Author: John Wayne Barker

Published May 31, 2019

A long-standing myth was again part of the 2019 legislative discussions related to increasing Day Training and Habilitation (DT&H) rates. It appears that some decision makers continue to believe that the compensation for the highest paid employee in DT&H programs is excessive and that encumbering (a limitation on the use of funding) any rate increase is needed to ensure new funding goes to Direct Support Professional (DSP) wages.

Because this posting discusses compensation, I want to be very clear that MOHR did not endorse, assist, or comment on this study and posting in any manner. In addition, it is important that the reader understand the sources of my data that included:

1. 101 of the 106 MOHR members (represents 95.3% of the current membership) had useful 2015 tax returns posted to Guidestar (a national organization that advances transparency in non-profits). Program revenue appears in lines 8 – 10, total combined salaries in line 15, and total expenses in line 18 of these tax returns.
2. Part VII of these tax returns requires the reporting of any compensation exceeding $100,000. Of the 101 tax forms included in this study, 77 had this information. I contacted the other 24 MOHR members and requested they self-report their highest paid position in 2015 and 16 responded with this information. The responses of data from these 93 sources represent a total of 87.7% of the current membership.
3. Average DSP wage, by region and statewide, as reported in the 2015 MOHR Wage Survey (62 respondents).
4. Minnesota Council of Nonprofits (MCN) 2016 Wage Survey Report (569 respondents).

It is likely that most of my readers are not statisticians and, as this subject is not my specialty, I will not be offering a statistical analysis of this study. Also, as this is a statewide issue, I will not be reporting the results by MOHR region or nonprofit and my data will not be shared with any other party unless I need to validate its accuracy with decision makers. Now to my findings:

1. Average annual program revenue was $4,414,728 with a range of $147,043 to $71,354,194.
2. Average combined staff salaries was $3,173,467 (71.88% of program revenue) with a range of $96,666 to $50,258,051.
3. Average compensation of the highest paid position at DT&H programs was $112,211 with a range of $36,200 to $315,428.
4. Average percent of the highest paid position to program revenue was 6.31% with a range of 0.23% to 23.26%.
5. Average percent of the highest paid position to total salaries was 9.04% with a range of 0.32% to 35.18%.
6. Average ratio of DSP wage to average highest paid position was 1 to 3.87 with a range of 0.57 to 12.53.

So what do I believe these findings mean?

• There is a significant range in program revenues and combined staff salaries making “one-size” encumbrances and wage reporting problematic.
• Although the average combined staff salaries was 71.88% of annual program revenue, too high of an encumbrance will limit providers in using new dollars to pay for real operational expenses that have increased.
• With an average of $4M in program revenue, the average highest paid position at day programs is $112,211 and only 2.6% higher than the average salary of $109,279 paid to Executive Directors of MCN non-profit members with $2M – $5M in revenues; suggesting that, as a group of non-profits, executive compensation at DT&H programs is reasonable to the market.
• The metric of highest paid position as a percentage of program revenue and/or total salaries is not useful given the extreme range of revenues across the 93 respondents.
• With a 1 to 3.87 ratio between the average DSP wage and the average highest paid position at DT&H programs compared to a ratio of 1 to 3.97 between a Special Services Aide in the Human Services Activity area paid $13.29 per hour and the average Executive Director salary reported by MCN, it is clear that MOHR members, as a group, are not paying excessive compensation to their highest paid employee. Even more striking, a 2017 Forbes article had the ratio of for-profits at 1 to a range of 100 to 400 and had the healthcare sector ratio at 1 to 275.

Are there high outliers among the 93 respondents when it comes to executive compensation? Absolutely, and, although it was usually related to the size of annual budget and geographic location, the highest salary was not paid by a program in the top ten of revenues. There are also low outliers, some making little more than their DSPs, and they outnumber the high outliers by quite a margin. I would encourage my colleagues to review their compensation metrics against these findings to see if any adjustments are warranted.

Since the 2015 facts show DT&H providers are not paying an excessive amount on executive compensation then it stands to reason we are spending these dollars on DSP wages and other essential operating costs. That being true, why are we imposing prescriptive encumbrance language and wage reporting on ALL DT&H programs based on a myth that we are not using rate increases to raise DSP wages?  And truly, after issuing a useless 2019 waiver transportation report, why would anyone believe that the Department of Human Services can accurately complete a “competitive wage analysis” or render a valid opinion based on provider wage reports that have yet to be defined?  Perhaps we should return to a cost plus reimbursement system if we are going to be micro-managed?

I understand that the theme of the 2019 legislation was to provide a “competitive workforce factor” and it felt right for decision makers to make sure it was used in that manner. Still, the 7% rate reduction last year was not taken away by encumbrance and should have been restored in the same manner so providers can decide what is best for their operations. Let’s stop requiring a fix for a problem that does not exist and adding more burdensome reporting to private sector providers. Instead, let’s pass rate increases without any encumbrance like is done for state-operated programs which provide the same services and already enjoy preferential treatment in so many other ways.

