A Coffee Shop staffed with people with intellectual disabilities draws harsh criticism from federally-funded disability rights advocates

Bitty and Beau's Coffee, Ann Arbor

An Article in Disability Scoop, “Coffee Shop Hires Workers With Disabilities. Why Do Some Say That’s Bad News?” by Morgan Hughes, from 10/10/23 caught my eye for several reasons. One is that there has been a campaign for years by disability rights advocates to oppose and eliminate congregate settings for people with I/DD that provide services or residential programs in groups of more than 3 or 4 individuals. That includes opposition to congregate work programs, group homes, day programs, specialized school programs, larger residential settings such as Intermediate Care Facilities for individuals with intellectual disabilities, family-initiated residential communities, and anything else that advocates may construe as "too institutional”.

Many of the objections by disability rights advocates have been related to the use of federal or state funds paying for such programs. In the case of Bitty and Beau’s Coffee in Columbia, South Carolina, however, advocates have targeted a private business that receives no government funds and pays at least minimum wage to its employees. (It does not participate in the federal 14(c) waiver program.)

Bitty and Beau’s is a chain of 19 coffee shops in 11 states. The company employs more than 400 people, most of whom have disabilities.This includes a coffee business on South Main Street in Ann Arbor, Michigan, where it is part of a bustling business district in a university town. I have not visited the Ann Arbor shop, but by all accounts, the employees, their families, and the community at large enthusiastically support the presence of this unique business.

Objections to the coffee shop in South Carolina, come primarily from Able South Carolina, (AbleSC),  an organization “… established under the Rehabilitation Act to be run and operated by people with disabilities as a U.S. Department of Health and Human Services designated Center for Independent Living.” The organization received over 3.5 million dollars in government grants in 2021.

According to the article in Disability Scoop, local disability rights advocates say Bitty and Beau’s creates an environment where inspiration is the goal.

Kimberly Tissot, the CEO of AbleSC, “‘worried that employees with disabilities would be used like props, meant to offer customers smiles and hugs but not to be taken seriously as people…’ Businesses that employ only people with disabilities have also been known to pay below minimum wage because of a federal waiver that allows it, other disability rights advocates said.”...

“But critics say even if employees are earning a fair income, the store sends the wrong message to people without disabilities.

“‘It kind of plays off the heartstrings to get people to open their wallets,’ said Crush Rush, a local disability rights advocate and AbleSC board member." He calIs it crudely, "inspiration porn."

…“Despite the data, Tissot sees the business and those like it as counterproductive because she said the business segregates people with disabilities. She said that segregation can lead typically-developing people to think people with disabilities can only succeed in those environments. Tissot has a physical disability and a 13-year-old son with an intellectual disability.”

Integrated employment for thee, but not for me? 

The law (Title VII of the Rehabilitation Act establishing CILs) mandates that the majority of the CIL staff and individuals in decision making positions, including the governing board, must be individuals with disabilities. 

In other words, one could say that workers at AbleSC are employed in a congregate setting and serve primarily others with disabilities.

I see nothing inherently nefarious nor improper about Centers for Independent Living, but a little bit of self-reflection by the CIL disabled employees might temper the criticism coming from these organizations. Is it only when they are talking about people with intellectual disabilities that such congregate work arrangements are considered abhorrent? The hypocrisy is clear when one disability group attacks another on the basis of principles that they themselves do not follow.

“Nothing About Us, Without Us” except when “Us” doesn’t include you

Nothing in the Disability Scoop article indicates that representatives of AbleSC asked the employees of Bitty and Beau’s in Columbia, South Carolina, how they felt about their jobs and their place in the community. I think most of the workers in these businesses are able to communicate and if they are not, then why not ask their families how they respond to the work and whether they find satisfaction in what they do? 

I agree with Amy Wright, one of the owners of the company, who says “I really wish those same disability advocates would take that frustration they are feeling and direct it toward other businesses in Columbia that don’t hire anyone with a disability.” 

And for those who say they will boycott the business, that’s fine. That will make everyone’s life easier. 

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More information on CILs from the Administration on Community Living... 

Bitty and Beau's Coffee

More comments on non-competitive employment for people with intellectual and developmental disabilities

Testimony from 18 Missouri, an organization representing 6,000 families in support of people benefitting from non-competitive employment.

See more on Youtube.

Today, 12/15/19 is the last day to submit comments to the U.S. Commission on Civil Rights Regarding Section14(c) of the Fair Labor Standards Act. 14(c) allows employers to pay people with disabilities less than minimum wage based on their individual abilities and needs. Protections in the law make acceptance of non-competitive employment voluntary. Other employment opportunities are available for people with disabilities who want competitive employment for at least minimum wage through Vocational Rehabilitation agencies and supported employment services. 

Submit comments by email here, subminimumwages@usccr.gov . 

Although comments are due today, anyone can comment any time to the US Commission on Civil Rights.

The following are excerpts from a letter dated 11/14/19 from Jill Escher, President of the National Council on Severe Autism, to the US Commission on Civil rights regarding “non-competitive employment options with severe cognitive, functional and behavioral disabilities”. Read the full text of the letter here.

