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Author: John Wayne Barker

Bark’s Bytes #18 | Client Wages

Over the past year, Merrick, Inc., has focused our messaging to show why clients and our community are better for our services having been delivered. One of the key messages is that between 2004 and 2011 annual client wages increased from $331,775 to $542,970; an increase of 64%. This would be impressive anytime but even more so given the last three years of economic recession. Yet all statistics can be skewed to tell a more effective story… so, what is the data behind our numbers?

In 2004, we reported wages for 230 clients to the IRS and 289 clients in 2011 for a net increase of 26% client workers. Whereas, the average annual wage in 2004 was $1,442, it was $1,879 in 2011 – an increase of 30% (the average is $2,260 if you only count the 80% most productive clients an increase of 57%). In addition, according to a Ramsey County report, in 2011 we had 42 clients hired directly by a business averaging 17.8 hours a week at $7.71 an hour. You might think that a 30% increase sounds good and $7,136 in annual wages for clients hired directly by employers is nice – but isn’t $1,879 a year in average wages for 289 clients working on crews or in our facility rather low? If you consider that we only serve clients six hours a day and about one hour of that time is for transportation, one hour for breaks or other program elements, and perhaps a half-hour due to downtime, the average client is working approximately 3.5 hours a day or 787 hours a year.

Wait – how can Merrickpay clients $2.40 an hour ($1,879/787 hours) when the minimum wage is $7.25? We have what is called a commensurate wage certificate that is monitored and enforced by the Fair Labor Standards Act permitting us to pay a special minimum wage. The process to obtain a commensurate wage certificate is rigorous, reported on annually, subject to renewal procedures, and enforced by the U.S. Department of Labor. Calculating a special minimum wage requires us to establish the local market wage ($8.70 in 2011), and the output of a worker who is non-disabled to determine the “unit rate” for the work to be completed. We must then track the number of units each client produces and multiple this by the rate to determine each person’s earnings. For example, if a non-disabled worker can assemble 87 widgets an hour, then the unit rate is 0.10 cents a widget ($8.70/87 = 0.10) and that is what clients get paid for every widget they assemble. Everyday we have clients that are paid more than $7.25 an hour because they produce units at a rate exceeding the standard and we support one client that is working full-time and making more than $10.00 an hour with benefits. For more information on the benefits of the commensurate wage certificate, please read my editorial entitled “Commensurate Wage Is Not a Turkey”.

Okay – I understand this concept but how can clients live on $2.40 an hour? They can’t and you have to also consider the value of other support they receive. For example, the Jobs Now Coalition estimates that in 2009 a single adult in Ramsey Countyhad to earn $20,832 annually to pay for food, housing, healthcare, transportation, and other necessities. For most of our clients theses expenses are paid for by government funding along with as much as $8,376 annually in Supplemental Security Income (SSI) benefits of which I will only consider 25% or $2,100 annually, for personal expenses. When you add these three items together, clients are receiving the equivalent of $11.93 (20,832 + 1,879 + 2,100/2,080) an hour or $24,810 annually. Now some may say that if clients were paid more they could pay for more of their living expenses and reduce government spending. That sounds nice, and the state does have a program called MA-EPD which essentially does this when appropriate; however, in most cases these 289 clients have significant disabilities that limit their activities of daily living (ADLS) and independent activities of daily living (IADLs) that qualified them for services in the first place.

In closing, client wages have increased more over the past eight years than at any other time in our history which is indeed an accomplishment during these difficult economic times. This appears to be validated by 90% of the 243 respondents to the 2011 client satisfaction survey agreeing, “They were generally satisfied with the amount of money Merrickhelps me earn”. While others state that “they [sic clients] can do something – I am not sure what it is” we listen to client preferences and do our best to find their desired work. While others only focus on clients with the most capabilities and suggest that others be given the option of “staying at home”, we celebrate with clients that make less because of the effort involved and the pride in their paycheck. If the people we serve are doing work they enjoy, mostly on their own, in a setting of their choice, for the hours desired, at satisfactory wages – then we are living up to our mission to provide meaningful work that will guide them towards realizing their goals and dreams. To promote this message we have added two new tools to our communication toolbox:

I urge you to take a few minutes to educate yourself on this issue through our new tools and join with us in showing others why our communities are better off for having DT&H programs around.

Bark’s Bytes #17 | End of Story

Like the invasive milfoil that clouds our lakes and zebra mussels that kill our native species – Bob Shaw’s article ‘Is it exploitation of disabled, or a lifeline” (St. Paul Pioneer Press 7/8/12) makes our pond murkier and diminishes the progress made in the last decade by people with disabilities. Mr. Shaw’s article had three critical flaws that destroyed a potentially good story and I will try to correct each for the record.

First, we are not “segregating a minority class” as Scott Schifsky, Program Director of The Arc of Minnesota, is quoted as saying in the article. Integration has become a hot topic recently and, because misguided zealots don’t seek reasonable consensus, it is unlikely that we will have an agreeable definition anytime soon. Moreover, in a very real way integration is a choice. For example, a retired couple that chooses to live in an assisted living complex with their same-aged peers would not think of themselves as being segregated. Therefore, if integration is chosen by the individual, perhaps defining segregation would be helpful in this discussion and I offer the following – “Segregation is the forcible separation of a group or class from the rest of society”. From my view “segregation” does not apply to the nearly 16,235 people with intellectual and developmental disabilities (I/DD) served by Day Training & Habilitation (DT&H) programs in Minnesota because their placement was chosen by an interdisciplinary team that included themselves, their guardian/family, and an independent county case manager. Therefore, if people with I/DD are not segregated, they must be integrated. End of story.

Second, and perhaps forgivable because even Mr. Shaw’s expert sources don’t report the numbers correctly, the unemployment rate for people with I/DD is not 77 percent. To begin, it is important to remember that the employment goal is not 100% as, according to the StateData 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. Now to the numbers (updated on 7/12/12 with new MDE data).

  • The ICI reports that Minnesota has 131,744 citizens with a cognitive disability of working age and 75% of that number is 98,808 of which 48,705 are reported as employed.
  • The Minnesota Department of Human Services reports that in 2009 DT&H programs served 16,235 people with I/DD of which only 1,677 were not pursuing work with 14,588 either hired by an employer, working on a crew, or completing facility-based work.
  • In Minnesota most students with I/DD enter a transition program when their peers graduate until age 21. For school year 2010 – 2011, the Minnesota Department of Education website reports 127,863 unduplicated special education students of which 24,129 are ages 16 – 21.

