N.Y. Comp. Codes R. & Regs. tit. 8 § 246.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 246.1 - Sheltered employment program (SEP)

(a) The purpose of this program is to provide employment on a regular basis to mentally and physically handicapped persons who, as a result of their disability, are unable to participate in the competitive labor market. Under this program, State assistance is given to approved workshops which provide sheltered employment to eligible workers.

(b)Definitions.

As used in this section:

(1)Agency means the New York State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities.

(2)Homebound employment workers are those who, in view of the severity of their handicaps and unique problems, are working under the supervision of a workshop which is certified for homebound work by the Wage and Hour Division.

(3)Long-term sheltered worker means a physically or mentally disabled worker who is receiving employment, as defined in paragraph (4) of this subdivision, and who meets the eligibility criteria set forth in subdivisions (c) and (d) of this section.

(4)Employment means participation in the following activities:

(i)productive work, which means remunerative activity for which a commensurate wage rate based on client productivity is paid and a usable product is produced or a useful service is provided for the purpose of generating contract income to the sheltered workshop. Productive work shall be that contracted to the facility by a third party or work produced by the sheltered worker for use by or benefit of the facility. Productive work may be off-site at a community employer if the workshop supervises the worker and pays wages at least at the minimum level required in paragraph (g)(2) of this section;

(ii)structured rehabilitation activity, which means participation in any of the following activities:

(a) remedial education;

(b) individual or group counseling;

(c) testing or evaluation services necessary for update of the worker's status;

(d) activities of daily living, including independent travel, grooming and hygiene, cooking and money management services, but not recreational services;

(e) occupational therapy, physical therapy or speech therapy services; or

(f) training or retraining necessary to maintain the worker in sheltered employment, to move the worker into a different level sheltered work task, or to prepare the worker for competitive employment.

(5)Unit of service means one hour of employment, as defined in paragraph (4) of this subdivision.

(6)State financial assistance means financial assistance provided to workshops under the provisions of the sheltered employment program.

(7)Support period means a State fiscal year quarter.

(8)Workshop means a place where any manufacture or handiwork is carried on and which is operated for the principal purpose of providing employment to severely handicapped persons:

(i) as an interim step in the rehabilitation process for those who cannot be absorbed in the competitive labor market; or

(ii) during such time as employment opportunities for them in the competitive labor market do not exist.

(c)Eligibility requirements for sheltered workers.

To be eligible for inclusion in the sheltered employment program, a person shall:

(1) be a long-term sheltered worker;

(2) be over 17 years of age;

(3) meet the diagnostic criteria for determination of eligibility;

(4) have completed a diagnostic vocational evaluation and personal adjustment training as described in subclauses (c)(1)(i)(o)(1) and (2) of section 246.6 of this Part; and

(5) demonstrate the potential to be able to meet the employment requirements established in subdivision (g) of this section. The workshop shall provide wage and hour productivity records which are satisfactory to the agency.

(d)Diagnostic criteria for determination of eligibility.

(1) A determination of mental retardation shall be based upon suitable evidence of the disability indicating retarded mental development and a significant impairment in adaptive behavior. Such suitable evidence shall be based upon, but not necessarily limited to, performance on a standard intelligence test administered by an appropriate professional, licensed to administer such tests, which yields a score equivalent to a full-scale score of 75 or less. Psychological evaluations shall be performed by a New York State licensed psychologist. The agency will accept a psychological evaluation made not earlier than three years prior to the time the worker is a candidate for inclusion in the sheltered employment program as being a valid determination of the condition of mental retardation.

(2) A determination of mental illness shall be based upon suitable evidence, of a specific nature, indicating a diagnosis, as approved by the American Psychiatric Association and performed by a psychiatrist licensed by the State of New York or a New York State licensed clinical psychologist. The agency will accept a disability diagnosis made not earlier than three years prior to the time the worker is a candidate for inclusion in the sheltered employment program. The agency may require further supporting documentation in certain cases where eligibility is questionable.

(3) A determination of severe physical handicap shall be based upon suitable evidence, of a specific nature, indicating a diagnosis, as approved by the American Medical Association, by a physician licensed by the State of New York to practice medicine, and indicating a substantial impairment of physical function that meets the requirements for severe disability stated in 34 CFR 361 (Code of Federal Regulations, 1984 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 1984-available at Office of Vocational Rehabilitation, Room 1907, One Commerce Plaza, Albany, NY 12234). The agency will accept a disability diagnosis made not earlier than three years prior to the time the worker is a candidate for eligibility for inclusion in the sheltered employment program. The department may require further supporting documentation where eligibility is questionable.

(e)Eligibility requirements for workshops.

To be eligible for participation in the sheltered employment program, a workshop shall:

(1) be a private nonprofit voluntary organization, or part thereof;

(2) be legally incorporated, or part of an organization which is legally incorporated;

(3) be in possession of workshop certification by the U.S. Department of Labor, Wage and Hour Division, for one continuous year, indicating conformity with Federal regulations governing the payment of subminimum wages to the handicapped;

(4) meet fire and life safety standards as set forth in 29 Code of Federal Regulations part 1910 (General Industry OSHA Safety and Health Standards, OSHA 2206, revised March 11, 1983, U.S. Department of Labor, for sale by Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-available at Office of Vocational and Educational Services for Individual with Disabilities, Room 1907, One Commerce Plaza, Albany, NY 12234);

(5) have on staff, or available to all long-term workers, professional medical, psychological, social, and vocational evaluation and job placement services.

