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Real Jobs for Real Pay: Public Policy and Legal Challenges for Change

Real Jobs for Real Pay: Public Policy and Legal Challenges for Change. Bob Lawhead, Community Link APSE Conference, Cincinnati June 21, 2016. The rise and fall: Supported employment for people with IDD in the U.S. Thirty years of implementation in the U.S.

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Real Jobs for Real Pay: Public Policy and Legal Challenges for Change

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  1. Real Jobs for Real Pay: Public Policy and Legal Challenges for Change Bob Lawhead, Community Link APSE Conference, Cincinnati June 21, 2016

  2. The rise and fall: Supported employment for people with IDD in the U.S. Thirty years of implementation in the U.S. First ten years (1986-1996) resulted in nearly 25% of people with developmental disabilities employed in community settings According to Braddock, Hemp, Rizzolo, Tanis, Haffer & Wu (2015) 81% (377,000) of people served by the states remain stuck in day programs, work activity centers and sheltered workshops Wide differences across states in persons with developmental disabilities employed from 5% (Alabama) to 84% (Washington) Why the wide variance between states? • )

  3. How the top (and bottom) states are performing* Washington 84% Oklahoma 67% Louisiana 48% Oregon 15% Texas 7% Illinois 6% Alabama 5% U.S. 19.2% (23% in 2000) *percentage of I/DD participants in integrated supported employment in the U.S. for FY 2013 according to Braddock, et al. (2015) AGAIN, WHY THE VARIANCE???

  4. U.S. growth and decline in Supported Employment (Braddock, et al., 2015)…while progress has occurred, our advocacy work is not done

  5. Recent developments in the civil right’s arena for people with “MSD” SCOTUS: Olmstead Ruling, 1999 APSE: End sub-minimum wage, 2009 SABE: Employment Policy, 2010 NDRN: End sheltered workshops, 2011 DOJ: Olmstead guidance, 2011 NCD: Report on sub-min wage & SE, 2012 Lane v. Kitzhaber (now Brown), 2012 CMS: HCBS Final Setting Rule, 2014 DOJ: RI settlement agreement, 2014 WIOA Advisory Committee, August, 2015 DOJ: OR settlement agreement, Sept, 2015

  6. Clarence Miller, Colorado’s self-advocate extraordinaire, past APSE presenter “I’m sick and tired of professionals trying to put me in sheltered workshops. Olmstead says people with disabilities have a right to work in the community. This is ridiculous!” (Clarence died January, 2014.)

  7. The right to integrated employment is established by the ADA & U.S. Supreme Court’s Olmstead Ruling Each person utilizing services through state and local government has the right to be served and employed in the “most integrated setting.” The vast majority of states are presently in violation and risk legal action! THIS IS A CIVIL RIGHTS ISSUE!

  8. APSE’s Call to end sub-minimum wages The 2009 statement suggests a gradual phase out of sub-minimum wage to prevent unintended consequences. Movement from segregated work to non-employment day service is not acceptable. Recommends a federal cross-agency task force to systematically eliminate sub-minimum wage and implement a national Employment First Policy (the current WIOA Advisory Committee comes close!)

  9. Constitutional protections also exist • The 14th Amendment’s “equal protection clause” is the basis for Brown v. the Board of Education (1954) which precipitated the end of racial segregation. • Additionally, the “due process clause” of this amendment to the Constitution applies as it provides freedom from undue restraint • Why are we continuing to allow segregation and institutionalization during a person’s day?

  10. Chester Finn on Employment “Other groups fighting for their civil rights would not stand for separate places. Neither should we!” (SABE, 2010)

  11. SABE USA Policy on Employment 2010 “SABE calls for equal employment opportunities for equal pay for all people. SABE calls for immediately, no new people can go into sheltered workshops.SABE calls for immediately, no new people can go join an enclave.SABE calls for ending sub minimum wage in 2012.SABE calls for ending enclaves in 2014.”

  12. NDRN’s Segregated and Exploited: 2011 Curt Decker of the NDRN opened a scathing report of the damage done to people by sheltered workshops: • “For the past several decades, activists and advocates for disability rights were complacent in our silence. The National Disability Rights Network, included. • Sheltered workshops are not what they promise to be, and sometimes serve as an unsettling example of how good intentions can lead to terrible outcomes.”