Consequently, of the estimated 98,808 working age people with I/DD, 32,470 (48,705 – 16,235) are placed into jobs by the Minnesota Department of Employment and Economic Development or others making at least minimum wage, 14,588 people with I/DD in DT&H programs are working, and 24,129 people with I/DD are 16 – 21 year olds still in school. As a result 71,187, or 72% of our citizens aged 16 – 64 with I/DD are either working or in school compared with 75% of all Minnesotans. So, Minnesota has done a great job of providing work to people aged 16 – 64 with I/DD and their unemployment rate is not 77 percent. End of story.

The third flaw, and what I was most disappointed in, was Mr. Shaw’s decision to highlight the differences in the people with I/DD he met instead of recognizing the vast majority of sameness with the non-disabled population. I am certain that if I visited Mr. Shaw’s office I would observe unshaven men, women with a bad hair day, people dressed slovenly, messy work areas, and some eccentric behaviors. Still they are people doing their job and evaluated by their performance not solely their appearance or character traits. Why is it that Mr. Shaw chose to describe people with I/DD as though he was explaining to his children why animals in the zoo look and act differently than us? His comments were disrespectful and only reinforce the stereotypes that self-advocates, families, and providers have been trying to change for many years. I am privileged to be around over 350 people with I/DD on a regular basis and I mostly see individuals who want to be respected, given choices in their lives, and valued in their communities. Isn’t that what most of us want? One of the clients at Merrick is quoted as saying “We do have disabilities, but we’re capable of doing pretty much anything we want to do. Just like you. We work really hard. We have our goals and we want to make our dreams come true.” What constitutes fulfilling work is an individual choice and can be found as an employee of a business, a member of a crew, or in a facility-based setting even if that doesn’t jive with a fictional book someone is writing for self-aggrandizement. If you want a good story, read “Hiring People with Disabilities” written by Maura Keller in the February 2012 Minnesota Business and then call a DT&H in your area to talk about options to provide meaningful work to people with I/DD. By the way, Mr. Shaw, I sleep with my mouth open too – what does that mean? You missed a great chance to promote people with I/DD as valuable workers. End of story.

Bark’s Bytes #16 | Outreach


With the 2012 Legislative Session in our rearview mirror, I am more convinced than ever that DT&H programs need to be educating their communities about how they make a positive difference in the lives of citizens with disabilities. As an example, whether you were a proponent of the stadium bill or not, it is clear that Vikings’ fans contacting their legislators in the last few weeks made a difference in the result. It is no longer acceptable to just do good work. We must also work hard to tell others about the good we do or accept not being valued by policymakers.

Outreach became a focus at Merrick, Inc., in March of 2011 when the Board of Trustees approved a plan to engage a communications consultant for a period of 13-months to accomplish some very specific deliverables. After soliciting for proposals, an internal ad hoc committee selected Kristi Hamilton of En Root Marketing & Communications as our consultant and she began her contract on 6/1/11. Her work with us has included conducting focus groups to refine our key organizational messages, leading us through a refresh of our branding, launching a virtual tour on our website, and laying the groundwork for proactive outreach with the community at large and potential business partners. 

In addition to the communication consultant, we planned for a 20-hour communications specialist position and in late September of 2011 welcomed Emberly (Em) Hermann-Johnson to the company. During the interviews, I asked each applicant their thoughts on my Bark’s Bytes editorials. Em’s response was the best with, “You seem to know what you are talking about and it was TLDR (Too Long Didn’t Read).” I knew then we had found the right person for the job.

As our communication specialist, Em seems to be involved in most everything happening at Merrick and is principally responsible for:

  • training Trustees and Managers to effectively use social media to advance the company’s mission;
  • managing email messaging, enewsletters, social media pages, and the website;
  • producing program and annual report print media;
  • coordinating the company’s stakeholder database;
  • tracking and reporting web and social media analytics; and
  • supporting my civic and business outreach activities.

A goal of mine is to make at least one presentation a month to a local business about the capabilities of our client workforce and to one civic organization about the benefits of our program. To do this, we use a “Point of Entry” model to identify, research, qualify, and schedule presentations with potential business partners and civic organizations in our community. All of this to accomplish two primary objectives:

  1. To find meaningful work for clients at Merrick, which we define as work preferred by the client, done mostly by the client, in a setting of the client’s choice, with consistent desired hours, and satisfactory wages.
  2. To have citizens understand that the clients we serve and their communities are better for the services having been delivered.

A reality for the clients we serve is that work is an essential part of being genuinely integrated in their communities because either they work at a business and/or their earnings give them the discretionary income needed to be an active citizen. Modifying a quote from Martin Luther King, Jr., “True integration will be achieved by true businesses who are willingly obedient to unenforceable obligations” encourages us to educate businesses on the benefits of employing people with disabilities and they will then voluntarily find those opportunities.

For the eighth straight year, client earnings went up and in 2011, clients paid through Merrick earned over $565,000. Still, we seek meaningful work for about 16 clients on-site, 18 clients on work crews, and six clients looking for independent placements. So, if you know of a business and/or civic group we should be driving home our messaging to, please send me your leads at I firmly believe through networking and spreading the message of the good work we do, we will be able to successfully continue our journey of empowering adults with disabilities.

Bark’s Bytes #15 | Numbers


For the past few decades, a tremendous amount of time and money has been spent on integrating people with disabilities into the non-disabled community. As part of this process, how employment integration is defined continues to evolve and there is a small group advocating for “Employment First” legislation that would embody the following definition:

“Expecting, encouraging, providing, creating, and rewarding regular integrated employment in the workforce at minimum or competitive wages and benefits as the first and preferred outcome for working-age youth and adults with disabilities especially for those with complex and significant disabilities, for whom job placement in the past has been limited, or has not traditionally occurred” (MN Employment First Report – September 30, 2011).

