National Disability Policy – Initiatives Impacting State Use Programs

1. National Disability Policy – Initiatives Impacting State Use Programs SUPRA 17th Annual Conference The Saguaro Scottsdale January 14, 2015 – Scottsdale, Arizona

2. THE FUTURE OF DISABILITY PROGRAMS Will the Emerging Disability Policy Framework Support a Full Array of Options and Opportunities for Individuals with the Most Significant Disabilities?

16. Washington State Auditor’s ReportJuly, 2013

19. Washington State Auditor’s ReportJuly, 2013 • Consumers in Employment First cannot supplement work hours with other day services • Can supplement work hours with in-home personal care and respite • Average work hours = 11 hours/week • Average personal care & work = 20hours/week • Average wage just over minimum wage • Other than work hours, limited community activity

20. USING THE EMERGING DISABILITY POLICY FRAMEWORK TO DESIGN AND IMPLEMENT STATE SYSTEMS OF OPTIONS AND OPPORTUNITIES • Key values, principles, and policies included in EDPF • Heterogeneity of the population • Continuum of services and supports needed • ADA/Olmstead • Workforce Innovation and Opportunities Act (WIOA) • Section 14(c) FLSA • Medicaid HCBS Prevocational Services • Medicaid HCBS Community Setting • Medicaid Managed Care • People Expressing their Needs and Desires

21. The Goals of Disability Policy • Equality of Opportunity • Full Participation • Independent Living • Economic Self-Sufficiency

22. Goal 1: Equality of Opportunity • Individualization • Genuine, effective, and meaningful opportunity • Most integrated setting appropriate to meet an individual’s needs

23. Goal 2: Full Participation • Self-determination • Person-centered planning • Informed Choice • Empowerment

24. Goal 3: Independent Living • Legitimate outcome of public policy • Independent living skills • Long-term services and supports • Benefits counseling and cash assistance with work incentives

25. Goal 4: Economic Self-Sufficiency • Legitimate outcome • Work is valued for individual and society • Highest possible wage • Employment-related services and supports • Benefits counseling and cash assistance with work incentives

26. People with Disabilities Comprise A Diverse Group • People with disabilities experience a range of strengths, priorities, needs, abilities and capabilities. • Options and opportunities must reflect individual differences consistent with the person-centered planning process. • One size does not fit all.

27. ADA AND OLMSTEAD: ACTIONS AND DECISIONS BY DOJ AND THE COURTS • Key ADA Policies • Holding and Conclusions by Supreme Court in the Olmstead • Department of Justice Actions • Decisions by the Courts

28. KEY ADA POLICIES • Public agencies, including state agencies, may not adopt “methods of administration” that have the purpose or effect of subjecting qualified individuals with disabilities to discrimination. • Discrimination includes the failure to provide services and supports in the most integrated setting appropriate to meet the needs of qualified individuals with disabilities.

29. ADA Legislative History The legislative history accompanying the ADA specifies that “the legislation in no way is intended to diminish the continued viability of sheltered workshops and programs implementing the Javits-Wagner-O’Day Act [The AbilityOne program].”

30. OLMSTEAD SUPREME COURT DECISION • Unjustified, inappropriate, unnecessary placement in segregated settings is a form of discrimination. • Overreliance on inappropriate, unjustified, unnecessary segregated employment options is a form of discrimination. • States who decide to provide certain services and supports must provide a range of options consistent with the individual’s choice and the opinion of treatment professionals.

31. DEPARTMENT OF JUSTICE SETTLEMENT AGREEMENTS • Over 40 cases on ADA enforcement • Virginia • North Carolina • Georgia • Delaware • Arkansas • Rhode Island

32. SUMMARY: ADA AND OLMSTEAD AS INTERPRETED BY DOJ AND THE COURTS State systems must adopt methods of administration that result in the placement of qualified individuals with disabilities in the most integrated setting appropriate to meet their needs. • States may not adopt systems that result in unnecessary, unjustified, inappropriate segregated placements. • Overreliance by a State on inappropriate, unjustified, unnecessary segregated placements is a form of discrimination. • Qualified individuals with disabilities must be provided opportunities to make informed choices, taking into consideration the determinations by treatment professionals based on individualized determinations. • The State must provide a range of effective and meaningful options and opportunities. • The ADA does not guarantee a job in the community. • The ADA does not make sheltered workshops or center-based programs illegal nor does the ADA require the closing of such program options.

33. DEPARTMENT OF JUSTICE LETTER OF FINDINGS AND STATEMENT OF INTEREST IN OREGON OLMSTEAD CASE • ADA/Olmstead “integration mandate” prohibits the State from unnecessarily placing qualified individuals with disabilities in sheltered workshops when such individuals would prefer and are capable of competitive integrated employment. • DOJ seeks the incremental shift in the state’s current overreliance on funding sheltered workshops to greater funding for supported employment when individuals choose supported employment. • DOJ does not state that sheltered workshops are illegal, nor does DOJ seek the closing of sheltered workshops; in fact, DOJ recognizes that sheltered workshops “may be permissible placements for some individuals who choose them.”

34. PRELIMINARY COURT DECISIONS IN THE OREGON CASE • ADA’s “integration mandate” applies to all services and supports provided by a State, including employment-related services and supports. • ADA prohibits a State from unnecessarily segregating plaintiffs and class members in sheltered workshops by denying them opportunities to receive supported employment services for which they are eligible and which they prefer. • The ADA cannot be construed to guarantee a real job in a community-based business setting for all plaintiffs and class members. • The ADA does not impose on a State a “standard of care” or require a state to offer a certain level of benefits i.e., an adequate array of supported employment that would enable all plaintiffs and class members to work in integrated employment settings.

