National Council on Disability: Notice of Funding Opportunity – To Assess Long-Standing Administrative Exclusion Under Federal Employment Tax Law for People With Disabilities in Congregate Work Settings

WASHINGTON, Oct. 25 -- The National Council on Disability issued the following notice of funding opportunity:

Overview Information

NCD-22-03

Notice of Funding Opportunity for a Cooperative Agreement

Authority: Section 401, Title IV of the Rehabilitation Act of 1973, as amended

Full Proposal Deadline: 5:00 p.m. (submitter's local time), November 24, 2021. Late applications will not be considered.

Deliver electronic Word and PDF proposals to: [email protected].

Maximum amount available for this project: $100,000.00

All potential applicants are eligible to apply 92.002

Cost sharing is not required

The estimated period of performance is six months

Project Summary

An in-depth assessment of a long-standing tax policy exclusion for employees with disabilities in congregate work settings ("sheltered workshops") that results in "dueling classifications" that conflicts with other federal employment statutes and results in a question whether people with disabilities should be classified as "clients" or "employees." It will examine potential conflicts of federal employment and tax laws defining an "employee" - for purposes of eligibility for benefits under the Federal Insurance Contribution Act ("FICA") and other federal employment benefits.

Agency Contact:

Kimie Eacobacci, Legislative Affairs Specialist, National Council on Disability, 1331 F Street, NW, Suite 850, Washington, DC 20004, telephone (202) 731-6264, e-mail: [email protected].

Award Information

Anticipated Type of Award: Cooperative Agreement

Estimated Number of Awards: 1

Anticipated Funding Amount: $100,000.00

The funding amount is contingent on fiscal year 2022 funding availability.

Background and Statement of Problem

In most circumstances, the Federal Insurance Contributions Act (FICA) generally requires employees and employers to pay taxes on all "wages" employees receive, 26 U.S.C. Sec.Sec. 3101(a), 3111(a), and defines "wages" to include "all remuneration for employment," Sec. 3121(a). FICA defines "employment" as "any service . . . performed . . . by an employee for the person employing him," Sec. 3121(b). Unlike other federal employment laws like the Fair Labor Standards Act's definition of employee however, FICA's definition of "employee" applies an independent analysis under common law rules in determining the employer-employee relationship and the status of an employee. Sec. 3121(d)(2). Likewise, the Social Security Act, which governs workers' eligibility under the OASDI program, contains a materially identical employee analysis to I.R.C. Sec. 3121(d)(2). 42 U.S.C.S. Sec. 410(j)(2), also citing to common law rules to determine whether an employer-employee relationship exists.

Since a 1965 Revenue Ruling, the Treasury Department has consistently determined that people with disabilities in congregate work settings are not "employees" for federal employment tax purposes. In 1969, the Commissioner of the Social Security Administration issued a ruling that adopted a materially identical exclusion to the one used by the IRS and determined that workers with disabilities in congregate work settings could not be considered employees of the facility until after completing its rehabilitation program and meeting common law employment rules. SSR 69-60. Since these 1960s rulings, both SSA and the Internal Revenue Service (IRS) have maintained that an individual participating in a congregate work setting's training or rehabilitation program could not be considered an employee of the workshop. Accordingly, the compensation received from the congregate work settings could not be considered wages for Social Security coverage purposes and not subject to FICA taxes. Both agencies further held that only after completing the facility's training or rehabilitation program could a person be considered an employee of the congregate work setting.

A review of IRS Private Letter Rulings (PLRs) shows that over several years, the agency issued a series of decisions on behalf of "sheltered workshops," which was used to re-classify workers with disabilities as "clients" and deny their employment status. These rulings may have been used to retroactively re-classify the compensation they received as no longer being "wages" subject to FICA taxes and despite any employment determinations made by the Department of Labor. Following this trend, sheltered workshops may have turned to the Department of Justice to settle lawsuits against the IRS and claim FICA tax refunds claiming their work settings were similar to other workshops that previously received PLRs.

The purpose of this report is to study the legal implications that may result from the Treasury Department's 1965 analysis of the employment status of people with disabilities in congregate work settings that may result in dueling classifications for federal employment tax purposes that allows employers to classify workers as a "client under a rehabilitation program" and not employees. It will also look at other federal employment laws that may have adopted the Treasury Department's analysis that may include the National Labor Relations Act and the Employee Retirement Income Security Act of 1974.