According to this same report – “The employment rate for individuals with disabilities reported by the Office of Disability Employment Policy, is less than one-third that of people without disabilities (21% compared to 70% respectively)”. I do not consider this statement accurate. Conservatively speaking, at least two percent of our state’s population of 5,303,925 (2010 MN Office of Geographic and Demographic Analysis) has a developmental or intellectual disability (D/ID, formerly referred to as mental retardation) resulting in a total state population of at least 106,000 people with D/ID. Again referring to the MN Office of Geographic and Demographic Analysis, 84% of the population is of working age (16 – 64) which means that 89,000 (106,000 x .84) citizens with D/ID are of working age. According to the “Minnesota State Profile Tool:  An Assessment of Minnesota’s Long-Term Support System” (Eiken, S., L. Gold, S. Larson and K.C. Lakin, 2009, Table 2.2) 27,750 citizens (1,859 ICFs/MR, 14,056 DD Waiver, 11,855 CADI) with D/ID are served on a monthly basis. That would leave 78,250 (106,000 – 27,750) citizens with D/ID that are not “in the system” of which 65,730 (78,250 x .84) are of working age. Therefore, it could be argued that 74% (65,730 / 89,000) of people with D/ID of working age are in the workforce at minimum or competitive wages and benefits since they are living in their communities without any public support – not the 21% cited in the MN Employment First Report.

This leads to the second part of this issue concerning the definition of “integration” and it seems unlikely that the stakeholders supporting the D/ID population will soon come to a consensus definition. Moreover, in a very real way integration is a choice. For example, a retired couple that chooses to live in an assisted living complex with their same-aged peers would not think of themselves as being segregated. So, if integration is defined and chosen by the individual, perhaps defining segregation would be helpful in this discussion and I offer the following:

“Segregation is the forcible separation of a group or class from the rest of society”.

From my view this term does not apply to the 27,750 people with D/ID served by group homes and DT&H programs in Minnesota because their placement was chosen by an interdisciplinary team that included themselves, their guardian/family, and an independent case manager. Therefore, if people with D/ID are not segregated, they must be integrated. Beyond the reality of integration as an individual choice, as Martin Luther King, Junior said – “True integration will be achieved by true neighbors who are willingly obedient to unenforceable obligations.” This quote suggests to me that if we genuinely listen to the person with D/ID to identify their preferences, determine and build on their skills, and actively search for connections in their neighborhoods – businesses will hire them and communities accept them because they add value, not out of charity or because of some government mandate. It all comes down to doing the right thing, at the right time, one person at a time, without all the hyperbole coming from the ivory tower.

Is working in a facility-based DT&H program a good choice for people with D/ID? Yes if that is the individual’s preferred choice. Moreover, having state legislation that makes “minimum or competitive wages and benefits the first and preferred outcome” is contrary to person-centered planning and legislators need to hear the thoughts of their constituents on this issue.

Can more people currently served by DT&H programs be competitively employed? If that is their choice – yes and better progress will be made if we stop setting goals that are based on statewide statistics. For instance, the MN Employment First Report references the Fourth Summit of the Employment First Coalition that was held on September 30, 2011, around the question, “What will it take to double employment of Minnesotans with disabilities by 2015?” The answer is we cannot double the 74% employment rate of the statewide D/ID population, however, we can work on increasing the number of DT&H clients of working age in the workforce at minimum or competitive wages if that is the individual’s preferred choice.

Bark’s Bytes #14 | Commensurate Wage is Not a Turkey

Fueled by an egregious situation involving an Iowa turkey farmer, there have been some provocative media stories and federal committee hearings calling for the repeal of the commensurate wage provisions of the Fair Labor Standards Act (FLSA). To be clear, the review and discussion of the commensurate wage provisions to ensure that outcomes are meeting original intents should be encouraged. Unfortunately, statements in the National Disability Rights Network document entitled Segregated & Exploited – A Call to Action are both misleading and one-sided; and those who are championing the repeal of the commensurate wage provisions at committee hearings are only telling half the story.

Presuming most of the readers have worked at some point in their life I assume that everyone understands that not every worker in America is paid a guaranteed wage. There are many examples of workers that are non-disabled who get paid a special minimum piece-rate, sub-minimum wage plus tips, or 100% commission (assembly worker, food server, sales professional) that result in earnings commensurate with their productivity.

Unlike Greece that is struggling with an economy where workers are paid more because of their personal connections than productivity, I believe that one of the most important elements of capitalism is that most often workers and businesses are paid based on the value of what they produce – nothing more and nothing less. Few among us would choose to leave a server at a breakfast diner a 15% gratuity if we knew that person was earning $15 an hour.

The following points are an attempt to quickly tell the other half of this story and explain why the commensurate wage certificate is an important option in providing meaningful work to people with disabilities.

  • Providers are NOT paying sub-minimum wages to anyone. Providers with a commensurate wage certificate are paying special minimum wages that are monitored and enforced by the FLSA. The process to obtain a commensurate wage certificate is rigorous, reported on annually, subject to renewal procedures, and enforced by the Department of Labor.
  • Calculating a special minimum wage requires the provider to establish the local market wage, not the minimum wage, and the output of a worker who is non-disabled to determine the “unit rate” for the work to be completed. The provider must then track the number of units the worker who is disabled produces and multiply this by the rate to determine each individual’s earnings. Everyday workers who are disabled are paid more than the minimum wage because they produce units at a rate exceeding the standard.
  • Human service providers are able to secure contracts with businesses that offer meaningful work to clients who are disabled because the cost to produce the units matches the market. To expect businesses to pay more than “market value” for a unit is asking the private sector to subsidize the human service system. This added cost would have to be passed onto the consumer inflating the cost of living and essentially become a hidden tax.
  • Facility-based programs are usually located near other similar businesses within the community. Furthermore, according to the most recent MN State survey of DT&H providers, 61%, of the workers who are disabled are facility-based, 34% work as part of a crew at an employer-based setting, and 12% are hired directly by a business. Facility-based programs offer an important choice for vulnerable adults not ready or interested in working within an employer-based setting.
  • Finally, let’s talk about choices for workers who are disabled and their families. No one is required to be served by a provider with a commensurate wage certificate. By definition, segregation is to impose the separation of a group or class from the rest of society and that simply does not apply to clients with guardians and independent case mangers that choose commensurate wage providers. If a person with a disability does not want to be paid a special minimum wage, they are free to find a job on their own for a wage they find acceptable. There is no need to destroy an option that permits human service providers and businesses to offer meaningful work at a fair wage to millions of our citizens with disabilities.

