OAR 411-345-0025: Employment Service Requirements

(1) Requirements for all employment services: (a) The delivery of employment services provided under these rules presumes all individuals eligible for services can succeed in a job and career in a competitive integrated employment setting in the general workforce and earn minimum wage or better. (b) Employment is the preferred activity for individuals receiving services under these rules. Competitive integrated employment is the highest priority over unemployment, segregated or sheltered employment, small group employment support, or non-work day activities. (c) Employment services must be individually planned based on person-centered planning principles. Consistent with the person-centered approach to these services, individuals accessing employment services under these rules must be encouraged, on an ongoing basis, to explore their interests, strengths, and abilities relating to employment or career advancement. (d) All employment services have an optimal and expected outcome of: (A) Sustained paid employment at the maximum number of hours, consistent with individual preferences, and work experience leading to further career development. (B) Maximizing hours using the standard of working at least 20 hours per week. (C) Competitive integrated employment for which an individual is compensated at or above minimum wage, with a goal of not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by employees not experiencing a disability. (e) A provider agency delivering employment services must be in full compliance with the requirements for home and community-based services and settings in OAR chapter 411, division 004. (f) Employment services are provided under these rules in accordance with the State of Oregon Executive Order No. 15-01 and OAR chapter 407, division 025. (g) Employment services provided under these rules must be in settings that meet requirements under federal, state, and local wage and hour laws. (A) Effective July 1, 2023, employed individuals with disabilities must be paid for work at a rate that is equal to, or better than, the hourly minimum wage rate required in ORS 653.025, unless an exception applies for all employees without regard to disability. (B) An employer may not rely on a special certificate issued under 29 U.S.C. section 214(c) to employ individuals with disabilities at a rate lower than the hourly minimum wage rate. (h) Employment services must be evidence-based where evidence-based practices have been identified. (i) Employment services must be provided: (A) To eligible individuals under the authorization of an Individual Support Plan and Career Development Plan in accordance with OAR 411-345-0160 and 407-025-0010. (B) In a non-residential setting unless an individual is operating a home-based business. (C) In the most integrated employment setting appropriate to an individual's needs, and consistent with the individual's choice regarding services, providers, and goals. (j) Employment services must be designed to: (A) Increase an individual's independence, integration, and regular engagement in: (i) Income producing work in competitive integrated employment, that is measured through improvements in the individual's income level, employment status, or job advancement; or (ii) Work contributing to a household or community. (B) Promote integration into the workforce and workplace. (C) Promote interaction with people not experiencing a disability. (D) Support successful employment outcomes consistent with personal and career goals. (2) Employment services do not include any of the following: (a) Services available to an individual under Vocational Rehabilitation and Other Services, 29 U.S.C. § 701-796l. (b) Services available to an individual under the Individuals with Disabilities Education Act, 20 U.S.C §1400. (c) Vocational assessments in a sheltered workshop. (d) In accordance with OAR 407-025-0020, services used for support to work in a segregated or sheltered workshop setting. Schools may not fund mock sheltered workshops. (3) Employment services may not occur in settings where a provider agency, or other person who supports or directs an individual's plan to obtain, maintain, or advance in competitive integrated employment, receives a personal benefit. (4) Employment services include the following: (a) INDIVIDUAL SUPPORTED EMPLOYMENT - JOB COACHING. (A) Job coaching includes support for: (i) Initial, ongoing, or maintenance support to maintain or advance an individual in an individualized job in a competitive integrated employment setting in the general workforce, including customized employment or self-employment; (ii) Maximizing hours using the standard of working at least 20 hours per week; and (iii) Maximizing pay, benefits, and other opportunities for career advancement. (B) Personal care or attendant care provided as an incidental part of job coaching is considered a component part of the employment service. (C) Job coaching does not include support in volunteer or unpaid work. (D) Individuals utilizing job coaching must be compensated at a rate that is not less than: (i) The higher of the rate specified in federal, state, or local minimum wage law; and (ii) The customary rate and benefits paid by an employer for the same or similar work performed by other employees who do not experience a disability, who are similarly situated in similar occupations by the same employer, and who have similar training, experience, and skills. (E) Direct and indirect job coaching support must be provided, at minimum, for the number of hours identified in an Individual Support Plan or Service Agreement. Job coaching contact requirements must be met. (F) Transportation provided within the course of job coaching is a component part of the employment