[nfbmi-talk] viability of shelterred shops

Tue Oct 13 15:51:44 UTC 2015

Below and attached hereto is memorandum advice to the Michigan Association
of Rehabilitation Organizations (MARO), from ACCSES.. 

ACCSES represents more than 1,200 disability service providers across the
country as the  Voice of Disability Service Providers.  In the Words of
their Members, "ACCSES speaks for people with disabilities, working to
assure that their needs and interests incorporated into legislation and
executive action. ACCSES has 

the right people in the right place

doing the right things."

Given this memorandum information, it is no wonder MARO, a sponsor of the
Michigan ADA Celebration, along with their member organizations, sought to
prohibit persons with disabilities, from such organizations as the National
Federation of the Blind of Michigan, from entry into the advertised public
celebration event.  The event sponsors simply did not want persons with
disabilities to speak our voice and distribute information about the evil of
payment of subminimum wages in their organization's sheltered workshops,
with our ultimate goa being the elimination of subminimum wage certificates
under federal labor law. These services providers and CEOs are fearful of
closure of sheltered workshops,  and losing the gravy train from which they
feed, at the immoral and disgusting slave labor wages of persons with
disabilities.    

1501 M Street, NW - 7th Floor  *  Washington, DC 20005

202.349.4259 (Phone)  *  202.785.1756 (FAX)

  _____  

Memorandum

To:                  David Price: Executive Director; MARO 

From:              Terry R. Farmer: CEO; ACCSES

                        Bobby Silverstein: Legislative Counsel; ACCSES

Date:               April 25, 2013

Re:                  The continued viability of community rehabilitation
organizations (CROs), work crews/enclaves
paying subminimum wage, and day habilitation programs and the rights of
individuals with                             disabilities under Federal law
to a full array of employment-related services.

  _____  

You asked ACCSES and its legislative counsel to address the question whether
under existing Federal laws [the Americans with Disabilities Act, as
interpreted by the U.S. Supreme Court in Olmstead v. L.C., 527 U.S. 581
(1999), recent Department of Justice (DOJ) policy pronouncements and
actions, and the Medicaid Home and Community-Based Services regulations and
policy guidance issued by the Centers for Medicare and Medicaid Services
(CMS)] the state of Michigan may legally fund an array of prevocational and
employment-related services and supports and a continuum of placement
options for individuals with intellectual and developmental disabilities and
others that includes community rehabilitation organizations (e.g.,
"sheltered workshops"), work crews/enclaves paying subminimum wages, and day
habilitation programs, in addition to self-employment and supported
employment?  Phrased differently, does Federal law compel the closing of
community rehabilitation organizations and the elimination of work
crew/enclaves paying subminimum wages and day habilitation programs?

In addressing these questions, it is important to recognize that employers,
not state agencies, make job offers and determine who is qualified. Under
the ADA a person is qualified if he or she can perform the essential
functions of a job, with or without reasonable accommodation. Under ADA
regulations, deference is provided to employers to determine qualification
standards, including productivity standards. State agencies do not guarantee
jobs; state agencies provide services and supports that enable individuals
with disabilities to explore a full range of job opportunities, to develop
skills that make them qualified, to find jobs, and fund extended services
and supports to retain jobs.

The answers to these two related questions are: 

*  Federal laws, including recent DOJ and CMS policy pronouncements and
actions, permit the provision of services and supports and placement in
community rehabilitation organizations (e.g., sheltered workshops), work
crew/enclaves, and day habilitation programs and the payment of subminimum
wages in addition to self employment and supported employment at or above
minimum wage. 

*  Federal laws, including recent DOJ and CMS policy pronouncements and
actions, do not compel the closing of community rehabilitation organizations
(e.g.sheltered workshops) or the elimination of work crew/enclaves, and day
habilitation programs or the payment of subminimum wages. 

With respect to the rights of individuals with disabilities, Federal law
requires the following: 

1)      Individuals with disabilities must be placed in the most integrated
setting appropriate to meet their needs. What is appropriate for the
individual must be determined based on a person-centered plan, consistent
with the individual's strengths, priorities, interests, needs, abilities and
capabilities. Evidence to establish that an integrated setting is
appropriate includes a reasonable objective assessment by a public entity's
treating professionals who are knowledgeable about the range of supports and
services. People with disabilities can also present their own independent
evidence, including evidence from their own treatment providers.