In closing, what the opposition doesn’t tell anyone is that the repeal of the commensurate wage provisions will result in the loss of meaningful work and wages for millions of citizens with disabilities without any alternative options. At Merrick, the loss of the commensurate wage provisions would result in the loss of work for more than 200 clients that last year made more than $565,000 in wages. These individuals have been certified as disabled, by law are vulnerable adults, rely on transportation services, require 24-hour support and supervision, and cannot function independently at a business or they wouldn’t be in our program. What are they to do if there is no work?

Bark’s Bytes #12 | We are Better Than That

The Pioneer Press reported the results of an Associated Press poll on April 14, 2011.  The poll stated that “54 percent of taxpayers believe their tax bills are fair”. In the April 19, 2011 edition of the Pioneer Press, a national McClatchy-Marist poll reported that “Americans clearly don’t want the government to cut Medicare, the government health program for the elderly, or Medicaid, the program for the poor.” It further stated that “…voters by a margin of 2-1, support raising taxes on incomes above $250,000, with 64 percent in favor and 33 percent opposed” to this action.

Yet, a vocal segment of MN citizens take every opportunity to state – Don’t raise my taxes, I already pay too much – and many of the newest MN Senators and Representatives seem to feel they were elected specifically to prevent that from happening.  As a human service professional observing the stalemate between the legislature and Governor’s office, it occurred to me that no one has offered an answer on what is the right amount of taxes to pay – just that they are too much.
Having just completed my 2010 income taxes, I decided to examine my own situation for any insights on this issue. To compute my cost of living in Dakota County and the State of Minnesota, I added my county and state taxes before dividing the total by 2 (my wife and I), then by 365 days, and finally by 24 to get to an hourly cost.  The result was I pay 48 cents an hour.  Unfortunately, this does not answer the question if I am paying too much.  I then considered what I have access to as a citizen of the state and came up with a quick list that included:  city, county, and state government services; county and state courts, local jails, and state prisons; public education; social, human, and long-term care services; police and fire protection; city, county, and state parks; and roadway, rail, mass transit, and river transportation systems to name just a few. Initially it seemed like a “good deal”, but was it?  Afterwards, I identified my top nondiscretionary living expenses such as my home, healthcare, and transportation and ran these totals through the same calculation.  What I discovered was that as an individual I pay 94 cents an hour for my home mortgage and insurance, 63 cents an hour for my healthcare copayments and deductible expenses, and 26 cents an hour for my car payment and insurance.  Comparing my hourly tax expense against these other three hourly expenses answered the question for me that I am not paying too much in taxes.  Kevin G. Hall reported on data from the nonpartisan Congressional Budget Office (CBO) in the McClatchy Newspaper on May, 5, 2011, that seems to support my conclusion.  Some of this data includes:
  •  “all income classes paid lower effective tax rates in 2007, the last year of complete IRS data, than they did in 2000” (the effective tax rate is what people pay after all exemptions and deductions);
  • ” the highest 20 percent of tax filers saw their total average federal effective tax rate fall from 28 percent in 2000 to 25.1 percent in 2007″ · (that is considerably lower than the current top marginal tax rate of 35 percent, and lower than the 27.5 percent effective rate in 1979, the first year that CBO data are available.); and
  • ” for the wealthiest 1 percent of filers, the effective tax rate fell from 33 percent in 2000 to 29.5 percent in 2007″ (the poorest 20 percent of filers saw their effective rate fall from 6.4 percent to 4 percent.).

Hall’s article provides another perspective from the Commerce Department’s Bureau of Economic Analysis that goes back to 1929 (the bureau’s data on personal income make it possible to guess roughly what portion of income goes to the taxman). Under this calculation “Americans on average saw 17.3 percent of their income go to federal taxes in 2009 and 2010.  The last time the percentage was this low was 1975, and during the late 1960s.  If you exclude social insurance taxes on wages — for Medicare and Social Security — the share of taxes as a percentage of income drops to 9.4 percent in 2009 and 9.3 percent in 2010, the lowest since 1950”.

To be fair, the Governor is planning to raise taxes not just eliminate previous tax cuts approved in the Bush administration.  His proposal is to create a fourth-tier rate that would apply to 2% of tax filers in Minnesota or approximately 105,325 of our citizens. Because the wealthy can buy anything they need or want, isn’t it time we focus on the other 5,160,890 citizens that live in the state and stop making them do with less?  It seems most of my fellow citizens agree.  In a poll conducted by the Star Tribune, and reported by Baird Helegson on May 15, 2011, 63% of the respondents said they favored a blend of higher taxes and service reductions to tackle the budget deficit with only 27% wanting the budget balanced solely through cuts.

Don’t get me wrong.  The budget deficit should not be balanced solely by raising taxes and I fully support a renewed focus on making sure tax dollars are spent both efficiently and only on essential services.  The following are just a few of the suggestions I have offered in testimony to the 2011 legislature: 

  • Reform case management.  As discussed in the February 2011 Report to the Legislature, client choice of case managers is restricted in Minnesota and the cost exorbitantly high.  By defining service expectations and restructuring rates to be in line with comparable services, not only can the state save nearly $40 million dollars annually, but clients will have a genuine choice in selecting the right advocate to coordinate their service plan.
  • Close State Operated Services.  As the Minnesota Extended Treatment Options (METO) lawsuit demonstrates, there is an inherent conflict of interest in both monitoring and managing human service programs. This aside, state-operated services cost substantially more than private sector providers and do not produce better outcomes.
  • Reduce Bureaucratic Spending.  At a time when recipient budgets and provider rates are being cut, DHS is requesting an additional 4 FTEs in their biennium budget. As an example of how “out of touch” they are with the situation, their 2011 – 2015 Strategic Plan has four goals, 19 strategies and 116 actions without a single cost reduction initiative.  Simply put, there is too much redundancy in the current system and DHS reform seems to always result in sameness at an ever increasing cost that takes funding away from recipient services.  It is time for a legislative audit to bring bureaucratic spending back in line with core values and essential services. 