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National Council on Severe Autism
PO Box 26853
San Jose, CA 95159
info@ncsautism.org
ncsautism.org
November 14, 2019 

United States Commission on Civil Rights
Via email: subminimumwages@usccr.gov 

...We fully understand and appreciate that some individuals with disabilities have been paid less than their productivity warrants—clearly, justice requires that those individuals receive competitive wages. However, a substantial portion of the disability sector—namely, those with substantial cognitive and behavioral impairments who lack the ability to engage in work at a competitive level—require noncompetitive, highly supported options…. 

All Americans should have access to work, but elimination of 14(c) de facto excludes our severe ID population from the workforce based on the fantasy that all intellectually disabled adults could achieve competitive employment. A few more key points: 

• Given the staggering increase in the population with severe autism, we see a clear imperative to create vastly more, not fewer, options for day programming and supported forms of employment. …We need to maximize their person-centered options, including work that pays special wages based on less-than-competitive productivity.
• Subminimum wage work is but one benefit accruing to the significantly disabled clients. …A standard job supervisor is unlikely to treat seizures, change diapers, or handle getting punched or scratched, to put it mildly. The extremely valuable, though non-monetary, therapeutic dimensions should be considered before over-simplistically labeling subminimum wages as discriminatory. 
• 14(c) programs serving the significantly intellectually disabled provide a protected form of employment unavailable in the free market...the employee’s needs comes first, and profitability is not the prime endpoint. The nonprofit work is typically tailored to the particular skillset of the worker, a customization unavailable in the free labor market where individuals are expected to conform to pre-established performance standards...Disability advocates often accuse 14(c) wage programs of exploiting or abusing their disabled workers, but for severely challenged adults, the opposite is almost always true— the programs often protect clients from exploitation and abuse by offering protected employment. 
• No person with a disability is forced into 14(c) work, and wages are set carefully. … 
• Most workers with disabilities, for example physical disabilities, are already in the competitive market...As Harris Capps, the father of Matthew, who loves his job in an Ohio work center, states, "If a higher functioning individual is able to get a job providing a mandated minimum wage, surely, they already have the minimum wage law in effect to protect them." 
• When non-competitive workshops close, participants often end up idle at home, lonely and unemployed, or if they work at all, with decreased job hours and decreased total wages. Where is the data suggesting better outcomes for the severely disabled who are denied the opportunity to work? We have seen none. Slashing their jobs, leaving them to languish at home, detached from any community of peers, with no viable alternative discriminates against our most vulnerable. The ostensible “liberation” of requiring competitive employment obviously strands our most vulnerable citizens. At a minimum, 14(c) must remain intact for our subset who lack capacity for competitive employment. 

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Fact Sheet on Subminimum Wages for People with Disabilities

The DD News Blog testimony to the USCCR

A brief history of work centers for people with disabilities and subminimum wage

[The term "Sheltered Workshop" is used pejoratively by many advocacy organizations promoting the elimination of these programs. Other terms, such as facility-based or center-based work programs for people with severe disabilities are equally valid and often preferred by those who need and want these programs to continue, even when they pay less than minimum wage as allowed by law. Any of these terms mean the same thing as far as I am concerned.] 

A 1998 Technical Assistance Circular from the U.S. Department of Education on State Vocational Rehabilitation Agencies and Community Rehabilitation Programs gives some historical perspective on the origins of employment programs for people with severe disabilities:

"In 1938, President Franklin D. Roosevelt signed into law the Wagner O'Day Act to provide employment through the sale of products to the Federal government for persons who were blind. Congress amended this Act in 1971 as the Javits-Wagner-O'Day Act (JWOD) to also include Federal contracts for products and services and expanded the Act to provide employment opportunities for other persons with severe disabilities..."

The 1971 amendments to the act include expanded employment opportunities. State Vocational Rehabilitation agencies were encouraged to coordinate with Community Rehabilitation Programs (CRPs) that employ people at or above minimum wage, but also to provide “extended employment”. Extended employment is defined as "work in a non-integrated or sheltered setting for a public or private non profit agency that provides compensation in accordance with the Fair Labor Standards Act, and any needed support services to an individual with a disability to enable the individual to continue to train or otherwise prepare for competitive employment, unless the individual through informed choice chooses to remain in extended employment”[emphasis added].

One of the criticisms of the 1938 law is that it is old - sometimes the word "archaic" is used. Tell that to people receiving social security old age benefits based on a 1935 law, and I doubt that many of them will return their checks because the law is old.

A criticism of the 1971 amendments (JWOD) is that the people who passed the law were somehow unenlightened and did not believe, as many advocates now claim, that everyone with a severe disability can work in integrated, competitive employment. Thousands of people in center-based work programs and their families disagree. They need and value the types of employment and other services offered by these so-called archaic work programs. Many disabled individuals have tried integrated, competitive employment, and either could not find or keep a job or could not function in competition with other employees in integrated work settings.

Vocational Rehabilitation programs that train and provide services for people with disabilities for competitive employment are time-limited and the goals of these programs are out of reach for many people with intellectual and developmental disabilities (IDD). WIOA, the Workforce Innovation and Opportunity Act signed by President Obama in 2014, loosened up some of the requirements for vocational rehabilitation services, but it prioritizes integrated competitive employment above work in non-integrated work settings that may not be suitable for many people with IDD.

