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.