2)      The state may not adopt a service system that results in the
overreliance on sheltered workshops-individuals with disabilities may not be
unnecessarily, unjustifiably, inappropriately placed in a separate or
different program e.g., sheltered workshop.

3)      In considering options, the individual must be provided every
opportunity to make an informed choice consistent with the principle of
self-determination. An informed choice includes, but is not limited to,
adequate information about the options that are considered, including the
opportunity to explore and discover the range of options; sufficient
resources to support the choice; willingness to accept the choice and the
reasonable risks associated with the choice; and information on the
parameters of the choice and the relevant options considered consistent with
the capabilities of the individual involved in the choice-making process.

4)       State systems must encourage and facilitate efforts to support
competitive integrated employment as the optimal, presumptive and priority
outcome. 

Consistent with these policies, the right of an individual with a disability
to make an informed choice may include the option to work in a community
rehabilitation organization (e.g. sheltered workshop) or work crew/enclave
operated by an accredited community rehabilitation program as well as the
options to receive supported employment services provided by these CROs and
to pursue self-employment. These CROs use qualified rehabilitation
professionals to provide individualized jobs, ongoing services and supports
(including door-to-door transportation), and job stability and security. 

*  For example, the opportunity to work in a community rehabilitation
organization may be temporary while individuals develop job skills, explore
the world of work, and identify their own interests and talents. For these
individuals, CROs facilitate placement in competitive, integrated
employment, either directly or through support by, collaboration with, or
referral to publicly-supported programs providing funding for vocational
rehabilitation and necessary ongoing services and supports. 

*  For other individuals with significant disabilities, the opportunity to
work in a community rehabilitation organization may be long term given the
individual's strengths, interests, capacities, desires, and ongoing needs
for supports and services. This same right to informed choice and
self-determination may extend to employment opportunities that include job
crews and enclaves at commensurate wages. 

Americans with Disabilities Act

With respect to the ADA, the Supreme Court in its Olmstead decision
succinctly states the overarching policy that the state should maintain a
range of options in order to address the needs of individuals with
disabilities, consistent with the individual's preference: 

"Unjustified isolation, we hold, is properly regarded as discrimination
based on disability. But, we recognize, as well, the State's need to
maintain a range of facilities for the care and treatment of persons with
diverse mental disabilities, and the State's obligation to administer
services with an even hand."  

"Specifically, we confront the question whether the proscription of
discrimination may require placement of persons with mental disabilities in
community settings rather than in institutions. The answer, we hold, is a
qualified yes. Such action is in order when the State's treatment
professionals have determined that community placement is appropriate, the
transfer from institutional care to a less restrictive setting is not
opposed by the affected individual, and the placement can be reasonably
accommodated taking into account the resources available to the State and
the needs of others with mental disabilities."

See also the legislative history accompanying the passage of the ADA. After
listing the various forms of discrimination, the House and Senate Reports
accompanying the ADA state:

"Taken together, these provisions are intended to prohibit exclusion and
segregation of individuals with disabilities and the denial of equal
opportunities enjoyed by others based on among other things, presumptions,
patronizing attitudes, fears and stereotypes about individuals with
disabilities. Consistent with these standards, covered entities are required
to make decisions based on facts applicable to individuals and not on the
basis of presumptions as to what a class of individuals can and cannot do.

The Committee wishes to emphasize that these provisions should not be
construed to jeopardize in any way the continued viability of separate
private schools providing special education for particular categories of
children with disabilities, sheltered workshops, special recreational
programs, and other similar programs.

At the same time, the Committee wishes to reaffirm that individuals with
disabilities cannot be denied the opportunity to participate in programs
that are not separate or different. This is an important and over-arching
principle of the Committee's bill. Separate, special, or different programs
are designed to make participation by persons with disabilities possible.
Such programs are not intended to restrict the participation of disabled
persons in ways that are appropriate to them."

Senate Report No. 101-116 at pages 60-61

The August 6, 2012 opinion of the Federal Magistrate in Lane v. Kitzhaber
(Case No. 3:12-cv-00138-ST) regarding the motion for class certification
includes the following statement at page 23 regarding the continued
viability of sheltered workshops:

"With respect to the third category, plaintiffs do not seek to close all
sheltered workshops or force people to leave the workshop if that is not
their preference. They simply seek the opportunity to leave a sheltered
workshop by receiving those services. Due to their disability, many
individuals with I/DD may not ask for supported employment services because
they are unaware of them or because they are not aware that they have any
choices as to services that they are entitled to receive."