Published November 29, 2018

(game in which three nutshells are moved about on a table & you must guess the one with a pea underneath)

More than 4 years after its implementation the Disability Waiver Rate System continues to confuse clients and their families, puzzle case managers and county clerks, and delay payments to providers due to untimely and incorrect service agreements. So why did the Minnesota Disability Services Division (DSD) decide to make things even more difficult by fracturing Supported Employment Services (SES) into three distinct services called employment exploration (EES), employment development (EDS), and employment support (ESS)?

Published October 16, 2018

I understand a few readers were unclear if the most recent Bark’s Bytes was my opinion or the position of MOHR. To be clear, all postings of Bark’s Bytes are strictly my opinion. Even when I quote others, their statement is being used by me to make a point and does not imply they agree/disagree with my opinion. Still, to be clear I’ve updated the Bark’s Bytes disclaimer to read ~ “This is an opinion piece. The views stated here are those of JWB, not those of Merrick, Inc., or any other group. You may agree or disagree with his views, but just keep in mind that man still wears Zubaz and chooses to shave his head. Consider yourself advised…”.  Now to the subject of this posting.

All of us know there are times you look back on a moment or decision and realize a mistake was made and a correction warranted. Most disability stakeholders in Minnesota (MN) would agree that the 7% rate cut on July 1st was a mistake. Yet the MN Department of Human Services (DHS) is unwilling to make a correction. As one MN Senator stated in an email I read, this Commissioner only wants to fight. My immediate reaction was how can she seriously think fighting is in the best interest of those counting on the system to support and honor their choices in having a good life?

Using information gathered from other sources I will try to provide a concise summary of the how I think the 7% rate cut unfolded.

• Implemented on January 1, 2014, the Disability Waiver Rate System (DWRS) used a Direct Support Professional (DSP) wage that resulted in rates insufficient to address the growing workforce shortage. As a result, the legislature increased rates by 1% on 4/1/14, 5% on 7/1/14, and 1% on 7/1/15. This total increase of 7% was not a COLA, or bridge until the inflationary adjustment was applied in 2017, but was enacted by the legislature as permanent adjustments to address the ongoing workforce shortage. Accordingly, the legislature approved a bill in the 2018 session to “fix” the situation that was included in an omnibus bill the Governor vetoed for unrelated reasons.
• In early 2018, DHS submitted a request to the Centers for Medicare and Medicaid Services (CMS) to approve various changes to the DWRS. During that review the confusion regarding the 7% rate increases arose between CMS and DHS. Whether as a result of serious miscommunication, or lack of factual accuracy, DHS conveyed that the 7% increases were COLAs which apparently led CMS to conclude that Minnesota was stacking a COLA and inflationary adjustment during the same rate year.
• CMS seemed concerned about the miscommunication as evidenced in an email sent on 2/23/18 to DHS stating that ~ “Nothing in my communication was meant to be interpreted as a requirement from CMS for the state to eliminate a legislatively approved annual COLA, but rather to ensure that the COLA and rebase did not occur in the same year”.
• In spite of the CMS email, the Commissioner has repeatedly and steadfastly represented that DHS was required to cut rates as a direct result of instructions and information provided by CMS and claims that if not done, CMS would deny federal financial participation. To my knowledge nothing has been offered by the Commissioner that validates her position.
• The 7% rate cut was implemented by DHS on 7/1/18 resulting in a $147 million dollar reduction in waiver funding for disability services in SFY 2019, 2020, and 2021 despite state law approving the 7% rate increases. With no other options to protect services, and the 7% increases still being the law, providers initiated legal action against the Commissioner that is scheduled for a hearing in federal court on 11/1/18.

At this point there is not much that can be done since it is unlikely that a legal resolution will happen before a new Governor takes office and the current Commissioner’s last 2 months are largely irrelevant. What is relevant is the next Governor needs to appoint a Commissioner that regards all of the stakeholders as genuine partners in providing services that people with I/DD want and need within the regulatory and funding constraints in place. In my view it should not be an academician, bureaucrat, DHS consultant, hospital administrator, lawyer, or political sycophant. A provider would be a good choice or a MN legislator that actually knows something about the services DHS administers and cares that DSPs make a livable wage. A commitment to making things simpler without being simple and having genuine empathy for those we serve and their families would also be important qualities to look for in a Commissioner.

Although up to the task, I am getting weary of fighting the bureaucracy and truly hope that our next Commissioner inspires DHS leadership to find the good middles and negotiate the difficult compromises that matter so together the stakeholders can build effective programs that have a long lasting impact for those counting on us to support and honor their choices in having a good life. Seriously!