35. Oregon Governor’s Executive Order • On April 10, 2013, the Governor of Oregon issued Executive Order No. 13-04 “Providing Employment Services to Individuals with Intellectual and Developmental Disabilities.” • The Executive Order (EO) is noteworthy because of how it deals with “sheltered workshops.”

36. Oregon Governor’s Executive Order [continued] • By July 1, 2014, ODDS and OVRS shall no longer purchase or fund vocational assessments for individuals with I/DD that occur in sheltered workshop settings. • By July 1, 2015, ODDS and OVRS shall no longer purchase or fund sheltered workshop placements for: • Transition-age youth with I/DD • Any working age adult with I/DD who is newly eligible for ODDS or OVRS services • Any working age adult with I/DD who is already utilizing ODDS or OVRS services who is not already working in a sheltered workshop.

37. NEW YORK STATE ROAD TO REFORM: PUTTING PEOPLE FIrst • End new admissions to sheltered workshops • Retool Pathway to Employment waiver services by expanding the service to include people transitioning from day habilitation, pre-voc, workshops or high school and shortening the time frame for transition from this service into supported employment • Closing sheltered workshops • Providing education on the availability and importance of competitive employment

38. Rhode Island Settlement Agreement • The fundamental legal interpretations included in the DOJ complaint and letter of findings are sound and well established • Truly “landmark” decision because of the degree of specificity • Recognizes the “range of options” articulated in the Olmstead decision • Will likely serve as the template for future actions • New business opportunities for qualified disability service providers

39. WIA/Rehab Act Reauthorization • June 25, 2014, the Senate passed the Workforce Innovation and Opportunity Act (WIOA) by a vote of 95 to 3. • On July 9, 2014, the House of Representatives passed the identical bill by a vote of 415 to 6. • The President signed the legislation on July 22, 2014.

40. WIA/Rehab Act Reauthorization [continued] • Strengthens recognition of CRP’s in service delivery system • Definition of competitive integrated employment includes opportunities such as night crews • Section 511: Clarifies use of Section 14(c) of FLSA • Rehabilitation Services Administration (RSA)remains in OSERS, DOE.

41. WIA/Rehab Act Reauthorization [continued] • National Institute on Disability and Rehabilitation Research (NIDRR). Under the bill, NIDRR, authorized under Title II of the Rehabilitation Act, is renamed “The National Institute on Disability, Independent Living, and Rehabilitation Research” and relocated from OSERS to the Administration for Community Living of the Department of Health and Human Services.

42. WIA/Rehab Act Reauthorization [continued] • Independent Living. The administration of the independent living programs authorized under Title VII of the Rehabilitation Act is relocated from RSA of the DOE, to Administration for Community Living of the DHHS. • Assistive Technology. The assistive technology programs are also moved to the Administration for Community Living of the Department of Health and Human Services.

43. WIA/Rehab Act Reauthorization [continued] The bill eliminates authorization for the following programs— • Projects with Industry under Title VI of the Rehabilitation Act • Recreation Programs under Title III of the Rehabilitation Act • Migrant and Seasonal Farmworker Program under Title III of the Rehabilitation Act

44. WIA/Rehab Act Reauthorization [continued] • Focus of VR Program on Competitive Integrated Employment • Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities • Emphasis on Youth with disabilities • Focus on Individuals with the Most Significant Disabilities

45. IMPLICATIONS FOR PROVIDERS OF RECENT DEVELOPMENTS REGARDING SECTION 14(c) OF FLSA • Heterogeneity of the population • Historical context of Section 14(c) of FLSA • Relationship between Section 14(c) to the ADA/Olmstead • Efforts to repeal/phase out Section 14(c) • Response to efforts to repeal or phase out Section 14(c)

46. HETEROGENEITY OF THE POPULATION • People with disabilities experience a range of strengths, priorities, needs, abilities and capabilities • Options and opportunities must reflect individual differences consistent with the person-centered planning process. • One size does not fit all.

47. ADA • Designed to protect qualified persons with disabilities against discrimination. • An individual with a disability is qualified if he or she can perform the essential functions of a job with or without reasonable accommodation. • ADA legislative history explains that nothing in ADA should be construed to jeopardize sheltered workshops.

48. HISTORICAL CONTEXT OF SECTION 14(c) and RELATIONSHIP TO ADA • ADA does not protect individuals who cannot meet productivity standards established by the employer, with or without reasonable accommodations. • Section 14(c) designed to prevent the curtailment of opportunities for employment, i.e., provide work opportunities for individuals who are not protected by the ADA i.e., not otherwise qualified under the ADA.

49. EFFORTS TO PHASE OUT/REPEAL SECTION 14(c) • The TIME Act: Transitioning to Integrated and Meaningful Employment Act, 2015 (National Federation of the Blind) • National Disabilities Rights Network Reports • National Council on Disability Report on Subminimum Wage and Supported Employment (August 23, 2012)

50. RESPONSE TO EFFORTS TO PHASE OUT/REPEAL SECTION 14(c) What We Believe—Our Values and Guiding Principles • We embrace the ADA. • We abhor worker exploitation--we must draw a bright line in prohibiting and preventing employers from taking advantage of persons with disabilities. • We recognize that work is a valued activity both for the individual and society. We recognize the tangible and intangible benefits of working. • We recognize that some individuals with significant disabilities may not be able to meet standards and perform the essential functions of a job (with or without reasonable accommodations) that entitle them to be paid the federal minimum wage or prevailing wage. • We recognize that without Section 14(c), these individuals would have limited opportunities to work, which might have the effect of forcing them to stay at home, enter day habilitation centers (if a space were available) or live in an institution.