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

On April 15, 2014, Twin Cities Public Television debuted “Independence to Inclusion” a show produced with the support of the MN Governor’s Council on Developmental Disabilities. I first watched it in March because a number of the people in the show are served at Merrick. At the time I noted some remarks that challenged my perspective of how and why our human service system operates. I watched it again after the Independence Day holiday and encourage others to do the same by clicking on the following link – http://bit.ly/1tk5dDW. It is 27 minutes that will enable you to examine your own beliefs on society’s role in disability services.

I agree with those in the show who state that humans are not born with a predisposition to discriminate against others because of the color of their skin, religion, disability, or any other notable characteristic difference. It also seems most everyone agrees that discrimination is a behavior that we learn from verbal and non-verbal experiences in our everyday lives. I also agree that disability, “an impairment that substantially limits typical life activities”, is most often a naturally occurring event in human reproduction and is neither a choice nor an illness to be cured. Finally, as one of the people in the show stated – “you cannot legislate morality and attitudes.” Still, I believe government has a role to ensure every citizen’s freedom from discrimination and to establish protections and legal recourse.

Where I disagree with some in the show, is with the assertion that “the system” is evil and seeks to continue the client’s dependency to protect human service system jobs. Throughout the nation, many people with disabilities are contributing much to the economy, diversity, and enrichment of the communities in which they live. While great strides have been made in supporting the presence of people with disabilities in local communities through employment, the truth is that few of these people have solid, reciprocal connections and support networks. Many are in fact more like visitors to communities rather than true community members. It is my belief that supporting people with disabilities to be a part of their community was never intended to be the role of the “day service system.” Protection rather than connections was the focus.

Based on what we have learned over the last two decades, day service providers need to shift their role and find ways to open doors, build bridges, make introductions and support relationships. In other words, our new role is to create and support opportunities for people with disabilities and other community citizens to come together and share common experiences. There are many ways we can support the inclusion of people into the community, for example:

• Getting to know a person and the talents and gifts they have to offer;

• Encouraging people to maintain their relationships;

• Supporting people to develop new relationships;

• Assisting people to learn how to do things they need or want to know;

• Getting people to participate in community activities based on their interests and cultural connections;

• Providing assistance and support to be healthy and safe; and

• Ensuring back-up to a person when asked.

However, we need to constantly remind ourselves that our role is to support the inclusion of people into their community, not to be their community. People with disabilities, their families, friends, and allies are teaching us much about the importance and value of listening to and being guided by people who experience the “services” or supports, since they are in the best position to know how it works and feels for them. We are learning that the needs of people with disabilities have little to do with their disability and much to do with where they live, work, and play. Supports need to take into consideration the cultural/ethnic background of people as well as their preferences. As professionals in the service system, we can and should make it a focus of our programs to connect the people we serve to their communities.

TELL THE WHOLE STORY

I am not an economist, labor expert, or politician so I am NOT going to weigh-in on the merits or concerns with raising the Minnesota minimum wage for large employers to $9.50 an hour. I am pleased to report that all of our employees are paid more than $9.50 an hour and the average wage for direct care staff is above $14 an hour. As a nonprofit we have spent considerable time developing a compensation plan, participating in salary surveys every two years, and evaluating data from the Bureau of Labor Statistics. We understand that a basic quality of life in Minnesota requires an income above the minimum wage and have used the information found on the Jobs Now Coalition website (http://www.jobsnowcoalition.org/) in our compensation plan.

In an about face, the Obama administration has now decided that the federal minimum wage of $10.10 an hour DOES apply to those workers with disabilities employed under service or concession contracts with the government. As Michelle Diament of DisabilityScoop (http://www.disabilityscoop.com/2014/02/12/under-order-pay-hike/19102/), reports. “We applaud the administration for hearing the voices of the disability community and including disabled workers in the new minimum wage protections for contractors,” said Ari Ne’eman, president of the Autistic Self Advocacy Network, one of 25 groups that signed a letter from the Collaboration to Promote Self Determination urging the White House to include workers with disabilities. To be clear these zealots are NOT part of our disability community and their intent is very clear in the following quote, “We hope to work with them going forward to convince Congress to repeal Section 14(c) for all disabled workers,” Ne’eman said. “Equal rights should apply to everyone — President Obama and (Secretary of Labor Tom Perez) helped us take a significant step forward towards realizing that vision today.” Unfortunately, Ne’eman chooses to further inflame the discussion by suggesting it is an “equal rights” issue when it is truly an economic issue.

I’ve written about commensurate wage on five separate occasions (Bytes 1, 4, 14, 18, & 19) and won’t repeat myself other than to provide the following brief description of the commensurate wage certificate that is permitted by the U.S. Department of Labor (DOL) to pay people with disabilities a wage based on their individual productivity. To be factual, providers are NOT paying sub-minimum wages to anyone and opponents choose to use this term because it sounds more negative. Providers with an FLSA 14(c) commensurate wage certificate are paying special minimum wages that are rigorously monitored, subject to renewal procedures, and enforced by the DOL. 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 multiple 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. And what the zealots don’t tell you is that any increase in the minimum wage will likely increase all prevailing wages resulting in a commensurate increase to workers with disabilities. Instead they select the quotes that best support their rhetoric to repeal the commensurate wage regulations.