Report Purpose

An in-depth assessment of a long-standing tax policy exclusion for employees with disabilities in congregate work settings ("sheltered workshops") that results in "dueling classifications" that conflicts with other federal employment statutes and results in a question whether people with disabilities should be classified as "clients" or "employees." It will examine potential conflicts of federal employment and tax laws defining an "employee" - for purposes of eligibility for benefits under the Federal Insurance Contribution Act ("FICA") and other federal employment benefits.

Research Questions

Through the lens of the Americans with Disabilities Act (ADA), the research will seek to answer:

* Accurately assess how many workers with disabilities in congregate work settings fall into dueling classifications under conflicting definitions of federal employment laws where their employers may have classified (or re-classified) them as "clients" and their "work" as an "activity within a rehabilitation program" excluding them from contributing to FICA taxes and therefore unable to accrue the necessary credits required to be eligible for OASDI benefits.

* Review the Department of Justice's settlement agreements with the Internal Revenue Service securing FICA tax refunds on behalf of congregate work settings or sheltered workshops.

* Under the Federal Unemployment Tax Act (26 U.S.C. 3301 et seq.), assess how many states have adopted the Treasury Department's exemption allowing employers to classify people with disabilities in congregate work settings as "clients" within a "rehabilitation program," leaving people with disabilities ineligible to receive state unemployment benefits.

* Analyze the extent that other federal agencies have adopted the Treasury Department's 1965 analysis, including the Social Security Administration's analysis for determining the accrual of the necessary work credits for eligibility under the OASDI program, to find that people with disabilities in congregate work settings are not "employees." For example, in a 2004 National Labor Relations Board (Board) decision, it relied on the Treasury Department's 1965 analysis to determine that the workers with disabilities at a Florida AbilityOne non-profit agency were not statutory employees under the federal law that it administered./1 The Board found that, even though the workers with disabilities performed the same tasks, worked the same hours, and earned the same wages and benefits as their colleagues who did not have disabilities, the people with disabilities were not performing "work" but instead were performing an activity that fell within a rehabilitation program which distinguish them from their colleagues. For this reason, the Board concluded that the National Labor Relations Act did not apply to these workers and they did not have the right to organize or collectively bargain with their employer over wage disputes, hours, or other employment conditions unlike their colleagues who did not have disabilities.

* Explain how different IRS tax forms can help people identify their employment classification and eligibility for employment benefits.

* For people who feel they may have been misclassified for employment purposes, explain the process to have their employment status and benefits restored.

* Make recommendations to the Department of Treasury (and other federal agencies) to re-evaluate its regulations and past rulings to be consistent with current disability policy.

Time Period

Six months

The deliverables for this project will include:

A detailed preliminary framing paper.

A revised framing paper incorporating input from NCD Council members and staff.

A first draft report incorporating initial findings, conclusions, and recommendations that can be drawn from the examination.

A final report of no more than 80 pages (not including endnotes or appendices) incorporating input from NCD Council members and staff. Final reports must contain an executive summary with key findings and key recommendations; and specific sections on methodology; all findings; and all recommendations, organized according to the entity to which they are directed.

A brief "Report Highlights" document for each report that succinctly and in plain language encapsulates the report's scope and purpose, major findings, and recommendations, and contains a link to the full report at the bottom. For an example of a Reports Highlights Page, refer to: https://ncd.gov/publications/2013/10242013.

Requirements

Pursuant to Executive Order 14005, NCD will only consider proposals from individuals or entities based in the United States.

Pursuant to Executive Order 14042, Federal contractors and subcontractors who receive NCD funds must comply with workplace safety protocols: 1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation; 2. Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and 3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Pursuant to Executive Order 13985, the inclusion of people with disabilities, including people with disabilities who are multiply marginalized (black, indigenous, people of color, LGBTQ, e.g.), must be integral to the planning, development, and execution of this project. At least one section of the report should focus on stakeholder input, but input should be integrated throughout.

Any methodology used to obtain stakeholder input must allow for open-ended discussions between stakeholders, as opposed to soliciting answers to specific, predetermined questions. While the use of data from existing surveys is permitted, conducting surveys for purposes of this study is strongly discouraged. The inclusion of people with disabilities must be integral to the planning, development, and execution of this project. The report should also reflect NCD's view that the disability community is heterogeneous, with diverse needs and perspectives, and those perspectives should be included.

The awardee is responsible for reasonable accommodations at any meetings, events, forums, focus groups, etc. (i.e. sign language interpreters, CART reporters, and other such providers, as well as documents or other materials that are made available in public forums), associated with this agreement. If NCD hosts any events related to this project, it will be responsible for providing accommodations.

