State Best Practices for the Employment of People with Disabilities in State Government. Presenter: Chris Kuczynski. >> TAJAUNA: Good afternoon everyone and welcome to the webcast, best practices on employment of people with disabilities in state government. My name is Tanjauna Dunning and I am with the Disability Law Resource Project at ILRU, your sponsor for today's event. I will be moderating today's webcast and voicing your questions to the presenters. Before we get started, I want to encourage you to send any questions you may have during this webcast. In order to submit a question, you can click the submit question button at the bottom of your RealOne Player screen or simply address it to webcast@ilru.org. You can send questions now or at any time during the presentation. They will be posed to the presenters when they pause for questions. If for some reason, time does not allow the presenter to answer all the questions asked, they will be posted on a message board after the webcast. Additionally, if anyone has any technical difficulties today, please call (713)520-0232 and dial 0 for the operator. This number is both voice and TTY capable. As previously mentioned, today's topic is on Best Practices of Employment of People with Disabilities in State Government. It is being presented by Chris Kuczynski, assistant legal counsel and director of the Americans with Disabilities Act, ADA, policy division at the United States Equal Employment Opportunity Commission, the EEOC. Along with co-presenters Anthony Fadale, ADA coordinator for the state of Kansas and Greg Trapp for the New Mexico Commission for the Blind. In his position, Chris Kuczynski supervises the development of policy guidance interpreting Title I of the ADA. Mr. Kuczynski also advises EEOC's field offices, office of general counsel and chair and commissioners on ADA investigations and litigation. Since assuming the position of assistant legal counsel in February 1997, Mr. Kuczynski has made hundreds of presentations on the ADA to a variety of audiences, from human resource professionals and EEO counselors in the public and private sectors, to plaintiffs and defense counsel. From October 2003 until April 2004, Mr. Kuczynski was associate director for the White House Domestic Policy Counsel, coordinating activities across the federal government related to the New Freedom Initiative, the president's comprehensive strategy for the full integration of people with disabilities into all aspects of American life. Mr. Kuczynski also served for nine months as special assistant to EEOC chair Carrie Dominguez, advising her on issues related to all of the EEO laws. He worked as a trial attorney for the Civil Rights Division of the U.S. Department of Justice from July 1993 through February 1997 and worked for three years as a litigation associate with a major Philadelphia law firm. He has a BA from Villanova University and an LLM from the Yale Law School where his course of study focused on constitutional law and civil rights issues. Anthony Fadale has been ADA coordinator for the state of Kansas since 1997. He previously worked for Senator Bob Dole on issues involving disability, mental health and aging. He has been qualified as an expert on ADA issues in the state and federal courts of Kansas. Mr. Fadale received a BA in 1992 and a J. D. from Washburn University. Greg Trapp has been a director for the Commission for the Blind since 1999. Prior to joining the commission, he was a senior staff attorney for the protection and advocacy system where he had worked since 1992. Mr. Trapp taught disability law as an adjunct professor at the University of New Mexico, UNM School of Law in the fall of 1993. From 1991 to 1992, he worked as an equal opportunity specialist at UNM. Mr. Trapp, who is himself blind, graduated with honors from the UNM School of Law in 1990. He is currently president elect of the National Council of State Agencies for the Blind. He also serves on the governor's commission on disability, the statewide independent living council, the Individuals with Disabilities Education Act State Advisory Panel, and the State Workforce Development Board. And with that, Chris, I turn the webcast over to you. >> CHRIS: Thank you very much and good afternoon or good morning, depending on where you happen to be listening to this webcast from. I think there probably are some folks for whom it is still morning; but in any case, welcome and I'm happy to be here actually for the second consecutive year to talk about best practices for the employment of people with disabilities in state government. We had a similar webcast last May when the EEOC did its interim report on best practices published in October of 2004, and that report covered four states: Florida, Maryland, Vermont, and Washington State. The current report, which we issued on October 31st of 2005, as planned in October of 2005, covers nine states. The four that I've already mentioned, plus the states of Kansas, New Hampshire, New Mexico, Missouri and Utah. So what I want to talk for a few minutes about, first of all, why we did this report. Secondly, how we went about doing it, the kinds of things that we looked at in order to compile the information that is in the report. And then give a general overview of the contents of the report. I'm then going to talk about part 1 of the report related to recruiting and hiring people with disabilities and efforts that states made in those areas. At which point I'll then turn it over to my colleagues from the states of Kansas and New Mexico to talk a little bit more detail about specific programs and activities they have around the issue specifically of recruiting and hiring. Then we'll proceed with talking about each section in turn with some commentary from me and then commentary from the state representatives on each section. Let me get started by just putting the report into context. Some of you who were at last year's or heard last year's webcast may know that -- or would know and you would be hearing this again -- that this report -- that one of the reasons that we did this report is that states have tremendous ability to, first of all, be employers of individuals with disabilities. They employ state governments, 5 million or more people nationwide, so they are a huge employer of people, potentially of people with disabilities, and secondly, because of their role as state governments, they are in a unique sort of leadership position, very much like the federal government is in a leadership position in terms of what we are expected to do as the federal government with respect to nondiscrimination generally and with respect to people with disabilities in particular. There is a 70 percent unemployment and under employment rate of people with severe disabilities in this country. That is a number we have said too often and doesn't seem to change too significantly in the last number of years. In response to that, and a number of other barriers that people with disabilities face, President Bush, President George W. Bush, started the New Freedom Initiative in his second week in office, basically, during his first term in January or February -- February of 2001. February 1st of 2001. And this New Freedom Initiative or NFI we sometimes call it here at EEOC is the comprehensive strategy for the integration -- complete integration of people with disabilities into all aspects of American life, including employment. And so the EEOC plays an important role and we've taken on an important role in furthering the employment objectives of the New Freedom Initiative, and I won't go over what we've done, but the report in its introduction sets out some of the things we've done in order to further the objectives of the New Freedom Initiative. But in part, this report is an attempt to do something about the unemployment rate of people with disabilities, which is staggeringly high, and thereby further the goals of the New Freedom Initiative. We hope that the states who participated in this will learn from one another by what they read in the report or have read in the report. We hope that other states, as well as local governments, as well as private employers, can learn from the best practices of the nine states that are featured in the report. So there are lots of advantages to this report in terms of learning from one another from these best practices. There is another component to this projects that is really kind of just getting underway, which is after doing the report, what we really want to be able to do is to reach out to those participating states and to other states as the EEOC, and to provide, if states want it, a free technical assistance on the ADA, on the hiring and retention of people with disabilities. So we think that there is a role that we can play, so we want technical assistance to be part of this as well as just publishing -- sometimes federal agencies