Federal Exchange on Employment & Disability (FEED) Meeting
PAS Round Table
July 20, 2017
10:00 a.m. – Noon
U.S. Department of Transportation
- Welcome and Introductions
Brett Sheats, National Project Director for the Employer Assistance and Resource Network on Disability Inclusion (EARN) welcomed participants, stated that the topic of the meeting would be personal assistance services (PAS) and introduced the meeting’s host, Kirsten Poston, Disability Program Manager for the Federal Highway Administration at the U.S. Department of Transportation (DOT).
Kirsten provided brief welcoming remarks and reviewed security procedures and other “housekeeping” items. She then introduced Charles E. James, Sr., Director of DOT’s Departmental Office of Civil Rights.
Mr. James thanked everyone for attending and being on the “leading edge of civil rights.” He discussed how the work of the people in the room helps DOT and other federal agencies attract and retain the best talent, and why that is so important for DOT to achieve its mission of ensuring that transportation is safe, equitable and accessible to all.
Kirsten then introduced Irene Rico, Associate Administrator for Civil Rights at the Federal Highway Administration. Ms. Rico acknowledged the work FEED has done to share best practices, leverage knowledge and resources and improve what is already being done to provide access and “attract the right people with all kinds of gifts and talents.” She stated one of the purposes of the meeting was to help federal agencies ensure their programs meet the new requirements of Section 501 of the Rehabilitation Act. She thanked the panel members for being at the meeting and sharing their knowledge, and discussed DOT’s PAS program and her goals to continue to make the program successful and improve and grow it. She stated that DOT’s reasonable accommodations program has a centralized location with funding so the agency can provide reasonable accommodation information and services in a one-stop shop format to all DOT employees. She closed her remarks by saying that she felt that the meeting was very timely and a “pre-celebration” of the 27th anniversary of the American with Disabilities Act (ADA) taking place the next week.
- Overview of PAS
Brett Sheats then introduced Jennifer Sheehy, Deputy Assistant Secretary (DAS) of the Office of Disability Employment Policy (ODEP) at the U.S. Department of Labor (DOL). DAS Sheehy provided a brief overview of the new 501 regulations and why they are important. She stated that thanks to the efforts of the Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM), that the regulations were promulgated and for the first time ever really made personal assistance services “part of the array of tools available to employees with disabilities in the Federal Government.” She stated that this was important because the Federal Government is a model employer of people with disabilities and sets the example for the private sector, so the new 501 regulations will be making a significant change nationally, effecting not the only 2 million people in the Federal Government, but also hundreds of millions of other people across the country who work in the private sector. She then stated that now that personal assistance services are available to federal employees, it is important to understand what that means and how to make sure agencies launch this effort in the best way possible. She closed by acknowledging the contributions of Akinyemi Banjo and others in ODEP, and from EARN, OPM, EEOC and DOT who helped put the meeting together, and those in the room working on disability and civil rights issues in the Federal Government.
- Introduction of PAS Panel Members
Anupa Iyer, Policy Advisor in the Office of Federal Operations for the U.S. Equal Employment Opportunity Commission (EEOC), then introduced herself and stated that she would be acting as the moderator for the panel discussion.
She provided a brief overview of PAS and the new 501 regulations, stating that on January 3, 2017, the EEOC updated regulations implementing Section 501 of the Rehab Act. She mentioned that Section 501 has two parts; the first is prohibition of discrimination against people with disabilities and the second is the Federal Government’s obligation to engage in Affirmative Action in the hiring, recruitment, hiring, placement, retention and advancement of people with disabilities in the workforce.
Ms. Iyer stated that the newly updated rule is for the Affirmative Action obligations, and that it codifies several existing executive orders and management directives, giving them the force and strength of a regulation. She mentioned that there are two new pieces of the regulation and one of these new substantive requirements is the obligation to provide PAS to employees who, because of a targeted disability, require assistance to be at work or participate in work related travel.
She went on to say that according to the rule, PAS are services that provide “assistance in performing activities of daily living that an individual would typically perform if he or she did not have a disability and not otherwise required as a reasonable accommodation.” PAS includes assistance with activities of daily living such as toileting, eating and drinking. She stated that the regulation only applies to federal employees with targeted disabilities, as defined by OPM Standard Form 256, which are mostly significant disabilities such as significant mobility impairment, missing extremities, etc. She went on to say that PAS is not required to be a reasonable accommodation, that it is part of the Affirmative Action obligation, and that PAS as defined by the EEOC does not include medical services – only services to provide assistance with activities of daily living.
Ms. Iyer stated that federal agencies must have PAS procedures in place by the effective date of the regulation, which is January 3, 2018. She said that the EEOC is developing a fact sheet to provide additional assistance for agencies as they develop their programs and that it will be available soon.