Published September 17, 2018

My last editorial was posted in April 2017 and some have asked why I have been silent for the past 16 months. I chose to pause for two reasons. First, I needed time to reflect on the possibility that my perspective had become as unreasonable as the extremists I was criticizing. That many others continued to call for honoring an individual’s choice validated that my declarations were not unreasonable. Second, I hoped that others trying to collaborate with the Disability Services Division (DSD) would be more productive with my silence. It was not and we lost ground to an agency without genuine purpose or leadership. So, over the next few months I will be sharing my thoughts on the following issues:

The genuinely informed decision by DSD to impose 7% rate cuts;
The ill-advised choice by DSD to implement the new employment waivers;
The real reason DSD wants to redesign DT&H services;
The fallacy of revising the need determination process; and
The further dilution of the Section 511 process.

I am proud to be a member of the Minnesota Organization of Habilitation and Rehabilitation (MOHR) because we have a shared mission and care about each program’s unique ability to serve those with I/DD within the norms of their local communities. As providers we understand that it is normal to be abnormal and have come to expect that each person comes to us with special gifts. We do not enter a relationship with them with the idea that we are going to change them and do not have a mold for which we try and fit people in. Instead we try to figure out how to safely get them from one place to another, how not to allow anxieties to take control, and to understand their wants and needs when they communicate in unconventional ways. We get rid of the pressure on them to change and find the great gifts that make them who they are. The work we put into understanding and helping them overcome challenges forces us to open our minds and look at things differently. We find better ways to ambulate, communicate, initiate, and achieve our “best outcomes” not only within our four walls but also to creatively serve people at home, at work, and in the community. Put simply, we strive to do our part in providing a “good life” to those who choose our services.

So to the DSD leadership, Employment First zealots, MnAPSE idealists, and ICI theorists – I am back and there is nothing quite as liberating as pursing something for the greater good. To that end, know that I will do what I can to ensure that Minnesota citizens with I/DD have genuine informed choice that is honored and funded by State.

Published April 3, 2017

Published January 19, 2017

In April 2016 I posted an editorial about extremism and decided to pause while considering my next strategy. A lot has happened in the ensuing 9-months and not much of it was good for people with disabilities. An upcoming DHS meeting on 1/27 with providers to “develop a strategic planning process addressing the future of DT&H services,” has compelled me to comment before my next strategy is ready to be revealed. With the start of a new year, I will do this by adding the numbers of the year (2+0+1+7) to offer 10 truths found in the very documents cited to support these reform initiatives.

Workforce Innovation and Opportunity Act (WIOA)

1. Section 458 of WIOA was amended by adding section 511 requiring the designated statue unit (DEED) to ensure that as of 7/22/16 people with disabilities under the age of 25 receive transition services, vocational rehabilitation, and career counseling before admission to a supported program and/or annual career counseling, information, and referrals along with information about self-advocacy, self-determination, and peer mentoring training opportunities to those paid a special minimum wage after admission. Ensuring that people with disabilities have sufficient experiences and information to make an informed choice is a good thing and nothing in section 511 requires that supported programs using a commensurate wage certificate be eliminated.

Statements from the Olmstead Court Order (filed 9/29/15)

2. Many individuals with disabilities in this state value living and working alongside other individuals with disabilities in settings such as group homes and sheltered workshops. The Court emphasizes that the Olmstead decision is not about forcing integration upon individuals who choose otherwise or who would not be appropriately served in community settings (page 12 – 13). This was supported by then Commissioner Jesson in her 9/16/15 letter to the Court stating a fundamental principle that “…government and service providers begin listening to individuals about what is important to them in creating or maintaining a personally-valued community.”

3. The goal of placing individuals with disabilities in the most integrated setting must be balanced against what is appropriate and desirable for the individual (page 13).

4. The Olmstead Plan is not about and should not be construed as forcing closure of certain facilities or forcing integration where it is neither appropriate nor desirable. Rather, it is about increasing available choices so that each individual can make meaningful decisions about how to live, work, and interact with the community (page 14).

5. The State must continue to assess its goals and priorities to ensure that they align with the goals and priorities of individuals with disabilities (page 14).

Department of Justice (DOJ)

6. In their statement on the application of the ADA integration mandate and the Olmstead decision, the Department of Justice (DOJ) has asserted that the civil rights of people with disabilities are “violated by unnecessary segregation in a wide variety of settings, including segregated employment, vocational, and day programs” (underline added).

7. From this same document the DOJ states ~ “Employment service systems may include a range of service settings, including sheltered workshops; supported employment services provided in competitive, integrated employment; small group or enclave employment; facility-based programs; and integrated day services provided in typical community settings” (underline added).

Olmstead Plan Workplan ~ Employment (9/30/16 being used for comments)

8. “The policy does not call for the elimination of certain service options or closure of certain facilities” (page 22). This was supported by then Commissioner Jesson in her 9/16/15 letter to the Court that stated “..the Plan is not about eliminating certain service options or closing specific facilities”.

HCBS Transition Plan

9. In their document “HCBS Final Regulations 42 CFR Part 441:  Questions and Answers Regarding HCBS” it states on page 5 that “people may receive services with other people who have either the same or similar disabilities, but must have the option to be served in a setting that is not exclusive to people with the same or similar disabilities.”