publish reports and there is very little follow up. We want there to be follow up in the form of assistance to the states. So that is a vision that the chair of our agency has for the next phase of this project. So if you're out there and you're with a state that's interested in this -- interested in getting some kind of technical assistance, either on an individualized basis or if we can come to a venue and speak to a group of state -- people in state personnel, I'm putting out that invitation now because that is part of the best practices project. I want to get into sort of what we looked at and what is actually in the report. We worked voluntarily with the nine states, cooperatively. This was not a type of project in which we were trying to find information that could be a basis for a charge of discrimination. We really wanted the states to feel free to exchange this information knowing that we were not going to use it in order to follow up and file charges against them. And we got tremendous cooperation from the states and I personally want to thank our state partners from Kansas and New Mexico who are representing the blind today. They provided us lots of information -- all of the states did -- concerning their policies, practices and procedures. Some of the things we looked at that we thought were important in terms very figuring out what people with disabilities will encounter when they apply for jobs in the subject states, we looked at things like job application forms, job announcements, position descriptions. We looked at written procedures for providing reasonable accommodations for applicants and employees with disabilities. We looked at information on procedures for administering employment tests, including any reasonable accommodations that states provide for the testing process in states where there are employment tests. Not all of them have them. And we also looked at employee handbooks, manuals on recruitment and selection, directives on EEO and diversity and other documents reflecting best practices related to the hiring, retention and advancement of qualified individuals with disabilities in state government jobs. Now, what's in the report? There are five main sections. The first section discusses best practices related to the recruitment and hiring of individuals with disabilities, including efforts in states that made to reach out to disability groups, to individuals with disabilities to employ them in state jobs. The second part discusses ways that the subject states provide reasonable accommodations for qualified employees with disabilities. And although I know that there are many situations that come up with individuals were disabilities that are not reasonable accommodation situations, not everyone needs one, I think that in many respects this is sort of the meat of the report, the section on reasonable accommodation procedures and a lot of stuff state agencies are doing because the willingness to provide a reasonable accommodation and communicating that clearly to people with disabilities is key in, I think, increasing employment opportunities and the willingness of people to apply for jobs. Part 3 describes what the states have done to ensure that once hired, individuals with disabilities have an equal opportunity for advancement in the workplace. Part 4 describes state activities that although not designed specifically to create employment opportunities in state government do help to increase the employment of people with disabilities more generally and part of that does have an effect that people with disabilities have more job opportunities generally that may benefit them with respect to employment by the state as well. Part 5 lists some things that we talk about as being areas for further consideration by states. This sets this report apart from the interim report in which the interim report didn't focus on things which were potential barriers. The final report, we told the states, would focus on some of the barriers or some potential barriers, not necessarily illegal things that states are doing, but things that may serve as disincentives for people to apply for state jobs or things that may create problems if they're not properly implemented. And this was the section that we did not identify states associated with particular barriers. We told them that we would not do that, and we haven't done that. we talk just generically about what some of the barriers are and they are barriers that could exist, really, in any state; not just the ones we looked at in connection with this study. And the conclusion -- there is a conclusion to the report that summarizes some of the most promising trends that we've seen in a couple of areas where we still have some concerns or where more information might be needed or more work might need to be done. I want to go on to part 1 now, and I want to leave plenty of time for our state representatives to talk about those specific issues in their state around each of the four or five sections. >> TAJAUNA: Chris, this is Tanya again. If I could just interject, this webcast is being captioned and it's -- the captioner -- if we could just slow the speaking down a bit. >> CHRIS: Sure. >> TAJAUNA: I think it's a northern thing. I do the same thing. I have a hard time speaking slowly, but if you wouldn't mind. >> CHRIS: Oh, absolutely not. I will try to do that and hopefully will accomplish it. >> TAJAUNA: Thank you so much. >> CHRIS: You're welcome. Recruiting and hiring people with disabilities, we looked at a couple of different things that states do with respect to recruiting and hiring. We looked at efforts that states make to recruit people into jobs that exist into the pool of applicants for jobs that exist and are available to the general public. We also looked at some efforts that states have made to hire people with disabilities specifically, for specific kinds of jobs open only to them. Now, in the latter case, those jobs are really job intended to give people training opportunity to learn about certain kinds of work with the ultimate goal of getting into a job that is available generally to people in the general public in state employment. So we're not talking about the second group of jobs for segregated work that goes on forever. We're talking about on-the-job training types of things where people have an opportunity to learn a skill that they can then translate into long term state employment in a job that's generally available. Now, with respect to recruiting people generally, and to those jobs that are generally available to people who want to work for the state, there are different kinds of strategies, obviously, that states have employed. The state of Maryland, which we talked about in the last webcast, and this may have been mentioned, they have in their office of budget and management a coordinator of special outreach and employment programs. And this is someone who assists agencies throughout the state that fall under the office's jurisdiction. That's most of the agencies in the state of Maryland, to a system in recruiting a diverse workforce, including people with disabilities. I'm excited about an effort in New Mexico that -- and one of the reasons that I'm excited about it is that it is something that has been taken on by the governor of the state. And I think that one theme that we'll see come up over and over again, and it's mentioned in our report, is that efforts that are initiated from the top down have, I think, the greatest success -- the greatest chance of success and evidence the greatest level of commitment by the state. It's one thing for an agency to do something, that's great. But when the governor says go out and do this, it's going to happen. And I hope my colleague from New Mexico will talk a little bit about this, but governor Bill Richardson established an executive task force on disability employment, and what that's going to do is look at -- it's, first of all, a recognition that we can do better in the state than we're doing in terms of -- and this could be said of every state that we looked at. Indeed, the federal government. We could be doing better. We're going to look at certain things that may be barriers to employment to enable, and this commitment comes right from the governor, to enable people with disabilities to be recruited and hired at a greater percentage than they currently are. And New Mexico has some other initiatives as well. In Vermont, this may seem like a relatively small anything, but it's important, again, because it comes from the governor. Governor Jim Douglas took the time in 2004 in connection with Disability Mentoring Day to record a series of public service announcements that specifically promote the idea that people with disabilities should apply for jobs with the state. This is important when the governor says that we are welcoming people with disabilities into our