WSR 04-24-091

PROPOSED RULES

EMPLOYMENT SECURITY DEPARTMENT


[ Filed December 1, 2004, 10:22 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-15-034.

Title of Rule and Other Identifying Information: Add new sections to Title 192 WAC expanding employment opportunities for people with disabilities.

Hearing Location(s): Employment Security Department, 1st Floor Conference Room, 605 Woodland Square Loop, Lacey, WA 98503, on January 4, 2005, at 10:00 a.m.

Date of Intended Adoption: January 5, 2005.

Submit Written Comments to: Toby Olson, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, e-mail tolson@esd.wa.gov, fax (360) 438-3208, by January 4, 2005.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Current law encourages state agencies to contract with "sheltered workshops" by allowing agencies to negotiate contracts directly with the workshops, avoiding the usual bid and review requirements.

This law would transfer that preference from "sheltered workshops" to "community rehabilitation programs" (CRPs) which provide a broader range of employment options and services beyond traditional sheltered employment. It also extends the preference to businesses owned and operated by persons with disabilities. CRPs and business owned and operated by people with disabilities that met some additional criteria are put on a listing of "vendors in good standing" (VIGS). The law would increase the contracting preference for VIGS by requiring any agency purchasing a good or service offered by a VIGS to solicit and consider in good faith a proposal from at least one such vendor before making that purchase.

Reasons Supporting Proposal: SHB 1813, an act relating to employment opportunities for people with disabilities.

Statutory Authority for Adoption: RCW 50.12.040.

Statute Being Implemented: RCW 50.40.066.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Current law encourages state agencies to contract with "sheltered workshops" by allowing agencies to negotiate contracts directly with the workshops, avoiding the usual bid and review and requirements.

This law would transfer that preference from "sheltered workshops" to "Community Rehabilitation Programs" (CRPs) which provide a broader range of employment options and services beyond traditional sheltered employment. It also extends the preference to businesses owned and operated by persons with disabilities. CRPs and business owned and operated by people with disabilities that met some addition criteria are put on a listing of "vendors in good standing" (VIGS). The law would implement a contracting preference for VIGS by requiring any agency purchasing a good or service offered by a VIGS to solicit and consider in good faith a proposal from at least one such vendor before making that purchase.

The law impacts the department in the following ways:

Governor's Committee on Disability Issues and Employment (GCDE) must appoint a subcommittee with a prescribed composition, which shall meet at least once a year to determine whether applicant vendors are CRPs or businesses owned and operated by persons with disabilities and meet a set of criteria established by the legislation, related to demonstrated progress in the promotion of employment opportunities for people who have disabilities. GCDE is required to rely upon the conclusions of this subcommittee except in the case of malfeasance or misfeasance. (General administration would be required to determine whether the applicants met requirements related to performance, quality and cost.)

The adopted rules implement the following: Determination of disability, based on a review of determination documents from certain programs listed in the bill; determination of ownership/control; determination of progress in at least half of the listed criteria of improved employment opportunities for people who have disabilities; levels of achievement of achievement in these criteria beyond which further progress would not be required; and Administrative Procedure Act appeal process covering any of the determinations listed above; and establishing and collecting application fees, and/or a fee based on the value of contracts awarded under this program.

Name of Proponent:

Name of Agency Personnel Responsible for Drafting: Toby Olson, Employment Security Department-GCDE, (360) 438-3168.

No small business economic impact statement has been prepared under chapter 19.85 RCW. No significant small business economic impact anticipated.

A cost-benefit analysis is not required under RCW 34.05.328. The probable benefits of the rule are greater than its probable costs.

November 30, 2004

Dr. Sylvia P. Mundy

Commissioner

OTS-7661.1

Chapter 192-35 WAC

IMPROVING EMPLOYMENT OPPORTUNITIES FOR PEOPLE WITH DISABILITIES THROUGH STATE USE CONTRACTS


NEW SECTION
WAC 192-35-010   Definitions.   "Application base" means either the first fifteen applications for vendor in good standing received, or all applications for vendor in good standing received during the first twelve months of the program, whichever is greater at the time an application is being considered.