Supported Employment Services, are defined in the DD Act (The Developmental Disabilities Assistance and Bill of Rights Act of 2000) for people with IDD as follows:

The term 'supported employment services' means services that enable individuals with developmental disabilities to perform competitive work in integrated work settings, in the case of individuals with developmental disabilities

• for whom competitive employment has not traditionally occurred; or
• for whom competitive employment has been interrupted or intermittent as a result of significant disabilities; and
• who, because of the nature and severity of their disabilities, need intensive supported employment services or extended services in order to perform such work.

Supported Employment is often funded through Medicaid Waivers for people with IDD in integrated settings for at least minimum wage. These services can continue as long as needed, unlike vocational rehabilitation services that are time-limited. These services, however, can be very costly and not suitable for some people with more severe disabilities.

Work programs that hire people with more severe disabilities can obtain special wage certificates under the Fair Labor Standards Act to pay employees less than minimum wage, but commensurate with the individual's abilities and productivity. Wage certificates are threatened with elimination as are the programs that employ people with severe disabilities. The claim that these are inherently discriminatory is belied by the protections in law that make acceptance of these services voluntary and a choice among alternatives for employment.

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See also, The DD News Blog "Fact Sheet on Sub Minimum Wages for People with Disabilities"

Comments needed by 12/15/19.

"VOR's Position on Sheltered Workshops"

The DD News Blog on supported employment

Closure of Vocational Centers: A Threat Against the Significantly Disabled

Matt at work

This is by the father of Matt. Matt has intellectual and developmental disabilities. He loves his job in a vocational center, sometimes known as a sheltered workshop. Why do some people want to take his job away from him?

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An Existential Threat against the Significantly Disabled:
Phase-Out of Vocational Centers (Sheltered Workshops)

By: Harris Capps, November 2019

I am a Parent and Guardian for my son Matthew, who has moderate to severe Intellectual and Developmental Disabilities (IDD), to include autism and cerebral palsy that precludes speaking. He also has behavioral episodes that may range from tantrums to severe meltdowns that could result in injury to himself or others. Just explaining that to you is painful, because his dignity is important to us. He resides in an Intermediate Care Facility (ICF) which provides 24-hour care. He is largely unable to understand how to reason or make decisions. He knows that a dollar will help him go to MacDonald’s, but he has no concept of how many dollars and cents may be required. 

The very existence of Sheltered Workshops for those with Intellectual and Developmental Disabilities (IDD) has been attacked for the first time since the law was enacted in 1938 as a part of the new Social Security Program. Why do higher functioning disabled persons and their lobbying organizations want to deny lower functioning persons, the right to work? If a higher functioning individual can get a job that provides a mandated minimum wage, surely, they already have the minimum wage law in effect to protect them. So, let me tell you a bit more about Matt. 

Matthew loves to go to work at “PERCO”, a vocational Center in Perry County, Ohio. If we call him on Sunday evening and remind him that he gets to go to work the next day, he quite literally jumps up and down and makes sounds of anticipatory delight.

According to his job coaches, Matt is very proud that he accomplishes work and earns a paycheck. Matthew is unable to differentiate the amount of his check… he just revels in the fact that he has earned something of value which allows him to pay for things. If a picture is worth a thousand words, do you think this photo of Matt working conveys dissatisfaction or sadness? 

The following episode tells you the importance of his work. On a Saturday in February 2019, Fran and I got a call from nursing at Matt’s ICF. Matt had made the sign (crossed arms) for “work”. In other words, he wanted to go to work. But his Work Center is not open on the weekends. The direct care worker tried to explain to Matt that the Center was closed. Matt quickly went from a somewhat manageable tantrum to what we call a “meltdown” typically evidenced by his inability to control his emotions, yelling, crying, and in this case, he bit his direct care worker on the arm. The worker had to go to the hospital for treatment.

Supporters of “14 (c) Work Centers know many Myths for phasing-out the Sub-minimum Wage including self-determination. For example, it is simply untrue that “employers across the country are using this waiver to acquire cheap labor”. And, the false assertion that my son is somehow a victim of discrimination, and exploitation. Matt voluntarily attends a sheltered workshop because it fits his capabilities. People with IDD like Matt would never be able to work in “competitive employment” because his measured productivity (monitored by the Department of Labor) is too low, and for what he does achieve, he requires job coaches to teach, encourage and know how to deal with his disabilities.

An article written by David Ordan ["Eliminating subminimum wage waivers will harm hundreds of thousands of people with disabilities" 8/10/18 in thehill.com] said, 

“In 2014, 75 percent of individuals with I/DD receiving day or employment services through a state I/DD system were attending a sheltered or facility-based environment.

This means that efforts to remove 14 (c) subminimum wage certificates are essentially targeting one group, and one group alone: people with disabilities who choose to attend sheltered workshops”. 

He further explains that follow-up studies have shown the failure of closing Work Centers, like in Maine where, over a seven-year period displaced persons not able to obtain employment increased “Day Program” enrollment from 550 in 2008 to 3,178 in 2015.

Mis-informed logic ignores important subjective standards such as empathy, compassion and personal values resulting in treatment of folks like Matt as an individual. In 1938 persons who had just suffered through the Great Depression used not only logic but their values to say that Matthew Matters.

