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Bark’s Bytes #33 | 2017 ~ Ten Truths

Written by John Wayne Barker on . Posted in Barks Bytes.

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.