She then introduced the panel members, which included:
- Kim Borowicz, Technical Advisor, Civil Rights Center, U.S. Department of Labor
- Annette Carr, Program Analyst, Disability Resource Center, U.S. Department of Transportation
- Annette Paz, Assistive Technology Specialist, Civil Rights Center, U.S. Department of Labor
- Rodney Yelder, Disability Program Manager, U.S. Equal Employment Opportunity Commission
- Panel Discussion on PAS
Ms. Iyer asked each of the panelists to introduce themselves and provide an overview of their agency’s PAS program, including how the program works, why the agency started the program, etc.
- Overview of DOL PAS Program:
Kim Borowicz began by introducing herself and stating that at DOL, PAS as provided by the Reasonable Accommodation Resource Center and that within the Center they have a centralized accommodation fund, which can be used throughout DOL. Through the Center, they have a contract for PAS using the centralized accommodation fund, which Ms. Borowicz said that they have found is a very positive arrangement.
DOL’s Reasonable Accommodation Resource Center serves around 10 employees with disabilities using its PAS contract; two of those employees have one-on-one assistance and for the remainder, DOL uses a pool of two full-time assistants who are available each day and who rotate to ensure that there is always a PAS provider in the office on a daily basis. She stated that the contract includes a mix of reader services, PAS and reasonable accommodation services, and that things like reader services and help with filing fall under the reasonable accommodation construct, while PAS falls under 501 regulations, but all the services are included in the Center’s contract. She said some people receive a mix of services, depending on what their disability is and what their needs are.
Ms. Borowicz went on to say that DOL uses their standard reasonable accommodation process to process requests for PAS, and that process usually involves a person making a request, which they can do verbally, but they have to fill out a form to confirm the request. The form has two open-ended questions – “What are you asking for/what is needed?” and “Why is that accommodation needed?” She said they usually receive requests for a combination of PAS and certain technology or software that the person needs. She said they use the centralized accommodation fund in a contract form, but also use cards for individual items like dictation software. She mentioned that employees can now put both types of requests on the same form, whereas before the PAS would go through a contract and the software would go through a card.
Ms. Borowicz stated that DOL has found that most of the time medical documentation isn’t necessary for an employee to receive PAS because they typically have obvious disabilities with an obvious need, as stipulated in Section 501 regulations. She noted that as agencies put together their PAS procedures, they should consider that medical documentation may not be required because the disability and need for PAS are obvious.
Ms. Borowicz noted that DOL’s Center continues to work with the employees receiving PAS and reasonable accommodations on a regular basis to manage services and make sure they are working for the employee receiving them. She stated that it is an ongoing process and needs may change, so staffs of the Center are in continual communication with DOL employees with disabilities to ensure their needs are met.
Ms. Borowicz mentioned that the Center is providing PAS within the National Office in Washington, D.C., but not yet in regional offices. She noted the importance of having the supervisor of the employee requesting PAS very involved in the process, especially if performance descriptions need to be developed. She stated that there has been a learning curve and that there are always new issues that come up, new types of requests that people are asking for and so there is a need to try to be flexible when providing these types of services. She mentioned that the new 501 regulations are encouraging the Center’s staff to explore additional telework options, for example.
- Overview of EEOC PAS Program:
Rodney Yelder presented an overview of the agency’s PAS program. He noted that EEOC is not a very large organization, so there is a centralized DPM position in the National Office in Washington, D.C., and the DPM is the decision maker for all reasonable accommodation requests. He stated that the decisions are made with a lot of collaboration and interaction with managers and the employees themselves. He noted that he may not always understand the requirements and day-to-day tasks of all the positions, so he wants to ensure that all critical parties are involved in the process when making these decisions.
Mr. Yelder noted that the system through which the EEOC provides PAS services is a mix, using mostly PAS providers who have permanent positions (full-time employees) at EEOC who are assigned to specific individuals who need the services. He noted this is possible because the agency is small. He stated that EEOC is continually looking at other ways to provide services. He also recommended that disability program staff build strong relationships with their agency’s staffing office and HR department, so that they fully understand the process involved with providing these services. He stated that DPMs and other disability program staff can help the staffing office understand accommodations and explain what is meant by terms such as, “essential functions of the job.”
Mr. Yelder also recommended building a close relationship with the agency’s contract office because they can explain things like when it may be time to consider using a contracting vehicle to provide PAS. He stated that it’s important to understand the rules the contract office has to follow, and challenged all meeting participants to become a COR (contracting officer’s representative)—to take a course and become knowledgeable about the procedures involved in providing PAS at federal agencies.
- Overview of DOT PAS Program:
Annette Carr provided an overview of DOT’s PAS program. She stated that DOT uses a team of three accommodation analysts, as well as two interpreting coordinators. In addition, the Selective Placement Program is housed within that office, so the office provides a wide range of accommodations, including captioning, CART services and PAS.
