HB1592ham001 100TH GENERAL ASSEMBLY

Rep. Theresa Mah

Filed: 4/9/2018

10000HB1592ham001 LRB100 03465 KTG 38199 a

AMENDMENT TO HOUSE BILL 1592

AMENDMENT NO. ______. Amend House Bill 1592 by replacing everything after the enacting clause with the following:

"Section 1. Declaration of policy and intent. Section 14(c) of the Fair Labor Standards Act of 1938 authorizes the United States Department of Labor to grant special wage certificates to certain entities, which may then pay special minimum wages less than the federal minimum wage to workers who have disabilities. 119 Illinois entities are permitted to employ 11,555 individuals with disabilities under certificates issued to Community Rehabilitation Programs under Section 14(c) of the Fair Labor Standards Act of 1938. Among those now working for less than minimum wage are people with autism, cerebral palsy, spina bifida, Down syndrome, and other intellectual, developmental, and sensory disabilities including blindness and deafness. Employees with disabilities rarely transition from Section 14(c) programs to integrated employment at competitive wages. The practice of paying workers with disabilities less than the federal minimum wage dates back to the 1930s, a time when there was virtually no employment opportunities for workers with disabilities in the mainstream workforce. The Illinois Employment First Act stipulates that "competitive and integrated employment shall be considered the first option when serving persons with disabilities of working age". Advancements in vocational rehabilitation, technology, and training now provide greater opportunities to workers with disabilities.

Section 5. The Department of Human Services Act is amended by adding Sections 1-75 and 1-80 as follows:

(20 ILCS 1305/1-75 new)

Sec. 1-75. Phase-out plan.

(a) The Department, in partnership with other State agencies, including the Department of Labor, the Department of Healthcare and Family Services, the Department of Central Management Services, the Department of Commerce and Economic Opportunity, the Department of Employment Security, and the State Board of Education, shall develop and implement a plan to phase out, on or before July 1, 2022, authorizations under Sections 5 and 10 of the Minimum Wage Law to pay an employee with a disability less than the minimum wage otherwise required for the employee under Illinois law.

(b) The phase-out plan shall include all of the following:

(1) Benchmarks and desired outcomes for each year of the phase-out.

(2) A list of the resources necessary, including changes to State policy or service and program reimbursement rates, to ensure that individuals with disabilities receive support according to the needs and preferences of the individuals and in an integrated setting, regardless of the nature or severity of the individuals' disabilities.

(3) A description of alternative revenue options, including non-subminimum wage programs, for holders of certificates issued under Section 14(c) of the Fair Labor Standards Act of 1938.

(4) An examination of the measures needed to improve future employment and day service options for people with disabilities, including recommendations for new or reformulated day services programming designed to strengthen statewide capacity to maximize the potential of every individual with a disability. This should include a review and recommendation about transitioning subminimum workshops into integrated work centers, where all workers earn at least the standard minimum wage.

(5) A timeline for comprehensive training about supported employment and customized employment. The training shall include benefits counseling and education to reduce misinformation that discourages income-producing work. Training audiences shall include the following persons and organizations:

(A) Counselors from the Department's Division of Rehabilitation Services.

(B) Staff from the Department's Division of Developmental Disabilities.

(C) Organizations affiliated with the Department's Division of Rehabilitation Services or Division of Developmental Disabilities that are certified to serve persons with disabilities by the State or federal government.

(D) High school special education and transition staff.

(E) Independent Service Coordination agency staff.

(F) Community Work Incentives Coordinators.

Training content developed or approved by federal agencies shall be used, if possible, including training content from the following agencies:

(i) The Office of Disability Employment Policy in the United States Department of Labor.

(ii) The Rehabilitation Services Administration in the United States Department of Education.

(iii) The Administration for Community Living in the United States Department of Health and Human Services.

(6) A proposal to modify the Business Enterprise Program and the State Use Program to ensure future State contracts are not awarded to entities paying workers less than the minimum wage.

(7) Application for and use of all federal and State funding programs, including programs available under Medicaid waiver amendments and resources under the federal Workforce Innovation and Opportunity Act, to assist individuals with disabilities to obtain competitive, integrated employment.

(8) The tracking of outcomes of individuals with disabilities on the basis of:

(A) wages;

(B) unemployment rates;

(C) the number of individuals who move from subminimum wage positions to competitive, integrated employment; and

(D) the number of individuals who move from subminimum wage positions to nonpaying activities.

(9) In the formulation of the phase-out plan, special attention must be paid to building adequate capacity in the disability provider ecosystem to ensure individuals with all levels of disability can secure competitive, integrated employment as defined in the federal Workforce Innovation and Opportunity Act. Special care must be given to prevent any systematic shift of income-earning activity to unpaid day habilitation activity.