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See more on sub-minimum wage and sheltered workshops from The DD News Blog

WA State Senate: Arguments for and against eliminating special wage certificates for PWD

Sub-minimum wage certificates allow employers to hire people with disabilities for less than minimum wage when disabled employees are not able to work at full capacity equal to their non-disabled peers doing the same job. Special wage certificates are often used to support people in center-based work programs (sheltered workshops) that may also provide an array of other services in addition to employment. When these programs are eliminated for people with more severe and complex disabilities, against their will and over the objections of their families, they often end up working fewer hours or not at all, spending more time at home watching TV or other unproductive activities. The alternative, "supported employment" in competitive integrated work settings, can be very costly and is not always desired by or as satisfying for the person with a disability. 

The video is from a hearing in the Washington State Senate about Senate Bill 5753 proposing to eliminate sub-minimum wage certificates. The arguments, pro and con, are laid out by two Senators with opposing views. Make sure that you listen long enough to hear the testimony of Senator Walsh that starts at around 3 1/2 minutes.

Employment choice for DD includes facility-based workshops

VOR is a national organization that advocates for a full range of services, residential options, and employment opportunities for people with Intellectual and developmental disabilities. This is a position statement from the VOR Website: 

VOR's Position on Sheltered Workshops


By Harris Capps and Joan Kelley

Sheltered Workshops are private non-profit, state, or local government entities that provide employment opportunities for individuals with disabilities. Persons served in this environment may include those with developmental, physical, and/or mental impairments, ranging from mild to extreme/profoundly affected individuals. Sheltered workshops:

• Provide prevocational training, with the goal to prepare for competitive employment for available jobs in the open labor marke. 
• Emphasize support of individual needs, based on ability to choose work activities that fit with a person’s skills 
• Often include additional training in personal care, living skills and developing social skills 
• Honor the depth and scope of the DD population, recognizing that some individuals may not ever be able to be competitively employed 

After completing a rehabilitation program, many individuals are able to leave the workshop environment and enter regular employment, if there is a job available for which they qualify. Individuals unable to obtain regular employment because of the severity of their impairments or unavailability of jobs can remain in the workshop environment. Individuals performing services are paid a fraction of, or up to minimum wage, depending on their capacity to perform the services. [1]

While work is the main focus at facility based programs, sheltered workshops also provide opportunities for people with disabilities to challenge themselves, further their self-esteem and self-confidence, develop friendships and engage in their communities. Because of the supports and protections in place, those with more severe/profound impairments can find success in meaningful and productive activities which may not otherwise be possible for them in mainstream businesses. Sheltered workshops often include adult day services which include personal care, living skills, developing social skills, etc.

Often, individuals with disabilities too severe for sheltered work rely on day programs for community integration and meaningful and constructive activities during the day. These facility-based programs also provide opportunities for building self-esteem, confidence, social skills and friendships so important for both mental and physical health.

Specialized Supports

For those individuals with intellectual and developmental disabilities (I/DD) who enter the competitive workforce, specialized supports are often required to ensure a successful work experience. Proponents of “supported employment” contend that as long as the appropriate supports are in place, the goal of “real” employment should be achievable for everyone with a disability. While this is a laudable goal, society must recognize the pressures that exist in business that are driven by economic issues, deadlines and competition in the market. For many with I/DD, these realities interfere with their ability to maintain competitive jobs long-term and for a full eight-hour workday.

Eliminating Special Minimum/Commensurate Wages

Provisions for Special Minimum Wage Certificates, under the Department of Labor, Fair Labor Standards Act (FLSA) of 1938, Section 14(c), help people with disabilities obtain jobs in a competitive workforce. Employers who receive a certificate from the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) have the ability to pay special minimum wages (below the federal minimum wage) to employees who have disabilities, if the disability affects job performance. [2]

This provision of the FLSA is often inaccurately referred to as offering a “Sub-Minimum Wage” in what appears to be an intentionally derogatory manner to dampen public support for the program. There have been formal attempts to eliminate Special Minimum Wage Certificates altogether One example, H.R. 831, is a bill intended to phase out special wage certificates under the Fair Labor Standards Act.

Efforts to end the provision of special minimum wage certificates could adversely affect individuals with significant and profound disabilities if they are are unable to produce goods at the same rate as less disabled or non-disabled workers. Liability issues, and the additional costs involved with providing necessary specialized supports in the work environment can also become disincentives to hire individuals with the most significant needs. Offering a special minimum wage incentivizes and enables employers to provide employment to individuals with disabilities who may not otherwise be given the opportunity to work.

Why You Should Be Concerned

Many of the taxpayer-funded government agencies and non-profit organizations that disparage Intermediate Care Facilities (ICF’s) as ”isolating” use the same criteria to stigmatize sheltered workshops. They deliberately disregard the importance of sheltered workshops and facility-based day programs to the portion of the I/DD population who depend upon them. These organizations, often taxpayer funded entities, have legislated against sheltered workshops in the same manner in which they have attacked ICF’s, despite the lack of employment opportunities for individuals with I/DD, and the fact that few employers have an incentive or the ability to hire individuals with profound disabilities. Integration into a non-disabled workplace is not the primary goal for all individuals with I/DD, and should not be given precedence over safety, productivity, or a sense of community among one’s peers.

