Supported Employment : Is it Cost Effective for People with Severe Disabilities?

This is the definition of Supported Employment services as defined in the federal Developmental Disabilities Act:
 
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 funded by a variety of sources that have their own eligibility criteria, including Vocational Rehabilitation. People with developmental disabilities are more likely to have funding through Medicaid Waivers that provide ongoing rather than temporary support for employment.
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There is growing momentum to move people with disabilities from sheltered workshops (facility-based work programs) into integrated work settings. In these regular work settings, people with disabilities work beside their non-disabled peers, making minimum wage or better depending on the job. Proponents of supported employment contend that as long as appropriate supports are available and the person with a disability is in the right job, the goal of “real” employment should be achievable by everyone with a disability who wants to work.

My experience with having two sons with profound physical and intellectual disabilities makes me skeptical of the idea that “real” employment is possible for all. I am not convinced that employment in competitive, integrated settings is a matter of choice unrelated to the severity or nature of the individual’s disability. For many people with severe disabilities who enjoy working and receiving a paycheck, whether or not they understand the value of money or the idea of work in any abstract way, a job in a group setting with other people with disabilities may be more satisfying and fulfilling than a job in a competitive work environment. For others like my sons, there are activities other than employment for pay that are more appropriate and that bring real pleasure and benefit to their lives.

One of the arguments made by advocates of supported employment is that it is cost effective, meaning that the costs of funding the supports necessary for people with developmental and other disabilities to work in competitive, integrated employment is more than offset by the economic benefits that accrue to disabled employees and taxpayers.

In the 1990’s there were similar efforts to promote supported employment for people with even the most severe physical and cognitive disabilities in integrated work settings. Then, as now, there was money to promote the idea and advocacy groups encouraged people with disabilities and their families to consider supported employment. I remember attending a meeting of parents at my sons’ school with the director of our local advocacy organization who believed that everyone could work and be successful in integrated settings. In all earnestness, he said “Anyone who can move at least one muscle group can work at a paying job.” My first thought was, what if the person moving “at least one muscle group” was not aware that what he or she was doing was considered “work” by someone else?

On other occasions, where advocates promoted supported employment, we watched videos and listened to heartwarming stories of people who were set up with all kinds of devices and help that allowed them to perform work. If they had cognitive disabilities that slowed them down or made the work more difficult, they had job coaches to help them complete tasks and make sure that the job got done in a satisfactory manner.

Eventually, it seems the effort to place people with significant disabilities in jobs lost momentum because of the expense of providing the necessary supports and perhaps by a loss of interest in a project with unrealistic expectations for many people with such severe disabilities.

Employment First!

The current push to employ people with disabilities, generally called “Employment First!”, calls for sweeping reforms in how and where people with significant disabilities are employed. These reforms are supposedly supported by studies and other evidence that show we have been wasting our time and resources on programs like sheltered workshops that don’t result in “real” jobs at competitive wages.

Based on my long memory and the practical implications of closing programs that many people with disabilities and their families need and want, I have reservations about the future success of Employment First!, including whether  it will prove to be cost effective. Among several papers that I read on supported employment, one was a literature review that appeared to be the most comprehensive, in that it looked at a variety of studies of employment programs for different populations of people with disabilities over a period of more than a decade.

The paper is called, “The economics of supported employment: What new data tell us” by Robert Evert Cimera at Kent State University. It was published in the Journal of Vocational Rehabilitation in 2012.

The abstract seems to provide evidence that supported employment is cost-effective and beneficial to employees and taxpayers:

"Abstract. This paper reviews the literature on the economics of supported employment. By comparing results from research conducted prior to, and after, 2000, several important findings were identified. The first was that individuals with disabilities fare better financially from working in the community than in sheltered workshops, regardless of their disability. This is especially true given that the relative wages earned by supported employees have increased 31.2% since the 1980s while the wages earned by sheltered employees have decreased 40.6% during the same period. Further, supported employment appears to be more cost-effective than sheltered workshops over the entire 'employment cycle' and returns a net benefit to taxpayers."
 
Cimera is a proponent of supported employment, but like any reputable academic researcher and author, he includes both negative and positive findings in his work. His conclusions are tempered by caveats that need to be considered along with the apparently good news about supported employment.

Anyone who reads this paper will find numerous references and much to think about. I am going directly to the caveats that the author has placed like land minds in his paper, because I don't want you to miss them. They really are the most important feature of this work. The future of employment programs for people with needs as diverse as those with developmental disabilities is too important to leave out stipulations that tend to deflate some of the overblown rhetoric of advocates promoting supported employment.