Governor Dayton’s budget counts on approximately $1.8 billion from the new fourth-tier tax rate and the data earlier in this editorial validates this is clearly warranted.  To this, I would be happy to kick-in an additional two cents an hour ($175 a year) bringing me to an even 50 cents an hour for being a citizen of this great state. If every Minnesotan 18 – 65 years-old did the same we could raise another $585 million and, together with Dayton’s plan, account for nearly $2.4 billion of the budget gap leaving $1.2 billion to come from budget cuts.  Seems like an appropriately balanced solution to me.

It is time for the legislature to listen to the citizens and fairly consider the facts so that a balanced solution can be negotiated and the budget passed without a special session and/or partial government shutdown. I believe that a safe home, sufficient food, adequate healthcare, and a decent education or meaningful work are essential aspects in people’s lives that no one would voluntarily give up and should not be denied to others.  As Mondale said – “We are better than that” – and we have a choice to either make those who are most disenfranchised pay the price or consider this a moment of grace in considering the needs of fellow human beings that live in our state.


Bark’s Bytes #1 | What’s First


Most often we are told that between 2% and 4% of the general population has a developmental disability (DD).  Applied to the most recent census, that results in approximately 103,000 to 206,000 people with DD living in the State of Minnesota.  In 2005, DHS reported an unduplicated count of 28,833 recipients in the Home & Community Based Service (HCBS) waivers (CADI, CAC, TBI, MR/DD) and Medicaid (MA) program (ICFs/MR); and 12,524 unduplicated recipients in Day Training & Habilitation (DT&H) programs.  If 3% of the state’s population has DD, it follows that only 18.7% of them are receiving HCBS or MA services and only 8.1% receive DT&H services.  Said another way, at least 81.3% of our citizens with DD live without HCBS or MA services and 91.9% either work in typical jobs, are in school, choose not to work, or have retired.  While I do not accept the report’s implication that clients of DT&H programs are under- or un-employed, even if that is one’s opinion, 8.1% is a much different number than the range of 60-70% cited in the report.  It is time to stop using misleading statistics that only engender arguments and never produce action; and leaders within our industry should spend their time meeting the wage expectations of those they support and not concern themselves with unemployment statistics that mean nothing to those we serve.

The “real need” is not to reform the vision and goals driving Minnesota’s educational and rehabilitation systems as called for in the report.  Rather, the real action is to practice genuine person-centered planning for every recipient of HCBS or MA services.  It is not “Employment First” as declared in the report.  Rather, it is “Self-Determination First” as asserted by self-advocates.  As Burton Blatt once said, “Why does reformation always result in sameness?”  Systems are systems and you cannot reform them to be individualized.  Instead, all system initiatives should be focused on minimizing itself to operate within the background with person-centered planning operating in the foreground.  I submit that action happens only at the point of service delivery and, in this case, only through self-determination.

The report asks the question – “Why shouldn’t Minnesotans with significant disabilities live and enjoy their lives as their peers do?”  Who are these peers and, if you can identify them, why do we assume that people with DD want to use them as the benchmark in evaluating how much they enjoy their lives?  I am not sure why being a person with DD is still so undesirable that we need to make them more like us as though us all “enjoy our lives?”  A de-facto reality is that you cannot accurately compare the experiences of someone receiving HCBS or MA services to the general population, so let’s stop trying.  Instead, let’s assist the individuals we support to define their own quality of life and then creatively use our resources to make steady progress in realizing their hopes and dreams.

I understand why some portray the DD cause as a human rights issue.  I respectfully disagree.  A generic definition of human rights would be freedom from arbitrary interference or restriction by government and the term often suggests that the civil liberties or civil rights of an individual or group have not been recognized.  Civil liberties typically refers to fundamental individual rights, such as freedom of speech and religion, protected by law against unwarranted governmental or other interference; with civil rights most often thought of as rights belonging to an individual by virtue of citizenship, especially the fundamental freedoms and privileges guaranteed by the 13th and 14th Amendments to the U.S. Constitution.  With regard to people with DD, while government may not always provide supports and services in the manner preferred by a specific individual or group, government action can hardly be described as interference or restriction.  Moreover, government funds many of the agencies whose sole purpose is to advocate for people with DD.  Instead, we have what some describe as a social change movement that could be defined as an effort to change public expectations on a particular issue.  The report seems to understand this concept as it states that “Changing public expectations is the engine of social change.”  However, the report focuses on just an element of a person’s life – that being employment – whereas I believe we need to focus on the whole person by ensuring that each person with DD has the greatest degree of self-determination they desire to control.

I agree with the report that work is fundamental to adulthood and quality of life, that working age adults with DD should be expected to work, and that our system should have an opt-out versus an opt-in feature when it comes to work.  And, with two edits, I agree with the following statement in the report – “Minnesota can move forward and make historic changes leading to increased job placement and integrated employment in the workforce as a desirable option for all youth and working age adults with disabilities.”  Still, work means more than integrated employment in the workforce and work is not the only valued contribution that people with DD can make to their communities.  So, if a person with DD chooses to attend a post-secondary school, volunteer, participate in habilitation activities, work part-time, or retire before they die – why is this considered a negative outcome?  The SSA definition of disability requires that a recipient is “unable to engage in any substantial gainful activity…” presuming, it seems, that most everyone in the HCBS and MA program requires long-term support.  Let’s be honest and recognize that economic self-sufficiency is an unachievable goal for most recipients of HCBS and MA services; and expecting this becomes another failure to erode their self-esteem.  Whereas, less support is an achievable outcome that can be evaluated at least annually with the individual’s support team.

I am not a fan of the one size fits all model called for in the report, with the employment first mantra and implication that all people with disabilities should be integrated into the workforce.  With 60% of the general population having some qualified disability, what is the consensus definition of integration and why do we assume that everyone with DD is willing to accept what can be a stressful situation?  Minnesota enjoys a broad continuum of services offered by rehabilitation agencies, sheltered workshops, DT&H programs, and adult day services that can meet the variety of supports desired by people with DD.  Should we get better at supporting people with DD in paid, integrated employment in the non-disabled workforce?  Yes, but not to the exclusion of the desires of people with DD for other options as determined through a person-centered planning process.