The awardee will present on the report before NCD at a quarterly Council meeting and must factor travel expenses into the proposed budget.

The report drafts must adhere to NCD's editorial requirements which will be provided upon award of the cooperative agreement. Final drafts must be professionally edited before they are submitted to NCD.

Eligibility Information

All potential applicants are eligible to apply.

Cost-sharing is not required.

Other Eligibility Criteria: Proposals that merely offer to conduct a project in accordance with the requirements of the government's scope of work will not be eligible for award. You must submit an explanation of the proposed technical approach in conjunction with the tasks to be performed in achieving the project objectives.

This solicitation does not commit the government to contract for any work or services whatsoever. Respondents are advised that the Federal Government will not pay for any information or administrative costs incurred in response to this solicitation notice. All costs associated with responding to this solicitation notice will be solely at the responding party's expense. It is the responsibility of the interested parties to monitor grants.gov and ncd.gov sites for additional information.

Number of Awards

NCD expects to make 1 award with an anticipated funding amount of $100,000.00.

Due Date and Email address for Proposals

November 24, 2021, 5:00 p.m. eastern time

Email Word and PDF versions of technical and business proposals to [email protected].

Proposal Information and Instructions

Proposals must be submitted in two parts: A 'Technical Proposal' and a 'Business Proposal. Each part shall be separate and complete so that evaluation of one may be accomplished independently of the other. The technical proposal must not contain reference to cost; however, resource information, such as data on labor hours and categories, materials, subcontracts, etc., must be contained in the technical proposal so that the offeror's understanding of the scope of the work may be evaluated. It must describe the offeror's technical approach in sufficient detail to provide a clear and concise presentation that includes, but is not limited to, the requirements of the technical proposal instructions.

Proposals must be signed by an official authorized to bind the submitting organization/s.

Alternate proposals or proposals which deviate from the requirements may be submitted; if they address the requirements in the statement of work, and if overall performance would be improved or not compromised and are in the best interest of the Government. Alternate proposals, or deviations from any requirements of this funding opportunity, must be clearly identified.

NCD will evaluate proposals in accordance with the evaluation criteria set forth in this solicitation.

The winning proposal submitted in response to this solicitation will become part of the cooperative agreement.

A detailed work plan must be submitted indicating how each aspect of the statement of work is to be accomplished. The technical approach should contain as much detail as necessary to fully explain the proposed technical approach or method. The technical proposal must reflect a clear understanding of the nature of the work being undertaken.

The technical proposal must include information on how the project is to be organized, staffed, and managed. Information must demonstrate an understanding and describe the management of important events or tasks. The technical proposal must explain how the management and coordination of consultant and/or subcontractor efforts will be accomplished.

The technical proposal must include a list of names and proposed duties of the professional personnel, consultants, and key subcontractor employees assigned to the project. Their resumes must be included and should contain information on education, background, recent experience, and specific requirement related or technical accomplishments. The approximate percentage of time each individual will work on the project must be included. The proposed staff hours for each of the above individuals must be allocated against each task or subtask for the project.

The technical proposal must provide the general background, experience, and qualifications of the organization. Similar or related contracts, subcontracts, or grants should be included and contain the name of the customer, contract or grant number, dollar amount, time of performance, and the names and telephone numbers of the contracting officer's representative or project officer and contracting/grants officer.

The technical proposal must contain a discussion of present or proposed facilities and equipment which will be used in the performance of the contract.

The technical proposal must contain a proposed timeline for deliverables and a "deliverables and payment schedule" chart. Payments will be based on 3 deliverables - with the last payment occurring after NCD approval of the final draft of reports.

Format of Technical Proposals

1. Abstract (no more than 2 pages)

A two-page summary shall be provided abstracting the proposal contents (e.g., objectives, activities, expected outcomes) in language understandable to an informed layperson. The narrative should be limited to no more than 250 words.

2. Table of Contents

3. Introduction (no more than 20 pages)

Offerors shall summarize, in their own words, the purposes and objectives of the project to demonstrate their complete understanding of NCD's intent and requirements. This section also should contain a specific statement of any interpretations, questions, qualifications, limitations, deviations, or exceptions to the scope of work and the extent to which the offeror's proposal can be expected to meet the requirements set forth in the scope of work.

4. Procedural Plan (no more than 30 pages)

This section shall fully describe the theoretical and technical approaches the offeror will employ in complying with each task in the scope of work. While a general statement of strategy is appropriate, the offeror shall be specific in describing the way the overall review will be conducted, and the intended approach to the design.