service. (G) Implementation strategies for job coaching must include strategies to support the individual to be more independent in the workplace and provider fading from the workplace. (b) INDIVIDUAL SUPPORTED EMPLOYMENT - JOB COACHING FOR SELF-EMPLOYMENT. In addition to the requirements outlined in subsection (a) of this section: (A) Job coaching for self-employment includes support for ongoing assistance, counseling, and guidance after a job or business has been launched and after successful closure of a plan for services through Vocational Rehabilitation. (B) The individual must perform an essential function of the job or business. (C) Support to maintain self-employment may not be provided to defray the primary operational expenses of a business. (D) The self-employment must yield an income that is comparable to the income received by other people who do not experience a disability, who are self-employed in similar occupations or in similar tasks, and who have similar training, experience, and skills. (E) Evidence of self-employment must be documented and reviewed by an individual's case manager on an annual basis. Documentation may include, but is not limited to, business filings with the Secretary of State, tax records submitted to the Internal Revenue Service, and an annual business plan. (F) Department approval is required. (c) INDIVIDUAL SUPPORTED EMPLOYMENT - JOB DEVELOPMENT. (A) Job development includes support for an individual to obtain an individualized job in a competitive integrated employment setting in the general workforce, including customized employment or self-employment. (B) Personal care or attendant care provided as an incidental part of job development is considered a component part of the employment service. (C) The job developed must provide compensation at a rate that is not less than: (i) The higher of the rate specified in federal, state, or local minimum wage law; and (ii) The customary rate and benefits paid by an employer for the same or similar work performed by other employees who do not experience a disability, who are similarly situated in similar occupations by the same employer, and who have similar training, experience, and skills. (D) The job developed must meet criteria established in a Career Development Plan or Individual Plan for Employment (IPE) including, but not limited to, criteria regarding the number of hours the individual will work in the job. (i) The Career Development Plan must document either a goal or discussion regarding opportunities for maximizing work hours and other career advancement opportunities. The recommended standard for planning job coaching and job development is the opportunity to work at least 20 hours per week. (ii) Individualized planning must ultimately be based on person-centered planning principles, including individual choice, preferences, and circumstances, and recognize that some individuals may choose to pursue working full time, part time, or another goal identified by the individual. (E) Job development may be authorized in the limited circumstances where the service is not available through Vocational Rehabilitation, and the Department has approved authorization. (F) Transportation provided within the course of job development is a component part of the employment service. (d) SMALL GROUP EMPLOYMENT SUPPORT - Services and training activities in regular business, industry, and community settings. (A) Small group employment support: (i) May be provided in groups of two to eight individuals. (ii) Must be provided in a manner that promotes integration into the workplace and interaction with people who do not experience a disability in those workplaces. (B) Small group employment support does not include: (i) Vocational services delivered in a provider owned, operated, or controlled setting, or a facility-based work setting. (ii) Support in volunteer or unpaid work. (C) Individuals utilizing small group employment support must be compensated at a rate that is not less than: (i) The higher of the rate specified in federal, state, or local minimum wage law; and (ii) The customary rate and benefits paid by the employer for the same or similar work performed by other employees who do not experience a disability, who are similarly situated in similar occupations by the same employer, and who have similar training, experience, and skills. (D) Personal care or attendant care provided as an incidental part of small group employment support is considered a component part of the employment service. (E) Transportation provided within the course of small group employment support is a component part of the employment service. (e) DISCOVERY - A comprehensive and person-centered employment planning support service to better inform an individual seeking competitive integrated employment in the general workforce and develop a Discovery Profile. (A) Discovery must include: (i) A series of individualized work or volunteer related activities, completed in integrated employment settings, to inform an individual and their job developer about the individual's strengths, interests, abilities, skills, experiences, and support needs. (ii) Analyzing detailed information from an individual's novel and past experiences in order to identify conditions or integrated employment settings for the individual's success. (B) To identify transferable skills and job or career interests, discovery may include job and task analysis activities, assessment for use of assistive technology, job shadowing, informational interviewing, employment preparation, resume development, and volunteerism. (C) Discovery must be completed within a three-month period. A three-month extension may be authorized if an individual and the individual’s case manager determines there is a legitimate