Ms. Carr stated that DOT has been providing PAS since 1999, but until 2004, only one person was receiving services when they traveled, and it was paid for by their office. In 2004, the program was expanded to include in office PAS and by that time the Disability Resource Center, which is centrally funded, was created. At that point, DOT had one person receiving PAS on travel and one receiving PAS in office. By 2006, the program had expanded to providing PAS to six employees, some receiving in office, some receiving PAS on travel. She stated that she agreed with Mr. Yelder that working with acquisitions is very important. She mentioned that in 2006, to simplify the accommodations process, DOT moved from using credit cards to purchase services to a contract.
Ms. Carr also agreed with Mr. Yelder that COR training will help disability program staff understand the procurement process and Federal Acquisition Regulation (FAR) requirements regarding what can be purchased and how.
Ms. Carr continued that from 2006 to the present, DOT’s PAS program has expanded and they now have at least 25 people nationwide who receive services, although some employees approved for the services use it very infrequently, perhaps once a year. However, she said it’s important to have systems in place for when the employees need it. She stated that when an employee goes through the accommodation process, if it seems like they may have a need for it, they are encouraged to get it approved just in case.
Ms. Carr explained the three kinds of accommodations services DOT provides, the first being “in-office.” She explained that in-office means PAS services provided to employees at DOT headquarters in Washington, D.C.; DOT considers anything outside of the headquarters building, even other offices located in Washington, D.C., to be “field.” However, the in-office and field accommodations are combined into one category for these purposes. She stated that in-office could include all tasks that help people do their job, such as filing, but also PAS, including help putting on and taking off coats, assistance in the restroom or at mealtime, etc. She stated that the PAS DOT provides are very individualized depending on the person’s needs.
Ms. Carr explained that the second and third categories of service DOT provides both fall under what they call “travel,” but this category is split into two types – contracting and invitational. Contracting is used when a person is assigned by DOT staff to go from one place to another for any given amount of time, whether one day or two weeks. Staff from DOT’s Disability Resource Center identify the employee’s needs, whether the employee is at a new work site, temporary work site, training site, etc., and use staffing provided by a nationwide contract.
Ms. Carr stated that the other type of travel service is what DOT calls “invitational.” She said that this is when an employee has a person they have identified to provide care, such as a family member or a paid personal assistant (PA) that they use at home to assist with their personal care, travels with them. She stated that the process is for the employee to book their travel, provide DOT with the itinerary and the Disability Resource Center will book the travel for the PAS providers. For invitational travel, DOT will pay for the traveler’s airfare and their meal per diem, but the hotel is covered by the employee’s office. She clarified that the PAS provider, whether it is for invitational or contract travel, cannot drive a rental car rented by a federal agency or a government car. She stated that the whole process must follow the rules outlined in the FAR.
Ms. Carr went on to explain how DOT provides PAS staffing. She stated that at DOT headquarters, there is a core group of PAS providers, and the number of providers depends on what the need is for that day at headquarters, as well as in other DOT offices in the D.C. area. She stated that the staffing typically includes one coordinator and two to three PAS providers, who are certified nursing assistants (CNAs) or licensed practical nurses (LPNs), which DOT calls “Level 1” and “Level 2.” The level of care depends on the person’s need, as well as the laws of the state where they are receiving services. She clarified that some states have specific rules that state that some services can only be provided by an LPN. She stated that DOT’s contract also covers some medical equipment, such as if an employee needs a hospital bed or Hoyer left while on travel, which she stated are the two most often requested items.
Ms. Carr mentioned that there is an hour minimum for PAS provided at headquarters, and a two hour minimum in the field. She stated that employees can request same day services, but they are not guaranteed. She said that for PAS when traveling, DOT encourages employees to request services a minimum of 10 days in advance in order to have time to process the request.
Ms. Carr continued that DOT follows an accommodation process similar to the one DOL uses, and that PAS requests are included as part of the accommodation process. She stated that DOT ensures that the manager of the employee who requested PAS is very involved in the accommodation process so they can take into account all aspects of the employee’s job to make sure they provide all the services they need. She provided an example of a travel PAS request that initially was just to have an attendant to assist in the employee’s hotel room, but after talking with the employee’s manager, they realized that the employee would also need assistance taking notes because he was overseeing a training session.
- Question and Answer Session
Ms. Iyer then began the question and answer session. Some questions were from the moderator, Ms. Iyer, and some were from members of the audience, including people joining the meeting via conference call who emailed their questions to Mr. Sheats.
The first question was from Ms. Iyer and was directed to the representatives on the panel from DOL. She asked about the benefits and challenges of using a mix of FTE employees and contractors to provide PAS.
Ms. Paz stated that at DOL, they found no significant challenges using this method because using a contract allows for flexibility. She stated that there have been some instances where PAS providers started out as contractors and transitioned to GS positions when they became available. She continued that one of the things they noticed was that federal guidelines state that these are GS 5-7 positions, which DOL found challenging because many of the individuals receiving PAS were high level, GS 12-15s or SESes, so they had to make sure the PAS providers understood the nature and demands of the individual’s job in order to assist them. She stated that DOL accommodations staff has found that having a contract in place helps with that aspect because there is a pool of providers to help with a variety of needs, and all of DOT’s PAS providers go through training so they are able to provide any services needed.