Contain a proposed timeline and deliverables schedule that will be used to guide the conduct of the study and monitor the work.

5. Management Plan and Schedule (no more than 10 pages)

The management plan shall show the feasibility of implementing the offeror's resources. The offeror shall present a time chart that specifies the amount of time (in person days) each staff member will commit to implementing each task. The plan shall present a clear description of the working relationships among personnel. Finally, the plan shall contain a method for insuring the timely and successful completion of each work task.

6. Personnel

Personnel with major responsibilities shall be listed by name, title, position, academic background, relevant experience, responsibilities with the project, and the extent to which this commitment is assured. This section should include specific time commitments of staff to other projects, both Federal and non-Federal. Consultants who have agreed to serve on the project should be similarly identified and assurances of their commitment included. The Project Director shall be committed for no less than approximately 60 percent of the cooperative agreement. Vitae for all principal personnel, including consultants, should be appended to the proposal. Each curriculum vitae should be limited to not more than two (2) pages and should emphasize areas of experience directly relevant to this work statement.

7. Organization Experience

This section shall describe the offeror's pertinent experience and qualification in conducting work of a similar nature. Offerors shall offer evidence of not more than 5 previous related assignments, including the names and telephone numbers of client project offices who would be able to comment on the offeror's performance of those assignments. Summaries (not to exceed one page) of related work shall be included. References to products resulting from these related activities shall also be included.

8. Resources/Facilities/Equipment

This section shall identify those resources (other than personnel), facilities, and equipment (e.g., library holdings, computer hardware, and software) available for use in conducting this project. Offeror should address accessibility for people with disabilities.

9. Current Contractual Obligations

Each offeror will be required to outline both federal and non-federal contractual obligations existing during the time period of this award for all projects involving personnel who will be assigned to this project. Such organizations/agencies must be identified by name and the percentage of work time allotted to these projects by personnel committed to the proposed project must be provided.

10. Issues and Associated Data Items

When responding to the tasks and when identifying what should receive emphasis, careful consideration should be given to the issues identified, their associated data items, and the statement of products desired in the final reports.

All information provided by NCD must be returned to NCD upon completion of the analysis and no later than 10 working days after the completion of the cooperative agreement. The information may not be reproduced or released without the prior written permission of NCD.

11. Rights in Data, Copyright, and Disclosure

a. Data - The term data as used here includes written reports (progress, draft, and final), electronic format and work of any similar nature that is required under any resulting Cooperative Agreement to perform this project. It does not include the awardee's financial reports, or other information incidental to awardee administration. Data submitted to and accepted by the NCD under the cooperative agreement shall be the property of the NCD, and NCD shall have full and unlimited rights to use such data for any purpose in whatever manner deemed desirable and appropriate, including making it available to the public. Such use shall be without any additional payment to the awardee. Data may be published as the property of NCD without giving authorship to the awardee.

b. Copyright - The awardee relinquishes all copyrights and/or privileges developed under the cooperative agreement. The awardee shall not include in the data any copyrightable matter without the written approval of NCD unless the awardee provides NCD with the written permission of the copyright owner for the NCD to use the matter.

c. Disclosure - The awardee agrees not to divulge or release any information, reports or recommendations developed or obtained with the performance of any cooperative agreement with NCD, and not otherwise available to the public, without the prior approval of the NCD.

d. Final approval of deliverables

All final deliverables are the product of NCD and require acceptance and approval by NCD. NCD reserves the right to make substantive edits to all deliverables.

12. Award Information

NCD will make an award to the responsible offeror(s) whose proposal conforms to the solicitation and is most advantageous to the Federal Government.

Upon notification of intent to award, the offeror will be expected to consult with NCD to:

Finalize a mutually agreeable timeline and deliverables schedule that will be used to guide the conduct of the study and monitor the work;

Develop a payment schedule chart to be used for installment payments of the award based on 3 deliverables;

Meet with select NCD staff and board members at a pre-award meeting.

13. Reporting

Throughout the project, the awardee and NCD Contracting Officer's Representative will conduct mutually agreed upon monthly teleconference calls and/or biweekly meetings, set-up and arranged for by the awardee, to include other project staff members, NCD staff and, as appropriate, selected project advisors and NCD council members.

The awardee will provide monthly electronic progress reports to the NCD Contracting Officer's Representative.

The awardee will present on its work before NCD at a quarterly Council meeting and must factor travel expenses into the project budget.