What they also don’t tell anyone is the devastating impact getting rid of commensurate wage practices will have on those with disabilities that have limited work options. The reality is the “market” is not going to pay the same wage for workers with disabilities to produce less than workers without disabilities; and if the commensurate wage regulations are repealed people with disabilities are going to have an equal right to sit at home and not earning any wage. As a provider we are only able to secure contracts with businesses that offer meaningful work to clients because the commensurate wage certificate permits us to offer labor costs that match 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 and this added cost would have to be passed onto the consumer inflating the cost of living and essentially become a hidden tax. 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. 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.

The Senate Health, Education, Labor and Pension (HELP) Committee passed the Workforce Reinvestment Act (WIA) reauthorization amendment on 7/31/2013 with bipartisan support of 18-3 that updates the commensurate wage regulation. It is time to say enough with the half-truths and distracting rhetoric and send a note to Senators Franken and Klobuchar asking them to ignore these false prophets and support the WIA reauthorization amendment as passed by the HELP committee. The people we serve have been certified as disabled, by law are vulnerable adults, rely on transportation services, require 24-hour support and supervision, and cannot function independently in a business setting or they wouldn’t be in our program. To demand they be placed in a full-time job making at least minimum wage with benefits and only natural supports from the employer is bureaucratic VAPOR (Very Appealing Promises Obfuscating Reality) that is exacerbated by the threat to now eliminate their choice to make meaningful wages through a commensurate wage program.

The zealots, wannabe speakers, and bureaucratic theorists are acting as false prophets in attacking our most important tool in providing meaningful work to the clients in our program. We need to identify these 25 “groups”, cancel our memberships, and publicly criticize their misguided actions. There is no need to destroy an option that permits providers and businesses to offer meaningful work at a fair wage to millions of our citizens with disabilities. If you don’t get engaged who will? Send your letter asking for support of the WIA reauthorization amendment to:

Senator Amy Klobuchar
1200 Washington Avenue South, Room 250
Minneapolis, MN 55415

Senator Al Franken
60 East Plato Boulevard
St. Paul, MN 55107

On November 14, GiveMN will host its fifth Give to The Max Day (GTMD) event. Merrick, Inc., will again participate with a goal of highlighting and funding our partnership with Dodge Nature Center, another local nonprofit. Before giving you all the details on our 2013 GTMD plans, I want to step back and take a bigger look at the nonprofit sector in Minnesota. Using information from the “2013 Minnesota Nonprofit Economy Update” provided by the Minnesota Council of Nonprofits, I found the following results to be most interesting:

• In 2012, there were fewer than 3,600 nonprofit employers in the state, which is slightly down from previous years.

• Nonprofits employed 304,236 people in 2012 and, primarily due to adding locations, experienced a growth of 9% since 2007 whereas the for-profit sector had a 3% loss of employment during the same period.

• Of the 2,644,909 employees counted in this report, 75% were in for-profits, 14% in government, and 11% in nonprofits.

• After removing hospitals (33% of nonprofit employees) and higher education (5% of nonprofit employees) from the total count, weekly nonprofit wages trailed the government sector by 5% and the for-profit sector by 11%. Average weekly wages in the nonprofit sector are highest in the healthcare industry and the lowest for vocational rehabilitation, childcare providers, and civic organizations.

Another report from the Minnesota Council of Nonprofits is their “Nonprofit Current Conditions Report”. It is based on a survey sent to 2,000 nonprofits that was completed by 436 organizations throughout Minnesota and offers a real-time analysis of changes that nonprofits have experienced in 2010. Some of the more interesting changes I noted include:

• Seventy-four percent of nonprofits reported an increase in service demands compared to 42% and 60% in 2008 and 2009 respectively.

• More than 7 out of 10 nonprofits reported they were able to increases services to meet demand, up slightly from 2009.

• Demand for mental health services had the highest spike with an increase of 92% from 2009.

• The percent of nonprofits reporting a decline in total revenue in 2008, 2009, and 2010 was 55%, 61% and 37% respectively.

• In out-state, 62% of nonprofits in South Central/Southwest and 50% of nonprofits in Southeast Minnesota reported a decline in total revenue whereas only 29% of nonprofits in Central and Northern Minnesota reported a decline in total revenue.

• In general, nonprofits have access to three main sources of revenue: individual contributions; earned income, and grants from private foundations and corporate giving programs. Coming out of the recession, in 2010 only 31% of nonprofits reported an increase in individual contributions and 26% reported an increase in foundations and corporate giving. It appears that giving from private foundations and corporate programs continues to decline at a higher percentage than individual contributions.

There are two points I want the reader to take away from this editorial.

1. Nonprofits are a vital economic sector providing at least 11% of all employment in Minnesota; and

2. Giving from private foundations and corporate programs is going down so the need for contributions from individual supporters is critical to sustaining the good works of the state’s nonprofits.

This is where your support can make a difference by participating in our GTMD campaign. The focus this year is on our partnership with fellow nonprofit Dodge Nature Center (DNC) that employs a crew from Merrick. Referred to as the “A Team”, this crew has formed genuine relationships with DNC staff and demonstrates to visitors, many of whom are schoolchildren, that they have “real jobs” and are contributing members of society. Please take a moment to read more about the partnership and, as an individual, help us activate our two generous matching grants from Kowalski’s Markets and Wolf Motors for this year’s GTMD by visiting: www.razoo.com/story/Merrickinc