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Independent Living News & Policy from the National Council on Independent Living

Legal Opinion on Development of the State Plan for Independent Living under the Workforce Innovation and Opportunity Act

Brown Goldstein Levy

Gregory P. Care

Also a member of the District of Columbia Bar

September 30, 2015

Kelly Buckland
Executive Director
National Council on Independent Living
2013 H Street NW
6th Floor
Washington, DC  20006

Dear Mr. Buckland:

As you know, you and the National Council on Independent Living have retained me and my firm, Brown, Goldstein & Levy, LLP, to research and report to you on an issue relating to the interpretation of the Workforce Innovation and Opportunity Act [1] (hereinafter, “WIOA” or the “Act”).  Specifically, you have charged us with determining the proper statutory interpretation of WIOA’s provisions for the creation of a State Plan for Independent Living (“SPIL”) and the role to be played by the designated State entity in the finalization of the SPIL. [2]  You have also asked for our opinion as to the U.S. Department of Health and Human Services, Administration for Community Living’s (“ACL”) interpretation of the same provisions.

After a consideration of the language of the relevant statutes and legislative history, and an application of the pertinent canons of statutory interpretation, it is clear that WIOA has created a process whereby the Statewide Independent Living Council and the centers for independent living in a given state develop the SPIL bearing in mind the views of consumers of independent living services and other stakeholders.  Congress has removed the designated State entity from the SPIL development process and limited it to carrying out statutorily-prescribed administrative duties.  The designated State entity must agree to be responsible for these duties, which it signifies by signing the SPIL.  In our opinion, nothing about the signature requirement bestows on a designated State entity the authority to approve or reject a SPIL on the basis of its provisions.  In fact, Congress’s revision to the prior law was specifically intended to preclude such a scenario.  Thus, the ACL’s apparent interpretation to the contrary is mistaken and is not entitled to deference.

Consistent with the U.S. Supreme Court’s instructions on these questions, we began our analysis of WIOA by determining whether the language at issue has a plain and unambiguous meaning with regard to the particular issue at hand. [3]  We look to “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole” to make this determination. [4]  Thus, the purpose of the law and Congress’s intent in enacting it figure largely in the initial analysis. [5]

Congress made an express statutory statement of the purpose of the independent living provisions of WIOA, which emphasizes the legislature’s intent for consumers to enjoy greater control over their independent living services:

The purpose of this part [29 U.S.C.A. § 796 et seq.] is to promote a philosophy of independent living, including a philosophy of consumer control, peer support, self-help, self-determination, equal access, and individual and system advocacy, in order to maximize the leadership, empowerment, independence, and productivity of individuals with disabilities, and the integration and full inclusion of individuals with disabilities into the mainstream of American society . . . . [6]

Congress’s dedication to this consumer-driven philosophy was the basis for WIOA to transition the administration of the Independent Living program from the U.S. Department of Education to the ACL.  The managers of the bill that became WIOA explained that doing so would “better allow the program to fulfill its goal to support ‘independent living . . . and the integration and full inclusion of individuals with disabilities into the mainstream of American society.’” [7]  The goal quoted by those managers is drawn directly from the statutory statement of WIOA’s purpose regarding independent living services.

The same desire to better implement consumer control of independent living services apparently also motivated a key change in the statutory language regarding the creation of SPILs that unambiguously relegates designated State entities to a ministerial role of signing, but not approving, the SPIL.  Prior to WIOA, the Workforce Investment Act of 1998 vested authority in the designated State entity (then known as a designated State unit) to “jointly develop[] and sign[]” the SPIL with the Statewide Independent Living Council (“SILC”). [8]  However, WIOA revised that language to remove the designated State entity from the development of the SPIL such that now the SILC and the centers for independent living develop the SPIL “after receiving public input from individuals with disabilities and other stakeholders throughout the State” and then obtain the signature of the designated State entity among others. [9]  Congress has eliminated any requirement for the consumers of independent living services to “jointly develop” a state plan with a designated State entity.  This is telling because courts had construed the joint development requirement in the related context of vocational rehabilitation services to permit the designated state unit to have the final word on approving a plan. [10]  Thus, with the deletion of the joint development requirement, so goes the designated State entity’s authority over the contents of the SPIL.