The conclusion that I draw from the work of this author is that a one-size-fits-all approach does not work for people who need a full range of employment options and other programs to assure that they get what they need.

These are the issues that the paper addresses:

(page 111) Do “real” jobs provide a livable wage for people with disabilities? 

“Although, research has consistently shown that supported employment produces more monetary benefits than costs, there is an important caveat to this finding.

“While the wages earned by supported employees rose continuously over the years and are significantly higher than what can be expected in sheltered workshops, supported employees are still making wages that will not keep them out of poverty…more needs to be done to develop positions in the community for supported employees that pay a livable wage.”

(pages 114 – 115) Are supported employees cost efficient regardless of disability and the presence of secondary disabilities?

 “…supported employees, in general, appear to be cost efficient regardless of their disability and the presence of secondary disabilities. Nonetheless, there are three important caveats to these findings.

“The first is that supported employment is only cost efficient in relation to sheltered workshops. That is, if the savings from not funding sheltered workshops were taken out of the equation, every study reviewed here would have found that supported employment had greater costs than benefits to the taxpayer. Therefore, if the cost-efficiency of sheltered workshops improved or sheltered workshops were no longer an alternative program, the cost-efficiency of supported employment would decrease.

“The second caveat is that research has found that certain populations of supported employees may not be cost-efficient in some states. …This raises  the question of why. What makes some state and localities more cost-efficient at  providing supported employment services than others? It also raises the question, “Are there other disabilities (e.g., ASD [Autism Spectrum Disorder] or TBI [Traumatic Brain Injuries]) that are not cost-efficient to taxpayers in some states?” Future research will need to address both of these issues.

“Finally, supported employment is only cost-efficient from the taxpayers’ and worker’s perspectives if supported employees become employed in the community. Unfortunately, rates of employment among people with disabilities remain low. Only 33.5% of individuals seeking services from vocational rehabilitation become employed by the time their cases are officially closed...  Quite simply, this figure has to be increased. The more people with disabilities who become gainfully employed within their communities, the greater the benefits to them and the taxpayer.

“…Moreover, the comparisons between sheltered and supported employment are based upon the populations of individuals presently being served by both programs. It may be that there are individuals with certain disabilities, or combination of disabilities, who are served primarily by sheltered workshops and not supported employment. In other words, perhaps there is a “creaming effect” where the most competent workers go into supported employment while those with more limited skills and challenging behaviors enter sheltered workshops. Additional research needs to determine if there are populations who are served more cost-effectively in segregated programs.”

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In other words, supported employment programs are economically cost-effective except when they aren’t.

Does Closing Sheltered Workshops Increase Supported Employment for People with DD? Not Necessarily !

Supported employment services are defined in the federal Developmental Disabilities Act: 
  
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.

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There is a national movement to employ more people with disabilities in competitive, integrated work settings where they can work side-by-side with non-disabled employees and make the same wages for the same work. This is a reasonable goal for most people with disabilities and a welcome change from an assumption that people with disabilities are unemployable in regular work settings. At the same time, there is a push to close facility-based work programs (sheltered workshops) that serve people with more severe disabilities. These specialized settings often offer other services and social opportunities that are not available elsewhere. 

The Michigan Developmental Disabilities Council is considering supporting legislation that could eliminate the use of “subminimum wage certificates” that allow employers to pay people with disabilities less than minimum wage if the individual is not as productive as non-disabled workers doing the same job. These certificates are issued by the U.S. Department of Labor to provide incentives to employers to hire more people with disabilities. 

In Michigan, most of the subminimum wage certificates go to sheltered workshops. Without the use of these certificates, it is likely that sheltered workshops would eventually be driven out of business. There are no suggestions that I know of from advocates who want to get rid of the subminimum wage that these be replaced with other incentives or subsidies to keep facility-based programs open. The elimination of subminimum wages is essentially another way to close sheltered workshops. The only option for employment for people with DD would be supported employment in competitive, integrated work settings, a scenario that is unlikely to work for people with more severe disabilities.

Evidence from Michigan and other states where sheltered workshops have closed do not support the idea that people with DD who need and want employment will be able to find jobs when the only option is supported employment. In some cases, unemployment among people with DD has increased and the percentage of people using supported employment services has decreased after sheltered workshops have closed.

