The Minnesota Department of Human Services recently released a draft of its Employment First Policy as part of its Olmstead Plan. Read the draft of this policy at the department’s website.

Achieve Services, Inc. CEO along with four members of Achieve’s Board of Directors were concerned with some of the proposals in this policy and have voiced their response in the below letter.

We encourage Achieve families, participants, and supporters to contact the Department of Human Services and share your thoughts. You can e-mail them at: [email protected]

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COMMENTS ON DRAFT EMPLOYMENT FIRST POLICY
July 31st, 2014

On behalf of Achieve Services, Inc., and the 185 adults with developmental disabilities whom we serve, we submit the following comments on the Draft MN Employment First Policy (the Policy), dated June 30, 2014.

We sincerely appreciate the opportunity to comment on the Policy. However, we respectfully request that additional time be allowed to more fully respond. Notwithstanding the brief extension that was given, the extremely short comment period has not allowed many, including people with disabilities and their families and caregivers, to review and vet the draft, and to formulate comments. Given the magnitude of the policy changes being considered and the breadth of the impacts, allowing sufficient time for stakeholder input is essential. While we have attempted to express our preliminary reactions in this document, once we have had an opportunity to fully discuss the Policy with our clients and other stakeholders, we will undoubtedly seek to express additional issues and concerns. Accordingly, we respectfully request that the comment period be extended to December 31st, 2014.

We Fully Support More Opportunities for Integration
First, it is important to acknowledge that we fully support those provisions in the Policy that promote more opportunities for integration in employment and other activities for people with disabilities. Integrated settings should be available to all. However, as the Olmstead Court noted (citations below), they should not be forced on anyone. The draft Policy goes way beyond Olmstead and tries to fit everyone into the same box, regardless of individual needs and desires.

Individual Choice Should be a Core Value
Individual choice is not listed as a core value in the Policy. It should be. Individual choice is central to the concept of “person-centered planning,” and it should be a core value in any disability policy adopted by the State. Instead, the Policy “presumes that people with disabilities can work, want to work, and do work.” Presuming what an individual “wants” runs contrary to the whole concept of person-centered planning and consumer choice. The stated presumption is disrespectful, and implies that people with disabilities and their families cannot decide for themselves what they want. If any “presumption” is appropriate, it is that people with disabilities and their families are best able to determine what is in their own best interest.

The Olmstead decision clearly recognizes the importance of honoring individual choice: “Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it.” Olmstead v. L.C., 527 U.S. 581 at 602. The Court further stated that “Persons with disabilities must be provided the option of declining to accept a particular accommodation.” Olmstead at 602, citing 28 CFR pt. 35, App. A, p. 450 (1998). Providing options only has meaning if people may choose among the options provided.

To the extent that the Policy at least acknowledges choice, it advocates “informed choice.” We couldn’t agree more that choices should be grounded in accurate and complete information. This objective can reasonably be accomplished by making relevant information and training available. The “experiential” component of the Policy, however, goes too far.

According to the Policy, in order for a participant to choose a path other than employment, he or she must obtain a “variance.” To obtain a variance, the individual must first complete “at least one trial work-based experience.” For many, this means they must experience a public failure. That approach benefits no one; it diminishes the individual’s confidence and self-worth, and it discourages potential employers from giving others with disabilities a chance to work.

The Employment First approach signals that any choice other than integrated community employment must be ill-informed. This force-feeding approach is both disrespectful and demeaning to people who are perfectly capable of determining what information they need to make an informed decision.

Accordingly, the draft Policy should be revised to (1) include a core value that recognizes and honors individual choice, (2) remove the presumptions, and (3) redefine “informed choice” to include making information and training available, without forcing “experiential” or other methods on anyone.

“Competitive Employment” Could Mean Fewer Jobs
We fully support creating more competitive employment options for people with disabilities. But competitive employment should not be the only option. Whether competitive employment turns out to be a helpful or harmful proposition will ultimately depend on private employers. Some employers currently pay their workers with disabilities based on productivity, and sometimes that means less than minimum wage. The U.S. Department of Labor oversees those “special minimum wage” jobs to ensure that wages do, in fact, fairly reflect the individual’s productivity. If employers are ultimately willing to pay minimum wage to their disabled workers, that will be great. But let’s be clear, they have another option. At minimum wage or better, employers could certainly replace disabled employees with non-disabled workers who may be more productive.

The Policy will Harm those With Highest Needs
One of the most glaring problems with the Policy is the unintended consequence it would have for our highest-needs individuals. The message the Policy sends to DT&H programs is: Only accept those participants who you are reasonably certain you can place in community employment, because non-work programs may no longer be funded. At Achieve, we serve a number of higher-needs individuals, some of whom are non-communicative and need assistance with the most basic daily functions. Despite their challenges, these individuals flourish with the on-site work they do, and are engaged with the community through volunteering and other outside activities.

Currently, the waiting lists for programs like ours are dominated by higher- needs individuals. The state should be advancing policies that shorten those waiting lists, giving more of Minnesota’s most vulnerable, highest-needs individuals real opportunities to participate in life-enhancing programs and services. Instead, the draft Policy tragically encourages programs to pass over them.

The Unemployed Are Worthy Too
Charged with implementing Title II’s discrimination proscription, the U.S. Attorney General directed that “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR sec. 35.130(d) (emphasis added). The Policy, however, ignores the highlighted language, instead presuming that integrated-employment settings are appropriate for all. That was not the view of the Olmstead Court.

In the Olmstead case, the Court cautioned against taking a whole-sale community-based approach: “We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.” See Olmstead at 601-602. In fact, the Court specifically recognized “the States’ 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.” Olmstead at 597.

While our center-based programs are a far cry from “institutional settings,” the Court’s point is nevertheless valid: for some individuals, center-based programming is preferable to community employment settings. Those who choose center-based programs are no less worthy of support and respect than those who choose community-based employment. Moreover, “even handed” administration requires that center-based programs not just be allowed as an option, but also receive continued support with adequate funding.

Summary
In sum, the draft Policy fails to recognize the importance of personal choice and individual differences in determining the best options, instead pushing a one-size-fits-all approach based upon misplaced presumptions. Moreover, the Policy’s focus on “competitive employment” will most certainly result in fewer jobs and higher unemployment for workers with disabilities. The Policy is judgmental of those who cannot or choose not to work, and is already discouraging programs from accepting higher needs individuals who are the toughest to place in community-based jobs. Taken as a whole, the Policy sends the message that if you’re not working, you’re not worthy. Minnesotans with disabilities and their families deserve much, much better.

Respectfully Submitted,

Tom Weaver, CEO, Achieve Services
Susan Holden, Chair, Achieve Board of Directors
Sandy Crawford, Achieve Board Member, Parent
John LeTourneau, Achieve Board Member, Parent
Kathy Svanda, Achieve Board Member, Parent