Illinois General Assembly - Full Text of SB0201
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Full Text of SB0201  100th General Assembly

SB0201sam001 100TH GENERAL ASSEMBLY

Sen. Daniel Biss

Filed: 4/20/2018

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 201

2    AMENDMENT NO. ______. Amend Senate Bill 201 by replacing
3everything after the enacting clause with the following:
 
4    "Section 1. Declaration of policy and intent. Section 14(c)
5of the Fair Labor Standards Act of 1938 authorizes the United
6States Department of Labor to grant special wage certificates
7to certain entities, which may then pay special minimum wages
8less than the federal minimum wage to workers who have
9disabilities. 119 Illinois entities are permitted to employ
1011,555 individuals with disabilities under certificates issued
11to Community Rehabilitation Programs under Section 14(c) of the
12Fair Labor Standards Act of 1938. Among those now working for
13less than minimum wage are people with autism, cerebral palsy,
14spina bifida, Down syndrome, and other intellectual,
15developmental, and sensory disabilities including blindness
16and deafness. Employees with disabilities rarely transition
17from Section 14(c) programs to integrated employment at

 

 

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1competitive wages. The practice of paying workers with
2disabilities less than the federal minimum wage dates back to
3the 1930s, a time when there was virtually no employment
4opportunities for workers with disabilities in the mainstream
5workforce. The Illinois Employment First Act stipulates that
6"competitive and integrated employment shall be considered the
7first option when serving persons with disabilities of working
8age". Advancements in vocational rehabilitation, technology,
9and training now provide greater opportunities to workers with
10disabilities.
 
11    Section 5. The Department of Human Services Act is amended
12by adding Sections 1-75 and 1-80 as follows:
 
13    (20 ILCS 1305/1-75 new)
14    Sec. 1-75. Phase-out plan.
15    (a) The Department, in partnership with other State
16agencies, including the Department of Labor, the Department of
17Healthcare and Family Services, the Department of Central
18Management Services, the Department of Commerce and Economic
19Opportunity, the Department of Employment Security, and the
20State Board of Education, shall develop and implement a plan to
21phase out, on or before July 1, 2022, authorizations under
22Sections 5 and 10 of the Minimum Wage Law to pay an employee
23with a disability less than the minimum wage otherwise required
24for the employee under Illinois law.

 

 

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1    (b) The phase-out plan shall include all of the following:
2        (1) Benchmarks and desired outcomes for each year of
3    the phase-out.
4        (2) A list of the resources necessary, including
5    changes to State policy or service and program
6    reimbursement rates, to ensure that individuals with
7    disabilities receive support according to the needs and
8    preferences of the individuals and in an integrated
9    setting, regardless of the nature or severity of the
10    individuals' disabilities.
11        (3) A description of alternative revenue options,
12    including non-subminimum wage programs, for holders of
13    certificates issued under Section 14(c) of the Fair Labor
14    Standards Act of 1938.
15        (4) An examination of the measures needed to improve
16    future employment and day service options for people with
17    disabilities, including recommendations for new or
18    reformulated day service strategies and approaches
19    designed to strengthen statewide capacity to assure
20    informed choice for integrated employment and integrated
21    avocational leisure and volunteer options for every
22    individual with a disability.
23        (5) A timeline and estimated costs for comprehensive
24    training and certification of individual staff in
25    supported employment and customized employment. The
26    training shall also include benefits counseling and

 

 

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1    education to reduce misinformation that promotes
2    dependency and discourages income-producing work. Training
3    audiences shall include the following persons and
4    organizations:
5            (A) Counselors from the Department's Division of
6        Rehabilitation Services.
7            (B) Staff from the Department's Division of
8        Developmental Disabilities.
9            (C) Organizations affiliated with the Department's
10        Division of Rehabilitation Services or Division of
11        Developmental Disabilities that are certified to serve
12        persons with disabilities by the State or federal
13        government.
14            (D) High school special education and transition
15        staff.
16            (E) Independent Service Coordination agency staff.
17            (F) Community Work Incentives Coordinators.
18        Training content developed or approved by federal
19    agencies shall be used, if possible, including training
20    content from the following agencies:
21            (i) The Office of Disability Employment Policy in
22        the United States Department of Labor.
23            (ii) The Rehabilitation Services Administration in
24        the United States Department of Education.
25            (iii) The Administration for Community Living in
26        the United States Department of Health and Human