Ms. Iyer then asked Ms. Carr what prompted the creation of DOT’s PAS program and how the agency continues to ensure support for it from DOT leadership.
Ms. Carr stated that originally the program was very individualized. She clarified that she was not with the agency when the program began, but her understanding was that when the program began, there was only one person using PAS and he was very knowledgeable about what he needed and DOT paid for the services. She mentioned that when DOT moved to a centralized fund program, the PAS program started to expand. She said at DOT, PAS is scheduled, so it is not available all the time and there is a limit to how many hours of services an employee can receive, which depends on the type of service they need. She stated that at DOT, reader services are included under PAS, but if someone needs a full-time person because they need help with administrative tasks, her office doesn’t provide that – it is up to that employee’s office to provide those services if the person is hired under Schedule A. She clarified she did not mean Schedule A disability, but another category under Schedule A. She stated that the position would be tied to that employee, so if that employee left the agency, that position would no longer be funded.
Ms. Iyer then asked Ms. Carr a follow up questions regarding if an agency hires someone as a FTE PAS provider through Schedule A, would that person do other work or would they primarily be providing PAS?
Ms. Carr said it would depend on the person and their needs. She mentioned a scenario in which two people share a PAS provider, and another in which the employee is a high level executive who may need assistance with scheduling and paperwork. She stated that the needs are very individualized, but it is up to the office or the operating division’s administration to determine how they want to arrange it to meet the employee’s needs.
Ms. Iyer then asked Mr. Yelder about setting up a contract with PAS providers and if there is a list of companies that provide PAS or other ways for agencies to identify potential contractors.
Mr. Yelder stated that at the EEOC, sign language services and CART services are included in one contract, and that all other services fall outside of that contract. He mentioned this was because they were receiving so many requests for sign language and CART services that they set up a contract last year.
Mr. Yelder said that the first step in creating a contract is to talk with the contract office so they can explain how to do the market research about what companies and options are available. He stated that the contractor EEOC uses was vetted by GSA Advantage and encouraged others to use that website because companies included in its directory are on the GS Schedule. He stated that there are different types of contracts and reiterated that disability program staff should talk to their agency’s contract office to help put the contract together and find the right contractor.
Ms. Iyer then began to ask questions that came from the audience members. The first was, “Do you recommend that the office that handles reasonable accommodation requests also handle PAS requests?”
Mr. Yelder said in his opinion, he thinks the process should be centralized, for many reasons. He stated that sometimes if the requests are denied, they end up going to investigation and during the investigation, they may ask for examples of similar requests that were made. He stated that if an agency is inconsistent when making reasonable accommodation decisions, it can make them liable. He said having a centralized office will also help ensure field offices are all following the same processes as the National Office.
Ms. Borowicz added that she thinks having a centralized program makes the process more objective, because if it is done another way, sometimes decisions are made by supervisors and not based on need but based on the relationship between the supervisor and the employee.
Ms. Carr said that she agreed that consistency is important, as is knowing what you can and cannot do and how to address any barriers that may arise. She stated that a manager who has never gone through the accommodation process before may not know what all the options are, whereas in a centralized office, there are people with experience to address any challenges and make sure the process goes smoothly and that the employee gets the services he or she needs.
Ms. Carr continued that if an agency doesn’t have a centrally funded mechanism, having a centralized office could be an issue, so she also thinks it’s important to have a centralized accommodations fund to allow for more flexibility and better use of resources. She stated that at DOT headquarters they were able to cut their budget significantly by doing this because before they were paying more for the services. She clarified that it depends on the agency’s needs and each agency has to determine what works for it and try something new if what they are using isn’t working.
Ms. Paz said that at DOL, they believe less is more and prefer not to have a lot of individuals be part of the process of arranging for PAS because personal information, medical or otherwise, may be shared and it is better to share that with as few people as possible to protect the employee’s privacy. She stated that sometimes managers are well meaning, but they aren’t sure what to do with regard to accommodations, so in her agency’s case, central funding and a centralized office is the best fit.
Ms. Carr added that knowledge of medical issues that may be part of an employee’s need for PAS is an important piece of providing PAS, but the specifics can be restricted to be between the employee and the PAS provider. She stated that although managers are involved in the accommodation process, when they are discussing with the employee what they need, the employee is advised that they can discuss their needs in a general sense. For example, if the employee is talking about going on travel and needing assistance in the hotel room, all they would have to say is, “I need help with daily personal tasks.” The employee and the contractor would talk one-on-one about the details of the employee’s needs. She stated that at DOT, the employee’s manager is still the one responsible for providing accommodations and therefore needs to be involved in the process, but they don’t need specific details about the employee’s personal needs, only a general idea.
Ms. Iyer then asked if there is a way for employees to get involved in the selection of who their PAS provider is if they need someone on a more regular basis, and if there are issues between an employee and a provider, if there is a way for the employee to choose someone else.