10. In the document, “Questions and Answers About the HCBS Rules it states on page 5 that “CMS had made clear that states have the authority to decide whether and when to offer facility-based day programs.”

Considering these 10 truths leads me to the following questions:

• Why aren’t the commensurate wage regulations seen as a “reasonable accommodation” permitting individuals with disabilities that are unable to meet competitive work requirements to earn a special minimum wage?
• Why is intentionally choosing a DT&H setting by a waiver recipient not valued by DHS?
• Why is it not acknowledged that many individuals with disabilities have characteristics that are inappropriate for the broader community and a DT&H setting is necessary as documented in their CSSP-A?
• Why does it appear we are diminishing or eliminating DT&H programs through “1,000 cuts” when the focus should be adding to the array of employment service options?
• How has the Olmstead Implementation Office ensured that the plan’s employment goals and priorities align with the goals and priorities of individuals with disabilities?
• Why aren’t the provisions of 245D sufficient to demonstrate that person centered planning is resulting in individualized service plans and that a DT&H setting is necessary for many individuals with disabilities?
• How has the State determined that its employment service system does not have sufficient capacity for competitive integrated employment as required by the DOJ?
• Why does it appear that DHS is intent on changing DT&H services when they are needed, desired, and permitted in their current form?
• Why don’t the new section 511 requirements sufficiently demonstrate that people in segregated settings have the option to be served in a non-segregated setting?
• Why won’t DHS officially acknowledge that facility-based DT&H services are an essential part of its employment services system?

Thomas Jefferson once said ~ “In matters of style, swim with the current; in matters of principle, stand like a rock”. As someone who frequently wears Zubaz, I am usually out of the mainstream style and I am willing to stand against the reform current and defend DT&H settings for as long as people with disabilities want and need this service. In my view, DHS needs to embrace DT&H settings as a legitimate choice for some element of the disability community and find ways to sustain its availability throughout the state. What needs to change is their attitude, not the service.

Published November 24, 2015

On September 29, 2015, U.S. District Court Judge Donovan W. Frank approved the State’s August 10, 2015 Olmstead Plan and is reviewing the October 9, 2015, Olmstead Workplans (hereinafter “Workplan”) submitted by the Olmstead Subcabinet. All three documents can be viewed at:

http://bit.ly/MNOlmsteadPlanINFO

Olmstead Plan Overview

The 8/10/15 version is a 152-page document that offers definitions, visions, achievements, and measurable goals for each of the 13 specific domains called-out in the Olmstead Plan. Although improved from previous drafts, I disagree with the Court’s approval because:

• its data and measurement goals are either missing, confusing, or inaccurate;
• there is no detail on how case management will be reformed to ensure informed choice and person-centered planning happen for each recipient;
• elements of the plan are contrary to individual choice; and
• the plan implies that no new funding is needed.

This version was approved though, so now we move to what does this mean? My thoughts in this editorial will be limited to the following three topics:

1. Assurances from Commissioner Jesson’s September 16, 2015 letter to Court that references pages 535 – 540 of the Dispute Resolution Plan issued by the Olmstead Implementation Office.
2. Relevant statements from the Court Decision.
3. Employment issues found on pages 21 – 28 of the Workplan.

Commissioner Jesson’s Letter

I have found the Commissioner to be a deliberate communicator and her three-page letter in response to the Levy Amicus Brief included a number of notable points that included:

• A bold statement that “…government and service providers begin listening to individuals about what is important to them in creating or maintaining a personally-valued community”; and we need to hold DHS to the expectation of listening to individuals and redirect policy discussions that do not honor personal values (e.g., Employment First Policy).
• The term “productive employment” and not “competitive-integrated employment” was used when referencing the Plan’s vision statement; a term more consistent with individual choice.
• Acknowledgement that:
  • people with disabilities should receive community-based services when the affected individual does not oppose it;
  • segregated settings will be the preferred choice for some; and
  • the Plan is not about eliminating certain service options or closing specific facilities.
• A dispute resolution for “individuals who believe that they have not received services or supports in accordance with the principles set forth in Olmstead v. L.C.” (page 537 of the dispute resolution process plan). In offering this “meaningful” protection the Commissioner has essentially promised no harm to people with disabilities and the Court made a point of urging the State to “…remain vigilant to the public’s fears and concerns. Individual choice must remain a guiding factor in the delivery of community services and supports. The State must continue to assess its goals and priorities to ensure that they align with the goals and priorities of individuals with disabilities”.

In my view all of these concepts must be woven into the Workplan to engage stakeholders in the collaboration needed for success. Further, broader representation than the MN Employment First Coalition is needed on the employment section of the Workplan to include clients and providers of centered-based services. If I have understood the Commissioner’s declarations accurately, the real work of the Olmstead Plan has just begun and all stakeholders need to remain vigilant to ensure these foundational assurances are reaffirmed during each annual review process and any subsequent plan amendments.