It is significant that Congress has excluded the designated State entity from the development of the SPIL; if Congress had intended for the entity’s views on the SPIL to carry any weight it would have left the law untouched.  Instead, Congress acted to put consumers in control of their own plans.  Under WIOA, the designated State entity’s role in forming the SPIL has been supplanted by the centers for independent living, acting on the views of consumers of independent living services.  This change in the SPIL-making process represents an express effort by Congress (as confirmed by the remarks of the bill managers) to ensure that SPILs reflect the priorities of consumers, and the change is also responsive to the independent living community’s concerns that the designated State units had exerted too much control over SPILs under the prior law.

Thus, it would be wholly inconsistent with the intent of Congress to read the SPIL-making provisions of WIOA to allow a designated State entity to “veto” a SPIL by refusing to sign on the basis of its disagreement with its provisions.  WIOA assigns five specific, administrative duties to the entity that is designated by the SPIL to act on behalf of the State. [11]  By removing the designated State entity from any role in developing the SPIL, Congress made it clear that the designated State entity’s signature on the plan meant only an agreement to carry out the five specific, administrative duties set forth in the law, [12] not an independent evaluation of the plan itself.

This reading of the SPIL-making provisions is buttressed by the contrast of language elsewhere in the same statutory scheme. [13]  In the context of vocational rehabilitation services, Congress provided that a designated State unit would have approval [14] authority over the plan for employing the individual with the disability. [15]  When it passed WIOA, Congress amended other portions of the relevant section, but left the approval portion intact.  Congress has, therefore, shown that it knows how to make a plan contingent on a designated State entity’s approval when it so desires. [16]  Congress’s reforms to the SPIL process make it clear that to whatever extent a designated State entity had authority over a SPIL under the old scheme of jointly developing it, that authority has been removed by WIOA.

Further, a designated State entity’s “veto” of a SPIL for either policy or legal reasons would frustrate Congress’s scheme for reviewing the legal sufficiency of SPILs.  Under WIOA, the Administrator of the Administration for Community Living is charged with reviewing the SPIL for compliance with the law. [17]  It is noteworthy that this provision does not permit even the Administrator to reject a SPIL on the basis of her disagreement with the priorities or other policy aspects of the plan.  Thus, it would do violence to common sense and Congress’s purpose of re-establishing the self-determination of independent living services consumers to construe the law as permitting a designated State entity (whose role is limited to administrative tasks) to override a SPIL on authority not even bestowed to the Administrator.

You have informed me that the ACL has taken a view of the role of designated State entities that is contrary to our conclusions.  The only ACL-authored public document of which we are aware that addresses this subject [18] is the June 6, 2015 guidance which suggests that the designated State entity has approval authority over the terms of the SPIL:

The SPIL is signed by the chair of the Statewide Independent Living Council (SILC or Council), acting on behalf of and at the direction of the Council, the director of the DSE and at least 51 percent of the directors of the centers for independent living in the State. As a practical matter, this means that the DSE must agree to the terms of the SPIL and to fulfill all of the DSE responsibilities set forth in the law. [19]

We agree that WIOA is clear that the designated State entity must agree to “fulfill all of the DSE responsibilities set forth in the law,” but there is no basis for the statement that the designated State entity “must agree to the terms of the SPIL.”  The meaning of the phrase “[a]s a practical matter” prefacing this statement is ambiguous here.  As discussed above, from a legal standpoint, the designated State entity does not have any authority to approve or reject the terms of the SPIL and the ACL’s choice of the word “practical” may be a recognition of that fact.  However, the guidance document does use the mandatory language of “must” in this context, indicating that it believes the designated State entity must approve of the SPIL’s terms.  The ACL’s position on this point would not withstand legal scrutiny, nor would it be accorded any deference.  Congress wrote the relevant portions of WIOA in a way that clearly and unambiguously excluded designated State entities from having any approval authority over a SPIL.  Accordingly, ACL’s interpretation of the unambiguous statutory provisions at issue here is of no moment and the law must be applied as written. [20]  The law is plain that the consumers of independent living services are permitted to develop and implement their own SPIL without obtaining the approval of a designated State entity as to its terms.

Please feel free to contact me with any questions.

Sincerely,

Gregory P. Care

[1] Pub. L. No. 113-128, 128 Stat. 1425 (2014).

[2] 29 U.S.C. § 796c(a)(2).

[3] Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997).

[4] Id. at 341; see also King v. Burwell, 135 S. Ct. 2480, 2489 (2015).