Ms. Carr said that since her agency has a contract in place, if there are any issues between the employee and the PAS provider, the employee needs to go to the COR, because only the COR can direct or change the services that are being provided. If the provider has an issue, they can go to their manager who will discuss it with the agency COR and determine a solution. She stated that it’s important for disability program staff to work with their agency’s acquisitions office to find out what can be done to address the issue. She said having a contract allows for flexibility if issues arise.
Ms. Carr stated that when an employee identifies his or her own person to provide PAS, they are telling the agency that the person is able to meet their needs, but this may not always be true. She provided an example of an employee who went on travel to San Francisco and the PAS provider was unable to push the wheelchair up and down the steep hills there. She advised agencies to use creativity and make sure there is good communication between all parties and to be sure to follow accusation rules.
Ms. Paz said that her agency has recently been including additional stipulations in contracts related to PAS, for example that the contractor must provide qualified individuals. She stated that especially if it is a new person or service, the agency really wants the process to be interactive and comfortable. She mentioned that certain things that PAS providers do are very personal, and trust between the provider and the employee, and taking into account the employee’s personal preferences, are an important part of the process. To address this, she said her agency will ask for three qualified individuals, and then whittled it down to two who will shadow the employee to learn their needs and the scope of their work and determine which is best suited to be the provider. She acknowledged that while this process can take time, her agency has found that having this kind of interaction helps the employee and the provider work well together.
Mr. Yelder mentioned the importance of having a clear Statement of Work. He stated this is critical because if an agency asks a contractor to perform anything outside the Statement of Work, they can get into trouble. He suggested reaching out to the contracting officer in acquisitions to let them know right away about any concerns or issues that may arise.
Ms. Iyer mentioned that she had received a number of requests from FEED members for a sample statement of work or a sample arrangement that other agencies have used to provide PAS. She said EEOC and others are looking into ways to provide this type of concrete information. She then asked the panel members representing DOT and DOL to explain how their agencies consolidated their budget and saved money through a centralized process.
Ms. Carr said that there are two different ways to manage the accommodations process. One is to have each operating administration (OA) pay into a centralized fund, which then covers the cost of purchasing products, interpreting, PAS and other services. The other is to have each OA buying their own services. She stated that she believes the centralized funding approach is preferable because if each OA is purchasing its own services, they may not be getting the right services at the best price.
Ms. Carr stated that her agency has a centralized fund for providing sign language interpreting and PAS. They have a corps of PAS providers available Monday-Friday, but know that there are certain days when they typically have higher demand for these serves. She said on lower demand days, employees may be able to share services and this helps save money. As an example, she said individual services usually require a minimum of two hours, which the agency pays for even if the employee only needs an hour of services. However, if these services are provided by a pool of readily available providers, employees can use a half hour here or there if they need it.
Ms. Carr continued that having a corps of providers also helps address instances when there is an urgent need. She said in the field, services are provided in two hour increments, but at DOT headquarters if an urgent need comes up, the PA providers are available to assist if a last minute need arises. She stated that this arrangement allows for more creativity and flexibility to address employee’s needs.
Mr. Yelder said that EEOC has had more people requesting accommodations since the ADA Amendment Acts opened up the definition of what disability is, and that the agency having a centralized way of providing accommodations has helped address that demand. He also said that he feels that employees seem to be more comfortable going through a centralized office to request services. He said prior to having the centralized accommodations office, some employees were being denied basic things like adaptive keyboards, because those making the decisions thought they required additional medical documentation to approve accommodation requests. Mr. Yelder stated that because of the switch to a centralized office, he felt the agency saved a significant amount of time and money by being in compliance with the ADA related to requests for accommodations, thus avoiding complaints and liability issues.
Ms. Paz said that each agency is different, and that DOL has a stand-alone contract for interpreting services, which is handled by a separate office. DOL’s Interpreting service handles their own requests for DOL employees. She said each agency will need to determine the best way to set up its accommodation program depending on what works for that agency, and that it is also important to be creative, especially given possible impending budget cuts.
Ms. Paz mentioned that DOL also recently had to add a new service that provides PAS for employees who are teleworking, so it’s important the agency’s program allows for any new needs that may arise. She recommended that agencies take advantage of the services provided by the Department of Defense’s Computer/Electronic Accommodations Program (CAP) if need be.
Ms. Iyer said that many offices that do not have existing PAS programs may have ad hoc arrangements to provide a form of limited PAS, for example, a coworker helping an employee who has a mobility impairment microwave their lunch every day. She asked the panel how to handle these types of informal PAS arrangements, and if there may be disadvantages to them.
Ms. Carr said that it is up to the employee’s manager to manage those types of arrangements, because no one else can tell them how to use their employees. She said it could be an informal arrangement between the employee and their coworker, or it could be the manager saying that everyone needs to do a certain task and asking if there are any issues with that. Ms. Carr said her concern is what happens if the coworker assisting the employee injures themselves or injures the employee when they are providing that assistance.