  13. NDRN’s Segregated and Exploited: 2011 • “Unfortunately, sheltered workshops and the sub-minimum wage still exist today because of self-interested employers and systematic neglect by federal agencies…” • “Simply put, sheltered workshops are just another institution segregating people with disabilities away…” • NDRN became the first national organization* to call for closure of sheltered workshops *with apologies to the NFB & Dr. Jacobus tenBroek

  14. DOJ Olmstead TA Guide: 6-22-11 “Even in times of budgetary constraints public entities can often reasonably modify their programs by re-allocating funding from expensive segregated settings to cost-effective integrated settings.” Persons who are “unnecessarily segregated” include “individuals spending their days in sheltered workshops or segregated day programs.” Olmstead remedies include provision of supported employment services. http://www.ada.gov/olmstead/q&a_olmstead.htm

  15. Oregon’s Lane vs. Kitzhaber (Brown): 2012 Suit filed by Paula Lane and 7 other self-advocates against Governor John Kitzhaber Granted class status and joined by DOJ State must develop sufficient supported employment so people can receive services in the most integrated setting through funding shift from segregated employment to integrated employment This led to the E.O. 15-01, (Feb, 2015) a date-specific, outcome-based plan to expand supported employment and the DOJ settlement agreement last September

  16. National Council on Disability: 2012 “No person with a disability should be discriminated against in an employment setting by paying less than the minimum wage available to all other citizens.” Sub-minimum wage should be phased out and supported employment expanded nationally. Found that sheltered workshops are ineffective at transitioning individuals with disabilities to integrated employment. Supported employment services costs lower than sheltered workshop service.

  17. DOJ’s Motion to Intervene in Lane: 2013 Specifically identifies that transition programs must comply with “most integrated setting standard.” Cites Rob Cimera’s work indicating proof of reduced costs associated with supported employment. States that OR actions constitute illegal discrimination under Title II of the ADA. Cites that group employment situations: “generally lack non-disabled co-workers, work only with other members of the group, are typically not employees of the businesses, and often earn below minimum wage.”

  18. CMS HCBS Final Setting Rule: 2014 CMS wants consistency between their day and employment setting guidance and Olmstead as well as recent DOJ/ODEP action. Requires five year plans for states to implement integrated settings and self-direction The CMS 1915 (c) Waiver Technical Guide (January, 2015) core definition for group employment states it should lead to integrated employment at minimum wage, paid by the employer

  19. DOJ’s Eve Hill, who oversaw the probe of Rhode Island’s discriminatory practices “Unfortunately, the exploitation and tyranny of low expectations we found are an all-too-common result of the segregation of people with disabilities. That is why we at the Department of Justice will continue to work hard to fight this type of discrimination.”

  20. DOJ settlement agreement in RI: 2014 First comprehensive statewide settlement the right to receive services in the community, rather than in segregated sheltered workshops and facility-based day programs. Redirects funds currently used to support services in segregated settings to those that incentivize services in integrated settings. Supported employment placements should not be in group enclaves or mobile work crews (according to comments made by Jocelyn Samuels of DOJ).

  21. WIOA Committee’s Interim Report, 2015 • Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities runs until September, 2016 • Advises US DOL on expanding employment for people with IDD and other significant disabilities • Initial recommendations include: phase out the14 (c ) (sub-minimum wage) program • Use evidence-based practices: SE & CE • Provide consistent definitions for employment outcome data

  22. WIOA Committee’s Interim Report (cont.) • Advise states on use of braided/blended funding • Make federal funds available for state efforts to move from segregated to integrated employment • Use of only integrated transition settings • Build provider capacity through national standards for training and technical assistance • Recommends Ability One reform • See the full Interim Report at: http://www.dol.gov/odep/pdf/20150808.pdf

  23. Bottom line: 3 essentials for the states States must commit to systems change: 1) Clear Employment First policy and commitment by leadership to state employment resource rebalancing 2) Adequate technical assistance and training to assure evidence-based services and supports, and to provide an understanding by all that people with disabilities, including people with “MSD” have unrealized employment potential 3) Effective rate structures with cost-covering fees and incentives for performance

  24. What you can do to expand integrated employment opportunities in your state Support self-advocates/families to obtain information on customized employment Inform your state public policy makers: have them consider Employment First legislation Build partnerships with advocacy groups like SABE/People First, TASH, APSE, ADAPT, your P & A, and your State’s DD Council and consider an Olmstead-based complaint: ADA.complaint@usdoj.gov Stay connected with APSE for state-level public policy strategies… and watch for local demonstrations where you may hear…

  25. “What do we want?” • “REAL JOBS!” “When do we want it?” • “NOW!”

  26. References Braddock, Hemp, Rizzolo, Tanis, Haffer, & Wu (2015). State of the States in Intellectual and Developmental Disabilities, 2015 The Coleman Institute, University of Colorado. Cimera, R. (2014). Is Supported Employment a Good Investment? Or Are Sheltered Workshops Cheaper to Operate? CPSD Ruderman Fellow Issue Brief. Collaboration to Promote Self-Determination. Finn, C. (2010). A letter about employment from Chester Finn, President of SABE. Retrieved June 23, 2014 from: http://www.sabeusa.org/resources/policy-statements/a-letter-from-chester-finn/ Hill, E. (2014). Eve Hill Delivers Remarks on the Americans with Disabilities Act. Retieved June 23, 2014 from: http://www.justice.gov/crt/opa/pr/speeches/2013/crt-speech-130613.html ACICIEID (2015). Interim Report. Retrieved November 28, 2015 from: http://www.dol.gov/odep/pdf/20150808.pdf

  27. Contact: Bob Lawhead 720-641-5141 rlawhead@communitylinkcolorado.org

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