(f)Recordkeeping requirements of sheltered workshops.

Each workshop shall maintain records to substantiate satisfaction of the eligibility requirements for sheltered workers and the provision of units of service as defined in paragraph (a)(5) of this section. The following records shall be maintained:

(1) Records shall be maintained for each worker to account for the provision of work and payment of wages by the workshop. The accuracy and completeness of such records shall be certified by a workshop official who is directly responsible for workshop operations. At a minimum, such records shall provide:

(i) the sheltered worker's name and identification number;

(ii) the number of hours worked and/or number of pieces produced by the sheltered worker;

(iii) the number of hours worked in productive work;

(iv) the contract (job) number associated with the work performed by the sheltered worker; and

(v) the worker's wage rate, as determined by the worker's productivity record.

(2) A structured rehabilitation record shall be maintained for each worker to account for the provision of structured rehabilitation activity, as defined in subparagraph (a)(4)(ii) of this section. The accuracy and completeness of such records shall be certified by the facility official who is directly responsible for the structured rehabilitation activity provided. At a minimum, the structured rehabilitation record shall provide:

(i) the sheltered worker's name and identification number;

(ii) the type and duration of structured rehabilitation activity provided; and

(iii) the identity of the workshop official directly responsible for the type of structured rehabilitation activity provided.

(3) The records described in paragraphs (1) and (2) of this subdivision shall serve as the substantiating documentation for the provision of a unit of service as defined in paragraph (b) (5) of this section.

(4) Records of each sheltered worker's eligibility for inclusion in the sheltered employment program shall be maintained by the workshop. Such records shall provide for substantiation of the eligibility requirements and diagnostic requirements specified in subdivisions (c) and (d) of this section. The accuracy and completeness of such records shall be certified by the workshop official directly responsible for workshop operations. Such records shall include the following:

(i) worker's name and identification number;

(ii) date of birth;

(iii) disability;

(iv) evidence of disability, as defined in subdivision (d) of this section; and

(v) measurement of the worker's productivity level.

(5) Annual evaluation of worker's potential. At least annually, the workshop shall evaluate each worker's potential to determine if it has been increased to the point that outside employment is possible. Such evaluations and determinations shall be prepared, submitted and filed as required by the agency. Placement efforts on the part of the facility shall be completed and documented for all workers who earn at 50 percent of the statutory minimum wage or otherwise demonstrate competitive employment potential.

(6) The workshop shall retain all materials and records required by this subdivision for at least six years.

(g)Attendance and earnings requirements.

State financial assistance will be provided to a sheltered workshop for workers who meet the following requirements:

(1) State financial assistance will be provided on the basis of the total units of service in employment, as defined in paragraph (b)(5) of this section, in the workshop by each sheltered worker. The amount of quarterly subsidy will be determined annually based on the level of funds appropriated for the sheltered employment program. The quarterly subsidy to be received by a sheltered workshop for each sheltered worker shall be determined in accordance with the following scale:

Minimum number of quarterly service units (hours)	200	175	125	75	25
Minimum number of productive work units (hours)	110	96	69	41	14
Service units available for structured rehabilitation activity (hours)	90	79	56	34	11
Percent of quarterly subsidy	100.0%	87.5%	62.4%	37.6%	12.5%

(2) Each worker, for whom a workshop seeks State financial assistance, shall earn a minimum average of 25 cents per hour of employment.

(3) Any worker whose average earnings in the workshop are at or above the level of the statutory minimum wage for the support period shall be excluded from State financial assistance in the sheltered employment program for the period of such earnings. The agency shall determine whether given tasks are eligible for State financial assistance. Adequate recordkeeping of the provision of employment shall be maintained as required in subdivision (f) of this section.

(h)Homebound employment workers.

(1) Advance payment.

Advance payment shall be made to a workshop in the amount of 25 percent of the annual support amount for any support period in which a homebound employment worker completed 20 hours of work.

(2) Minimum hours per support period.

For any support period in which a homebound worker has not worked a minimum of 20 hours, the hours of work by such homebound worker shall not be included in the total used to determine workshop entitlement to support.

(3) Entitlement.

Workshops shall be entitled to support in the amount shown under the circumstances indicated:

(i) Twenty-five percent of annual support level. For all eligible homebound workers who have worked 40 to 79 hours during the State fiscal year.

(ii) Fifty percent of annual support level. For all eligible homebound workers who have worked 80 to 119 hours during the State fiscal year.

(iii) Seventy-five percent of annual support level. For all eligible homebound workers who have worked 120 to 159 hours during the State fiscal year.

(iv) One hundred percent of annual support level. For all eligible homebound workers who have worked 160 or more hours during the State fiscal year.

(4) Adjustment of advance payments.

If at the end of a State fiscal year, the advance payments made to a workshop for a homebound worker during that year exceed the workshop's entitlement, the amount of the overpayment shall be withheld from future payments to the workshop or shall be repaid to the agency by the workshop.

(i)Reporting.

(1) The agency may establish any means of reporting attendance and activities, including forms, as are necessary to assure workshop compliance with the requirements of this section.

(2) The agency shall have access to the records of the workshop at any time. Such records shall be subject to audit by the agency.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 246.1