The continued, and many believe intentional, misinterpretation of the Supreme Court’s Olmstead decision permeates numerous policies, including the Work Innovation and Opportunities Act (WIOA), which severely limits work settings and rehabilitation programs for disabled persons. Such policies negatively affect individuals with the most extreme and profound disabilities by eliminating the individual’s right to choose the work environment most appropriate to their unique needs. [3]

In its recently released 13-page Guidance document on Employment [4], the Department Of Justice (DOJ) uses the word “segregated” or “segregation” no less than 40 times when referring to sheltered workshops. At the same time, it picks and chooses selective passages from Olmstead, deliberately ignoring those passages that address the needs of those individuals with disabilities who rely upon higher levels of care. In doing so, the DOJ marginalizes our most vulnerable citizens and even puts them at risk by ignoring warnings that permeate Olmstead’s majority and concurring opinions.

DOJ’s selective interpretation of the Supreme Court Olmstead Decision amounts to an unwarranted attack on the portion of the I/DD population with the most complex need, in that it eliminates the settings that best support them. The DOJ refuses to acknowledge that individual choice is paramount in both residential and employment options, and thereby violates the civil and human rights of vulnerable citizens by refusing to meet the need for a wide range of programs to support that choice. People with significant disabilities deemed not qualified to work would be forced to stay at home, receive no wages, and be denied the tangible and intangible benefits of work.

States Must Stand Up for Their Citizens with I/DD

Families seeking answers when they find their loved one’s sheltered workshop or day program under attack are often told of recent CMS rule changes by state officials. State officials, however, often fail to take advantage of the opportunities CMS provides within the rule changes to allow states to maintain these programs with adjustments.

The Centers for Medicare and Medicaid Services (CMS) makes clear in their guidance that facility based settings are not prohibitedand that states have flexibility in determining what those services look like. In fact, CMS guidance states, “The rule creates a more outcome-oriented definition of home and community-based settings, rather than one based solely on a setting’s location, geography, or physical characteristics.” [5]

CMS’ publication of “HCBS FINAL REGULATIONS 42 CFR Part 441: Questions and Answers Regarding Home and Community Based Services” [6] provides further clarification to the new rules:

Question 4, page 10: “Does the regulation prohibit facility-based or site-based settings?”

Answer: No.

“The regulation requires that all settings, including facility- or site-based settings, must demonstrate the qualities of HCB settings, ensure the individual’s experience is HCB and not institutional in nature, and does not isolate the individual from the broader community. In particular, if the setting is designed specifically for people with disabilities, and/or individuals in the setting are primarily or exclusively people with disabilities and on-site staff provides many services to them, the setting may be isolating unless the setting facilitates people going out into the broader community.”

“We note, however, that states have flexibility in determining whether or when to offer HCBS in facility-based or site-based settings, as the regulation only establishes a floor for federal participation.”

Question 5, Page 10: “Do the regulations prohibit individuals from receiving pre-vocational services in a facility-based setting such as a sheltered workshop?”

Answer: No

“Therefore, a state could allow pre-vocational services delivered in facility-based settings that encourage interaction with the general public...”

“We note, however, that pre-vocational services may be furnished in a variety of locations in the community and are not limited to facility-based settings, and that states have flexibility in determining whether and when to use facility-based settings.”

Question 6, Page 11: “Will CMS allow dementia-specific adult day care centers?”

“The HCBS regulations do not prohibit disability-specific settings... the setting must meet the requirements of the regulation, such as ensuring the setting chosen by the individual is integrated in and supports full access of individuals...to the greater community...”

Question 7, Page 11:“Can a day service that has both HCBS waiver participants and ICF residents provide Medicaid-covered HCBS in an ICF/IID?”

“If the state believes that the setting meets the HCB settings requirements and does not have characteristics of an institution, the state can follow the process to provide evidence and demonstrate that the setting can or will comply with the HCB setting requirements or regulations.”

VOR encourages families to point this guidance out to state officials and hold them accountable for their duty to provide safe and appropriate services for the vulnerable individuals they serve.

Conclusion

• VOR asserts that sheltered workshops and facility-based day programs are also supported employment services, allowing individuals with intellectual and developmental disabilities to pursue their skills and interests in the most integrated setting possible according to their individual needs and capabilities. They provide hundreds of thousands of individuals with productive employment, responsibility, necessary structure and the opportunity to achieve and to measure their own skills and to work toward improving them.
• VOR believes in providing more, not fewer, service options to meet the wide range of intellectual and developmental disabilities. While expanding programming for individuals that can benefit from it should also be pursued, vital existing services that are clearly meeting needs should be retained.
• VOR asserts that programs and services for people with disabilities, whether residential or employment focused, must be based on individual choice, need and capabilities in order to be successful, as stated in Olmstead
• VOR supports supported employment services in community settings for individuals who are capable of working in this capacity and can benefit from these services.

There is a place for both integrated and facility-based employment services, as we as a society provide for the full continuum of care for individuals with disabilities as required by the U.S. Supreme Court Olmstead decision.


