Agency Information Collection Activities; Proposals, Submissions, and Approvals

SUPPLEMENTARY INFORMATION:

Overview of ICR: This notice pertains to an ICR the Commission intends to submit to OMB to approve the form that an AbilityOne-participating nonprofit agency employer will fill out to document its determination of an individual's eligibility to be a qualified direct labor employee for purposes of meeting the statutory requirements of the Javits-Wagner-O'Day (JWOD) Act, 41 U.S.C. 8501-8506. The form is an updated and modified version of the Commission's Individual Eligibility Evaluation (IEE) form (OMB Control #3037-0012). The purpose of the IEE was to determine and document an individual's disability eligibility by identifying the individual's barriers to employment as well as the job supports the individual needs to perform their job.

This ICR is consistent with OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) These regulations require the Commission to provide an opportunity to interested members of the public and affected agencies to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)) such as those proposed to be implemented through this form.

The Commission is responsible for implementing the JWOD Act. In doing so, the Commission oversees the AbilityOne Program, an employment program in which individuals who are blind or have significant disabilities provide products and services to Federal agencies, thereby creating employment opportunities for such individuals. The Commission maintains a Procurement List of mandatory source products and services provided by approximately 400 qualified nonprofit agencies (NPAs). In order to qualify for the Program, an NPA must show that 75% of all direct labor hours are performed by individuals who are blind or significantly disabled, regardless of whether the hours relate to work done on AbilityOne contracts or work done on other contracts held by the NPA. Effective program stewardship requires collection of information to ensure that NPAs are only counting the hours of individuals with qualifying disabilities toward their 75% statutory minimum.

The proposed data collection form in this ICR is consistent with the Commission's responsibilities and ensures that the Commission will collect the most pertinent data to inform its oversight and decision making.

A version of the Disability Qualification Determination form is available at www.abilityone.gov.

The form described in this ICR is the first of two forms intended to modernize the existing IEE form and align it with the Commission's strategic plan and updated approach to determining qualifying disability eligibility. A draft version of this form accompanies this notice. The Commission has outlined the criteria for such eligibility in its revised Policy 51.403.

As outlined in Policy 51.403, and reflected in the proposed form, a significant change in the Commission's approach to determining qualifying disability eligibility is the Commission's acceptance of other governmental agency determinations of disability. For example, individuals deemed eligible for Social Security disability benefits are now automatically deemed as having a qualifying disability for purposes of meeting the statutory direct labor hour ratio. This ICR will establish a form that enables NPAs to certify that an individual has a determination of disability from a governmental agency, and in so doing, streamlines the process of establishing a qualifying disability.

The Commission published a sixty-day notice for this ICR on November 17, 2023. The Commission received eleven comments from various stakeholders in response to the notice. Comments were received from NPAs, CNAs and other stakeholders. The comments requested instructions for the form, instructions for each individual section, and definitions for various terms to be made clearer. Some commenters requested that changes be made to the various supports and accommodations listed in the form. Additionally, some commenters expressed concerns regarding potential confusion caused by introducing a new approach and/or system and how that might work with legacy disability documentation or determinations.

Further, commenters expressed concern that the form did not necessarily permit a reviewer to discern how a significantly disabled individual is precluded from engaging in “normal competitive employment,” as required by the JWOD Act. While commenters recognized that this requirement is generally out of line with the current understanding of the ability of people with significant disabilities to achieve employment, the Commission has a duty to fulfill its responsibilities to administer the JWOD Act. For that reason, the Commission has concluded that a determination of eligibility for Social Security benefits or for eligibility for Medicaid based on a disability is sufficient to meet the requirements of the statute. In contrast, the Commission has concluded that a determination of the extent of an individual's disability(ies), and the impact of the disability(ies) on the individual's ability to work, is necessary to meet the statutory requirement if the certification of disability derives from other sources, governmental or otherwise.

To that end, the Commission has added a narrative section to the form. By requiring that the reason that an individual needs a significant job support, as well as the extent the individual needs the support, is articulated on the form, an official reviewing the form will be able to reach a conclusion as to the qualifying nature of the individual's disability.

Comments were received from one of the CNAs pointing out that the initial number of individuals for whom this form will need to be filled out was understated in the sixty-day notice. The Commission revised that number to reflect the total number of blind or significantly disabled individuals performing direct labor across all qualified NPAs. The Commission used data from fiscal year 2023 for this calculation, as reflected in the updated burden analysis below.

Many commenters praised the Commission's move toward a streamlined process for establishing disability eligibility. Furthermore, commenters noted that the Commission's implementation of presumptive disability qualification is responsive to recommendations made by the panel established by Section 898 of the National Defense Authorization Act for fiscal year 2017, Public Law 114-328, more often referred to as “the 898 Panel.” A draft version of the form NPAs will complete accompanies this notice. The final form will be electronic.

For individuals who meet the eligibility requirements under either Part A or Part B of the proposed form, the Commission estimates that completing the form will take approximately 5 minutes. For individuals who meet the eligibility requirements under Part C or Part D of the proposed form, the Commission estimates that completing the form will take approximately 30 minutes. NPAs completing Part C or Part D of the form will need to complete Part E, as well, which is included in the estimated 30 minutes.

In accordance with these and other changes reflected in Policy 51.403, the Commission estimates that the time and financial burden to the NPAs in completing the proposed form will be significantly lower than required by the corresponding sections of the existing IEE form. Over time, this form will further substantially reduce the burden on NPAs because, in most cases, it will be filled out only once per employee— i.e., when an employee is onboarded—and not on an annual basis as required by the existing IEE form. For employees with a non-permanent disability, the form will be completed on a recurring, seven-year basis. The Commission estimates that approximately 10% of employees with qualifying disabilities will have non-permanent disabilities.

To calculate the burden for completion of the proposed form, the Commission considered an estimate from the Society for Human Resource Management that the average annual turnover across all industries is approximately 18 percent. Using this number, the Commission estimated that NPAs may need to complete this form for approximately 18 percent of their total employees each year. However, AbilityOne employers may experience lower turnover than employers in the general economy. The Commission acknowledges that net AbilityOne job growth may result in NPAs completing additional forms for new employees.

The table below shows the Commission's estimate for the average amount of time per employee for whom the NPAs complete a form, both in the first year of implementation (“Year 1”) and in the following years of implementation (“Years 2+”). The Commission recognizes that NPAs vary widely in total number of employees. Therefore, an NPA can apply this analysis based on their individual employment totals.