"Integrated setting" means a setting commonly found in the community (such as a store, office or school) where the individual with a disability comes into contact with nondisabled people who are not providing vocational rehabilitation services or other specialized services to that individual; or a setting commonly found in the community where the individual with a disability comes into contact with nondisabled people as he/she does his/her work. The amount of contact the individual with a disability has with nondisabled people is the same that a nondisabled person in the same type of job would experience.

"Transitioned to a less restrictive employment setting" means any change to an individual's job or work setting, or working conditions that increases that individual's workplace integration, independence from special services or participation in unsubsidized work. Some examples include moving from sheltered to supported employment; or from nonintegrated to integrated employment; or from working for a community rehabilitation program to working for a community employer.

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NEW SECTION
WAC 192-35-020   The state use advisory committee.   The state use advisory committee hereinafter referred to as the SUAC, is established within the governor's committee on disability issues and employment (GCDE). The SUAC shall have the following composition:

(1) Three members chosen by GCDE from among those current or former clients of a community rehabilitation program who have nominated themselves, at least one of whom must be a person with a developmental disability;

(2) One member chosen by GCDE from among those guardians, parents, or other relatives of a current client or employee of a community rehabilitation program who have nominated themselves;

(3) One member chosen by GCDE from among those who have been nominated by a community rehabilitation program;

(4) One member chosen by GCDE from among those owners of a business owned and operated by persons with disabilities who have nominated themselves;

(5) One member who is designated by the developmental disabilities council;

(6) One member who is a member of and selected by GCDE;

(7) One member who is designated by the secretary of the department of social and health services; and

(8) One member who is designated by the director of the department of services for the blind.

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NEW SECTION
WAC 192-35-030   Meetings.   The SUAC shall hold its regular public meeting annually in December. Additional public meetings may be held at such times and places as the board may deem necessary. Notice of all public meetings will be issued as required by the Open Public Meetings Act, chapter 42.30 RCW.

Executive sessions may be held by the board in conjunction with all public meetings, and at such other times as the board shall deem necessary. Executive sessions shall deal only with matters authorized by RCW 42.30.110.

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NEW SECTION
WAC 192-35-040   Application for listing as a vendor in good standing.   The application for listing as a vendor in good standing must be submitted on forms approved by the SUAC and shall be accompanied by additional documentation as follows:

(1) Applications from community rehabilitation programs must be accompanied by:

(a) A document issued by the department of social and health services recognizing the applicant as eligible to do business as a community rehabilitation program; and

(b) A document issued by the secretary of state establishing that the applicant is registered as a nonprofit corporation.

(2) Applications by business owned and operated by persons with disabilities must be accompanied by documentation:

(a) Issued by the department of social and health services establishing that the individual exercising ownership and control has been determined to have a developmental disability as defined in RCW 71A.10.020; or

(b) Issued by an agency established under Title I of the Federal Vocational Rehabilitation Act establishing that the individual exercising ownership and control has been determined to be or have been eligible for vocational rehabilitation services; or

(c) Issued by the United States Social Security Administration establishing that the individual exercising ownership and control has been determined to be or have been eligible for Social Security Disability Insurance or Supplemental Security Income; or

(d) Issued by the United States Department of Veterans Affairs establishing that the individual exercising ownership and control has been determined to be or have been eligible for vocational rehabilitation services due to a service connected disability under 38 U.S.C. Sec. 3100 et seq.

(3) Applications must be accompanied by documentation that objectively demonstrates that the applicant has met or made progress over the previous twelve months toward meeting a minimum of six of the following criteria:

(a) The number of people with disabilities in the entity's total work force who are working in integrated settings. To demonstrate progress for this criterion an applicant's documentation must show that the number of people with disabilities employed by it, and working in an integrated setting, during the quarter immediately preceding the date of application is greater than the number of people with disabilities employed by it, and working in an integrated setting for the same quarter in the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the number of people with disabilities employed by it, and working in an integrated setting during the quarter immediately preceding the date of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(b) The percentage of the people with disabilities in the entity's total work force who are working in integrated settings. To demonstrate progress for this criterion an applicant's documentation must show that the percent of those people with disabilities employed by it and working in an integrated setting, during the quarter immediately preceding the date of application is greater than the percentage of people with disabilities employed by it, and working in an integrated setting for the same quarter in the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the percentage of people with disabilities employed by it, and working in an integrated setting, during the quarter immediately preceding the date of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(c) The number of people with disabilities in the entity's total work force who are working in individual supported employment settings. To demonstrate progress for this criterion an applicant's documentation must show that the number of people with disabilities employed by it, and working in individual supported employment settings, during the quarter immediately preceding the date of application is greater than the number of people with disabilities employed by it, and working in individual supported employment settings for the same quarter for the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the number of people with disabilities employed by it, and working in individual employment settings for the quarter immediately preceding the date of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(d) The percentage of the people with disabilities in the entity's total work force who are working in individual supported employment settings. To demonstrate progress for this criterion an applicant's documentation must show that the percent of people with disabilities among all individuals employed by it, and working in an individual supported employment setting, during the quarter immediately preceding the date of application is greater than the percentage of people with disabilities employed by it, and working in an integrated setting for the same quarter of the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the percentage of people with disabilities employed by it, and working in an individual supported employment setting, during the quarter immediately preceding the date of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(e) The number of people with disabilities in the entity's total work force who, during the last twelve months, have transitioned to less restrictive employment settings either within the entity or with other community employers. To demonstrate progress for this criterion an applicant's documentation must show that the number of people with disabilities who had been employed by it at some point during the twelve months immediately preceding the time of application and had transitioned to less restrictive employment settings during those twelve months either within the entity or with other community employers was greater than the number of such employees who had made such a transition during the prior twelve months. To demonstrate that it has met this criterion, an applicant's documentation must show that the number of people who had been employed by it at some point during the twelve months immediately preceding the time of application and had transitioned to less restrictive employment settings during those twelve months either within the entity or with other community employers at the time of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(f) The number of people with disabilities in the entity's total work force who are earning at least the state minimum wage. To demonstrate progress for this criterion an applicant's documentation must show that the number of people with disabilities employed by it, who were paid at least the state minimum wage for all hours worked, during the quarter immediately preceding the date of application is greater than the number of people with disabilities employed by it, and paid at least the state minimum wage for all hours worked for the same quarter for the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the number of people with disabilities employed by it, and paid at least the state minimum wage for all hours worked for the same quarter of the previous year is at least one standard deviation higher than the norm for this criterion derived from the application base.

(g) The percentage of the people with disabilities in the entity's total work force who are earning at least the state minimum wage. To demonstrate progress for this criterion an applicant's documentation must show that the percent of people with disabilities among all people with disabilities employed by it, who were paid at least the state minimum wage for all hours worked during the quarter immediately preceding the date of application is greater than the percentage of people with disabilities employed by it, who were paid at least state minimum wage for all hours worked for the same quarter for the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the percentage of people with disabilities employed by it, who were paid at least state minimum wage for all hours worked for the quarter immediately preceding the date of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(h) The number of people with disabilities serving in supervisory capacities within the entity. To demonstrate progress for this criterion an applicant's documentation must show that the number of people with disabilities employed by it in positions in which they supervised the work of other employees during the quarter immediately preceding the date of application is greater than the number of people with disabilities employed by it in such positions during the same quarter for the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the number of people with disabilities employed by it in positions in which they supervised the work of other employees during the quarter immediately preceding the date of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(i) The percentage of supervisory positions within the entity that are occupied by people with disabilities. To demonstrate progress for this criterion an applicant's documentation must show that the percent of people with disabilities among all individuals employed by it in positions in which they supervise the work of other employees during the quarter immediately preceding the date of application is greater than the percentage of people with disabilities employed by it in such positions for the same quarter of the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the percentage of people with disabilities employed by it in supervisory positions at the time of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(j) The number of people with disabilities serving in an ownership capacity or on the governing board of the entity. To demonstrate progress for this criterion an applicant's documentation must show that the number of people with disabilities who exercise ownership and participate in the day to day management of the entity, or who serve in elected or appointed positions on a board with the authority to hire and fire the executive director of the entity during the quarter immediately preceding the date of application is greater than the number of people with disabilities in such positions during the same quarter for the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the number of people with disabilities in such positions during the quarter immediately preceding the date of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(k) The ratio of the total amount paid by the entity in wages, salaries, and related employment benefits to people with disabilities as compared to the total amount paid by the entity in wages, salaries, and related employment benefits to persons without disabilities during the previous year. To demonstrate progress for this criterion an applicant's documentation must show that the total amount paid by it in wages, salaries, and related employment benefits to people with disabilities during the twelve months immediately preceding the date of application had increased in proportion to the total amount it paid in wages, salaries, and related employment benefits to people who do not have a disability when compared to the ratio of those two figures from the previous year. To demonstrate that it has met this criterion, an applicant's documentation must show that the ratio of the total amount paid by the entity in wages, salaries, and related employment benefits to people with disabilities as compared to the total amount paid by the entity in wages, salaries, and related employment benefits to persons without disabilities for the twelve months immediately preceding the date of application is at least one standard deviation higher than the norm for this criterion derived from the application base.