Court Decision

The Court’s 15-page decision has a number of subtle nuances and statements that I believe are worth mentioning.  First, it is unusual that the Court’s final order would even mention an Amicus Brief much less dedicate two pages of reminders to “…ensure that individual choices are honored and respected.” Second, footnote 8 cites the Amicus Brief of Ivan Levy establishing it as part of the Court’s file; that brief references Merrick multiple times and the order by the Court supports many of its arguments. Third, the Court acknowledges that many “…individuals with disabilities in this state value living and working alongside other individuals with disabilities…”, emphasizing that “…the Olmstead decision is not about forcing integration upon individuals who choose otherwise or who would not be appropriately served in community settings”, and the “…goal of placing individuals with disabilities in the most integrated setting must be balanced against what is appropriate and desirable for the individual.” Finally, and here is where the buck stops, the state “…must also allocate its resources and funding according to the informed choices of those whom the Olmstead Plan is meant to serve.” In summary, the following statements are true if I have interpreted the Court’s reminders accurately:

• Not honoring informed choice is any easy dispute to bring back to the Court;
• It is okay for people with disabilities to live and work alongside others with disabilities;
• Integration cannot be forced on people with disabilities and must be balanced with what is appropriate; and
• Funding cannot be taken away from service options chosen by individuals with disabilities.

The Workplan

The State’s 79-page draft workplan dated 9/22/15 has been submitted to Magistrate Judge Becky R. Thorson who will make recommendations for the Court to consider before approval. My comments here are limited to the six employment strategies found on pages 22 – 28 of the document.

Strategy 1:  Implement the Employment First Policy (EFP)

I have refuted the EFP many times and won’t belabor my reasoning again other than to say it is fundamentally flawed and does not respect informed choice. Therefore, I am astounded to see it cited in the Workplan and even more struck that the Minnesota Employment First Coalition is listed as a “partner.” An element of MNAPSE, according to an 11/6/15 visit to their webpage, this coalition is comprised of only six like-minded providers, of which two are residential providers, along with the U of M, and Arc Greater Twin Cities. Not exactly a coalition that represents the 20,000 clients served by the 100+ members of Minnesota Organizations of Habilitation and Rehabilitation (MOHR). As the Executive Sponsors, Jeremy Hanson-Willis and Jennifer DeCubellis need to add representatives of MOHR to match the number from MNAPSE if a balanced Workplan is to be developed that will engage all stakeholders.

Day Training & Habilitation (DT&H) programs have not been determined “segregated” yet in the DHS response to the federal guidelines on defining Home & Community-Based Services (HCBS). Until such time there are no “segregated” DT&H programs and this word should be replaced by center-based throughout the Workplan. Likewise, DT&H providers do not offer “facilities” and this word should be replaced with “programs” throughout the Workplan. Finally, most would agree that developing a framework for informed choice is long overdue and testing should include DT&H programs.

Strategy 2:  Develop an interagency data system to improve measurement of integrated employment

Other than replace “segregated” with “center-based” the only other issue is the difficulty in securing the wage, benefit, and hours worked data on clients hired directly by the business.

Strategy 3:  Reform funding policies to promote competitive, integrated employment

As long as the data gathered supports an “individual’s informed choice for employment” as stated in “Key Activity A”, and representatives from MOHR are included as a partner, this activity should be helpful when DHS gets federal approval for the new Employment Exploration, Employment Development and Employment Support Service waiver options.

Strategy 4:  Develop additional strategies for increasing competitive, integrated employment among people with disabilities

The first revision is adding “to those that want it” to the strategy statement as was done at the Employment Impact Summit cited throughout this Workplan. The focus is on activity within the school systems and needs to include data on why graduating students do not choose competitive, integrated work, the choices made, and longitudinal data on the success of all choices.

Strategy 5:  Implement the Workforce Innovation and Opportunity Act (WIOA) and Section 503

Since the WIOA regulations have not yet been issued, clearly the deadlines for any of these actions will need to be extended. The second bullet under item “B.1” may be an overreach to include people that have already selected programs that use the commensurate wage regulations to pay clients.

Strategy 6:  Implement the Home and Community Based Services (HCBS) rule in a manner that supports competitive, integrated employment

The intent of this strategy is fundamentally wrong and I reject all of its activities until “competitive, integrated employment” is replaced with “individual choice.”

In summarizing my thoughts on this Workplan, until the partners include a better balance of day service providers, clients and/or their families, and some current employers this section should not be approved. It is also lacking the specifics needed to understand how Vocational Rehabilitation Services, State Services for the Blind, and Medicaid funded programs will increase competitive, integrated employment by 19,385 people by 6/30/2020.

Summary

In closing, there is much work to be done on gaining consensus on the work to be done. Still, the Court has given clients an important “toe hold” on this slippery slope called “Medicaid Reform” by making it very clear that the State cannot force integration upon individuals who choose otherwise or who would not be appropriately served in community settings. As providers it is our duty to make sure clients and their families know they can dig in their toes and stop being pushed down the slope to a place they do not want to be and have access to needed resources to make sure their informed choice is honored and funded.