 

 

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1        Services.
2            (iv) The Centers for Medicare and Medicaid
3        Services in the United States Department of Health and
4        Human Services.
5        (6) A proposal to modify the Business Enterprise
6    Program and the State Use Program to ensure future State
7    contracts are not awarded to entities paying workers less
8    than the minimum wage and instead are awarded to entities
9    that promote fully integrated work opportunities.
10        (7) Application for and use of all federal and State
11    funding programs, including programs available under
12    Medicaid waiver amendments and resources under the federal
13    Workforce Innovation and Opportunity Act, to assist
14    individuals with disabilities to obtain competitive,
15    integrated employment.
16        (8) The tracking of outcomes of individuals with
17    disabilities on the basis of:
18            (A) wages;
19            (B) hours worked;
20            (C) unemployment rates;
21            (D) the number of individuals who move from
22        subminimum wage positions to competitive, integrated
23        employment;
24            (E) the number of individuals who move from
25        subminimum wage positions to nonpaying activities;
26            (F) the number of hours of paid supports; and

 

 

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1            (G) the use and costs of Medicaid for acute health
2        care and outpatient mental health care costs.
3        (9) In the formulation of the phase-out plan, special
4    attention must be paid to building adequate capacity in the
5    disability provider ecosystem to ensure individuals with
6    all levels of disability can secure competitive,
7    integrated employment as defined in the federal Workforce
8    Innovation and Opportunity Act. Special attention must be
9    given to prevent any systematic shift of income-earning
10    activity to unpaid day habilitation activity.
11    (c) In implementing the phase-out plan, the Department
12shall consult with:
13        (1) the State agencies listed in subsection (a);
14        (2) the ARC of Illinois;
15        (3) the Illinois Association of Rehabilitation
16    Facilities;
17        (4) the Illinois Network of Centers for Independent
18    Living;
19        (5) the Illinois Task Force on Employment and Economic
20    Opportunity for Persons with Disabilities;
21        (6) the Illinois Self-Advocacy Alliance;
22        (7) the Institute on Public Policy for People with
23    Disabilities;
24        (8) the Great Lakes ADA Center;
25        (9) holders of certificates issued to Community
26    Rehabilitation Programs under Section 14(c) of the Fair

 

 

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1    Labor Standards Act of 1938;
2        (10) the Association of People Supporting Employment
3    First;
4        (11) the Illinois Association of the Deaf;
5        (12) the University Center of Excellence in
6    Developmental Disabilities;
7        (13) the National Federation of the Blind of Illinois;
8    and
9        (14) any other relevant stakeholders.
10    (d)(1) On or before January 1, 2019, the Secretary of Human
11Services shall submit the phase-out plan to the Governor and
12the General Assembly.
13    (2) On or before January 1, 2020, January 1, 2021, and
14January 1, 2022, the Secretary shall report to the Governor and
15the General Assembly on:
16        (A) the benchmarks and status of achieving the outcomes
17    included in the phase-out plan; and
18        (B) recommendations for funding levels or other
19    resources necessary to implement the phase-out plan.
 
20    (20 ILCS 1305/1-80 new)
21    Sec. 1-80. Customized work plans.
22    (a)(1) For each individual who is paid less than the
23minimum wage under Sections 5 and 10 of the Minimum Wage Law,
24the Department shall develop a written individualized
25customized work plan on or before January 1, 2020 that

 

 

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1addresses how community integration and employment will be
2accomplished.
3    (2) The customized work plan shall be developed with input
4from the individual receiving services, and, where applicable,
5from the individual's family, the individual's vocational
6rehabilitation counselor, and any staff from the Department's
7Division of Developmental Disabilities or a Pre-Admission
8Screening/Independent Service Coordination agency who have
9interacted with the individual concerning employment and other
10life goals.
11    (3) The Department shall use appropriate communication
12devices and techniques, including sign language, to facilitate
13the involvement of the individual in the development of each
14customized work plan.
15    (b) Customized work plans shall include all of the
16following:
17        (1) A recommendation on jobs and careers that allow the
18    job seeker to thrive and contribute to an employer's needs.
19        (2) A description of the supports required for the
20    individual to work, if so desired by the individual, in the
21    most integrated setting appropriate to complete the tasks
22    and requirements of his or her job with minimal intrusion.
23        (3) A listing of barriers that prevent the individual
24    from receiving the services and supports required for the
25    individual to work in the most integrated setting
26    appropriate to meet the individual's needs, including:

 

 

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1            (A) barriers to accessing funding and resources,
2        including for staffing, transportation, and other
3        needed services and supports;
4            (B) decision-making by the individual or the
5        individual's representative, as appropriate;
6            (C) barriers to accessing medical or behavioral
7        support needs;
8            (D) family members' concerns or opposition; and
9            (E) options for activity other than compensated
10        employment in the person's life and community.
11        (4) An update on the status and progress made toward
12    addressing and resolving barriers identified under
13    paragraph (3) in a previous customized work plan.
14    (c) The Department shall develop, in consultation with
15interested stakeholders, the protocol and format for the
16customized work plan.
17    (d)(1) The Department shall track the progress of
18individuals who have customized work plans by collecting the
19following data:
20        (A) the wages of the individuals;
21        (B) the unemployment rates of the individuals;
22        (C) the number of individuals who moved from subminimum
23    wage positions to competitive, integrated employment;
24        (D) the number of individuals who moved from subminimum
25    wage positions to nonpaying activities; and
26        (E) the health costs, including outpatient mental

 

 

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1    health costs, paid by Medicaid for the individuals.
2    (2) On or before January 1, 2021, January 1, 2022, and
3January 1, 2023, the Secretary shall submit to the Governor and
4the General Assembly a summary of the data collected under
5paragraph (1) on a statewide and regional basis. The report to
6the General Assembly shall be filed with the Clerk of the House
7of Representatives and the Secretary of the Senate in
8electronic form only, in the manner that the Clerk and the
9Secretary shall direct.
 
10    Section 10. The Department of Labor Law of the Civil
11Administrative Code of Illinois is amended by adding Section
121505-215 as follows:
 
13    (20 ILCS 1505/1505-215 new)
14    Sec. 1505-215. Special wage certificates; persons with
15disabilities.
16    (a) As used in this Section:
17    "Director" means the Director of Labor.
18    "Federal certificate" means a certificate that the United
19States Department of Labor issues to a work activities center
20or other sheltered workshop to allow the work activities center
21or sheltered workshop to pay an individual less than the wage
22otherwise required for that individual under the federal Fair
23Labor Standards Act of 1938.
24    (b)(1) Subject to the limitations in this Section, the

 

 

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1Director may not authorize a work activities center or other
2sheltered workshop to pay an employee who has a disability less
3than the minimum wage otherwise required under the Minimum Wage
4Law for the employee.
5    (2) Beginning January 1, 2020, the Director may not
6authorize a work activities center or other sheltered workshop
7to pay an employee with a disability less than the minimum wage
8if the work activities center or sheltered workshop was not
9authorized to do so before January 1, 2019 by the United States
10Department of Labor.
11    (c)(1) To authorize a work activities center or other
12sheltered workshop to pay less than the minimum wage, the
13Director shall:
14        (A) issue a State certificate that sets wages for
15    employees of the work activities center or sheltered
16    workshop;
17        (B) accept a federal certificate for the work
18    activities center or sheltered workshop; or
19        (C) grant an exception for the work activities center
20    or sheltered workshop, but only if:
21            (i) the Director has not issued a State certificate
22        to the work activities center or sheltered workshop;
23            (ii) the work activities center or sheltered
24        workshop is not eligible for a federal certificate; and
25            (iii) the Director investigates and holds a
26        hearing on the exception.

 

 

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1    (2) The Director shall accept a federal certificate if a
2work activities center or other sheltered workshop submits that
3federal certificate to the Director within 10 days after the
4work activities center or sheltered workshop receives the
5federal certificate.
6    (d)(1) Each certificate that the Director issues under this
7Section shall state the period for which the certificate is in
8effect.
9    (2) The acceptance of a federal certificate does not apply
10automatically to an individual whom a work activities center or
11other sheltered workshop continues to employ after the
12individual completes a training program that the work
13activities center or sheltered workshop runs.
14    (e)(1) The Director may revoke acceptance of a federal
15certificate if:
16        (A) the United States Department of Labor revokes the
17    federal certificate; or
18        (B) at any time before revocation by the Department of
19    Labor and after an investigation and hearing, the Director
20    finds good cause to revoke the acceptance.
21    (2) The Director shall send notice of a hearing under this
22subsection, by certified mail, to the holder of the federal
23certificate at least 30 days before the hearing.
 
