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

Abelone Kelley December 15, 2019 0

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

Abelone Kelley December 12, 2019 0

Closure of Vocational Centers: A Threat Against the Significantly Disabled

Matt at work

This is by the father of Matt. Matt has intellectual and developmental disabilities. He loves his job in a vocational center, sometimes known as a sheltered workshop. Why do some people want to take his job away from him?

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An Existential Threat against the Significantly Disabled:
Phase-Out of Vocational Centers (Sheltered Workshops)

By: Harris Capps, November 2019

I am a Parent and Guardian for my son Matthew, who has moderate to severe Intellectual and Developmental Disabilities (IDD), to include autism and cerebral palsy that precludes speaking. He also has behavioral episodes that may range from tantrums to severe meltdowns that could result in injury to himself or others. Just explaining that to you is painful, because his dignity is important to us. He resides in an Intermediate Care Facility (ICF) which provides 24-hour care. He is largely unable to understand how to reason or make decisions. He knows that a dollar will help him go to MacDonald’s, but he has no concept of how many dollars and cents may be required. 

The very existence of Sheltered Workshops for those with Intellectual and Developmental Disabilities (IDD) has been attacked for the first time since the law was enacted in 1938 as a part of the new Social Security Program. Why do higher functioning disabled persons and their lobbying organizations want to deny lower functioning persons, the right to work? If a higher functioning individual can get a job that provides a mandated minimum wage, surely, they already have the minimum wage law in effect to protect them. So, let me tell you a bit more about Matt. 

Matthew loves to go to work at “PERCO”, a vocational Center in Perry County, Ohio. If we call him on Sunday evening and remind him that he gets to go to work the next day, he quite literally jumps up and down and makes sounds of anticipatory delight.

According to his job coaches, Matt is very proud that he accomplishes work and earns a paycheck. Matthew is unable to differentiate the amount of his check… he just revels in the fact that he has earned something of value which allows him to pay for things. If a picture is worth a thousand words, do you think this photo of Matt working conveys dissatisfaction or sadness? 

The following episode tells you the importance of his work. On a Saturday in February 2019, Fran and I got a call from nursing at Matt’s ICF. Matt had made the sign (crossed arms) for “work”. In other words, he wanted to go to work. But his Work Center is not open on the weekends. The direct care worker tried to explain to Matt that the Center was closed. Matt quickly went from a somewhat manageable tantrum to what we call a “meltdown” typically evidenced by his inability to control his emotions, yelling, crying, and in this case, he bit his direct care worker on the arm. The worker had to go to the hospital for treatment.

Supporters of “14 (c) Work Centers know many Myths for phasing-out the Sub-minimum Wage including self-determination. For example, it is simply untrue that “employers across the country are using this waiver to acquire cheap labor”. And, the false assertion that my son is somehow a victim of discrimination, and exploitation. Matt voluntarily attends a sheltered workshop because it fits his capabilities. People with IDD like Matt would never be able to work in “competitive employment” because his measured productivity (monitored by the Department of Labor) is too low, and for what he does achieve, he requires job coaches to teach, encourage and know how to deal with his disabilities.

An article written by David Ordan ["Eliminating subminimum wage waivers will harm hundreds of thousands of people with disabilities" 8/10/18 in thehill.com] said, 

“In 2014, 75 percent of individuals with I/DD receiving day or employment services through a state I/DD system were attending a sheltered or facility-based environment.

This means that efforts to remove 14 (c) subminimum wage certificates are essentially targeting one group, and one group alone: people with disabilities who choose to attend sheltered workshops”. 

He further explains that follow-up studies have shown the failure of closing Work Centers, like in Maine where, over a seven-year period displaced persons not able to obtain employment increased “Day Program” enrollment from 550 in 2008 to 3,178 in 2015.

Mis-informed logic ignores important subjective standards such as empathy, compassion and personal values resulting in treatment of folks like Matt as an individual. In 1938 persons who had just suffered through the Great Depression used not only logic but their values to say that Matthew Matters.

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See more on sub-minimum wage and sheltered workshops from The DD News Blog

Abelone Kelley November 11, 2019 0

Raise the Wage for some, Lose the Wage for others

This is from the VOR Weekly News Update, 7/19/19 on the recent passage of the Raise the Wage Act by the U.S. House of Representatives:

“On Thursday, July 18, the House of Representatives voted in favor of passing H.R. 582, the Raise the Wage Act. Tucked into this bill are provisions that would end Section 14(c) [of the Fair Labor Standards Act] wage certificates and re-structure wages paid by work centers, forcing tens of thousands of people with intellectual disabilities who are unlikely to participate in competitive employment, out of their existing opportunities to work at facility based employment.