Published May 20, 2015

This is the 30th posting to Bark’s Bytes and perhaps the most opinionated to date. In fact, I was not certain it would ever see the light of day. What convinced me to take the risk was the March 10th Rally at the State Capitol attended by as many as 2,000 people with disabilities and their caregivers. Although focused on the 5% Campaign, what inspired me to “say what I thought needed to be said” was the conviction of people with disabilities to be treated as valued citizens by their government and, in my view, the recent Medicaid reform initiatives do not.

According to “Putting the Promise of Olmstead into Practice: Minnesota’s 2013 Olmstead Plan” dated November 1, 2013; “An Olmstead Plan is a way for a government entity to document its plans to provide services to individuals with disabilities* in the most integrated setting appropriate to the individual. In the landmark civil rights case, Olmstead v L.C. 527 U.S. 581 (1999), the United States Supreme Court held that it is unlawful for government to keep people with disabilities in segregated settings when they can be supported in the community; and the Court, and subsequent Department of Justice (DOJ) guidance encourages states to develop plans to increase integration” (*italics added for reference). If successful, according to the plan, Minnesota will be a place where:

“PEOPLE WITH DISABILITIES ARE LIVING, LEARNING, WORKING, AND ENJOYING LIFE IN THE MOST INTEGRATED SETTING.”

Understanding that I am just one voice with my own experiences, bias, and foibles – there are some key terms/phrases in this explanation that I have italicized for reference and want to call out for discussion.

Individuals with disabilities. Since this general term is used in the Olmstead Plan we must assume that it includes individuals with any disability including autism, intellectual/developmental (I/DD), mental health, physical, or sensory that might be a temporary or lifelong condition. If correct, one has to ask if a single approach can really be measurably impactful across the seven domains of the plan that include: community engagement, employment, housing, health care and healthy living, lifelong learning and education, supports and services, and transportation. From an employment perspective, how to provide work support to someone with a physical disability is very different than someone with I/DD. To propose similar strategies and measures may result in outcomes that mean nothing to any specific group and/or not move us towards any desired goal. In short, the plan is too broad in scope to articulate measurable goals for any of the sub-groups of people with disabilities and, more troubling, establishes goals not even desired by one or more of these sub-groups. This is the critical point where the frame of reference needs to change from government mandates for all service recipients, to a self-directed state policy mandating informed choice for each person with a disability.

Setting appropriate for the individual. In all of these legal briefs, plans, and policies it sounds like everyone believes in “informed choice” yet the Courts, DOJ, and now the MN Department of Human Services (DHS) seem to have already decided that only integrated settings are appropriate for individuals with disabilities regardless of their choice. To support/enforce their “plan” they seem intent on eliminating service options and shaming those that choose something other than competitive integrated work. To me, informed choice has the following four elements: (i) incorporates life experiences; (ii) discloses relevant information; (iii) provides access to a reasonable array of service options; and (iv) validates an individual’s decision. At some point government needs to get “real” and either declare that it only intends to fund options it deems worthy or make a commitment to a self-directed policy and support informed choice.

Segregated Settings. A basic definition of segregation is – the forcible separation of a group or class from the rest of society based on a notable characteristic difference; and, I submit, that no person with a disability served in a day program in Minnesota funded by the home and community-based service (HCBS) waiver is segregated simply because they have CHOSEN the service being provided (Bytes #17, Link: https://merrickinc.org/barks-bytes/end-of-story/). The DOJ seems to disagree by defining segregated employment settings as – “…(c) settings that provide for daytime activities primarily with other individuals with disabilities; (d) employment settings not located in mainstream society’s competitive labor market; (e) employment settings where individuals with disabilities are assembled into a collective or work group; (f) employment settings where individuals with disabilities are present in greater numbers than non-disabled workers, customers, or the general public, as applicable; (g) employment settings whereby individuals with disabilities contribute more than 50% of the direct labor to the production of goods and services for government contracts…”. If I choose to live in 55+ housing this is an “intentional community” and not segregation so why is a person’s informed choice to work in a facility-based program with their peers or part of a collective work group of peers labeled as a segregated setting and therefore “bad”?

In the community. Our programs are located in the communities of Vadnais Heights and North St. Paul, are not in a building that also provides inpatient treatment, and are not located on the grounds of, or immediately adjacent to a public institution. The clients we serve often visit shopping centers, restaurants, parks, libraries, post offices, and other local attractions. Our company supports the local Lions Club and elementary school and is a member of the North St. Paul Business Association, Vadnais Heights Rotary Club, Vadnais Heights Economic Development Corporation, and White Bear Chamber of Commerce. Further, we have partnerships with over 100 local businesses that provide us a service, support our fundraising events, or provide work to clients. So, if we are not “in the community” I need some GPS coordinates to find my office; and does it really matter since we appear to be a segregated setting which has already been determined as bad?