reason. Legitimate reasons may include, but are not limited to, any of the following: (i) The individual had a medical event that delayed completing discovery. (ii) A medical event significantly changed the individual’s strengths, interests, and abilities. (iii) An opportunity to participate in particular work trials or volunteer positions may only be scheduled outside of the three-month period. (D) Discovery must have an outcome of a Discovery Profile. The Discovery Profile must meet requirements established by the Department. (E) Discovery most often results in a referral to vocational rehabilitation services. (F) Personal care or attendant care provided as an incidental part of discovery is considered a component part of the employment service. (G) Transportation provided within the course of discovery is a component part of the employment service. (f) EMPLOYMENT PATH SERVICES. (A) Employment path services include: (i) Support to obtain experience and develop general skills that contribute to an individual's employability in competitive integrated employment settings in the general workforce. (ii) Training and support to an individual to obtain competitive integrated employment. (B) Employment path services may also include individualized benefits counseling. (C) Employment path services must be for the benefit of an individual and may not occur in settings where a provider, or other person who supports or directs an individual's plan to obtain competitive integrated employment, receives a personal benefit. (D) Personal care or attendant care provided as an incidental part of employment path services is considered a component part of the employment service. (E) Producing goods or services may be incidental to employment path services but the primary purpose must be to develop general employment skills that may be used in an individual integrated job. (F) Employment path services provided under these rules must be in integrated employment settings that meet requirements under federal, state, and local wage and hour laws. (i) Employed individuals with disabilities must be paid for work at a rate that is equal to minimum wage or better, unless an exception applies for all individuals without regard to disability. (ii) An employer may not rely on a special certificate issued under 29 U.S.C. 214(c) to employ individuals with disabilities at a rate lower than the hourly minimum wage rate. (G) Employment path services are time-limited based on an individual's Individual Support Plan. These services are expected to occur over a defined period of time with specific outcomes to be achieved, as determined by the individual and the individual’s service and supports planning team through an ongoing person-centered planning process. (i) Prior to beginning employment path services, measurable goals must be outlined in an individual's Career Development Plan that support the intended outcomes of employment path services. (ii) The measurable goals must include a timeline for achieving the goals as well as the frequency and duration for which progress towards achieving the goals are monitored by the individual's case manager during service monitoring as outlined in OAR chapter 411, division 415. (H) Employment path services require that an individual have an employment-related goal in their Individual Support Plan. The employment goal must be related to obtaining, maintaining, or advancing in competitive integrated employment, or, at minimum, exploring competitive integrated employment. General habilitation activities accessed through employment path services must be designed to support such employment goals. (I) Employment path services that occur at a provider site or facility must be used in combination with a service component that is in a non-disability specific setting in the general community and away from the provider site. (J) Transportation provided within the course of employment path services is a component part of the employment service. (K) Consistent with setting requirements for home and community-based services, employment path services must be provided in an integrated setting that supports an individual’s full access to the community and where individuals using these services gain experience working with the general public to the same or a similar degree as people who do not experience a disability and do not use home and community-based services. (L) Employment path services are a facility-based service if delivered at a fixed site where a supported individual has few or no opportunities to interact with people who do not experience a disability except for paid staff. (M) No service may be authorized in a sheltered workshop. (g) SOLO EMPLOYMENT PATH SERVICES. In addition to the requirements for employment path services described in subsection (f) of this rule, solo employment path services: (A) Include time limited support to participate in community work experiences, such as internships, volunteer, or other time limited work experience, job shadowing, informational interviews, and resume building. The specific community work experiences must be described in an Individual Support Plan. (B) Must be delivered: (i) One on one and not in a group setting. (ii) In a general community business setting and not at a provider site. (h) ON THE JOB ATTENDANT CARE AND ATTENDANT CARE IN COMPETITIVE INTEGRATED EMPLOYMENT SETTINGS. On the job attendant care and attendant care in competitive integrated employment settings includes assistance with activities of daily living, instrumental activities of daily living, and health-related tasks through hands-on assistance, supervision, cueing, and the provision of behavior supports as needed to support an individual in competitive integrated employment when a job coach is not present.