Ms. Carr added that it is much more straight forward with a contractor or FTE who has been hired to do the job because they are covered in relation to Workers’ Compensation, liability, etc. She also said it’s important to consider the task that needs to be performed. For example, if an employee needs to be fed, would the employee and coworker both be comfortable with that arrangement? She said her office does not necessarily know when these types of things are happening, because they are not formal arrangements. When and if they find out that they are happening, her office may advise the manager and employee to talk to the General Counsel and Civil Rights office to figure out the best solution.
Mr. Yelder said that coworkers often volunteer to do favors for one another, but he sees this as a very different thing than an employee asking for a reasonable accommodation or PAS to be able to perform the functions of his or her job, especially when it comes to things that are very personal in nature. He said managers need to be careful when asking employees to do tasks for their coworkers that really should be included as part of PAS, and said that it’s important to have the agency’s reasonable accommodation office involved.
Ms. Borowicz said that the scenario mentioned by Mr. Yelder is why she and her colleagues at DOL have found having PAS provided by a pool to be very helpful. She said the pool at DOL includes two onsite PAS providers at the National Office that are paid through DOL’s contract and serve about seven employees who can ask them for help throughout the day. She said that the pool is also helpful for employees who have a need that comes up suddenly — they know PAS providers are there and that they can ask for assistance with their needs.
Ms. Paz clarified that the DOL pool of PAS providers includes one full-time male provider and one full-time female provider.
Ms. Iyer then opened up the floor to questions from the audience. Annette Garland from the Social Security Administration (SSA) stated that she is the FTE manager for the 215 people who provide PAS and other services to SSA employees with disabilities. She said she manages the reader assistance, staff assistance and staff sign language interpreters, and that SSA has two separate contracts for sign language, one for headquarters employees and one for those out in the field. She clarified that she is the person that does the staffing and hires people as Schedule A reader assistance and PAS providers, and that she and another colleague serve as the CORs for the contract. She stated that she had two questions, one related to concerns expressed by her agency’s Acquisition and Grants department and Policy department, and one related to employees using family members and/or friends to provide PAS services.
Ms. Garland said her agency’s policy team has concerns related to the current schedule R CFR, since the people hired under that are specifically hired to provide reasonable accommodations, and the new requirements provide the PAS portion under Affirmative Action requirements. She stated that he agency’s Acquisitions and Grants department has said that personal service contracts are illegal. Since some employees have been using family members or friends to provide PAS, the agency wanted to identify a mechanism for doing so within the parameters of the regulations and laws that would allow for that, but haven’t been able to find a way to do so. She also said SSA has employees receiving PAS in many different states which have different laws about who can provide PAS, and her agency has not been able to find a nationwide contractor to provide services.
Ms. Carr replied that she did not know the answer to the first questions, but that for the second question regarding using family members or friends of employees as PAS providers, her concern was about liability should something happen, since they would not be considered employees. She also said that if the family member or friend is helping to file paperwork, there could be concerns about that person seeing potentially sensitive information. She stated that there is no way to truly have control of the situation if the PAS provider is acting as a volunteer.
Ms. Garland clarified that the PAS providers she managers are SSA employees and they only assist employees with performing essential job functions, and that if a family member or friend comes in, they are considered visitors, and have to have a security background badge, be escorted at all times and are not allowed to access sensitive information or materials.
Ms. Carr responded that her concern about using family members or friends to provide PAS was one of liability and if should they get injured, who would cover it. She stated that her agency’s contract does have what they call Level 1 and Level 2 services, and that they have not had a problem getting PAS providers, but have had an issue with medication administering in relation to state law, not the contractor.
Ms. Iyer clarified that from the EEOC perspective, the new regulation clearly states that PAS are services for activities of daily living and they are non-medical services. She said the focus of the regulation is providing assistance with activities of daily living, such as eating, removing outer wear, etc.
Ms. Garland said that some states have specific nursing laws that apply if you perform these types of services, that these types of services might be regulated by the state’s Nursing Act. She stated that this is the issue she is facing because the employees she provides PAS for are geographically dispersed, and EEOC has listed some of functions that fall under state law in its regulations. She said that her agency is trying to be in compliance with state laws and EEOC regulations, and looking for direction on this.
Ms. Iyer thanked Ms. Garland for clarifying and stated that the purpose of the discussion was to help identify some areas where EEOC may need to provide more clarification on issues agencies are experiencing. She stated that Dexter Brooks, from EEOC’s Office of Federal Operations, was at the meeting and would be letting his colleagues know about the types of questions and issues agencies have in relation to PAS.
An audience member stated that her agency has a Disability Services Program that includes sign language interpreting, PAS and what they call “workplace assistance,” which includes readers, filing assistance and some other services. She asked what contract mechanism other agencies are using, such as IDIQs or BPAs, because some of the issues her agency has faced have been with the contract type.