Integration. If you have read any of my previous posts you know I am soooooo done with this term (Bytes #28, Link: https://merrickinc.org/barks-bytes/half-baked/). To me it is all about inclusion because you simply cannot define integration in a way that works for everyone. The DOJ makes my point by offering the following draft definition of an integrated setting – “(a) provides individuals with disabilities opportunities to work and receive services in the greater community, like individuals without disabilities; (b) is located in mainstream society; (c) offers access to community activities and opportunities at times, frequencies, and with persons of an individual’s choosing; (d) affords individuals with disabilities the opportunity to interact with nondisabled persons who are not paid care-givers to the fullest extent possible based on the typical interactions of the type of job”. Huh? I mean really, what is the “greater community”, who is the control group of individuals without disabilities that is used for comparisons, where is this “mainstream society” located exactly, and how does anyone determine the “typical interactions” surrounding any type of job? I can’t say it anymore plainly than this is just crap. If someone feels known and valued in their community they likely feel included, which is all that really matters.

More rarified insight is provided in federal legislation that defines competitive integrated work as – “Work that is performed on a full-time or part-time basis (including self-employment) for which an individual is compensated at a rate that shall be not less than the higher of the rate specified in section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the rate specified in the applicable State or local minimum wage law; and is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not individuals with disabilities, and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills; or in the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities, and who are self-employed in similar occupations or on similar tasks and who have similar training, experience, and skills; and is eligible for the level of benefits provided to other employees; that is at a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons; and that, as appropriate, presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions”. Have you got that memorized? Essentially this means that every client at Merrick, Inc., should be working full- or part-time, making at least minimum wage, with the same benefits as employees without disabilities in similar positions, at a location that has no other workers with disabilities. Piece of cake, especially if you don’t care what the person with a disability wants or if they sit at home waiting for a job that won’t materialize. If the person with a disability feels the work they do is a valued job then, regardless of government definitions, it is.

The 9/29/14 version of the Minnesota Employment First Policy asserts that – “…all working age Minnesotans with disabilities can work, want to work, and can achieve competitive integrated employment…”. Yet, according to the State Data Book 2011 published by the Institute for Community Inclusion (ICI) at the University of Massachusetts, only 75% of ALL Minnesotans of working age (16 – 64) are employed. This is where the VAPOR (Very Appealing Promises Obfuscating Reality) gets thick because any rational person should know that this assertion can only be false. Yet the Olmstead Sub-Cabinet has adopted the Employment First Policy in a fast-tracked process that did not include much engagement of working age adults with disabilities or their families. More damning is the simple truth that this policy is contrary to the very core principal of person-centered planning that allows a working age adult with disabilities to make a choice – including the choice to work, not work, or work in something other than competitive integrated employment.

Not to be left out, the Centers for Medicare and Medicaid Services (CMS) issued new rules in January 2014 that outline mandatory requirements for person-centered planning and home and community-based (HCB) settings. As explained by DHS in a November 2014 document, “It general, it is intended to give participants receiving home and community-based services increased choice and integration into the community. CMS requires each state to create a transition plan detailing how the state will come into compliance with the requirements by March 17, 2019”. Reading all the CMS guidance on this rule I came away with the understanding that they want DHS to ensure that recipient experience is not institutional and does not isolate participants from the broader community. A noticeably different take than the DHS understanding and they are making this way more complicated then is needed. I attended the DHS “Provider Self-Assessment Training” on 3/19/15 and, although nothing in the CMS rules prohibits facility-based settings and the rule “established a definition of HCB settings based on the individual experience and outcomes, rather than one based solely on a setting’s location, geography or physical characteristics”, it seems very unlikely that any of the 100+ DT&H providers will be found in compliance with the state’s application of the CMS rule. If we cannot come into compliance by 3/17/19 with criteria not yet defined by DHS we will be deemed an institution and ineligible to provide services funded by the waivers; and, from a public relations standpoint, it is much easier to eliminate institutional services then community-based services. How is making DT&H programs ineligible to serve over 10,000 working age adults with disabilities funded by the waiver increasing their choices?

I’ve tried to add some humor in my comments and in truth it’s not funny at all when you look past the disingenuous promises of choice and integration to find the subtle intent emerging from these three reform initiatives – and it ain’t good. While there are many definitions of terrorism, most would agree the action boils down to the following three elements used by those attempting to exert control:
• Demanding you believe what they believe;
• Taking options away to diminish your choices; and
• Using rules and social pressure to force your compliance.

How does the Olmstead Plan, Employment First Policy, and HCBS Transition Plan measure against these elements? Well it seems they:
• Assert a belief that all working age adults with disabilities can work, want to work, and can achieve competitive integrated employment;
• Intend to eliminate special minimum wage certificates and expect that all people with disabilities earn at least minimum wage; and
• Propose policies and regulations to forcibly close facility-based programs.