state work force. Vermont also does something kind of interesting. They have a -- they offer a mandatory interview to people with disabilities with qualifying -- that is ADA disabilities -- who express an interest in a job. They'll allow them to have what's called a mandatory interview for that position. Not a guarantee that they'll be hired, but certainly an opportunity to be considered. And the last thing I wanted to note with respect to hiring for jobs generally available, is that Washington State's action program specifically includes individuals with disabilities. Again, how significant is that? I think it's quite significant because I think that things are changing with respect to how we think about affirmative action, how we think about diversity. To be honest about it, I think until quite recently those issues were seen as primarily being about race, gender and ethnicity. More recently, we're hearing more things about religious diversity in the workplace and disability is really becoming a part of the discussion that we're having about affirmative action and about diversity and it's significant that Washington's program includes a reference to disability because it means that the state then is going to take certain actions to try to increase the pool of qualified applicants with disabilities for state jobs. I just wanted to note with respect to jobs specifically designed for people with disabilities, that Washington and Vermont, it's noted in the report, have programs like these. And the only thing that -- at least they specifically report in them, too, as the other states may have them as well -- but what's significant about them is, again, that these are jobs that ultimately are to lead to full, stable employment in state jobs and mainstream employment within the state; not situations where somebody is expected to work in these jobs forever and ever when they are with the state. Let me talk about job announcements, job applications because what job announcements and job applications have to say about the job may have an impact on whether people with disabilities will apply for work with the state. If a job is defined in such a way, for example, as to make a physical requirement -- you know, let's say it says the applicant must be able to communicate orally -- make oral presentations. Well, that could have an effect on someone who is deaf and who uses sign language who may be disinclined to apply for that position. Other ways that jobs define their functions in terms of certain physical characteristics may get in the way as well. In precision of identifying essential and marginal functions could be a problem. States -- you need to make these distinctions because marginal functions are functions that people with disabilities are not required to be able to perform in order to be considered qualified. So it's really critical that job announcements, job descriptions, applications carefully delineate what the actual and the requirements of the job are. Several states reported on the efforts they made to identify essential and marginal functions, and I won't say too much about that beyond what I've said, except to say that we've seen examples of that in the state of Kansas. We've seen examples of what states do with respect to Florida, with respect to Utah, other states have done it as well. They take specific kinds of measures, but I think that the more important than the specific measures that they undertake is really the fact that they are making significant efforts to really get supervisors and managers and people who know about these jobs to carefully identify what the requirements are so that they're not screening out people unnecessarily because there is some marginal function that's been misclassified as essential. So that's very important. The variability of reasonable accommodation, and making that known to job applicants, is critical. If an applicant knows that accommodations will be provided, that person is more likely to apply for a position than if there is no notice of the availability of accommodations. It's important that the -- whatever information is communicated about the availability of accommodations, both for the application process and on the job, is communicated somewhere prominently on the job application. Florida's employment application states at the top of the form that applicants can notify an agency's hiring authority to request accommodations. The Kansas employment application clearly announces the state's obligation to provide reasonable accommodations to applicants and gives a telephone number for requesting accommodations. Very important, provide information -- it's important to provide information not only that accommodations will be provided, but how does the applicant know to whom the request should be made? So part of that -- part of the advertisement for the job or the announcement of the job, if it's going to include information about the availability of accommodations, needs -- and it should -- needs to include information about who to contact. Missouri -- the state of Missouri public defender's office informs applicants that if they need assistance with any phase of the application process, they should notify the human resources director. That's another way that a state has handled it. So providing both a clear statement of the availability of reasonable accommodation and clear information about a contact person who can provide applications for the application -- provide accommodations for the application process. Very important. The last thing I wanted to talk about with respect to recruiting and hiring, very quickly, is that one of our observations in the report is that there seems to be an adequate amount of training -- more than adequate amount of training made available. I won't do through what specific dates are doing, but they are providing a lot of training to supervisors, managers, to anyone involved in the recruitment process concerning the job interview process, reasonable accommodations for the application process, and specifically with respect to interviewing, there are certain questions that people are not allowed to ask about one's disability during the application process. It seems as if people vouched in the interviewing and recruiting process are aware of these kinds of rules and others because of the availability of training. And I guess the last point that I would mention has to do with providing mentoring, mentoring programs. Two states, Maryland and Vermont, specifically -- many of the states participated in international Disability Mentoring Day, but two states specifically Maryland and Vermont told us that part of their mentoring experience on Disability Mentoring Day are specific workshops or other specific activities that are designed to introduce people with disabilities to state employment. At that, I'm going to turn it over after going on too long to my friends in Kansas and New Mexico to talk about some of their programs. And I guess maybe I'll go alphabetically and ask Anthony whether you have -- going alphabet particularly by state and by name -- and ask Anthony whether you have any specific comments about Kansas. >> ANTHONY: I think you did a very good overall summary. I would just like to touch on some of our initiatives that weren't able to be included in the report because they were ongoing at the time when the report was -- when we had to send the information in and we hadn't quite gotten them done or matured to the point where we could make an announcement about additional initiatives. And I would just like to add an initiative or two that we're doing in terms of recruitment, retention and selection of people to join the state workforce, not just people with disabilities, but minorities, women, and a diverse workforce in general; but people with disabilities are included, similar to that of the state of Maryland. The governor and the cabinet level agencies and a total of over 40 agencies established what's called the state diversity network, and that network is charged with informing -- going out and recruiting, retaining and selecting -- or selecting and then retaining people with disabilities, minorities, women, across a broad cross section and getting them to apply and then retained. And myself and the Kansas commission on disability concerns serve on the committee -- the state committee, and then our individual agencies have their own separate committees, like the department of add administration, revenue, transportation, so on and so forth. They have their own individual committees and programs and I can speak to the department of administration because we have initiatives specifically going on within the department itself in order to enhance recruitment and retention and training amongst managers and so on. So if you want to get into that later, we can, of course, do that. But that is a major policy initiative