(c) In implementing the phase-out plan, the Department shall consult with:

(1) the State agencies listed in subsection (a);

(2) the ARC of Illinois;

(3) the Illinois Association of Rehabilitation Facilities;

(4) the Illinois Network of Centers for Independent Living;

(5) the Illinois Task Force on Employment and Economic Opportunity for Persons with Disabilities;

(6) the Illinois Self-Advocacy Alliance;

(7) the Institute on Public Policy for People with Disabilities;

(8) the Great Lakes ADA Center;

(9) holders of certificates issued to Community Rehabilitation Programs under Section 14(c) of the Fair Labor Standards Act of 1938;

(10) the Association of People Supporting Employment First;

(11) the Illinois Association of the Deaf;

(12) the University Center of Excellence in Developmental Disabilities;

(13) the National Federation of the Blind of Illinois; and

(14) any other relevant stakeholders.

(d)(1) On or before January 1, 2019, the Secretary of Human Services shall submit the phase-out plan to the Governor and the General Assembly.

(2) On or before January 1, 2020, January 1, 2021, and January 1, 2022, the Secretary shall report to the Governor and the General Assembly on:

(A) the benchmarks and status of achieving the outcomes included in the phase-out plan; and

(B) recommendations for funding levels or other resources necessary to implement the phase-out plan.

(20 ILCS 1305/1-80 new)

Sec. 1-80. Customized work plans.

(a)(1) For each individual who is paid less than the minimum wage under Sections 5 and 10 of the Minimum Wage Law, the Department shall develop a written individualized customized work plan on or before January 1, 2020 that addresses how community integration and employment will be accomplished.

(2) The customized work plan shall be developed with input from the individual receiving services, and, where applicable, from the individual's family, the individual's vocational rehabilitation counselor, and any staff from the Department's Division of Developmental Disabilities or a Pre-Admission Screening/Independent Service Coordination agency who have interacted with the individual concerning employment and other life goals.

(3) The Department shall use appropriate communication devices and techniques, including sign language, to facilitate the involvement of the individual in the development of each customized work plan.

(b) Customized work plans shall include all of the following:

(1) A recommendation on the most integrated setting appropriate to meet the individual's needs.

(2) A description of the services and supports required for the individual to work, if so desired by the individual, in the most integrated setting appropriate to meet the individual's goals.

(3) A listing of barriers that prevent the individual from receiving the services and supports required for the individual to work in the most integrated setting appropriate to meet the individual's needs, including:

(A) barriers to accessing funding and resources, including for staffing, transportation, and other needed services and supports;

(B) decision-making by the individual or the individual's representative, as appropriate;

(C) barriers to accessing medical or behavioral support needs;

(D) family members' concerns or opposition; and

(E) options for activity other than compensated employment in the person's life and community.

(4) An update on the status and progress made toward addressing and resolving barriers identified under paragraph (3) in a previous customized work plan.

(c) The Department shall develop, in consultation with interested stakeholders, the protocol and format for the customized work plan.

(d)(1) On an annual basis, and at any other time as requested by the individual, an individual who is paid less than the minimum wage under Sections 5 and 10 of the Minimum Wage Law and the individual's vocational rehabilitation counselor, or any other responsible party designated by the Secretary, shall discuss the most integrated employment setting that is appropriate for the individual in accordance with the federal Americans with Disabilities Act.

(2) The annual review shall document in the individual's customized work plan:

(A) any discussions held in accordance with paragraph (1); and

(B) any recommendations that resulted from the discussions held in accordance with paragraph (1).

(e)(1) The Department shall track the progress of individuals who have customized work plans by collecting the following data:

(A) the wages of the individuals;

(B) the unemployment rates of the individuals;

(C) the number of individuals who moved from subminimum wage positions to competitive, integrated employment;

(D) the number of individuals who moved from subminimum wage positions to nonpaying activities; and

(E) the health costs, including outpatient mental health costs, paid by Medicaid for the individuals.

(2) On or before January 1, 2021, January 1, 2022, and January 1, 2023, the Secretary shall submit to the Governor and the General Assembly a summary of the data collected under paragraph (1) on a statewide and regional basis.

(f) A new employee employed at less than the minimum wage under Sections 5 and 10 of the Minimum Wage Law shall:

(1) be informed by his or her employer of all opportunities to obtain competitive, integrated employment;

(2) have a customized work plan in accordance with this Section that includes:

(A) a goal to achieve a specific employment outcome;

(B) a description of the supports needed to achieve the goal;

(C) a plan for monitoring progress toward the goal;

(D) the barriers to competitive, integrated employment; and

(E) any goals and activities for the employee when work is not available or the employee chooses not to work on a specific day or during a specific shift; and

(3) when choosing to work, be engaged in work that is consistent with the employee's unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice;

(4) choose the employer and the employment; and

(5) be informed of the employee's right to choose when to work.