[1] Social Security, Program Operations Manual System, RS 02101.270 https://secure.ssa.gov/apps10/poms.nsf/lnx/0302101270

[2] Goodwill Industries, “Employment of People with Disabilities through FLSA Section 14 (c) http://www.goodwill.org/wp-content/uploads/2013/06/Goodwill-14c-Fair-Wages-Position-Paper.pdf

[3] U.S. Department of Labor Wage and Hour Division Fact Sheet #39H https://www.dol.gov/whd/regs/compliance/whdfs39h.pdf

[4] DOJ Statement on Application of Integration Mandate of Title II of the ADA and Olmstead to State and Local Governments’ Employment Service System for Individuals with Disabilities https://www.ada.gov/olmstead/olmstead_guidance_employment.pdf

[5] CMS Fact Sheet: Summary of Key Provisions of 1915(c) HCBS Waivers Final Rule https://www.medicaid.gov/medicaid/hcbs/downloads/1915c-fact-sheet.pdf

[6] CMS, HCBS Final Regulations 42 CFR Part 441: Questions & Answers Regarding HCBS Settings https://www.medicaid.gov/medicaid/hcbs/downloads/q-and-a-hcb-settings.pdf

Massachusetts: Sheltered workshop closures result in less employment and fewer options for DD

Here at The DD News Blog, we have covered the movement to close sheltered workshops  for people with developmental disabilities. These closures have been supported by disability rights advocates who claim that it is a civil rights issue and that services for people with disabilities provided in congregate settings (settings that serve more than 3 or 4 people with disabilities together) are necessarily discriminatory. That the individuals involved in sheltered workshop programs voluntarily choose to work in these settings and need the services they provide, does not seem to matter. As far as these advocates are concerned, they know better and have determined without necessarily knowing the individuals involved that congregate programs are illegally segregating and isolating. More often than not, the legal justification for this is based on a misinterpretation of the 1999 U.S. Supreme Court Olmstead decision interpreting the Americans with Disabilities Act.

Disability rights advocates  have also pushed to eliminate sub-minimum wage certificates for people with disabilities who work at a slower pace than their non-disabled peers or are otherwise unable to cope with integrated, competitive work settings. These certificates issued by the U.S. Department of Labor are often used by sheltered workshops to employ people with developmental disabilities. While abusive employment policies that exploit people with disabilities should not be tolerated, sub-minimum wages allow sheltered workshop programs to continue operating and pay for the services they provide. The people employed usually are eligible for social security and Medicaid benefits that subsidize their living expenses and pay for needed services. For people with DD who want to work in competitive, integrated work settings, supported employment services should be available along with a variety of work options that fit the needs of the individuals involved.

With the elimination of sub-minimum wages and the movement to close sheltered workshops, both reinforce the other and mainly result in reducing employment for people with DD and eliminating options that often work better for people with severe disabilities. 

Here is yet another example of this from the Massachusetts COFAR Blog:

David Kassel at COFAR has been covering a 2013 plan by Massachusetts to close sheltered workshops and to place people with developmental disabilities into the mainstream workforce. The promise made by disability advocates, the Massachusetts Department of Developmental Services (DDS), and corporate service providers was that integrated, competitive employment would be available for people with even the most severe disabilities, eliminating the need for sheltered workshops. As often happens, the promise has yet to materialize, leaving people with disabilities with fewer options for employment.

In “Few people moving from sheltered workshops to ‘integrated’ jobs”, 1/30/16, David Kassel describes the lack of progress toward a policy to move people with DD into integrated employment.

“While the Baker administration appears to be moving ahead with a policy of closing all remaining sheltered workshops for developmentally disabled persons in Massachusetts, records show that relatively few people so far have been transferred from the workshops to the 'integrated employment settings' that are supposed to replace them.

"Confirming our concerns, the data from the Department of Developmental Services show that most of those people have been transferred to community-based day programs funded by DDS or MassHealth.”

According to Kassel, DDS records show that the number of people in sheltered workshops decreased by 61 percent, while the number of people with DD in corporate-run, community-based day programs increased by 27 percent. The number of sheltered workshop providers dropped from 39 to 14.

“In contrast to the increase in day program use, the number of developmentally disabled people in 'integrated employment' settings increased from August 2014 to 2015 by only 337, or about 6 percent…”

Kassel goes on to explain what happened:

“‘Integrated individual employment' is defined by DDS in a 2010 policy directive as 'taking place in a workplace in the community where the majority of individuals do not have disabilities.'  In addition, the policy directive states that the 'optimal employment status is earning the prevailing wage.'

"Many families of the sheltered workshop participants have countered that those [sheltered workshop] programs are fully integrated into the surrounding communities and provide the participants with meaningful activities and valuable skills.  Those families have also raised concerns that there are relatively few integrated or mainstream workforce jobs available for people with developmental disabilities; and that absent a sufficient number of such jobs, former sheltered workshop participants  are likely to be transferred permanently to community-based day programs that do not offer the same activities or skills as the workshops did.”

Funding to transition people into competitive employment was less than requested and it appears that much of it went to providers of community-based day programs.

Kassel concludes that, “The disappearance of sheltered workshops appears to be yet another example of the erosion of cost-effective care for the developmentally disabled due to the influence of corporate interests that stand to benefit financially from it. At the very least, this case shows that a public agency should not develop policies jointly with the corporate contractors that it funds.” 