Ottawa County, Michigan, is feeling the impact of closing a sheltered workshop. Kandu, a popular nonprofit organization that trained and hired adults with disabilities, cognitive impairments or other barriers to employment, ceased operations in August of 2015. Of the 681 people with developmental disabilities served by Ottawa County Community Mental Health, 170 worked at Kandu.  96% of those employed in sheltered workshops in Michigan worked more than 14 hours per week for an average wage of $2.50 per hour. 

At meetings with the local Community Mental Health agency, it was agreed that integrated employment should be a priority, but families questioned whether this option was feasible for all, based on these factors:

• The availability and affordability of supports that enable a person to work
• Sufficient employers able and willing to create jobs and pay at least minimum wage
• The actual ability of a person to perform a job function

The community is divided between those who agree with a philosophy that presumes that everyone is employable and a concern that eliminating the subminimum wage and closing sheltered workshops will reduce the opportunities available to people with DD to be employed.

Maine

In 2008 a law went into effect to increase supported and integrated employment for people with disabilities. The law also phased out the use of sheltered workshops. The CHIMES Foundation and The George Washington University issued a report on the experience of people with significant disabilities who were employed by sheltered workshops as well as providers who formerly operated sheltered workshops in Maine. 

The key findings in the report, "Transitions: A Case Study of the Conversion from Sheltered Workshops to Integrated Employment in Maine", included:

• People who had been employed in sheltered workshops have seen their hours worked per week decline.  2/3rds of those previously employed are no longer employed and those who are working earn less per week because of the reduction in the number of hours worked. 
• In 2008, the year Maine Public Law Chapter 101 went into effect, 39.5% of people with disabilities were employed.  That number dropped to 34.1% by 2012.
• Sheltered workshops in Maine were employing 558 people with Intellectual and Developmental Disabilities (IDD) in 2001.  There were no people employed in sheltered workshops in 2010.  The number of people with IDD who were served in integrated employment in Maine also declined during the years from 2001 to 2014.
• Employment data for people with intellectual disabilities in Maine show an average of only 12 hours worked per week in 2011, the lowest in the nation.
• After the passage of the law, non-work placements increased dramatically from 550 to 3,178.
• Level of disability was one characteristic commonly cited as a factor impeding placements for some people who are no longer employed.

Washington State

The Center for Health Care Strategies September 2012 Report (on page 17) includes experiences with “Employment First” in  Washington State. This was part of an effort to “...focus all publicly-funded resources for persons with I/DD to finding and keeping paid employment in the real world as opposed to sheltered workshops or recreational activities like bowling or excursions to the mall. Although the state continues to fund support staff for sheltered workshops, it is phasing them out in favor of finding their clients jobs in places like Fred Meyer, Starbucks, and PETCO.”

According to the report: 

• In 2008 Washington spent roughly $50 million on employment-related services for people with developmental disabilities. Some 3,700 beneficiaries currently hold paying jobs, but most of these individuals are relatively high-functioning; among those with more severe disorders, only 17 percent have found work (30percent in Seattle).[emphasis added] In part, this can be attributed to the  recessionary job market when prospective employers can typically select from a surfeit of applicants, many of whom are overqualified for the position.
• At the same time, many families of adult children with I/DD are asking whether the state is going too far in believing that people who have difficulty communicating or using the bathroom will be able to find and keep a job. After repeated objections, the state softened its position somewhat and allows beneficiaries who have made no progress in finding employment after one year to be eligible for publicly-funded recreational activities instead.

Vermont
 
The disability news website Disability Scoop featured a somewhat misleading article on closing sheltered workshops in Vermont, “A Bet On Inclusion Pays Off” by Chris Serres of  the Star Tribune [Minnesota] on 12/16/15.

According to the article:
 
"In 2002, Vermont became the first state to stop funding sheltered workshops. The state also ended the practice, still common in other states, of using Medicaid to subsidize group homes for people with disabilities.

"Instead, the state sends money directly to clients with disabilities for services of their choosing, such as job coaching and transportation.

"Today, Vermont leads the nation in almost every measure of workplace inclusion. Vermonters with intellectual disabilities are twice as likely to find jobs in the community as their counterparts in other states. Nearly 40 percent work in the community alongside people without disabilities, compared with 13 percent in Minnesota, for example.
…

"The 'Vermont model' of supported employment has thrived. Within three years, 80 percent of the employees at the state’s last sheltered workshop had found paying jobs. It has the highest rate of community job placements for clients with developmental disabilities; in 2013, its rate was nearly six times the national average."