(l) The percentage of people with disabilities in the entity's total work force for whom the entity has developed a reasonable, achievable, and written career plan. To demonstrate progress for this criterion an applicant's documentation must show that the percent of people with disabilities employed by it, for whom it had developed reasonable, achievable, written career plans, at the time of application was greater than the percentage of people with disabilities employed by it for whom it had developed reasonable, achievable, written career plans one year prior to the time of application. To demonstrate that it has met this criterion, an applicant's documentation must show that the percentage of people with disabilities employed by it for whom it had developed reasonable, achievable, written career plans at the time of application was at least one standard deviation higher than the norm for this criterion derived from the applications submitted that program year.

(4) In the event that the SUAC preliminarily determines that the documentation provided in an application is insufficient to demonstrate objectively that the applicant has made progress in or met at least six of the relevant eligibility criteria under this chapter, the SUAC will communicate that determination to the applicant in writing. The notification will clearly identify the specific criteria for which the SUAC determined the applicant's documentation to be insufficient. The SUAC will hold the application open for up to six months from the date of the notification during which time the applicant may submit additional documentation addressing the identified deficiencies.

(5) Applicants must also provide such documentation as may be required by the department of general administration to establish:

(a) That the applicant has not been in material breach of any quality or performance provision of any contract for the purchase of goods or services during the past thirty-six months; and

(b) Those goods and services for which the applicant is seeking to be listed as a vendor in good standing.

(6) Applicants must also provide such additional information, or documentation as may be required by the office of minority and women's business enterprises for the purpose of determining ownership and exercise of control of a business.

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NEW SECTION
WAC 192-35-050   Application fees.   Applications must be accompanied by the annual application fee of five hundred dollars. The application fee is nonrefundable.

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NEW SECTION
WAC 192-35-060   Period of eligibility.   Applicants will be listed as vendors in good standing for a period of one year beginning on the date of final determination of eligibility to be so listed: Unless, prior to the end of that period, the applicant requests in writing to be removed from that listing; or is found to be in material breach of any quality or performance provision of any contract for the purchase of goods or services. Applications for continued listing or relisting for subsequent periods of eligibility are subject to the same documentation requirements, fees and procedures as initial applications.

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NEW SECTION
WAC 192-35-070   Denials and appeals.   The governor's committee on disability issues and employment will provide written notice when it has determined that an applicant failed to demonstrate that it has met the eligibility criteria for a vendor in good standing. The written notice shall include the basis for that determination; a notification of the applicant's right to appeal; and the address to which an appeal may be submitted. Applicants shall have thirty working days from the date of the notice to file an appeal. All appeals must be in writing.

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NEW SECTION
WAC 192-35-080   Application of brief adjudicative proceedings.   The commissioner adopts RCW 34.05.482 through 34.05.494 for the administration of brief adjudicative proceedings conducted by request pursuant to subsection (1) of this section or at the discretion of the commissioner pursuant to RCW 34.05.482.

(1) If an adjudicative proceeding is requested, a brief adjudicative proceeding will be conducted where the governor's committee on disability issues and employment accepts the recommendation of the state use advisory committee and the matter involves a determination of one or more of the following issues:

(a) Whether an applicant has provided clear documentation that it qualifies under the criteria established by RCW 43.19.525 (1)(a) through (d); or

(b) Whether an applicant has provided clear documentation that it qualifies under the criteria established by RCW 43.19.525 (2)(a) and (b); or

(c) Whether an applicant has provided clear documentation that it qualifies under the criteria established by RCW 50.40.065 (3)(a) through (l).