“While some of our members may support raising the minimum wage while others may not, VOR members have come together to oppose this bill as written, in order to protect individuals who benefit from 14(c) and work centers that are designed to accommodate their specific needs and abilities.

“…most coverage of this bill has only mentioned the increase in the minimum wage, with no mention of the effect this would have on people who would be unhireable under competitive integrated employment. Once again, the most vulnerable Americans are suffering discrimination at the hands of agencies that are supposed to protect their interests, and by the work of advocates and self-advocates who focus only on one segment of the community of people with intellectual disabilities.” 

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The controversy over sub-minimum wage certificates comes up again and again as a disability rights issue, framed as blatant discrimination against people with disabilities. The assumption among many advocates is that all people with disabilities are capable of integrated, competitive employment, as long as they have the supports they need to be successful. The fallacy here is that there are, indeed, people whose disabilities prevent them from working in competitive employment, because they are unable to tolerate a competitive work environment or to keep up with other workers.

This is a fact, not a reflection on people with disabilities in general or an assertion that they are somehow less worthy than people without disabilities. To the contrary, the right to appropriate services applies to all, even to those who need a specialized facility-based work program that pays less than minimum wage. For the most part, these workers receive additional government benefits in the form of living supports, Medicaid health insurance, Medicaid waiver services, and often additional social services offered by their employers or other agencies.

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This is from a DD news blogpost from 2014:

"Workers with disabilities who are able to engage in competitive employment, with or without supports, should not be exploited in workplaces that profit off their labor but pay the workers sub minimum wages. The special wage certificates that are now issued, however, allow people with more severe cognitive and other disabilities to work at their own pace in skill development centers (sheltered workshops, usually in community settings) and receive pay adjusted to their abilities and how fast they work. To eliminate the special certificates would  in effect also eliminate this important option for people who can and want to work but would otherwise be unlikely to obtain employment in regular competitive workplaces. In the opinion of many who benefit from these programs, too little consideration has been given to what will happen to these people other than many more of them will sit at home with nothing to do.

"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."

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ACCSES is an organization representing providers of employment services. This is an editorial from their July 22, 2019 newsletter: 

"The Raise the Wage Act (H.R. 582) passed the House last week 231-199. This bill if enacted, would kill jobs for people with disabilities by getting rid of the special wage certificate under Section 14(c) of the Fair Labor Standards Act, which will have a significant impact on opportunities for people with the most significant disabilities. On July 8, 2019, the Congressional Budget Office issued a report on the effects of an increase in the minimum wage on employment and family income, in which it found that the $15.00 federal minimum wage would benefit 17 million workers, and cut at least 1.3 million jobs. (The CBO estimates 125,000 people being served under 14(c) certificates.) Section 14(c) certificates are an important tool in the employment toolbox. Do not let Congress take away jobs for people with disabilities. Your Members of Congress are getting ready to head home for their August recess. Contact them today and invite them to tour your locations to see the devastating effect passing this bill into law would have on people with disabilities. It is vital that Members of Congress have a great understanding of the important role community rehabilitation programs play when setting disability policy. "

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See also:

"House Votes To End Subminimum Wage" by Michelle Diament, July 19, 2019, Disability Scoop
“…many families have opposed such legislation arguing that subminimum wage employment gives people with more severe disabilities who may not be able to succeed in typical jobs a sense of purpose and an opportunity to contribute.”

"Supported Employment : Is it Cost Effective for People with Severe Disabilities?", The DD News Blog, 2/15/16 

"Information on Sub-minimum wages for people with disabilities and appeal rights..." , The DD News Blog, 3/30/16

Abelone Kelley July 26, 2019 0

WA State Senate: Arguments for and against eliminating special wage certificates for PWD

Sub-minimum wage certificates allow employers to hire people with disabilities for less than minimum wage when disabled employees are not able to work at full capacity equal to their non-disabled peers doing the same job. Special wage certificates are often used to support people in center-based work programs (sheltered workshops) that may also provide an array of other services in addition to employment. When these programs are eliminated for people with more severe and complex disabilities, against their will and over the objections of their families, they often end up working fewer hours or not at all, spending more time at home watching TV or other unproductive activities. The alternative, "supported employment" in competitive integrated work settings, can be very costly and is not always desired by or as satisfying for the person with a disability. 

The video is from a hearing in the Washington State Senate about Senate Bill 5753 proposing to eliminate sub-minimum wage certificates. The arguments, pro and con, are laid out by two Senators with opposing views. Make sure that you listen long enough to hear the testimony of Senator Walsh that starts at around 3 1/2 minutes.