24    Section 15. The Illinois Council on Developmental
25Disabilities Law is amended by adding Section 2008 as follows:
 

 

 

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1    (20 ILCS 4010/2008 new)
2    Sec. 2008. Independent study on phase-out and customized
3work plans.
4    (a) The Illinois Council on Developmental Disabilities
5shall:
6        (1) commission an independent study of the phase-out
7    plan and the customized work plans described in Sections
8    1-75 and 1-80 of the Department of Human Services Act;
9        (2) determine through the study:
10            (A) whether the plans are having their intended
11        effects;
12            (B) how many people have transitioned from
13        subminimum wage work to competitive, integrated
14        employment opportunities;
15            (C) whether there are any significant, related,
16        regional, or demographic trends; and
17            (D) whether there are health care savings or costs
18        as a result of the plans; and
19        (3) make any related recommendations for possible
20    changes in State law or policy regarding the employment of
21    individuals with disabilities.
22    (b) On or before July 1, 2021, the Illinois Council on
23Developmental Disabilities shall report its findings and
24recommendations to the Governor and the General Assembly. The
25report to the General Assembly shall be filed with the Clerk of

 

 

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1the House of Representatives and the Secretary of the Senate in
2electronic form only, in the manner that the Clerk and the
3Secretary shall direct.
 
4    Section 20. The Minimum Wage Law is amended by changing
5Section 10 as follows:
 
6    (820 ILCS 105/10)  (from Ch. 48, par. 1010)
7    Sec. 10. (a) The Director shall make and revise
8administrative regulations, including definitions of terms, as
9he deems appropriate to carry out the purposes of this Act, to
10prevent the circumvention or evasion thereof, and to safeguard
11the minimum wage established by the Act. Regulations governing
12employment of learners may be issued only after notice and
13opportunity for public hearing, as provided in subsection (c)
14of this Section.
15    (b) (Blank). In order to prevent curtailment of
16opportunities for employment, avoid undue hardship, and
17safeguard the minimum wage rate under this Act, the Director
18may also issue regulations providing for the employment of
19workers with disabilities at wages lower than the wage rate
20applicable under this Act, under permits and for such periods
21of time as specified therein; and providing for the employment
22of learners at wages lower than the wage rate applicable under
23this Act. However, such regulation shall not permit lower wages
24for persons with disabilities on any basis that is unrelated to

 

 

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1such person's ability resulting from his disability, and such
2regulation may be issued only after notice and opportunity for
3public hearing as provided in subsection (c) of this Section.
4    (c) Prior to the adoption, amendment or repeal of any rule
5or regulation by the Director under this Act, except
6regulations which concern only the internal management of the
7Department of Labor and do not affect any public right provided
8by this Act, the Director shall give proper notice to persons
9in any industry or occupation that may be affected by the
10proposed rule or regulation, and hold a public hearing on his
11proposed action at which any such affected person, or his duly
12authorized representative, may attend and testify or present
13other evidence for or against such proposed rule or regulation.
14Rules and regulations adopted under this Section shall be filed
15with the Secretary of State in compliance with "An Act
16concerning administrative rules", as now or hereafter amended.
17Such adopted and filed rules and regulations shall become
18effective 10 days after copies thereof have been mailed by the
19Department to persons in industries affected thereby at their
20last known address.
21    (d) The commencement of proceedings by any person aggrieved
22by an administrative regulation issued under this Act does not,
23unless specifically ordered by the Court, operate as a stay of
24that administrative regulation against other persons. The
25Court shall not grant any stay of an administrative regulation
26unless the person complaining of such regulation files in the

 

 

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1Court an undertaking with a surety or sureties satisfactory to
2the Court for the payment to the employees affected by the
3regulation, in the event such regulation is affirmed, of the
4amount by which the compensation such employees are entitled to
5receive under the regulation exceeds the compensation they
6actually receive while such stay is in effect.
7(Source: P.A. 99-143, eff. 7-27-15.)
 
8    (820 ILCS 105/5 rep.)
9    Section 25. The Minimum Wage Law is amended by repealing
10Section 5.
 
11    Section 99. Effective date. This Act takes effect upon
12becoming law.".