which the governor and the cabinet have established. We had a series of three -- three diversity summits that went across the state of Kansas and had about 150 -- I would say 150 participants that were invited, community leaders, to say how could we do a better job. And over the month of November and December, we went out and heard from the communities as to what could be -- what could be done to improve the hiring practices and retention practices. And at each of the sessions we had comments about reasonable accommodation, comments about the need to increase access to technology, comments about the need to let people with disabilities and others know how they could seek employment. So we're in the process of taking all that information that was just done in November and December and putting that into a matrix structure so we can go over that and start addressing those issues in a methodical way. We can't say we'll get to them all, but I think it's a major initiative that the agency has undertook and it was declared to be a success by the cabinet and they really enjoyed it, just to get out in the community and these were cabinet level secretaries that went out along with some of us and pitched the idea of coming to work for the state, including people with disabilities. So I think that that's a major initiative. The only other thing I would add that isn't in the report is the emphasis on mentoring. Our programs are -- the governor is very committed and has just declared, as of yesterday, January to be mentoring month. And former Kansas State football coach, bill Schneider, who just retired this year, has agreed to undertake a major mentoring initiative. And we're very pleased with that. And I think that that will work on various issues in terms of helping adults and children not in the employment context, but just in a mentoring context. And we hope that any way that we might be able to involve mentoring in terms of employment or any other way for young people could be included. So that was just announced yesterday, as a matter of fact. So with that, I'll turn it over to Greg, and he can talk about other initiatives, but I just wanted to add to what was already in the report. >> CHRIS: Great. Thank you. >> GREG: I appreciate this opportunity to talk a little bit about what we're doing in New Mexico, the land of enchant. We're a little slower paced here so I think the captioner will appreciate that. Our governor, governor Bill Richardson, as you mentioned, did create our executive task force on disability employment, and I think that sends a critical message to state agencies and hiring officials that, as a matter of public policy here in the state of New Mexico, employing people with disabilities is important, and important to the governor. That task force includes a broad range of agencies. It includes our state Department of Labor, our office of workforce training and development, our department of health, our state personnel office, as well as agencies charged with serving persons with disabilities, such as the governor's commission on disability, my agency, the Commission for the Blind, the division of vocational rehabilitation, the development of disabilities planning council, the commission for deaf and hard of hearing persons and also the public education -- special education office. So we have a broad cross section of people who are really ideally positioned to work on this issue and to make a difference. So that I think is just critical, that message, and the importance that the governor puts on it. Some of the things that we're doing here in New Mexico specifically, one I think that really has a great impact is the exception to open recruitment process. We can obtain an exception for a person with disabilities to be hired into state positions without having to go through the full competitive recruitment process, interviewing and then making the decision at the end of that. So that can be a very effective way to have people with disabilities placed in state agencies and to do so in a way that meets the needs of employers to have a skilled person on the job more quickly. A come pain onto that is an effort that we have here wherein we have surveyed all state agencies for both internship, on-the-job training, and apprenticeship opportunities as well as funding streams. So if we combined those two approaches, the exception to open recruitment as well as the heightened emphasis on internships and on-the-job training opportunities, by doing that, we really can find opportunities for persons with disabilities to be placed in state government, and of course agencies such as the division of vocational rehabilitation and the commission noter for the blind which provide vocational rehabilitation service here are working very intensely in making that happen. >> CHRIS: Great. It sounds like there is a lot that has happened that was not captured in the report or that has -- things that were in the report, there has been more activity on it even since the end of objecting. A couple of these initiatives were things I knew were sort of in process and it's really great to know that there has been follow up and in these states and probably others. So this is great that the report is, I think, really having an impact in terms of -- and I think will for other states as well -- in terms of driving some of these processes, I hope. But it sounds like Kansas and New Mexico probably don't need the incentive of the report. They're out there doing a lot and this area of recruitment and hiring is really critical. So it's great to hear what's going on. If there are no other comments from our representatives from the states on recruiting and hiring, I'll talk for a few minutes about reasonable accommodation. And I think that this segment -- and I think that I'll also talk briefly about retention and advancement of people with disabilities in state government once hired. That is section 3 of the report. So I'll roll those two sections of the report into my next set of comments and I'll take less time doing it than I did the initial introduction and part 1. As I said, I think part 2 is -- although it's not the -- certainly recruiting and hiring is very important, and equally as important I think are what states are doing with respect to providing reasonable accommodations for applicants and employees with disabilities. And the first thing that we do in this section is we set out four -- what appear to be four models that we have seen emerge in the states for how they go about providing reasonable accommodations, the procedures specifically that they use. There are four models. We're not saying that one model is better than another, and that there isn't a fifth or sixth model that could work. Really what is critical in this area in terms of compliance with the law is making sure that people get accommodations. That's what's critical. Good procedures can help with that. We have in the federal government a mandate under an executive order that all federal agencies have written reasonable accommodation procedures. That they have certain components to them and that they be communicated to all employees, and anyone who is going to be in contact with the potentially with the accommodation process. And it's encouraging to see that a number of states are doing things with respect to reasonable accommodation procedures. Let me talk very, very quickly about the four models. One model is -- and it occurred to me in looking over my notes just before this teleconference that maybe one of the reasons it works Dick particularly well is because of the small size of the workforce in Vermont. In Vermont's procedures, they are statewide procedures. There is a statewide policy with attending procedures that apply to all agencies within the state. And that may make sense in a state where there are about 8,000 employees. And there is a chart in the back of the report that shows the approximate number of employees in each state. You know, so maybe that's the type of -- set of procedures, a very centralized process that is appropriate for a smaller state. Maybe it's appropriate for a larger state as well, but it struck me that the smallest of the states that I think we surveyed in terms of workforce have that kind of centralized policy. Other states do something a little bit different. The state of Washington has something that is similar to what I think the federal government does. Agencies have adopted their own procedures, but they are subject to review by the states. We do something like that. Federal agencies develop their procedures and EEOC reviews them and provides input on them. The third kind of -- the third type of procedure is there is no centralized system, and there is no -- there is no requirement for submission to some sort of statewide body that would review them, but two states, Florida and Kansas, have individual agencies that