condition or behavior, s/he must: • Consider whether an accommodation or modification could: • Eliminate the risk • Reduce the risk to an acceptable level • List possible accommodations/modifications on the form • Assessor must not attempt to determine “reasonableness” Direct Threat