To be fair, the article also catalogs abuses in Vermont's sheltered workshop programs. It exposes a dark side of the provision of services to vulnerable people with disabilities when providers and state and local agencies are not held accountable for abuses that occur under their supervision.

A quick look at Vermont’s record on supported employment as reported in the "UCP [United Cerebral Palsy] Case for Inclusion 2015" tells a different story. The percentage of people with Intellectual and developmental disabilities (ID/DD) in supported employment has decreased since Vermont closed its sheltered workshops:

A graph tracking supported employment shows these figures:

2004   43%
2006   48%
2009   38%
2011   35%

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Conclusion:

Efforts to increase competitive employment for people with DD in integrated settings should not be expected to offset the need for specialized employment services based on the severity and nature of an individual's disability. "Robbing Peter to pay Paul" (or in this case, closing sheltered workshops to fund more supported employment),  is never a good policy decision when it comes to people with needs as diverse as those with developmental disabilities.

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

Update on WCHO vocational programs

See update here.

Developmentally disabled consumers in vocational and skill-building programs in Washtenaw County can expect these programs to continue, although some consumers receiving supported employment services will be working through another provider.

At the November 17, 2009 meeting, the Washtenaw Community Health Organization (WCHO) Board voted to discontinue the contract with CHS, a provider of supported employment services, and reassign consumers receiving supported employment services to Workskills, another supported employment provider, and Community Supports and Treatment Services (CSTS). The CSTS skill-building programs (day programs and PACE groups) will continue as is. No consumers will lose vocational and skill-building services.

The programs provided by CSTS were threatened earlier in the year by drastic lay-offs and cuts by the Washtenaw County Board of Commissioners in order to plug a $30 million hole in the county budget. The County renegotiated labor contracts with county employee unions, saving $5.2 million over the next two years and 120 - 150 county jobs at CSTS.

The WCHO, which contracts for services from CSTS, will be able to fund the vocational and skill-building programs by consolidating some programs and using increased Medicaid funding from the federal government.

All three of the supported employment service providers (CSTS, Workskills, and CHS), had few complaints from recipient rights or customer services, but CHS is having serious financial problems. [It was noted at the meeting that there have been complaints about the choice of jobs available through supported employment programs.] The WCHO Board decided that the option of maintaining the contract with Workskills and CSTS would least disrupt consumers and still be cost-effective.

Changes are expected to be implemented by March 1st, 2010, which will allow time for adequate communication and negotiation with providers and adjusted work at CSTS.

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

Proposals to raise the minimum wage for all workers may leave some workers with disabilities struggling with unintended consequences

The federal Raise the Wage Act was introduced in the last Congress in an effort to eventually raise the minimum wage to $15 per hour for all workers, including those with even the most severe disabilities. This has apparently been reintroduced as H.R. 603 and S. 53 and included in The American Rescue Plan. Besides raising the minimum wage for all workers, It would eliminate special wage certificates for people with severe disabilities. These 14(c) special wage certificates are authorized by the Fair Labor Standards Act and allow work centers (formerly called “sheltered workshops”) to pay workers less than minimum wage when their level of productivity prevents them from being competitive in the general workforce. These specialized work centers provide opportunities and special accommodations for people who would otherwise be unable to compete for jobs.

Elimination of the 14(c) wage certificates would ultimately lead to the closure of work centers that thousands of workers with intellectual and developmental disabilities (IDD) and their families rely on for meaningful employment and other benefits of a specialized work environment that accommodates the needs of people with the most severe disabilities. Although this has often been framed as a civil rights issue, no one is compelled to accept employment at a work center and the law provides protections for workers and requirements for employees designed to prevent exploitation. [See Fact Sheet on The Employment of Workers with Disabilities at Subminimum Wages]

In a recent news update, ACCSES, an organization representing providers of disability services, provides details of the Raise the Wage Act  and follows these with comments on the parts of the legislation affecting workers with disabilities:

“Before moving on to other news, we want to pause for a moment and talk about 14(c). At ACCSES, we see 14(c) as part of a continuum of paid work opportunities that increase options for people with the most significant disabilities. Neither this bill, nor others introduced in the past, will lead directly to more employment for individuals working under a certificate. It is not a binary choice. Rather, for many, it will eliminate an option that is highly valued and regularly coupled with other services, including competitive employment, which often provides for only a few hours of work per week.