have the discretion to adopt their own procedures and have a fair amount of flexibility, it's my understanding, and perhaps Anthony will correct me if I'm wrong, to create procedures that work for their states. They are not necessarily subject to review by the states, although it is important I suppose that in these cases that the agencies that need assistance could get assistance on, say, from a state ADA coordinator in putting their procedures together. And the fourth model is what Utah employs. There is no specific set of procedures to live by, but there is a lot of training and there is a very centralized -- there is a sort of centralized process for providing accommodations in the sense that the accommodations go through the state ADA -- the various ADA coordinators. They are charged -- they are the ones who handle, rather than the individual supervisor, manager or individual office, the ADA coordinators for the various agencies handle all aspects related to the requests and people are educated and trained that if they get a request, it goes to the ADA coordinator. So four somewhat different models. One important component of procedures are time lines. Time lines for the provision of reasonable accommodations, time lines sometimes for taking certain steps in the accommodation process. At least two states, there may be others, two of them, Florida and Kansas, reported that at least some of their agencies have specific time lines in their procedures for either notifying the appropriate person that a request had been made. If that has to go to an ADA coordinator or human resources person, that person has to know about the request within two days, and in Kansas, I believe it's the department of social and rehabilitation services requires a decision on a request within 30 calendar days of the date on which an accommodation has been requested. Denials and how an agency handles denials are critical. You can avoid a lot of problems, legally, I think, if an accommodation is denied properly, which is to say not only that you have affirm legal basis for denying it, but that you've gone through the steps of trying to explain to the person why it's been denied, that you've gone through -- maybe you've established some type of process where there is a possibility for appeal or that someone else reviews the denial before the denial becomes effective. And there are various things that states do. Florida's department of state reasonable accommodation record, which is the form that they use to record requests, requires managers to explain, among others things, why an accommodation was not provided and requires that denials be submitted to the department's bureau of human resources prior to denying the accommodation. So there are sort of checks and balances here and a requirement that the rationale be explained. In Utah, the ADA coordinators are trained to notify the state's risk management gf denying any accommodation. So again, another avenue of review. And then to provide additional incentive -- I thought this was interesting to ADA coordinators to complete this step -- the Utah state administrative rules governing risk management expressly exclude liability coverage for any covered entity that hasn't gone through this process and hasn't submitted the denial to risk management. So there is ability and sort of incentive. Vermont, they have created a statewide reasonable accommodation committee that reviews denials of requests. And Washington requires that the head of the agency sign off on any denial of a request for reasonable accommodation. So you can see that there are -- based on these systems alone -- that there is less of a chance that individual supervisors or managers are simply going to be denying ake digs as without any explanation because there are levels above them, particularly in the case of a denial, someone else reviews that decision. And that's very important because it makes -- sort of makes sure that you gets the call right. Documenting and tracking requests is important -- on the important thing to do in a couple of states, Maryland and Vermont have specifically compiled data on how quickly accommodations -- or what's happening to requests when they've been made. The Utah Department of Human Services, office of human resources keeps records of every approval of an accommodation request, as well as copies of all denial letters. New Hampshire has specific kinds of information that has to be included in a letter granting or denying a reasonable accommodation or granting something other than what the person requested. These are ways of documenting how are we doing? You know, how quickly are we providing accommodations? How often are we denying them? What justifications are we putting forward when we are denying them so that some kind of evaluation can be made about how the process and that kind of information can be used to evaluate how the process is working. A couple of other things about reasonable accommodations, centralized funding for the cost of reasonable accommodations can be helpful. And that is that the particular office where the person with the disability works isn't necessarily charged with the cost of accommodation, but rather there is a centralized mechanism that can avoid the possibility that the individual office will have -- will be charged the cost of the accommodation and, therefore, will have a disincentive -- if a small office with a limited budget is thinking about hiring somebody with a disability, they may be more -- they may be less likely to do that if they think they're going to be charged with the cost. So a centralized funding mechanism can be helpful. We saw in Utah and Washington two types of funding mechanisms that although they aren't for every type of accommodation do provide some kind of centralized funding for accommodations that are more expensive and that could not have been reasonably anticipated in advance. Ensuring the confidentiality of medical information, the ADA requires that when medical information is obtained from a person with a disability, it must be kept confidential. And Utah, for example -- it's just an example of a state. There are others. Has specific rules that protect -- that not only protect the confidentiality of that information, but inform very clearly supervisors and managers and anyone who has medical information in connection with the accommodation process, that that information must be kept confidential. The greater the confidentiality and the greater the guarantee of confidentiality, the more likely, it seems to me, that someone who might be reluctant to request an accommodation will come forward and ask for one. And lastly, we talk about some innovative accommodation solutions. A couple of things in the states of Washington and Missouri -- Missouri and Washington both have programs whereby -- well, Missouri has a program whereby people can borrow assistive technology that may be needed as an accommodation in situations, for example, where they want to try out the equipment before it's actually purchased as an accommodation; or in situations where a piece of assistive technology has broken and needs to be repaired. There is a temporary period of time during which the person needs equipment, there is a way to obtain this kind of equipment on a temporary basis in the state of Missouri. There are a few examples of innovative accommodation solutions in Washington State in terms of setting up a -- they, too, have some sort of a lending program for assistive technology that is needed, things like assistive listening devices, things that might be needed on just a temporary base. They also have established a statewide Brailling center and a statewide taping center as well in Washington State. With respect to recruiting -- or excuse me -- retention and advancement, I just want to mention a couple of things here. This, frankly, is part of the report on which we have the least information. And I think part of the reason why is understandable in the sense that if we have less experience to date with people with disabilities in the workforce, it's probably the case that most efforts are going to focus on recruiting, hiring and ensuring reasonable accommodations are provided than will efforts focus on things such as mentoring for purposes of offering people with disabilities opportunities for advancement, where the focus may be at this juncture on getting more people into the workplace to begin with. But we need to remember that when people do get into the workplace -- people with disabilities do get into the workplace, they are not going to want to stay in one job for the rest of their lives working with the state. They are going to want equal opportunities to advance and I think a couple of the things -- one of the things that the states do very well is that they do, again, just as I said, training is provided related to the application