Mr. Yelder relied that EEOC used approved GSA contractors. He said when they were putting together the new contract, but the team handling this was pretty inexperienced, so the contract office worked with them to make sure they set up something efficient and not too complicated called a “Low Cost Technically Acceptable” contract.
The audience member asked for clarification of how the contract was award. Mr. Yelder replied that since he was not the contract officer, he preferred not to get into a great deal of detail about it, but encouraged her to work with her agency’s acquisitions department. He stated that during the contracting process, his team had already identified that they were going to use a Low Cost Technically Acceptable contract so when they awarded the contract, they simply followed the guidance of the contract office on how to do that.
Ms. Paz said that her agency has used an IDIQ for nursing assistance to bring PAS providers in, but that the agency typically has to provide some clerical training for the PAS providers because they have often been working in nursing homes or health care environments, not offices. She said the agency has never found the ideal candidate with all their needs met without providing some type of training, but that they made the determination that if the provider has the medical background that is required to do the job, that her agency can train them to work in an office environment.
Allison Levy from the U.S. Department of Agriculture asked to hear from someone in the audience who had personal experience using PAS. Ms. Iyer responded that Nadia Ibrahim from DOL would be providing that perspective in her closing remarks
Meena Farzanfar from the Department of the Navy asked the panel members if they are tracking PAS requests and how they were doing so if they did. Ms. Carr said her agency usually uses the invoice mechanism and reviews how many people made those requests that month, how many hours of service were used, how many cancellations hours were used, etc. She said her offices uses the metrics available through invoicing because once an employee is approved for PAS, they don’t usually have any further interaction with that employee unless the person is asking for something beyond what they have been approved for.
Mr. Yelder said his agency has contract line items that let them know now what services they are using and how. He recommended taking classes to better understand contract processes because they can help agencies track what services they are using.
Colleen Marks from the Government Accountability Office asked if anyone had hired a person on staff to provider PAS, as a sign language interpreter or readers, and if so, if they had a position description that they could share, preferably one that would allow the agency to assign other duties if necessary.
Ms. Garland said that her agency has position descriptions for reader assistants and personal assistants without the Affirmative Action portion, and that they have published a policy to use in order to obtain these services. She said she wrote the descriptions for the reader and sign language interpreter positions, and her department would be happy to assist other agencies with this. She encouraged anyone with questions about this and those interested in receiving the sample position descriptions to email her at Annette.garland@SSA.gov.
Ms. Iyer reiterated that FEED is focused on the exchange of information related to issues like PAS, and will be providing follow up information after the meeting. She encouraged others to provide information about what their agencies are doing via email, and that EEOC, OPM and DOL are working together to develop a listserv or other mechanism to disseminate that information to FEED members.
Bobby Silverstein from EARN stated that it was important it to follow up on the issue of what is and is not medical care. He brought up the example of the Supreme Court decision made under the Individuals with Disabilities Education Act (IDEA) which found that some of these types of services were in fact health care, so they were covered under the IDEA. He stated that further discussion and clarification on the topic is needed.
Mr. Iyer agreed and said that issues like the one Mr. Silverstein mentioned were the reason for FEED and for meetings like the one being held, and the questions being asked and issues being brought up would be used to decide what resources EEOC should develop to help federal agencies understand the new regulations.
Mr. Sheats mentioned that he received a question from a meeting participant who was on the conference call line, which was “Does PAS cover paying for employee travel to home to regular workstation and vice versa?”
Ms. Carr said that it did not, and clarified that even on travel, ground transportation is covered by the employee’s office, based on travel regulations.
An audience member named Kristin asked how to respond if a manager or supervisor is resistant to providing PAS because they say they don’t want to pay for two people to do one job. She stated that this had happened to her. Mr. Yelder asked her to clarify what she meant by “paying for two people to do one job.” The audience member said the manager or supervisor may look at the situation and see it as having to pay two people to do a single job. Ms. Carr said that if any agency has a centralized funding mechanism, even though the operating system paid into it, the manager doesn’t see that as money out of their budget, so that helps reduce the attitude of, “I don’t want to pay.” She also said it is important to get the manager to understand the PAS provider is not doing the employee’s job, just assisting them to perform the tasks of daily living necessary so they can do their job.
Ms. Iyer then concluded the question and answer period and asked Mr. Sheats to introduce the next speaker.
- Closing Remarks
Mr. Sheats introduced Nadia Ibrahim, Senior Policy Advisor for the Office of Disability Employment Policy (ODEP) at DOL, who shared her personal experiences using PAS as a federal employee.
Ms. Ibrahim provided some background on her federal service, stating that she has been a federal employee since 2003, following an internship through the Workforce Recruitment Program (WRP), a program sponsored by DOD and DOL. Through the program she was an intern at the DOD’s Computer/Electronic Accommodations Program (CAP). She acknowledged the representatives from CAP at the meeting, and said her story served as a good reminder about entry into the federal service.