Business Proposal

The business proposal shall contain a detailed budget for the project and the certifications and representations required by OMB Circular A-110.

Note: For each type of entity, there is a set of Federal principles for determining allowable costs. Allowable costs shall be determined in accordance with the cost principles applicable to the entity incurring the costs. Thus, allowable costs incurred by State, local or federally-recognized Indian tribal governments is determined in accordance with the provisions of OMB Circular A-87, "Cost Principles for State and Local Governments." The allowable of costs incurred by non-profit organizations is determined in accordance with the provisions of OMB Circular A-122, "Cost Principles for Non-Profit Organizations."

The allowable costs incurred by institutions of higher education is determined in accordance with the provisions of OMB Circular A-21, "Cost Principles for Educational Institutions." The allowable costs incurred by hospitals is determined in accordance with the provisions of appendix E of 45 CFR part 74, "Principles for Determining Costs Applicable to Research and Development under Grants and Contracts with Hospitals." The allowable costs incurred by commercial organizations and those non-profit organizations listed in Attachment C to Circular A-122 is determined in accordance with the provisions of the Federal Acquisition Regulation (FAR) at 48 CFR part 31.

Technical Evaluation Criteria

Evaluation criteria will score proposals with a maximum of 100 points, divided as follows:

1. A clear understanding of the nature of the work (20 points)

The proposal presents a clear understanding of the tasks required and the importance, quality, and reliability of those tasks. The proposal will present the rationale and/or interpretation of the project approach.

2. Procedural Plan (30 points)

The proposal contains evidence of a fully described technical approach to comply with each of the tasks in the scope of work. The proposal is consistent with the goals, objectives, compliance requirements, and is practical in terms of producing needed information, analysis, and recommendations.

3. Management Plan and Schedule (20 points)

The degree to which the project team, including any use of consultants, is organized, managed, and motivated to accomplish effective and efficient implementation of all tasks to be completed. The proposal budget is appropriate to the administration of the project. The time frame is realistic. Plans and schedules to assure smooth cooperation with the NCD staff involved are evident. The proposal clearly identifies who will be key personnel and includes a table showing the number of person-days by tasks for each of the key personnel.

4. Personnel (15 points)

The proposal provides evidence of the specific qualifications and skills of staff and consultants to be assigned to this project, and their experience and familiarity with the topic, including relevant laws, regulations, procedures, and practices in the Federal Government. Skills in writing and conducting research should also clearly demonstrated.

5. Organizational Experience (15 points)

The proposal describes to which the overall experience and past performance of the offeror in executing similar projects should be described. Evidence of related assignments should be detailed. Offeror shall present evidence of related assignments, including the names and telephone numbers of previous project officers who would be able to comment on the offeror's performance of those assignments.

Project Start Date UPDATE DATES

The projected start of the cooperative agreement is January 3, 2022. The projected end date is July 5, 2022.

Citations & Style Guide for NCD Reports

NCD requires awardees to utilize the Chicago Style Manual for reports and papers and employs the documentary note system of citation (otherwise known as notes and bibliography). An explanation of this style of citation can be found at: http://library.williams.edu/citing/styles/chicago1.php and http://www.chicagomanualofstyle.org/tools_citationguide.html.

Accessibility of Reports

NCD reports must be totally accessible to all people with disabilities at all iterative stages of its drafting and editing. All graphs and charts must have full text descriptions embedded as alt-text and ensure that it is Section 508 compliant. All drafts and final versions must be submitted in electronically in Word and PDF format.

Proposal Review Information

Reviews of proposals submitted to NCD are solicited from peers with expertise in the substantive area of the proposed project. At least three reviewers are selected by the NCD staff overseeing the review process. A conflict check is conducted to ensure that reviewers have no conflicts that prevent a review of offeror's proposal. Special efforts are made to recruit reviewers from non-academic institutions, minority-serving institutions, or adjacent disciplines to that principally addressed in the proposal. Reviewers score and comment on each proposal. Reviews are treated as confidential documents. The NCD staff overseeing the review, examines the scores and comments, and formulates a recommendation.

Notice of Award

NCD will notify the offeror by telephone and e-mail. This will begin negotiations for a cooperative agreement. The notification is not authorization to begin performance. Organizations or individuals whose proposals are declined will be advised as promptly as possible. A summary of the strengths and weaknesses identified by reviewers, of each declined proposal, not included identifying names or information about proposal reviewers, will be made available upon request.

View footnotes at: https://ncd.gov/newsroom/2021/nfo-long-standing-exclusion-employment-tax-law-report