and recruiting process; there is also a lot of ongoing training that state employees have about their ADA obligations toward employees. And the more training and good information that people get about the rights of workers with disabilities, the more likely it is that those people will be treated fairly. It's not to say that discrimination won't occur, but training and particularly in two places, Florida and Vermont, emphasize that they incorporate training into their diversity training. Training about the rights of employees with disabilities is part of their diversity training. So the states are doing a great job with training their employees and that is going to lead to a workplace in which there is less discrimination and proactive steps are being taken. The state of Maryland, one of its agencies talked about -- told us about biennial training, training it does every two years for supervisors and managers of the ADA. It's required, and it also includes specific kinds of action steps with respect to promoting the advancement -- not only nondiscrimination, but advancement of people with disabilities, such as increased mentoring; you know, counseling and enabling people -- working with people to identify their interests and their strengths with an eye toward really being able to advance in state government and to identify where they want to go from the position that they're in. Maryland was the only one that specifically reported on steps that it takes to mentor existing employ ease with a goal to moving them on to other positions, but there may be other states that do that. At this point I want to stop and give it back to Anthony, to Greg. We can start with Greg at this point if you want to comment on either of these sections or what New Mexico is doing in these areas. >> GREG: Sure, Chris, glad to do that. One of the things that we're doing here in New Mexico that I'm most excited about is to create an organization or association of ADA coordinators. I think that since the ADA was passed, we've seen a broad range of practices here in New Mexico in terms of the ADA coordinator within each state agency and how each agency interacts with that ADA coordinator and the status of that ADA coordinator within that agency. So by creating an association of ADA coordinators, our purpose is to raise the status of those ADA coordinators, raise also their level of awareness, their knowledge, and really empower them to effect wait the purposes of the ADA and I think that we'll really see that come to pass in terms of the provision of reasonable accommodations. And one of the reasons why I really like this approach is it's fairly easy to accomplish. We will have a state agency, in our case, the governor's commission on disability, act as the organizer of that ADA coordinator's group, but it's something that we can do here at little or no cost, but I think can have a dramatic impact. So, Chris, I'll hand it back to you. >> CHRIS: and I'll hand it back to Anthony if Anthony would like to make any comments. >> ANTHONY: Yes, Chris and thanks, Greg. I would just like to add to what Chris said about the agencies having some discretion. The agencies he mentioned, social and rehabilitation services, had a tremendous amount in the report that the Department of Commerce does a great deal, transportation and aging are also departments that do a great deal in terms of accommodations and providing -- I believe they provided documents for the report. I would just add in terms of -- the state does have a procedure that allows a person or an agency to request review of my office if they feel like the decision was incorrect or the agency wasn't sure whether they were correct. That decision can come up to my office for review and determination and that gives us the overall check to make sure that we're accomplishing what we have to accomplish and why was it denied or why was it accepted. If somebody feels like they were -- they should have been accommodated, there have been cases where we've made modifications to a denial or reversed the denial. Those have been limited, but this office -- that way I can try and keep an emphasis on working with the agencies so when there are questions we work together, similar to what Greg has. We have not only an agency list of ADA coordinators, but we put things online and send them E-mail communications, send things out like awareness bulletins or other things of this nature that have agency ADA coordinators so that they are aware of the changes that are ongoing or new court decisions or EEOC initiatives, just as an example, that may impact them. So they have that as well. So I just wanted to clarify for an example the agency -- a person can request review by me, though the agencies do have a lot of discretion. I believe S. R. S. was mentioned in the report in terms of making temporary disabilities. The agencies believe that an employee ought not be -- because you may break your leg, we're going to do our best to accommodate you because it's the proper thing to do and S. R. S, as n example, allows for temporary accommodations to take place. In terms of retention and hiring practices, we are trying -- I will only speak for the department of administration -- we are starting to try and move in our interview processes, to the process of asking behavioral-based questions in an interview for all positions which allows a person to focus on their ability to perform the functions of a job or interact with a group, whatever the job may entail, and stays away from suspect related questions that could get you in trouble. So I think that's one of the systems that we're taking on as a major part of the initiative in terms of trying to retain folks. So when they do interview for a job, the focus is not even on their disability, but specifically on their qualifications to do the essential functions and the behavioral-based questions are focused on how they can accomplish those tasks. So I think that's been very good. >> CHRIS: Thank you Anthony and Greg. And one of the points that stuck out for me, Anthony in your presentation and I wanted to mention this is that there are states like cans that will provide accommodations for individuals who may not, you know, technically meet the definition of disability in the sense that they are considered substantially limited in a major life activity under the law. And I think that is very significant. Missouri has mentioned it will do that. I suspect Washington State has a much -- a broader, let's say, definition of who is entitled to accommodation under law than the ADA does. And so they are probably providing some accommodations, to people where the ADA wouldn't necessarily require accommodations, but I suspect that there are other states that do that and just have imported it and I always give employers advice as a proactive measure, if you can accommodate someone and have that person working and you can avoid an overly legalistic determination of whether that person has a disability, go ahead and do it. And I think states like Kansas and Missouri and others show that that can work. I want to just talk briefly about section 4, and then I want to briefly turn it back over to Anthony and Greg for any comments that they might have on section 4 concerning other activities of states. And then I really want to go to questions. I don't want to focus too much on the barriers. I think some of the barriers may be implicit in some of the things I've already said. That, you know, if some of these things that are best practices are not being done, maybe there is a barrier, even ran inadvertent barrier to employment. But I don't want to go on at great length on section 5. And I wouldn't expect our state representatives to comment on specific barriers in their states. I want to focus on section 4 just to pull out a few things from that section. What other kinds of things are states doing? I think that some of the things that states are doing to promote employment generally, and not just in state government, some of the ones that are significant are things had a happen at the executive level, the level of the governor or at the legislative level. For example, in the legislature in Florida created a new agency in 2004 called the agency for persons with disabilities. Now, it's particular focus is on individuals with developmental disabilities in particular, but that sends a message, again, from the top, from the legislature that this is an important issue. Likewise, there have been a number of executive task forces created in Florida and elsewhere. In Maryland, the legislation in Maryland elevated the office of disability to cabinet level status. I think that's very important that when you have an office in your state that reports directly to the governor, that has direct access, is actable directly to the golf Florida dealing with disabilities issues, that sends a message that this