Medicaid Home and Community-Based Services Program

The regulations authorizing the funding of prevocational services as a form
of "expanded habilitation" services under the Medicaid Home and
Community-Based Services program explicitly recognize the viability of
sheltered workshops and the payment of a sub-minimum wage consistent with
the Fair Labor Standards Act. The regulations explain that prevocational
services (skill building services) means services that prepare an individual
for paid or unpaid employment and are not job-task oriented but instead are
aimed at a generalized result. For example, prevocational services may
include teaching an individual such concepts as compliance, attendance, task
completion, problem solving, and safety. Prevocational services are
distinguishable from non-covered vocational services by the following
criteria:

(1) The services are provided to persons who are not expected to be able to
join the general work force or participate in a transitional sheltered
workshop within one year (excluding supported employment programs); 

(2) If the recipients are compensated, they are compensated at less than 50
percent of the minimum wage; 

(3) The services include activities which are not primarily directed at
teaching specific job skills but at underlying habilitative goals (for
example attention span, motor skills); and 

(4) The services are reflected in a plan of care directed to habilitative
rather than explicit employment objectives. 

The CMS Information Bulletin related to this program explicitly recognizes
the continued viability of sheltered workshops and the payment of subminimum
wage, while at the same time expressing a priority for competitive
integrated employment. 

*  Prevocational services should enable each individual to attain the
highest level of work in the most integrated setting and with the job
matched to the individual's interests, strengths, priorities, abilities, and
capabilities, while following applicable federal wage guidelines.
[Attachment 1 at page 7] 

*  Competitive integrated employment is considered to be the optimal outcome
of prevocational services. [Attachment 1 at page 7] 

*  Prevocational services are associated with building skills necessary to
perform work and optimally to perform competitive, integrated employment.
[Attachment 1 at page 8] 

*  Individuals participating in prevocational services may be compensated in
accordance with applicable federal laws and regulations and the optimal
outcome of the provision of prevocational services is permanent integrated
employment at or above minimum wage in the community. [Attachment 1 at page
8] 

*  Prevocational services are expected to occur over a defined period of
time and with specific outcomes to be achieved, as determined by the
individual and his/her services and supports planning team through an
ongoing person-centered planning process. [Attachment 1 at page 7] 

*  Prevocational services may be furnished in a variety of locations in the
community and are not limited to fixed-site facilities. [Attachment 1 at
page 8]

Resources

For a detailed discussion of these issues, we have included links to the
following documents:

Array of Service Options

<http://accses.org/CMS/Resources/dropbox/accsespositionpaperonthearrayofempl
oymentoptions122012.pdf> ACCSES Position Paper on the Array of Employment
Opportunities for Persons with Significant Disabilities: Principles,
Positions, and Recommendations

Americans with Disabilities Act and Olmstead

 <http://accses.org/CMS/Resources/dropbox/olmsteadguidance.pdf>
Applicability of the ADA and Olmstead Decision to Community Rehabilitation
Programs - The Department of Justice Technical Assistance Guide

<http://accses.org/CMS/Resources/dropbox/accsessummaryofdojletteroffindingsj
une292012.pdf> DOJ Letter of Findings Regarding the Provision of Vocational
and Employment Services by the State of Oregon to Persons with Intellectual
and Developmental Disabilities

<http://accses.org/CMS/Resources/dropbox/accsesoregonclasscertificationmemo0
80812.pdf> Court Grants Class Certification in Lane v. Kitzhaber, Lawsuit
Challenging the System for Delivering Employment Services Used by the State
of Oregon

<http://accses.org/CMS/Resources/dropbox/memoredojstatementofinterestinorego
nlawsuit050212.pdf> ACCSES Memorandum - Significance of DOJ'S Statement of
Interest in Lane v. Kitzhaber

<http://accses.org/CMS/Resources/dropbox/virginiasettlementaccsesmemo022012.
pdf> Preliminary Description and Analysis of the ADA/Olmstead Settlement
Agreement between Virginia and the DOJ

Medicaid Home and Community-Based Services

<http://accses.org/CMS/Resources/dropbox/accsesfinalanalysisofprevocinfobull
etin101711.pdf> ACCSES' Description and Analysis of CMS' Information
Bulletin Regarding Updates to the Section 1915(C) Waiver Instructions and
Technical Guide Regarding Employment and Employment Related Services

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