Section 10. The Department of Labor Law of the Civil Administrative Code of Illinois is amended by adding Section 1505-215 as follows:

(20 ILCS 1505/1505-215 new)

Sec. 1505-215. Special wage certificates; persons with disabilities.

(a) As used in this Section:

"Director" means the Director of Labor.

"Federal certificate" means a certificate that the United States Department of Labor issues to a work activities center or other sheltered workshop to allow the work activities center or sheltered workshop to pay an individual less than the wage otherwise required for that individual under the federal Fair Labor Standards Act of 1938.

(b)(1) Subject to the limitations in this Section, the Director may not authorize a work activities center or other sheltered workshop to pay an employee who has a disability less than the minimum wage otherwise required under the Minimum Wage Law for the employee.

(2) Beginning January 1, 2020, the Director may not authorize a work activities center or other sheltered workshop to pay an employee with a disability less than the minimum wage if the work activities center or sheltered workshop was not authorized to do so before January 1, 2019 by the United States Department of Labor.

(c)(1) To authorize a work activities center or other sheltered workshop to pay less than the minimum wage, the Director shall:

(A) issue a State certificate that sets wages for employees of the work activities center or sheltered workshop;

(B) accept a federal certificate for the work activities center or sheltered workshop; or

(C) grant an exception for the work activities center or sheltered workshop, but only if:

(i) the Director has not issued a State certificate to the work activities center or sheltered workshop;

(ii) the work activities center or sheltered workshop is not eligible for a federal certificate; and

(iii) the Director investigates and holds a hearing on the exception.

(2) The Director shall accept a federal certificate if a work activities center or other sheltered workshop submits that federal certificate to the Director within 10 days after the work activities center or sheltered workshop receives the federal certificate.

(d)(1) Each certificate that the Director issues under this Section shall state the period for which the certificate is in effect.

(2) The acceptance of a federal certificate does not apply automatically to an individual whom a work activities center or other sheltered workshop continues to employ after the individual completes a training program that the work activities center or sheltered workshop runs.

(e)(1) The Director may revoke acceptance of a federal certificate if:

(A) the United States Department of Labor revokes the federal certificate; or

(B) at any time before revocation by the Department of Labor and after an investigation and hearing, the Director finds good cause to revoke the acceptance.

(2) The Director shall send notice of a hearing under this subsection, by certified mail, to the holder of the federal certificate at least 30 days before the hearing.

Section 15. The Illinois Council on Developmental Disabilities Law is amended by adding Section 2008 as follows:

(20 ILCS 4010/2008 new)

Sec. 2008. Independent study on phase-out and customized work plans.

(a) The Illinois Council on Developmental Disabilities shall:

(1) commission an independent study of the phase-out plan and the customized work plans described in Sections 1-75 and 1-80 of the Department of Human Services Act;

(2) determine through the study:

(A) whether the plans are having their intended effects;

(B) how many people have transitioned from subminimum wage work to competitive, integrated employment opportunities;

(C) whether there are any significant, related, regional, or demographic trends; and

(D) whether there are health care savings or costs as a result of the plans; and

(3) make any related recommendations for possible changes in State law or policy regarding the employment of individuals with disabilities.

(b) On or before July 1, 2021, the Illinois Council on Developmental Disabilities shall report its findings and recommendations to the Governor and the General Assembly.

Section 20. The Minimum Wage Law is amended by changing Section 5 as follows:

(820 ILCS 105/5) (from Ch. 48, par. 1005)

Sec. 5.

(a) The Director may provide by regulation for the employment in any occupation of individuals whose earning capacity is impaired by age, or physical or mental deficiency or injury at such wages lower than the minimum wage rate provided in Section 4, subsection (a), as he may find appropriate to prevent curtailment of opportunities for employment, to avoid undue hardship, and to safeguard the minimum wage rate of this Act, except that no person who maintains a production level within the limits required of other employees may be paid at less than the minimum wage. No employee shall be employed at wages fixed pursuant to this Section except under a special license issued under applicable regulations of the Director.

(b) Notwithstanding the provisions of subsection (a), beginning July 1, 2022, the State of Illinois shall not fund any entity that pays individuals less than the minimum wage under a certificate issued by the United States Department of Labor that authorizes Community Rehabilitation Programs to pay individuals less than the wage otherwise required for the individuals under federal law.

(Source: P.A. 77-1451.)

Section 99. Effective date. This Act takes effect upon becoming law.".