[5] See Bailey v. United States, 516 U.S. 137, 145 (1995) (“We consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme.”), superseded on other grounds as noted in Abbott v. United States, 562 U.S. 8, 16 (2010).

[6] 29 U.S.C. § 796 (brackets in the original).

[7] Statement of the Managers to Accompany the Workforce Innovation and Opportunity Act at 9 (May 21, 2014), available at: http://edworkforce.house.gov/uploadedfiles/wioa_managers_ statement.pdf.

[8] The Workforce Investment Act read, in pertinent part:

(a) In general . . .

(2) Joint development.—The [SPIL] shall be jointly developed and signed by—

(A) the director of the designated State unit; and

(B) the chairperson of the Statewide Independent Living Council, acting on behalf of and at the direction of the Council.

 Pub. L. No. 105-220, § 704, 112 Stat. 936.

[9] The current law (29 U.S.C. § 796c(a)(2)) states, in pertinent part:

(a) In general . . .

(2) Joint development

The [SPIL] shall be jointly–

(A) developed by the chairperson of the Statewide Independent Living Council, and the directors of the centers for independent living in the State, after receiving public input from individuals with disabilities and other stakeholders throughout the State; and

(B) signed by–

(i) the chairperson of the Statewide Independent Living Council, acting on behalf of and at the direction of the Council;

(ii) the director of the designated State entity described in subsection (c); and

(iii) not less than 51 percent of the directors of the centers for independent living in the State.

[10] E.g., Buchanan v. Ives, 793 F. Supp. 361, 366 (D. Me. 1991) (“The plain meaning of the word ‘jointly’ indicates that the decision be made by at least two persons acting in concert. Although the client must be given every opportunity to participate in the decision-making, the rehabilitation counselor must make the final decision on eligibility and the scope of services provided.”); Yochim v. Gargano, 882 F. Supp. 2d 1068, 1079 (S.D. Ind. 2012) (same).

[11] The duties are as follows:

(1) receive, account for, and disburse funds received by the State under this part [29 U.S.C.A. § 796 et seq.] based on the plan;

(2) provide administrative support services for a program under subpart 2 [29 U.S.C.A. § 796e et seq.] of this part, and a program under subpart 3 [29 U.S.C.A. § 796f et seq.] of this part in a case in which the program is administered by the State under section 796f-2 of this title;

(3) keep such records and afford such access to such records as the Administrator finds to be necessary with respect to the programs;

(4) submit such additional information or provide such assurances as the Administrator may require with respect to the programs; and

(5) retain not more than 5 percent of the funds received by the State for any fiscal year under subpart 2 of this part, for the performance of the services outlined in paragraphs (1) through (4).

29 U.S.C. 796c(c) (brackets in the original).

[12] Of course, an agency cannot be compelled to serve as a designated State entity.

[13] Robinson, 519 U.S. at 341 (explaining that statutory construction is aided by reviewing “the specific context in which that language is used, and the broader context of the statute as a whole”).

[14] Notably, Congress also used the term “approve[]” in this section, which clearly conveys that the plan is contingent on the designated State unit’s concurrence.  The SPIL-making provisions have no such language.

[15] 29 U.S.C. § 722(b)(3)(C) (“[A]n individualized plan for employment shall be (i) agreed to, and signed by, such eligible individual or, as appropriate, the individual’s representative; and (ii) approved and signed by a qualified vocational rehabilitation counselor employed by the designated State unit.”) (emphasis added).

[16] Jama v. Immigr. & Customs Enforcement, 543 U.S. 335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”).

[17] 29 U.S.C. § 796d-1(a)(1) (“The Administrator shall approve any State plan submitted under section 796c of this title that the Administrator determines meets the requirements of section 796c of this title, and shall disapprove any such plan that does not meet such requirements, as soon as practicable after receiving the plan.”).

[18] As you know, there is a pending notice of proposed rulemaking that may contain more substantive commentary.  The notice was expected in July 2015, but was not issued.

[19] U.S. Dep’t of Health & Hum. Servs., Admin. for Community Living, ILA PI-15-01, Selection of the Designated State Entity (DSE) at 1 (emphasis added).

[20] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is clear, that is the end of the matter; for the court,  as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); I.N.S. v. St. Cyr, 533 U.S. 289, 320 n.45 (2001) (“We only defer, however, to agency interpretations of statutes that, applying the normal ‘tools of statutory construction,’ are ambiguous.”).