The report calls for “real work at real wages” at “minimum or prevailing wages and benefits” and suggests the “removal of sub-minimum wage” work.  Let’s be clear on this point.  The issue is about economic fairness not the minimum wage (as though the minimum wage can offer economic self-sufficiency).  The special certificate used by most vocational service providers is an amendment to the Fair Labor Standards Act permitted by the U.S. Department of Labor to pay people with DD a commensurate wage based on their productivity.  It is based on the real prevailing wages of non-disabled workers completing similar real work in the local market.  Done correctly, the commensurate wage system offers the person with DD an opportunity to earn the same real wage as a non-disabled person performing the same real work.  The only time a person with DD is making less than the minimum wage is when their productivity is below the quantity needed to generate that wage.  Everything I’ve heard from self-advocates is about the opportunity to have real work and be valued members of their community.  I’ve not heard them say we want to use public dollars to subsidize our wages to create an illusion that we are valued and respected workers; or that they are willing to lose their MA benefits for a private insurance policy that is less comprehensive.  These special certificates are a good option to offer real work at real wages to people with DD and we need to focus on each individual’s work preferences and wage expectations rather than spend anymore time debating an irrelevant minimum wage issue.

In summary, I didn’t find the “consensus recommendations” in the report to be particular new or insightful; and I certainly don’t think we need to divert limited funding from client supports to a new “Training and Technical Assistance” bureaucracy.  Also, I am not inspired by the idea of Minnesota being a “leader” as I know from experience that no other state will follow our practices anymore than Minnesota will follow theirs.  The report was useful in understanding why a systems reform approach that focuses on “employment first” is not the strategy to follow.  Instead, we need a holistic approach that permits the individual to determine for themselves the support needed to have preferred housing, satisfactory work, reasonable transportation, and meaningful relationships.  To that end, politicians and bureaucrats need to minimize the system to simply determine recipient eligibility, assess service options, authorize providers, account for expenses, protect health & safety, measure quality, and get out of the way.  Professionals need to commit themselves to self-determination and genuine person-centered planning so that each client’s unique needs, expressed preferences, and informed choices are known and acted upon.  And, people with DD need to keep striving for social change.  If we listen to them, we may eventually get it right.

Bark’s Bytes #2 | The Question of I/S



The Social Security Administration (SSA) defines disability as “The inability to engage in any substantial gainful activity (SGA) because of a medically determinable physical or mental impairment(s) that can be expected to result in death, or has lasted or can expect to last for a continuous period of not less than twelve months” (  The “medically determinable or mental impairments” recognized by SSA include the following TWELVE categories:  cardiovascular system, digestive system, genitourinary system, hematological disorders, immune system disorders, malignant neoplastic diseases, mental disorders, musculoskeletal system, respiratory system, skin disorders, special senses and speech, and impairments that affect multiple body systems.  I did not review all these categories, still I guessed it captured a lot of people so I searched for some disability prevalence statistics and found the following two sources.  First, according to the 2006 American Community Survey, 15.1 percent of the civilian non-institutionalized population 5 years and over in the United States, or about 41.3 million people reported a disability (  Second, The Centers for Disease Control and Prevention reported that in 2005, disability prevalence across all 50 states ranged from 11.4% to 25.8%, with an average or median estimate of 20% (  Based on the current U.S. Census data this means that 60,885,046 citizens, or 2 of every 10 people you encounter on a daily basis, have a physical or mental impairment that meets the very severe SSA disability definition.


“The bringing of people of different racial or ethnic groups into unrestricted and equal association” from The American Heritage Dictionary of the English Language, Fourth Edition;
“Coordination of mental processes into a normal effective personality or with the individual’s environment” from Merriam – Webster’s Medical Dictionary; and
“The state of combination or the process of combining into completeness and harmony” from The American Heritage Stedman’s Medical Dictionary.


“The policy or practice of separating people of different races, classes, or ethnic groups, as in schools, housing, and public or commercial facilities, especially as a form of discrimination” from The American Heritage Dictionary of the English Language, Fourth Edition;
“The removal of certain parts or segments from a whole or mass” from The American Heritage Stedman’s Medical Dictionary; and
“The act of segregating, or the state of being segregated; separation from others; a parting” from Webster’s Revised Unabridged Dictionary.

For me, the key terms of integration I got from these definitions are:  unrestricted and equal association, coordination with the individual’s environment, and combining into completeness and harmony.  The key terms of segregation I got from these definitions are:  the policy or practice of separating people, removal from a whole or mass, and separation from others.  I will come back to these terms because, for me, they are somewhat abstract without some personal reference.  To this end, I chose to analyze my Outlook contact list to understand my own I/S status with the following results:

There are 627 people in my contact list;
These 627 people fall into the following 3 self-defined categories – 442 are acquaintances (70%), 143 are family members (23%), and 42 are friends (7%);
The 442 in the acquaintance category fall into the following 4 self defined groups – 308 are professional contacts (70%), 67 are people in my community (15%); 44 are my children’s friends (10%); and 23 are my school or college classmates (5%);
The 143 in the family category include relations going as far as 2nd cousins from both my wife’s and my family that we see on a regular basis; and
The 42 in the friend category fall into 3 self-defined groups – 19 are from my community (45%), 16 are my school or college classmates (38%), and 7 I befriended through my professional activities (17%).

Here is what I learned.  First, 70% of the people I know are acquaintances and, of this group, 70% are people I only interact with professionally.  Since they are working, I can assume they do not meet the SSA definition of disability.  However, they may have less severe conditions in any of those SSA categories or other conditions that impair their functioning.  Since integration requires an awareness of people’s differences, and I am mostly unaware of any impairments these acquaintances may have, the issue of I/S becomes irrelevant.  Second, my family is a segregated group (separate from others by genetics or marriage) that accounts for 23% of my contacts.  Third, my friends (despite my zubaz) account for only 7% of my contacts, are the only group where integration is relevant to me, and only 17% of these contacts come from my professional activities with 83% coming from my community and/or school activities.  All of this leads me to the following questions:

My results suggest that the most productive place to realize integration would be in the individual’s own community and secondarily in the public schools which already emphasize integration by “mainstreaming” students with DD into the “regular” classrooms.  So, why do we expect work activities for people with DD to primarily address the Question of I/S when, for me, 35 of my 42 friends came from my community and school activities?
A common explanation of integration seems to be that the person with DD should be interacting with people not paid to support them.  In my case, 50% of the people I know are professional contacts who are paid to interact with, and sometimes support, me.  So, what does paying someone to interact and support another person have to do with integration?
People with DD have unrestricted access to their community, and equal association can only be determined by the group someone chooses to join.  Coordination with the individual’s environment can be facilitated through assistive technology, reengineering space, and connecting a person to their local community.  Accomplishing completeness and harmony can only be determined by the individual.  Why is where a person with DD works more important than these realities.
The State of MN does not have a policy or practice of separating people, removing them from a whole or mass, or separating them from others.  Quite the contrary, in 2005 DHS reported that the statewide average for community work crews and individuals placements was 8.7% and 39.3% respectively.  Using these numbers, of the approximately 13,000 people served by DT&H programs, 40% or 6,240 people are supported in integrated settings.  Given that few people with DD are still living in our state hospitals, whereas many of the comparison states offered by our critics have significant state hospital populations, whats the beef with Minnesota?
However, even my questions are irrelevant; and that is the seminal point.  Utlimately, the Question of I/S is only relevant as part of a self-determination and person-centered planning discussion that genuinely addresses the person’s:  (i) unique needs; (ii) expressed preferences with regard to housing, satisfactory work, reasonable transportation, and meaningful relationships; and (iii) informed choices.  How can choosing to work with a peer group that shares your personal characeteristics, interests, and situation be compared to a “state of being segregated”?  We need to realize the Question of I/S has been asked and satisfactorily answered; and it is time to focus on individual objectives rather than contradictory system values that seek “sameness” by creating an awareness of “differences.”

Bark’s Bytes #4 | Not Covered


For the minimum wage issue it seems useful to have a common frame of reference before reaching any conclusions.  So, let’s begin with some history on the minimum wage issue with information obtained from the Department of Labor website (

The federal minimum wage provisions are contained in the Fair Labor Standards Act (hereinafter “Act”) and go back to 1940 with an amendment that excluded Puerto Rico and the Virgin Islands from the statutory rates applicable elsewhere in the U.S.  On May 14, 1947, the Act was amended by the Portal-to-Portal Act that resolved some issues as to what constituted compensable hours.  In 1949, the minimum wage was raised from 40 to 75 cents an hour for all covered workers and coverage was expanded to include workers in the air transport industry.  Also, a specific section was added granting the Department of Labor (DOL) authorization to control the incidence of exploitative industrial homework.  In 1955, the year I was born, the minimum wage for covered hospital workers caring for my mother and I was raised to a whole $1.00 an hour!

The 1961 amendments greatly expanded the Act’s scope in the retail trade sector and increased the minimum for previously covered workers to $1.15 an hour effective September 1961 and to $1.25 an hour in September 1963.  Retail and service establishments were allowed to employ fulltime students at wages of no more than 15 percent below the minimum with proper certification from the DOL.  Congress further broadened coverage with amendments in 1966 that extended coverage to public schools, nursing homes, laundries, and the entire construction industry.  Farms were subject to coverage for the first time if their employment reached 500 or more days of labor in the previous year’s peak quarter.  The minimum wage went to $1.15 in February 1968, $1.30 in February 1969, $1.45 in February 1970, and $1.60 in February 1971.

In 1974, Congress included under the Act all non-supervisory employees of Federal, State, and local governments and many domestic workers.  The minimum wage increased to $2.00 an hour in 1974, $2.10 in 1975, and $2.30 in 1976 for all except farm workers, whose minimum initially rose to $1.60.  Parity with non-farm workers was reached at $2.30 with the 1977 amendments and established a new uniform wage schedule for all covered workers.  The minimum went to $2.65 an hour in January 1978, $2.90 in January 1979 (the year I graduated from college and got my first fulltime professional job), $3.10 in January 1980, and $3.35 in January 1981.  The amendments eased the provisions for establishments permitted to employ students at the lower wage rate, allowed special waivers for children 10 to11 years old to work in agriculture, and eliminated the overtime exemption for employees in hotels, motels, and restaurants.

A 1985 Supreme Court decision led to amendments that permitted State and local governments to compensate their employees for overtime hours worked with compensatory time off in lieu of overtime pay, at a rate of 1 1/2 hours for each hour of overtime worked.  The 1989 amendments eliminated the minimum wage and overtime pay exemption for small retail firms.  Thus, employees of small retail businesses became subject to minimum wage and overtime pay in any workweek in which they engaged in commerce or the production of goods for commerce.  The minimum wage was raised to $3.80 an hour beginning April 1, 1990, and to $4.25 an hour beginning April 1, 1991.  Finally, the amendments established an overtime exception for time spent by employees in remedial education and civil money penalties for willful or repeated violations of the minimum wage or overtime pay requirements of the law.

The 1996 amendments increased the minimum wage to $4.75 an hour on October 1, 1996, and to $5.15 an hour on September 1, 1997.  The amendments also established a youth sub-minimum wage of $4.25 an hour for newly hired employees under age 20 during their first 90 consecutive calendar days after being hired by their employer; revised the tip credit provisions to allow employers to pay qualifying tipped employees no less than $2.13 per hour if they received the remainder of the statutory minimum wage in tips; and amended the Portal-to-Portal Act to allow employers and employees to agree on the use of employer provided vehicles for commuting to and from work, at the beginning and end of the work day, without counting the commuting time as compensable working time under certain conditions.

The 2007 amendments increased the minimum wage to $5.85 per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009.  In its current form the Act permits:  (i) youths under 20 years of age to be paid a minimum wage of not less than $4.25 an hour during the first 90 consecutive calendar days of employment (employers may not displace any employee to hire someone at the youth minimum wage); (ii) employers to pay employees on a piece‑rate basis, as long as they receive at least the equivalent of the required minimum hourly wage rate; (iii) employers of tipped employees (i.e., those who customarily and regularly receive more than $30 a month in tips) to consider such tips as part of their wages, but employers must pay a direct wage of at least $2.13 per hour if they claim a tip credit and meet certain other conditions; and (iv) the employment of the following individuals at wage rates below the statutory minimum wage under certificates issued by the Department of Labor:

Student learners (vocational education students);
Full‑time students in retail or service establishments, agriculture, or institutions of higher education; and
Individuals whose earning or productive capacities for the work to be performed are impaired by physical or mental disabilities, including those related to age or injury.
Many states also have minimum wage laws that provide greater employee protections and, in those cases, employers must comply with both.  Referencing our State’s website (, Minnesota has established the following minimum wage requirements:  $6.15 an hour for large employers (any enterprise whose annual gross volume of sales made or business done is not less than $625,000); $5.25 an hour for small employers (any enterprise whose annual gross volume of sales made or business done is less than $625,000); and $4.90 an hour for training new employees who are younger than age 20 during their first 90 consecutive days of employment (permanent or current employees may not be displaced by new employees covered by the training wage).  Minimum wage rates apply to all hours worked, whether part time or full time.  No employer may take a tip credit against an employee’s wage under Minnesota law and employees must be paid the current minimum wage rate, regardless of the method of compensation.  Exempt employees include (partial list):  babysitters, taxicab drivers, volunteers of nonprofit organizations, elected government officials, people providing police or fire protection, and employees subject to the provisions of the U.S. Department of Transportation (drivers, drivers’ helpers, mechanics and loaders).  In January 2007, legislation was introduced to increase the State’s minimum wage to $7.75 by August 2008, index the State’s minimum wage to inflation, and repeal the State’s sub-minimum wage for teen workers.  Although it passed both bodies of the legislature, the bill was vetoed by Governor Pawlenty at the end of the 2008 legislative session.

So, what conclusion seems relevant to people with disabilities paid by DT&H programs?  Unless I am missing something, the Act applies ONLY to “covered employees” which does not include people with disabilities “paid by” a DT&H provider.  My reasoning for why people with disabilities paid by a DT&H are not employees of the agency is as follows:

1. As recent as November 2005, we received a determination from the U.S. Department of Treasury that states “We find the worker is not an employee of Merrick, Inc., for Federal tax purposes”.  Now one can argue that this determination only applies to the relationship between a specific worker and the company, and that this determination could either be affirmed or overturned in a subsequent IRS audit; still it is what it is and many DT&H providers have similar determinations on file that make it clear that an employee-employer relationship does not exist when services are provided to people with disabilities and the following conditions are met:

The services are for therapeutic or rehabilitative purposes;
The services are not performed as a means of earning a living;
The services do not take the place of services that would otherwise be performed by the firm’s regular employees;
The individual’s physician, rehabilitative or therapeutic center, or workshop retains final control of the individual;
Such control is protective control and not the control of an employer over an employee.
I submit that, by license, all these conditions are met by all DT&H providers; and this position is supported by Private Letter Ruling 9410012 reinforcing Revised Rule 65-165 on facts at least as favorable as those at Merrick and, I suspect, other DT&H programs as well.

2. There are numerous experts that consult and provide training on the Act and commensurate wage compliance that assert an employment relationship exists whenever and individual, including an individual with disabilities, is “suffered or permitted” to work; which appears to be defined as physical or mental exertion resulting in something that benefits the employer.  This is further clarified with the following condition that a major factor in determining if an employment relationship exists is whether the work performed is of any consequential benefit to the organization.  While I am not sure what the IRS would consider “consequential”, I am sure that using audited numbers Merrick could prove that our cost to “permit” clients to work is greater than the revenue generated.  Further, the work being “suffered” is desired by the client(s) and would be immediately discontinued if no client was interesting in performing the tasks.  Therefore, there is no employment relationship between clients enrolled in our program and the company.

3. Finally, there is the “common sense” view that clients are not employees of the DT&H based on the simple fact that they are “enrolled in the program and not hired or fired”.  If we do not “control” this basic element of an employee-employer relationship, then clients are simply not employees of the DT&H provider.

Therefore, if clients are not employees of the DT&H provider the minimum wage provisions do not apply to their earnings and, by extension, a commensurate wage certificate is not required!  Now there will be plenty of people saying I am wrong and, admittedly, even I am having difficulty with this conclusion.  So, I sent a draft of my article to an expert for comment and, though I know it was received, I got no reply.  Therefore, perhaps I am right?  Wouldn’t this be a change in the status quo leading to some interesting possibilities?  For example, DT&H providers could be more competitive in their bidding practices thereby securing more work options for clients and higher earnings.  It might also mean that businesses would employ more clients of a DT&H because they could pay them a commensurate wage, thus providing an incentive to employ more people with disabilities in an integrated setting.  Both of these, higher earnings and integrated jobs, seem to be good outcomes.

I am hoping that one of two things happens from this editorial.  First, someone will offer concrete evidence that clients paid by a DT&H are covered employees or that an amendment of the Act extends the minimum wage provisions to this group.  If this happens then we can move on and discuss the economic fairness of the commensurate wage certificate.  Otherwise, I hope that the U.S. Department of Treasury finally decides to clarify the status of these “unclassified workers” so that all of us can move forward with a common and consistent definition.  This group of workers is becoming larger, with greater earnings potential, and we need a national policy on their classification status.

Bark’s Bytes #5 | From the Inside Out


The easy answer is to say “we need to know what a client can’t do” so we can fit the peg into the correct shaped hole.  The harder question is to ask “what can the client do” and then work on their behalf to develop a job that both meets their interests and is valued by the business.  Referred to as “customized employment”, this shift in practice is something that we are beginning to embrace at Merrick and in June 2010, 5 of our employees will begin participating in a 1-year customized employment (CE) training program through the U of M.

While many in the industry feel that CE only applies to clients hired directly by a business, I feel it is just as relevant to clients that choose to work on-site.  Admittedly, my view is unpopular with those that declare themselves as “champions” of CE and feel that on-site supports are just the latest version of institutional warehousing.  I can only defend my position based on the many personal victories I have witnessed here and suggest that our critics be brave enough to look from the inside out.

One of our Coordinators shared the following thought with me – “When clients are referred to us, they often come in with a documented history of significant behavioral challenges.  In a sense, they are labeled as ‘aggressive, abusive, self-injurious, behavioral…’  Based on the premise that it is normal to be abnormal, we have come to expect that each person comes to us with these special gifts.  However, we do not enter a relationship with them with the idea that we are going to change them.  We 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.”

So, while we will continue to sharpen our skills in CE, it is just as important to stay true to person-centered planning and support a client’s choice even if it does not match the philosophy of others.  We will certainly make mistakes as we shift from the “can’t not” to the “can” perspective; and we hope others will join us in recognizing that system reform only happens at the point of service delivery.  Regardless, we will persist because we become better people when we see the abilities in others and it is truly a gift when you see how they benefit from the support provided