In “House and Senate not following their own funding plan for employment of the developmentally disabled”, 5/31/16, by David Kassel at COFAR Blog, the story continues: All sheltered workshops in Massachusetts are scheduled to close by June 30, 2016. 

“But the problem is that the Legislature, and to some extent the administration itself, aren’t following through on the policy, which calls for beefing up funding for DDS day programs and job development staffing.  Last week, the Senate joined the House in rejecting higher funding levels considered by the policy planners to be needed by both day programs and employment programs for Fiscal Year 2017.

“…A likely result of this apparent under-funding is that relatively few people will be placed in mainstream jobs, but rather will be sent to potentially overcrowded day programs with inadequate staffing.”

In comments to the state, 

“…the ADDP [the Masssachusettts advocacy group for corporate service providers] maintained that funding for both the community day and work line item and sheltered workshops transfer line items needed to be boosted significantly in order to fulfill the plans to close the workshops and transfer clients to mainstream jobs…

“The ADDP comments also noted that as of October 2015, the number of individuals receiving community based day services more than doubled from 2,656 individuals as of June 2013, to 5,422. While noting that this increase was directly related to the closures of the sheltered workshops, the ADDP stated that the majority of those persons were not receiving any other DDS-funded employment services.

“The ADDP comments also pointed out that DDS day programs require significantly higher levels of staffing than the sheltered workshops did.”

Kassel concludes that, 

“It appears that the only policy the Legislature and the administration have pursued with a real level of commitment has been closing the sheltered workshops. But that’s only half the plan.  The problem with the Legislature, in particular, is that while it bought into the first half of the plan, it now has seemingly abandoned the critically important second half.

“Thousands of people have or will be removed from their sheltered workshops, and the Legislature appears to be leaving an unknown number of them in the lurch.”

Information on Sub-minimum wages for people with disabilities and appeal rights, PART 2

How to file a complaint with the U.S. Department of Labor, Wage and Hour Division regarding sub-minimum wage certificates:

This is a flyer listing the type of information you need to include with your complaint. It states that, "All services are free and confidential, whether you are documented or not. Please remember that your employer cannot terminate you or in any other manner discriminate against you for filing a complaint with WHD."

The complaint should be filed through a local Wage and Hour Division office. Here is a map that shows you where the district offices are located in your state. 

Michigan has two district offices:

Detroit, MI, 48228
211 W. Fort St.
Room 517
TEL: (313) 309-4500

Grand Rapids, MI 49503
800 Monroe Ave., NW
Suite 315
TEL: (616) 456-2004

The Midwest Regional Office that includes Michigan is here:

Midwest Regional Office
230 S. Dearborn Street, Room 530
Chicago, Illinois 60604-1757
Karen Chaikin, Regional Administrator
(312) 596-7180

Here is information on how to make a Freedom of Information Act request from the Wage and Hour Division of the Department of Labor.

If it were me filing a complaint, I would want to know more about the procedures and timelines for filing. People at your local Hour and Wage Division should be willing to answer questions about the investigation and how you proceed with your challenge to a wage certificate. Ask for a copy of the wage certificate that applies to you or where you can obtain a copy of it. 

Reach out to your state Protection and Advocacy Agency for advice and assistance. Here is a map to locate Protection and Advocacy in your state.

You may want to consider requesting changes to your "Individual Plan of Services" (IPOS) by scheduling a Person-centered Planning meeting to discuss alternatives to your current work situation. This may include looking into supported employment services that provide support for working in an integrated, competitive work setting and other alternatives.   

Information on Sub-minimum wages for people with disabilities and appeal rights, PART 1

At its April 5th, 2016 meeting, the Michigan Developmental Disabilities Council will be discussing a recommendation to support amending current state legislation to prohibit the ability under the state law of employers to pay less than the minimum wage to persons with physical or mental disabilities, without regard to an individual’s  productivity and earning capacity.  

The controversy over sub-minimum wages is usually framed as a difference of opinion and ideology between people who believe disabled workers have the same right as everyone else to the protection of minimum wage laws, against those who believe that a subsidy to employers through sub-minimum wage certificates is justified to assure appropriate work experiences. For people who would otherwise not be employable in integrated, competitive work environments,  wage certificates assure the availability of suitable alternatives.

The problem is that the two sides in this argument are talking about different people in different circumstances who cannot be categorized by sweeping generalizations about people with disabilities. Individually, each person with a developmental disability has a right to appropriate services and a right to be protected from discrimination in the workplace. The federal law and regulations as they are now written do both, even though enforcement of the law and how it is interpreted may be open to question.

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Below are references to federal regulations that define under what circumstances employers can apply for sub-minimum wage certificates for people with disabilities. These certificates are used primarily in facility-based programs or sheltered workshops that often provide an array of services beyond employment. Without the wage certificates, many of these programs would not be able to continue operating.

From the Wage and Hour Division of the U.S. Department of Labor:
 
§525.1   Introduction.
 