Abelone Kelley February 20, 2019 0

Employment for People with Disabilities: Opening Doors for Some, Closing Doors for Others

This is another article from the VOR Voice, Winter 2018. The VOR Voice is a print newsletter and one of the benefits of membership in VOR. VOR, "A Voice Of Reason, Speaking out for People with Intellectual and Developmental Disabilities" is a national non-profit organization that relies solely on private donations. Hugo Dwyer is the Executive Director and the brother of Tom Dwyer, a resident of Southbury Training School in Connecticut.

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Opening Doors, Closing Doors 

by Hugo Dwyer

One of the presenters at the President’s Committee for People with Intellectual Disabilities (11/8/18) spoke of the benefits of competitive integrated employment, and the benefits of closing sheltered workshops and ending specialized wage provisions under Section 14(C) of the Fair Labor Standards Act. The speaker’s contention was that closing these opportunities would somehow open doors to full-time jobs at minimum wage or better for people with intellectual or developmental disabilities. 

When asked if she thought everyone with I/DD would be able to take advantage of this opportunity, she replied that some would not. She was then asked what would happen to those people. Her answer was that they would probably spend more time on the sofa watching TV or being driven in vans for meaningless trips to the local shopping malls. Asked if she thought that was a good thing, she replied that it was not, but that the plan was not to close sheltered workshops all at once, but to “phase them out” over time.

Obviously, that doesn’t solve the problem for those consigned to long days on the couch or at the mall, but it might take care of the public relations problems of those who believe they are doing what’s good in spite of evidence to the contrary. Opening a door for some, closing doors on others.

This led me to thinking about how the same misguided self-righteousness has governed our residential policies for the last thirty-five years. Admissions were closed at Tom’s home of Southbury Training School in 1986. The good people of Connecticut sought to “phase out” this type of residential opportunity, admitting that those fortunate enough to have that opportunity might continue to benefit from it, but closing the door on others who might need such a level of care. I don’t get it. Do they think that people will just adjust to having inferior care? Or do they just not want to think about the possible consequences of their actions?

At the House Judiciary Committee’s hearings examining class action lawsuits against Intermediate Care Facilities last March in Washington, D. C., Allison Barkoff of the Consortium of Citizens with Disabilities testified that a settlement agreement in Virginia enabled a single mother, who was #1,025 on the Community Waiting List, to receive HCBS waiver services. Earlier in the hearing, a mother from Virginia testified that the settlement agreement Ms. Barkoff cited had forced her twin sons out of their ICF home and into insufficient, inappropriate care in HCBS waiver settings. One of Mrs. Bryant’s sons died as a result. Opening doors for some, closing doors for others. 

Who are these people, opening and closing doors? Why do they believe this is a good thing? Can’t they see the pain they are causing? 

We need to open all the doors. We need a system that supports all levels of care and all opportunities for employment.

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Editorial comment from The DD News Blog: 

This is from a blogpost for 3/30/16  on the Michigan Developmental Disabilities Council recommendation to eliminate the ability under state law of employers to pay less than the minimum wage to people with physical or mental disabilities based on an individual’s  productivity and earning capacity.  

"The controversy over sub-minimum wages is usually framed as a difference of opinion and ideology between people who believe disabled workers have the same right as everyone else to the protection of minimum wage laws, against those who believe that a subsidy to employers through sub-minimum wage certificates is justified to assure appropriate work experiences. For people who would otherwise not be employable in integrated, competitive work environments, wage certificates assure the availability of suitable alternatives.

"The problem is that the two sides in this argument are talking about different people in different circumstances who cannot be categorized by sweeping generalizations about people with disabilities. Individually, each person with a developmental disability has a right to appropriate services and a right to be protected from discrimination in the workplace. The federal law and regulations as they are now written do both, even though enforcement of the law and how it is interpreted may be open to question."

Sub-minimum wages are a way to subsidize employers who are willing to hire people who may not be able to keep up with their non-disabled peers and to fund special center-based programs that allow people to work at their own pace with the assistance they need combined with other needed services in addition to employment.

Supported employment for at least minimum wage in integrated settings is already subsidized through programs funded by Medicaid. Most people qualifying for work under supported employment or in center-based work programs are also eligible for other subsidies in the form of Home and Community-based Services, housing vouchers, Medicaid medical insurance, and Supplemental Security Income (social security benefits) and some are residents of Medicaid-funded Intermediate Care Facilities for Individuals with Intellectual Disabilities. The argument that sub-minimum wage is unfair because it leaves these people destitute does not hold water.

See also, The DD News Blog on sub-minimum wage and alternatives to integrated competitive employment 

Abelone Kelley December 23, 2018 0