Ms. Ibrahim continued by saying that she has had a lot of workplace experience in the federal sector and different experiences with personal assistance and workplace assistance. She stated that when she entered the Federal Government as a WRP intern, there was no assistance in place to help her determine how PAS might help her. She said she called her supervisor and other CAP staff shortly before she was scheduled to begin her internship and said she was worried that she may not have the support she needed to get ready for work in the morning, to get dressed, etc. She said her supervisor and other CAP staff provided guidance and assistance, and those challenges were resolved.
She stated that she was living in D.C. at the time and working in Virginia, and wasn’t able to have a PA come to her house every day at certain times to assist her in the restroom. However, she said she found some colleagues who were able to assist her. Regarding the issue of liability that had been brought up earlier in the meeting, she said she talked about it with her manager and was able to come up with a system that worked for everyone involved.
Ms. Ibrahim said that she began working for ODEP in 2003 and continued there until 2010, when she moved to the Health Resources and Services Administration (HRSA) at the U.S. Department of Health and Human Services (HHS). She stated that she is glad FEED is beginning the conversation about the provision of PAS in the workplace as a form of accommodation, and talking about using centralized accommodation funds as a means of doing so.
Ms. Ibrahim continued by saying that she transitioned to HRSA to get experience in public health because that is an area of interest to her, and that she has a master’s degree in social work and journalism. She stated that her experience at HRSA was challenging, and a learning experience for everyone involved, but she had strong advocates at the agency, as well as some strong opponents. She said that some people at the agency did not understand what PAS was and what workplace assistance was intended to do. She stated that her disability is cerebral palsy and that she needs full assistance getting up in the morning and getting dressed, but once she is in her wheelchair, she is fairly independent. She uses speech recognition software to navigate her computer and avoids loose paper and taking notes in meetings because she is a good listener, but will jot down things here and there if the need arises.
Ms. Ibrahim stated that one of the challenges at HRSA, was that for two years, PAS was provided, including assistance in the restroom and in the cafeteria, with taking her jacket on and off, and on travel. However, after someone new took over the accommodations process, a person she said did not have a full understanding of PAS, receiving services became challenging for her.
Ms. Ibrahim said that traveling for work became virtually impossible because the determination was made that instead of sending an assistant with her, they would find someone locally where she was travelling to provide that assistance, which she says was not realistic. She asked the audience members to think about their needs when travelling for work. She asked them to imagine not being able to get up in the morning and get dressed, take notes or drive to and from meetings. She clarified that at HRSA she worked in the Office of Rural Health, so she was travelling to very rural areas that did not have public transportation.
Ms. Ibrahim then introduced her “other personal assistant,” a service dog named Watson, and returned to discussing how travel became a challenge because finding someone in rural areas to provide PAS was not feasible. She stated she was the program director for the Black Lung Program at HRSA. As an example, she said while at HRSA, she was asked to travel to a meeting in rural West Virginia. Since she does not drive, she would have needed someone to drive her to the airport so she could catch her flight back to D.C., because finding accessible transportation in that area was not possible. She said she was not able to attend the meeting because of this issue. She stated that for approximately two years, she was not able to travel for work because appropriate PAS was not provided for her, and since she was the program director, this had a great impact on her professionally and personally because she was not able to complete the functions of her job since she was not provided with proper support.
Ms. Ibrahim stated that the challenges she experienced receiving PAS at HRSA ultimately led her to return to DOL because she wanted to effect change in a broader way. She asked that all those in the audience put themselves in the position of employees who need PAS when they are considering the issues, making decisions and developing procedures. She asked them to think about their jobs and all the things that they do on a daily basis and about not being able to do those things on their own, requiring assistance using the computer, going to the restroom and taking off their jacket, etc. She encouraged them to involve employees who use PAS in the process, since they know best what they need and how to meet their needs.
Ms. Ibrahim said that she heard a question during the meeting about whether there is a benefit to using a contractor versus an FTE as a PAS provider. She said to consider the fact that an employee may need a PAS provider to drive while they are on travel and a contractor is not allowed to drive. She said for an employee traveling to a rural area or an area that does not have public transportation, the issue of driving while on travel is an important one. She continued that there were many conversations at HRSA about whether driving was an “extra special service.” She stated that she did not want to hire a limousine, she just wanted to be able attend a meeting and do her job as a project director.
Ms. Ibrahim encouraged attendees to think about the language that is used in contracts and look at existing legislation and regulations around what is permitted regarding the use of PAS in federal agencies, and to involve employees with disabilities in the process. She said many people have told her she is a trail blazer and an exception to the rule, and that she is helping to make the way for others, but she doesn’t want to be the exception anymore and there needs to be other people with her level of disability working and contributing in the Federal Government. She concluded her remarks by saying that it is important to consider the needs of federal employees who use service animals, and the interaction between PAS and service animals.
Akinyemi Banjo, Policy Advisor for ODEP, then gave closing remarks, thanking everyone for participating in the meeting and the panelists for providing their knowledge and insight on PAS services. He stated that that he and Ms. Iyer would be following up with meeting participants to provide additional resources and information about the next FEED meeting.