“A great deal of energy is devoted to trying to eliminate 14(c). Imagine if all of that collective attention were repurposed to reducing the need for 14(c) by focusing instead on closing the vast competitive employment gap for individuals with disabilities, expanding options, educating commercial and nonprofit employers generally of the tremendous workforce available to them, finding legislative solutions that encourage more employers to hire people with the most significant disabilities, increasing funding for supported employment and customized employment, increasing funding for social enterprise models and apprenticeship programs, recognizing disability service providers as the foundation of the disability service system (including employment) rather than trying to exclude them or dismiss their incredible depth of knowledge and experience, and most importantly, honoring the legitimate choice of individuals to have the job they want. This could lead to more positive results than simply eliminating 14(c) and forcing people into unpaid work, day support programs (which is a perfectly fine choice for individuals and already available as an option) or leaving individuals with few options at all other than being at home. This pandemic has shown many of us how difficult it is to be isolated at home away from our communities for long periods of time. Moreover, it has underscored the trauma of job loss, which should not be overlooked.

“At no time has the federal government conducted an actual study as to what has happened to individuals in states where 14(c) has been eliminated as a work payment choice. A true, unbiased study should be undertaken as a first step before any movement to eliminate 14(c) or limit its use, as it will highlight where attention for positive change should be focused. There are numerous ancillary concerns that must be taken into consideration – social security asset limits, transportation, the unemployment rate generally as well as specifically in the most rural parts of our country, the movement toward robotic solutions for businesses, jobs leaving the U.S., and the economic impact on families of eliminating an option that is providing a source of consistency and community, etc. Taking a paid work opportunity from people who take pride in their work will not by itself lead to more paid employment options or opportunities. This is a complex issue, and it will take getting everyone around the table to sit down with open minds to come up with good ideas to increase opportunities, not to just take away an option. A solution that will deny some individuals the dignity of work or that denigrates their jobs is the ultimate demoralizer. This is what keeps us up at night."

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More on specialized work centers, sub minimum wages, and supported employment from The DD News Blog.

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

MI DD Council to consider elimination of sub-minimum wage for DD

I want to personally encourage the public to participate in this discussion of the issue of sub-minimum wages, their affect on people with DD, and the availability of appropriate programs and services to meet the diverse needs of the DD population. The DD Council will be taking up this issue at the April 2016 meeting. To give the public and especially individuals with DD and their families a chance to weigh-in, the council anticipates hearing from people during the public comment period and will also accept written comments that will be distributed to council members for their consideration. The DD Council always schedules time for public comments at their meetings and welcomes public participation.

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The Michigan Developmental Disabilities Council wants to hear from you on the issue of sub-minimum wage certificates and whether the DD Council should support amending current 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, regardless of an individual’s  productivity and earning capacity. For people with DD, sub-minimum wage certificates are used primarily by employers for sheltered workshops (facility-based employment or skill-building services). [For more information, see below.]

The DD Council will be considering this issue at its next meeting on:

Tuesday, April  5th,  2016
10:45 am to Noon
at the Lewis Cass Building,
320 S. Walnut Street between Washtenaw and Kalamazoo
Lansing, MI
This is a new location for the DD Council.

The opportunity for public comment is usually at the beginning of the meeting. The exact wording of the recommendation before the council may change slightly, but the main idea is the same as stated above. If you plan to attend public comment, please notify Dee Florence at FlorenceD1@michigan.gov or (517) 284-7293 by Thursday, March 30, 2016.

Send written comments to Yasmina Bouraoui at bouraouiy@michigan.gov or Dee Florence at FlorenceD1@michigan.gov by Friday, April 1st, 2016. These will be distributed to DD Council members.

MORE INFORMATION:

What are sub-minimum wage certificates?

The federal Fair Labor Standards Act currently allows employers of people with disabilities to apply for “authorizing certificates” from the U.S. Department of Labor to pay special minimum wages (SMWs) “to workers with disabilities whose productive and earning capacities are impaired for the work being performed.”

“An SMW must also be a commensurate wage, based on the individual productivity of the worker with a disability (no matter how limited) in proportion to the productivity of experienced workers who do not have disabilities that impact their productivity when performing essentially the same work in the same vicinity.”

For people with developmental disabilities, wage certificates are used primarily by sheltered workshops (facility-based employment or skill-building programs) as an incentive to hire people who might otherwise not be employable. These facility-based programs often provide an array of services beyond employment. Without the wage certificates, many of these programs would not be able to continue operating. In integrated Supported Employment work settings, disabled workers receive at least minimum wage along with support services; the wage certificates are not used.