(2) Brief adjudicative proceedings under subsection (1) of this section will be limited to consideration of the following issues:

(a) In proceedings under subsections (1)(a) and (b) of this section, the sole issue to be considered at the hearing is whether the documentation submitted by an applicant clearly establishes that the applicant has been determined to meet the applicable eligibility criterion or criteria under RCW 43.19.525 (1) or (2) by the agency or agencies authorized to make that determination;

(b) In proceedings under subsection (1)(c) of this section, the sole issue to be considered at the hearing is whether the documentation submitted by the applicant clearly demonstrates that the applicant has either met or made progress over the previous twelve months toward meeting a minimum of six of the criteria established in RCW 50.40.065.

(3) Brief adjudicative proceedings may not be used to appeal a decision by the governor's committee on disability issues and employment to reject a recommendation of the state use advisory committee, based on a finding of misfeasance or malfeasance.

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NEW SECTION
WAC 192-35-090   Conduct of brief adjudicative proceedings.   (1) Brief adjudicative proceedings shall be conducted by a presiding officer appointed by the commissioner or designee in accordance with RCW 34.05.485. The presiding officer for brief adjudicative proceedings shall have agency expertise in the subject matter but must not have personally participated in the decision to issue the initiating document.

(2) The parties or their representatives may present written documentation. The presiding officer for brief adjudicative proceedings shall designate the date by which written documents must be submitted by the parties.

(3) The presiding officer for brief adjudicative proceedings may, at his or her discretion, entertain oral argument from the parties or their representatives.

(4) No witnesses may appear to testify.

(5) In addition to the record, the presiding officer for brief adjudicative proceedings may employ agency expertise as a basis for decision.

(6) The presiding officer for brief adjudicative proceedings will not issue an oral order. Within ten working days of the final date for submission of materials or oral argument, if any, the presiding officer for brief adjudicative proceedings will enter an initial written order.

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NEW SECTION
WAC 192-35-100   Preliminary record in brief adjudicative proceedings.   The preliminary record with respect to an application must consist of:

(1) The application and all associated documents; and

(2) All documents relied upon by the state use advisory committee in proposing to deny the application; and

(3) All correspondence between the applicant and the state use advisory committee regarding the application.

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NEW SECTION
WAC 192-35-110   Appeal of the brief adjudicative proceedings.   (1) Within thirty working days following the issuance of an initial written order, any party, including the department, may file a written appeal of that order with the deputy commissioner.

(2) The deputy commissioner will review the record of the brief adjudicative proceedings under appeal and issue the final written order, within thirty working days of the receipt of the appeal.

(3) The final written order, issued by the deputy commissioner, shall be the department's final decision on all matters subject to these brief adjudicative proceedings.

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NEW SECTION
WAC 192-35-120   Objections to brief adjudicative proceedings and conversion to formal adjudicative hearings.   (1) At least five working days before the scheduled brief adjudicative proceeding, any party, including the department, may file a written objection to resolution of a matter by a brief adjudicative proceeding and may request that a matter be converted to a formal adjudicative hearing. Upon receiving a timely written objection, the presiding officer shall determine whether the matter should be converted. Regardless of whether any party files a timely objection, the presiding officer may convert any brief adjudicative proceeding to a formal adjudicative hearing whenever it appears that a brief adjudicative proceeding is insufficient to determine the issues pending before the agency.

(2) In determining whether to convert a proceeding, the presiding officer may consider the following factors:

(a) Whether witness testimony will aid the presiding officer in resolving contested issues of fact;

(b) Whether the legal or factual issues are sufficiently complex to warrant a formal adjudicative proceeding, including whether there are multiple issues of fact or law;

(c) Whether a brief adjudicative proceeding will establish an adequate record for further agency or judicial review;

(d) Whether the legal issues involved in the proceeding present questions of legal significance or are being raised for the first time before the agency;

(e) Whether conversion of the proceeding will cause unnecessary delay in resolving the issues; and

(f) Any other factors that the presiding officer deems relevant in reaching a determination.

(3) The written order of the formal adjudicative hearing shall be the department's final decision.

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