It may sound far-fetched, however, in my view these three reform initiatives are tantamount to social terrorism and if we cannot convince government to be more inclusive it will be a very different and less accommodating waiver program in Minnesota in the very near future. Although they have a head start, it is not too late and recipients of HCBS services, families, professionals, and advocates need to get engaged to:
1. Revise the employment section of the Olmstead Plan to have goals and actions specific to each of the unique disability groups;
2. Replace the Employment First Policy with a Self-Directed Policy, yet to be written, that mandates informed choice; and
3. Require that the state’s Transition Plan define day services as meeting the CMS definition of a home and community-based setting.

Our forefathers appealed to their King for representation in exchange for taxation and their voices were not heard leading to the American Revolution. It is time again for a revolution, not with guns, but with action to reclaim individual choice over government mandates. Each of us need to tell our Senator and Representative, the MN Disability Law Center, and the Olmstead Sub-Cabinet that we reject social terrorism and hold to the belief that self-direction for people with disabilities is only achieved when informed choice is realized one person at a time.

The British are coming – do you see the lanterns in the belfry tower?

Published February 11, 2015

Note from JWB: I have turned over this edition of Bark’s Bytes to Jim and Karen Clapper who are parents of a client at Merrick. Jim is on the Board of another DT&H program and both are very concerned about some of the system changes they are seeing on the horizon. As part of their discovery process, they asked to meet with me in January that led them to write this article. I hope hearing a family’s perspective on these potential system changes provides some balance to the discussions and something you will share with others in your network.

Our son, Bob, has been a client at Merrick, Inc., a Day Training and Habilitation (DT&H) provider for the past six years and currently performs work at the facility. We have been impressed with his development at Merrick and really appreciate what the staff has done to facilitate and enable his growth. He enjoys his work, but more importantly, he takes pride in earning a paycheck every other week. We have been very grateful for the Medical Assistance (MA) waiver funds that enable Bob to have this opportunity.

During the past two years, we have worked to establish an independent housing option (IHO) for Bob. On May 1, 2013, he moved into an unlicensed IHO with two other young men with disabilities under the care of a residential services provider. We are very grateful for the MA waiver funds that enable Bob to live in this setting, and for all the support we received from our Ramsey County case manager and the residential services provider. His development had plateaued while living at home, but we now see him making progress again in his skills and teamwork in this new long-term living arrangement.

As we have started to feel comfortable about his living and working situations, we are learning more about several changes that appear likely to impact Bob in a very negative way. The Olmstead Plan in Minnesota is shaping up under the direction of a subcabinet commissioned by Governor Dayton. In fact, the Minnesota Department of Human Services (DHS) has been firmly directed to get this plan developed with specific and measureable goals per the Jensen Settlement. From what we have read, the judge was disappointed with the lack of substance in the plan and told DHS to go back and try again. The intentions of CMS (federal office that administers MA waiver funds) are very clear. They do not intend to continue funding segregated programs in the future nationwide. A handful of states have already closed sheltered workshops and DT&H centers for this reason! The Home and Community-Based Services final rule requires Minnesota to come into compliance by March 2019.

All these initiatives and rules seem to have some common themes, which are very disturbing and represent a huge threat to the future happiness, stability, and growth of people with disabilities. Anything that looks “center-based” appears to be very bad; the new buzzword is “community-based.” The situations that Bob currently enjoys also appear to lack “integration” and are now considered to be “segregated.” Another theme, “employment first” seems to suggest that all people with disabilities should be employed in the community, working 30 – 40 hour work weeks, and earning the same wages and benefits of non-disabled employees completing the same work. The current thinking is that when a person with disabilities comes out of a school transition program, competitive and integrated employment MUST be implemented and have failed before any type of day services can be considered.

John Wayne Barker, Executive Director of Merrick, Inc., met with us on January 29. Unfortunately, he validated all of our concerns; these things are real and are heading our way.

After all of our work, and the work of many other people, Bob could end up with no DT&H program to go to everyday. He does not have the capabilities or even the interest in working in a competitive integrated job. So much for “Person-Centered Planning”! His alternative may be to sit at home if his DT&H program is shut down. What about his waiver funds that pay for residential services? If his current IHO does not pass the test of being community-based and integrated, where does he go?

Darlene Zangara is the Executive Director of the Olmstead Sub-Cabinet and will meet with families from 6:30 – 8:30 P.M., on Wednesday, March 4, 2015 in the Commons at Merrick on 3210 Labore Road, St. Paul, MN 55110. We will be there, front and center to hear more clearly about the Olmstead Plan and how we can help shape it so that our fears are not realized. What I know about the plan just does not represent who we are as Minnesotans. We hope to have a good turnout at the meeting and only have room for 100 so please RSVP through John Wayne Barker at jwb@merrickinc.org. DT&H service providers like Merrick can do only so much to influence the State. It is vital that parents and guardians get close to these initiatives and let our state and federal officials know that we cannot accept many of these concepts and plans.

Jim and Karen Clapper
j.s.clapper@comcast.net

Published October 1, 2015