18 - The Act and Regulations

In General

No entity…may compensate an individual with a disability who is age 24 or younger at a wage (referred to in this section as a “subminimum wage”) that is less than the Federal minimum wage unless…[t]he individual, before beginning work that is compensated at a subminimum wage, has completed, and produces documentation indicating completion of, each of the following actions:

● The individual has received pre-employment transition services…

● The individual has applied for vocational rehabilitation services…with the result that—

○ The individual has been found ineligible for such services… or

■ The individual has been determined to be eligible for vocational rehabilitation services;

■ The individual has an individualized plan for employment;

■ The individual has been working toward an employment outcome specified in such individualized plan for employment, with appropriate supports and services, including supported employment services, for a reasonable period of time without success; and

■ The individual’s vocational rehabilitation case is closed; and

○ The individual has been provided career counseling, and information and referral to Federal and State programs and other resources…that offer employment-related services and supports designed to enable the individual to explore, discover, experience, and attain competitive integrated employment; and

○ Such counseling and information and referrals are not for employment compensated at a subminimum wage provided by an entity described in this subsection, and such employment-related services are not compensated at subminimum wage and do not directly result in employment compensated at subminimum wage provided by an entity described in this subsection.

…During Employment

The entity…may not continue to employ an individual, regardless of age, at a subminimum wage unless, after the individual begins work at that wage, the individual (with, in an appropriate case, the individual’s parent or guardian)—

● Is provided by the designated State unit career counseling, and information and referrals…and

● Is informed by the employer of self-advocacy, self-determination, and peer mentoring training opportunities available…

(See 29 USC § 794g - Limitations on use of subminimum wage.)

The purpose of this part is to set forth requirements the designated State units and State and local educational agencies must satisfy to ensure that individuals with disabilities, especially youth with disabilities, have meaningful opportunity to prepare for, obtain, maintain, advance in, or regain competitive integrated employment, including supported or customized employment…

Formal interagency agreement. The vocational rehabilitation services portion of the Unified or Combined State Plan must include information on a formal interagency agreement with the State educational agency that, at a minimum, provides for…

● Coordination necessary to satisfy documentation requirements set forth in 34 CFR 397 [Limitations on Use of Subminimum Wage] with regard to students and youth seeking subminimum wage employment; and

● Assurance that, in accordance with 34 CFR 397.31 [What are the contracting limitations on educational agencies under this part?], neither the State educational agency nor the local educational agency will enter into a contract or other arrangement with an entity…for the purpose of operating a program under which a youth with a disability is engaged in work compensated at a subminimum wage.

(34 CFR 397.1 - Purpose; 34 CFR 361.22(b(5) - Coordination with education officials, Formal interagency agreement.)