is a -- that disability issues are a priority, a cabinet level priority for this state. I think that's tremendously important, and governor Ehrlich of Maryland was recognized with a -- one of chair doe Mings and EEOC's freedom to compete award because of the recognition that this office has tremendous -- this is an award established last year, and I think this has recognized that it has a tremendous effort to raise disability issues and getting things done in Maryland. There are -- perhaps Greg can talk for a moment or two about the New Mexico use act and changes to it that are reported in our report. And I'll let him talk about that if he'd like when I turn four over in just a couple of minutes. Some other things that I think states are doing that are significant in terms of promoting employment more generally around technological issues. Three states, Florida, Kansas and New Hampshire, reported to us that they have a commitment statewide to make their state websites compliant with federal -- with standards that govern the federal. Under Section 508 of The Rehabilitation Act, federal governments need to make their electronic and information technology, including their websites, readily accessible to and usable by individuals with disabilities. Those standards don't apply to the states, but the fact that at least three states have taken on that responsibility and said we want to step up and provide that level of access is significant. And I want to note here that according to a Brown University study, that the state of Kansas was ranked second among states in the accessibility of -- the number of accessible websites it has. New Hampshire was ranked fourth. And again, Florida has made the same commitment, you but I think it's very significant, access to state websites means that more people looking for state jobs who have disabilities will be able to find them. It means that people will have access to more information from the state concerning their rights and responsibilities as individuals with disabilities concerning services related to employment that the states may provide, concerning a whole array of things that may have an impact on their employment prospects. We learned from the state of Maryland about an internship program that it has in which the quest program that pairs students with state agencies for the purpose of getting internship training. According to information that they receive a stipend for the period of internship. They receive the training that is provided by their work with the state agencies, and they are being prepared for jobs in both state and -- state and other public services. State and local governments or for the private sector. At least 50 percent of quest interns so far who have obtained full-time employment in either the state or in the private sector. I want to mention just a couple of other things. Very quickly, there are things that states are doing to try to reduce disincentives to work. When people are in danger of losing benefits, losing all of their benefits if they earn even a small amount of money, that can prove a disincentive to work. The Florida freedom initiative is a program that allows individuals to earn more than they would normally be permitted to earn and still receive their -- certain disability benefits that they receive from the federal government. Likewise, in Vermont, they are involved in a pilot program where instead of losing all of one's SSDI or SSI benefits after a certain threshold is reached in terms of earnings, there would be a one to two reduction, a one dollar reduction for every two dollars earned above the federal limit. So there wouldn't be what is sometimes called the cash cliff, but it would be where the person once they are earning enough money, loses all benefits, but rather they would lose only a portion there and is thought that this might -- and it would also allow them to keep certain other kinds of benefits. This is thought that this may help to reduce the disincentives to work that some people with disabilities face. And New Mexico -- and I think that this is the last -- well, I'll mention two other things. New Mexico has a Medicaid buy-in program for individuals who earned more than would -- if I have this wrong, I'm sure Greg will correct me -- more than they would normally be able to earn and still receive Medicaid benefits. They can earn more and then buy into the Medicaid program. And, again, it's thought that this will help to reduce disincentives to work by reducing the fear that medical benefits will be lost when someone goes back to work and leaves the benefit roles. The last thing are Vermont and Maryland -- you know, the Workforce Investment Act established these one-stop career centers that are available to everyone, available at the community level. They are through a grant with the Department of Labor. Vermont and Maryland have had disability navigator programs, individuals who are available at one-stop centers who can help people with disabilities literally navigate or get around the workforce investment system, the one-stop system and can assist people in making -- perhaps making connections with businesses that have needs that fit their interests and skills of the particular individual with a disability. And that's, again, funded through a labor department grant. So those are just some of the things. There are a number of things listed in this last section that promote employment more generally, and I want to hand it again back to -- this time starting with Anthony and then to Greg for any comments on this section that you might have. >> ANTHONY: I'll just make two very quick comments. First, we have a similar navigator grant in Kansas, and the Kansas commission on disability concerns has been working -- its partners within its Department of Commerce to work on making sure that those work shores centers are accessible. Not only in terms of the facilities, but the technology as well. And one important point off of our technology plan is that the state school for the -- our state school for the blind in Kansas City has students that actually will act as participation or test subjects for us to test our websites to see if they can actually, as they're going through their educational projects and learning how to open up bang accounts or learning how to navigate the web and use technology, we have asked the school if they will -- as long as it's related to their educational function -- if the students wouldn't mind testing out the sites so they can be actual consumers who can tell us how the site is interacting with them. And I think that's a major initiative that the school does for us that no -- you know, they do that as an overall part to increase their students' educational awareness of the web and they also help us to make sure that consumers with visual impairments can actually navigate the websites in a practical way. So I just wanted to add those two points. >> CHRIS: and it seals to be working. >> ANTHONY: Yeah. >> CHRIS:Greg, any comments? >> GREG: Well, New Mexico also has a navigator program through our office of workforce training and development. A couple of items, Chris, you mentioned are working disabled individual category here. It's our Medicaid buy-in program. That's a very exciting approach that we have here and through that a person who is earning $300 a month can be eligible for Medicaid, and in doing so can have an income that could actually be well over the regular SSI and Medicaid eligibility amount, even upwards of 40,000 plus dollars. So that's a very innovative approach, but even more so, in New Mexico we've taken the Medicaid buy-in program and used it to provide Medicaid for people who are in the Medicare 24 month waiting period under the SSDI and Medicare programs, people don't start to receive Medicare until 24 months after the start of cash benefits, which is five months after the eligibility time. So by looking at SSDI in terms of qualifying for that social security disability insurance means that the person had a recent attachment to the workforce. Our state, through the Medicaid buy-in program or working disabled individual category provides health insurance, Medicaid, to people who would otherwise be without health insurance. And by doing that, we're able to solidify a person's health status and facilitate their participation in the rehabilitation vocational program or get them to the point where they can once again enter the workforce. You also mentioned our state use -- something we've done here similar to what other states have that requires that state contracts be made available to people with disabilities. What we have done here though that's different from any other state is we also have an opportunity for people who have disabilities as private entrepreneurs to engage in state contracts. So we're very pleased with that initiative and see that as a model for the