The DD Council staff determined that states may pass legislation eliminating the use of wage certificates by employers for people with developmental disabilities and looked into the feasibility of doing so. See Staff Report here.

For more information on the effect of eliminating the choice of facility-based employment, especially for people with more severe disabilities, with the primary alternative being integrated supported employment, see The DD News Blog.  APSE, The Association of People Supporting Employment First, supports phasing out the use of facility-based work programs in favor of integrated, competitive employment for all.

Oregon: Settlement of lawsuit will cut sheltered workshop placements

Update:

Oregon : Fairness Hearing scheduled on settlement agreement in Sheltered Workshop case

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This is from Disability Scoop, September 9, 2015:

"Settlement Calls for Cuts to Sheltered Workshops" by Shaun Heasley

Over 1,000 people with developmental disabilities will be able to leave sheltered workshops for competitive employment under a proposed settlement in a first-of-its-kind class-action lawsuit.

The U.S. Department of Justice said Tuesday that the state of Oregon has agreed to cut the number of adults working in sheltered workshops by nearly 400 and reduce hours worked in such settings by almost a third in the next two years.

Meanwhile, the state will provide 1,115 adults with developmental disabilities who are currently employed in sheltered workshops as well as 4,900 individuals with disabilities ages 14 to 24 with supported employment services so that they can obtain competitive employment over the next seven years.

The settlement comes in a 2012 case brought against top Oregon officials by residents with developmental disabilities and their advocates who alleged that the state violated the Americans with Disabilities Act by failing to provide supported employment services.
....
In 2013, the Justice Department intervened in the case, now known as Lane v. Brown, and helped to broker the settlement agreement reached this week.

Read more… 

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There is more to this story... 
(from the VOR Weekly News Update, 9/18/15)
 
Most of the news articles describing the settlement of LANE, et al. v. BROWN, et al., [United States District Court Case No. 3:12-cv-00138-ST] refer to sheltered workshops or center-based work programs for people with disabilities only in pejorative terms. According to most of the media coverage, the existence of sheltered workshops force disabled people into menial, below minimum wage, jobs and isolate them from the rest of society.

For people who cannot work successfully in  integrated work settings, workshops provide jobs without the pressure of competing at the same level as those without disabilities. Individuals are paid based on how productive they are and usually receive other government benefits to supplement their incomes. These work centers often provide other services and socialization for people who would otherwise not have appropriate activities available to them. They also allow family caregivers to hold down jobs and otherwise live a more normal life outside of their care giving responsibilities.

For more on the unintended consequences of limiting access to these services, see The DD News Blog, including videos of interviews with people who work in sheltered workshops and their families.

The Disability Scoop article notes that a Justice Department fact sheet on the settlement says that the goal is not to shutter sheltered workshop placements, but to ensure that “those who want to work in integrated settings have a realistic opportunity to do so.”  The proposed settlement, however, has very clear guidelines setting arbitrary goals of reducing the number of people employed in sheltered workshops.

An article from Oregonlive.com, states that The United Cerebral Palsy Association of Oregon and Southwest Washington, along with eight individuals, sued the Governor of Oregon and top Department of Human Resources managers with the aim of putting an end to sheltered workshops.

In addition, there are no guarantees that people trained for supported employment in integrated settings will actually find or hold jobs, or that the state will allocate sufficient funding for these services.

The proposed settlement must be approved by U.S. District Court Magistrate Judge Janice M. Stewart:

"After notice to all class members, the Court will conduct a fairness hearing pursuant to Fed. R. Civ. P. 23(f) to decide whether the Agreement is a fair, adequate and reasonable resolution of the claims of the plaintiff class..."

We assume that information about when the fairness hearing will be held will be announced later. This is likely to be the only opportunity that individuals and their families who need and value sheltered workshop services will have to express their opinions about the details of the proposed settlement and how they will be personally affected. Without the representation of people who need sheltered workshop services in the negotiating process in class action lawsuits, there is no assurance that their individual rights to appropriate services will be protected. Their rights under the Americans with Disabilities Act as interpreted by the US Supreme Court Olmstead decision to “integration appropriate to the needs of the individual” and choice are also in jeopardy. [See “The Olmstead Decision has been Misinterpreted” from VOR.]

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More links to information at Disability Rights Oregon
U.S. Department of Justice Fact Sheet 
The Settlement Agreement