The Fair Labor Standards Amendments of 1986 (Pub. L. 99-486, 100 Stat. 1229) substantially revised those provisions of the Fair Labor Standards Act of 1938 (29 U.S.C. 201) (FLSA) permitting the employment of individuals disabled for the work to be performed (workers with disabilities) at special minimum wage rates below the rate that would otherwise be required by statute. These provisions are codified at section 14(c) of the FLSA and:

(a) Provide for the employment under certificates of individuals with disabilities at special minimum wage rates which are commensurate with those paid to workers not disabled for the work to be performed employed in the vicinity for essentially the same type, quality, and quantity of work; [emphasis added]
(b) Require employers to provide written assurances that wage rates of individuals paid on an hourly rate basis be reviewed at least once every six months and that the wages of all employees be reviewed at least annually to reflect changes in the prevailing wages paid to experienced individuals not disabled for the work to be performed employed in the locality for essentially the same type of work;
...
(d) Permit the continuance or establishment of work activities centers; and
(e) Provide that any employee receiving a special minimum wage rate pursuant to section 14(c), or the parent or guardian of such an employee, may petition for a review of that wage rate by an administrative law judge. [emphasis added]
 
Definitions:
 
Worker with a disability for the purpose of this part means an individual whose earning or productive capacity is impaired by a physical or mental disability, including those relating to age or injury, for the work to be performed. Disabilities which may affect earning or productive capacity include blindness, mental illness, mental retardation, cerebral palsy, alcoholism, and drug addiction. The following, taken by themselves, are not considered disabilities for the purposes of this part: Vocational, social, cultural, or educational disabilities; chronic unemployment; receipt of welfare benefits; nonattendance at school; juvenile delinquency; and, correctional parole or probation. Further, a disability which may affect earning or productive capacity for one type of work may not affect such capacity for another.[emphasis added]

Special minimum wage is a wage authorized under a certificate issued to an employer under this part that is less than the statutory minimum wage…

Commensurate wage is a special minimum wage paid to a worker with a disability which is based on the worker's individual productivity in proportion to the wage and productivity of experienced nondisabled workers performing essentially the same type, quality, and quantity of work in the vicinity in which the individual under certificate is employed. For example, the commensurate wage of a worker with a disability who is 75% as productive as the average experienced nondisabled worker, taking into consideration the type, quality, and quantity of work of the disabled worker, would be set at 75% of the wage paid to the nondisabled worker. For purposes of these regulations, a commensurate wage is always a special minimum wage, i.e., a wage below the statutory minimum.

Wage payments:

§525.5   Wage payments.
 
(a) An individual whose earning or productive capacity is not impaired for the work being performed cannot be employed under a certificate issued pursuant to this part and must be paid at least the applicable minimum wage. [emphasis added] An individual whose earning or productive capacity is impaired to the extent that the individual is unable to earn at least the applicable minimum wage may be paid a commensurate wage, but only after the employer has obtained a certificate authorizing payment of special minimum wages from the appropriate office of the Wage and Hour Division of the Department of Labor.

§525.9   Criteria for employment of workers with disabilities under certificates at special minimum wage rates.

(a) In order to determine that special minimum wage rates are necessary in order to prevent the curtailment of opportunities for employment, the following criteria will be considered:
 
(1) The nature and extent of the disabilities of the individuals employed as these disabilities relate to the individuals' productivity;
(2) The prevailing wages of experienced employees not disabled for the job who are employed in the vicinity in industry engaged in work comparable to that performed at the special minimum wage rate;
(3) The productivity of the workers with disabilities compared to the norm established for nondisabled workers through the use of a verifiable work measurement method (see §525.12(h)) or the productivity of experienced nondisabled workers employed in the vicinity on comparable work; and,
(4) The wage rates to be paid to the workers with disabilities for work comparable to that performed by experienced nondisabled workers.
 
(b) In order to be granted a certificate authorizing the employment of workers with disabilities at special minimum wage rates, the employer must provide the following written assurances concerning such employment: 

(1) In the case of individuals paid hourly rates, the special minimum wage rates will be reviewed by the employer at periodic intervals at a minimum of once every six months; and,
(2) Wages for all employees will be adjusted by the employer at periodic intervals at a minimum of once each year to reflect changes in the prevailing wages paid to experienced nondisabled individuals employed in the locality for essentially the same type of work.

The issuance of a sub minimum wage certificate review and appeals:
 
§525.18   Review.

Any person aggrieved by any action of the Administrator taken pursuant to this part may, within 60 days or such additional time as the Administrator may allow, file with the Administrator a petition for review. Such review, if granted, shall be made by the Administrator. Other interested persons, to the extent it is deemed appropriate, may be afforded an opportunity to present data and views. [Administrator means the Administrator of the Wage and Hour Division, U.S. Department of Labor, or the Administrator's authorized representative.]

§525.19   Investigations and hearings.

The Administrator may conduct an investigation, which may include a hearing, prior to taking any action pursuant to these regulations. To the extent it is deemed appropriate, the Administrator may provide an opportunity to other interested persons to present data and views. Proceedings initiated pursuant to this section are separate from those taken pursuant to FLSA section 14(c)(5) and §525.22.
 
§525.23   Work activities centers.

Nothing in these regulations shall be interpreted to prevent an employer from maintaining or establishing work activities centers to provide therapeutic activities for workers with disabilities as long as the employer complies with the requirement of these regulations. Work activities centers shall include centers planned and designed to provide therapeutic activities for workers with severe disabilities affecting their productive capacity. Any establishment whose workers with disabilities are employed at special minimum wages must comply with the requirements of this part, regardless of the designation of such establishment.