country and to do that in the way that can provide very high quality employment opportunities for entrepreneurs with disabilities. >> CHRIS: Tony, I'd like at this point to take any questions. We have remarkably ten minutes left, which is pretty good since we've covered a lot of material. And if there are questions we'd like to take them. >> TAJAUNA: Okay, great. The first question is actually one that just came in so let me go ahead and ask it. It says that -- this is Brent -- I'm not even going to attempt the last name. Advocate trainer with mainstream independent living center in Little Rock, Arkansas. And the question is, did we understand the representative from New Mexico to say that in his state the usual procedures for filling a state government position are not necessary if a person with a disability is applying for the position when the agency feels they are qualified to perform the job? >> GREG: This is Greg Trapp, and that is essentially it. What we have is the ability to request an exception to the open recruitment requirements for a person with a disability who would otherwise be qualified, and making sure that our hiring officials are aware of that opportunity to use that as a vehicle to hire a qualified individual with a disability without having to go through the regular recruitment process. >> TAJAUNA: Okay. All right, the next question is an individual in Ohio who wants to know, the report that we are talking about, if it's available? And if so, where? And I apologize for that. Chris actually provided that to us as a handout and I looked and it's not up on the website at this point, but I will request that if you will go back about 30 minutes after this webcast is over, it will be up loaded so you can get to it. It is available, and Chris, it's available on the EEOC website as well, correct? >> CHRIS: It is available at www.EEOC.gov and I think that you may want to -- I think there is a link to the New Freedom Initiative from the opening page. And that is probably where you would go. You know, I don't -- I don't have the entire U. R. L. It's quat long, but I think you would go to the New Freedom Initiative portion of the website and you'd be able to track it down there. >> TAJAUNA: and if not, as I said, you can come back to this website that you used to get to the webcast and it will be up as a handout. All right, the next question comes from Utah, and it is addressed to Chris, Greg and Anthony, and it asks, will you kindly speak to the issue of reassignment among or between agencies or departments of a state government? I've contacted other state ADA representatives and have learned that very few actually require agencies or departments to look outside their physical boundaries. The typical analysis, each agency has a separate budget with a clear autonomy over hiring and firing decisions. Consequently, it is not feasible to effect reassignment placement with other agencies/departments. Heretofore, that autonomy was extant here in Utah. However, recent and pending legislation is centralizing all H. R. functions within the Department of Human Resources management. If possible, please accord gif al vs. web 194 F. 3 D. 11 -- and address if this has been addressed. >> CHRIS: I will take a first crack at that. This is Chris. I actually was an attorney for the government at the trial level in U.S. vs city and county of Denver, which is a case related to Duvall vs. web when I was at the Department of Justice. Mr. Duvall was the plaintiff in both that case and he was an individual on whose behalf the Department of Justice sued. We had intervened in the case. So I'm very familiar with the case. Interesting to hear it come up again. It raises so many interesting issues about reassignment. What we had said or the EEOC had said in its enforcement guidance on reasonable accommodation, and this is from 2002, is that reassignment is not limited -- not limited -- to a particular office, branch, agency, personnel system, geographical area where an entity exists and let's say has a nationwide presence that reassignment may be necessary nationwide. We talked about personnel system, for example n direct response and in accord with that case, Duvall vs. Web which said you can't limit reassignment to a particular personnel system which is what the city tried do there. Well, I think the other part of this analysis is that when determining whether a particular reassignment would be an undue hardship, you're going to look at the relationship of the entities to one another, and their fiscal and administrative distinctiveness in terms of whether reassignment is possible. I would say, generally, I don't -- first of all, I would say I don't know enough about the structure of Utah's personnel system to give an opinion on whether reassignment must be required statewide because it might depend -- there may be a structure in a particular state that simply would make it impossible or certainly an undue hardship. What I would be concerned about is if a state is simply saying, well, we can't reassign somebody from one agency to another because this other agency historically has not wanted to take transfers and, therefore, they are saying no. The fact that a state agency may have done something a certain way in the past is not going to be enough to stob an undue hardship defense. You're going to have to show the act of reassigning the person from one place to another is really too difficult or too costly to accomplish, and I think in many states that may mean that reassignment within a state employer is, indeed, statewide and crosses agencies because the general rule is that reassignment is not limited to a particular office, branch or agency. And it's only when you get into undue hardship that there might be some restrictions. >> ANTHONY: Chris this is Anthony. I would just say in answer to the question that our circuit, the 10th circuit has outlined in a case called Smith vs. Midland Break, I believe 1999 is the latest version. There were three sets -- there were three times the case was appealed. I think the latest date was 1999 in which it laid out that reassignment first was a form of reasonable accommodation, but also laid out that you would have to engage in an interactive process. Without knowing what goes on within the state of Utah, the state of Kansas statute under Chapter 44, as far as employment agencies, defines an employer or the state of Kansas is defined as an employer. So it defines it as a universal state of Kansas department and agency. So the state of Kansas is defined under our state statute as one employer. Now, we haven't really had the issue of reassignment come up, but that's as far as I want to go with this where we are on the subject. We're defined as one employer. If that subject were to come up we would look at Smith vs. Midland Break and the criteria outlined there. >> TAJAUNA: Okay, is that everybody's -- anybody else want to comment? I didn't know if Greg had a comment. >> GREG: I think that Chris and Anthony handled it ably. >> TAJAUNA: Well, unfortunately, that is all the time that we have for questions, but I do have several questions that were E-mailed that have gone unanswered. So we're going to try and get these answered and back to the individuals who have asked them. I've also requested that the EEOC best practices report be put up. So I would like to thank all of you. You have provided the audience with some terrific and important information on the best practices on employment of people with disabilities in state government. I hope all of you listening have learned from today's webcast. Also note this webcast will be archived on ILRU's website, which you can find by visiting www.ilru.org. You can also check the ILRU website for upcoming webcasts. Next Wednesday, January 25th, 2:00 p.m. central, we will have the webcast, SSDI and SSI, what are they and what's the difference? Being presented by legal specialist Jackie Brennan. I would like to thank our presenters. You did such a fabulous job. Thank you so much, Chris Kuczynski, Greg Trapp and Anthony Fadale. For taking time out of your busy schedules for providing such important information. It really was wonderful of you. I would like to acknowledge the National institute on Disability Rehabilitation and Research, NIDRR, who funds your host for today's program, the Disability Law Resource Project at ILRU. And I would also like to thank the in-house staff at ILRU who without their efforts this webcast would not be possible: They include Marj Gordon, Sharon Finney, Dawn Heinsohn, Vinh Nguyen and Maria del Bosque as well as the technical expertise provided by Rob Dickehuth and our realtime captioner Marie Bryant. I encourage anyone with questions on the Americans with Disabilities Act or other disability-related laws to call the toll free number at 1-800-949-4232. Thank you to our presenters and we hope you will join us again.