[NYAPRS Enews] OR Facing ADA Suit Over 'Segregated, Needless' Shelted Workshop Placements

Thu Sep 29 11:21:21 EDT 2011

NYAPRS Note: See plaintiff letter below from Oregon disability rights groups threatening major Title II lawsuit if sheltered work is not transitioned to supported work and youth with disabilities are not prevented from going into sheltered work.

August 23, 2011

Erinn Kelley-Siel, Director

Department of Human Services

500 Summer St. NE

Salem, OR 97301

Dear Ms. Kelley-Siel,

We are writing on behalf of individuals with developmental disabilities in Oregon who are needlessly segregated in sheltered workshops that are administered, managed, monitored, or funded in whole or in part by the Department of Human Services. For the reasons set forth below, we believe that the State's reliance on this segregated model and needless placement of individuals in these workshops, with few meaningful,

integrated work alternatives, violate federal law. The individuals in the workshops are eligible and qualified for supported employment services, which the State provides and funds for hundreds of other similarly qualified individuals. As countless research studies and Oregon's actual experience have demonstrated, supported employment provides individuals with developmental disabilities with income of minimum wage or above, meaningful opportunities for interaction with non-disabled peers, and the chance to succeed in employment that reflects their strengths and preferences. Sheltered workshops provide none of these benefits.

Disability Rights Oregon is the federally designated and funded Protection and Advocacy organization for the State of Oregon. The Center for Public Representation is a public interest law firm in Northampton, Massachusetts, and one of several national support centers for the national Protection and Advocacy system. Perkins Coie LLP and Miller Nash LLP are private law firms with a commitment to significant pro bono service in Oregon. Collectively, we have analyzed and studied Oregon's employment service system, and convened several meetings of stakeholders from Oregon, including providers and other leaders in the field of supported employment. We also visited several sheltered workshop sites as well as a supported employment site, meeting with individual state-funded employees, staff, and management at each. In light of our review, we believe that the State's significant reliance on and support for segregated sheltered workshops violates Title II of the Americans with Disabilities Act (ADA), 42

U.S.C. § 12132 and its implementing regulations, as well as Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Oregon includes facility-based sheltered workshops as a standard component of its service systems for persons with developmental disabilities, and invests considerable resources in programs that perpetuate the segregation of persons with disabilities. We believe that Oregon can and must modify its employment service system to accommodate the needs and interests of persons with developmental disabilities who currently spend their days in state-sanctioned sheltered workshops by expanding the capacity of its supported employment programs. We respectfully request a meeting with the Department of Human Services (DHS) and Oregon Developmental Disability Services, with the hope that we can work collaboratively toward change and resolve these matters without the need for formal legal action.

Oregon's Employment Services System for People with Developmental Disabilities

Oregon once was a leader in designing, developing, and researching integrated employment services such as supported employment. Its Specialized Training Program at the University of Oregon served as a national Research and Training Center on Employment, providing leadership, models, data, research, and technical assistance to States on the potential of supported employment to transform day services for persons with developmental disabilities, increase their productivity and income, and facilitate their integration into the community. For almost two decades, Oregon also sought to transform its own service system for persons with developmental disabilities by dramatically decreasing its reliance on sheltered workshops and concomitantly expanding its capacity to provide supported employment. 

As a recent DHS report confirms, roughly 50% of the 2300 persons on the Comprehensive Waiver in 1988 were in supported employment. See Community Leadership for Employment First in Oregon: A Call to Action (hereafter "Call to Action"). Twenty years later, this figure fell to less

than 25% of the individuals served in this waiver, and if group employment is excluded, to less than 7%.

Today, Oregon plans, administers, licenses, monitors, and funds an employment service system which promotes segregation and is heavily reliant on sheltered workshops. Although both the Comprehensive Waiver and the Support Services Waiver include supported employment as well as sheltered workshops, thousands of persons are relegated to segregated facilities. We have met many of these individuals in workshops who are capable of, prefer, and would greatly benefit from supported employment. Their personal stories are telling, their capabilities are impressive, and

their segregation is plainly unnecessary. Nevertheless, they remain in segregated workshops as a direct result of Oregon's administration and funding of its employment service system, which continues to rely extensively on segregated employment to serve more than half of all persons who participate in any vocational program. In fact, as data from the Institute for Community Inclusion makes clear, Oregon has actually regressed

over the past decade, increasing its reliance on segregated services and decreasing its use of integrated employment services. See 2009 STATEDATA report at www.communityinclusion.org/StateData.info/http. 

We recognize that recently Oregon has taken certain actions with the intent to expand the provision of integrated employment services. In 2008, Oregon adopted an Employment First policy. However, the policy does not preclude sheltered workshops or even disfavor them, and it has not been incorporated in a formal regulation or binding agency rule. In 2009, ODDS endorsed numerical goals to increase the number of persons in supported employment by 5% per year each year, beginning in 2010, although there is no evidence that this goal has been reached or that it has had any impact on the number of individuals in segregated workshops. In 2010, the State contracted with the Washington Initiative for Supported Employment to prepare the Call to Action report, which contained numerous recommendations for implementing the Employment First policy. 

However, few of these recommendations have thus far been implemented. While we strongly support the State's renewed focus on integrated employment opportunities and the recommendations set forth in the Call to Action report, we note that few of the initiatives discussed by Oregon have actually been implemented, and none, at least thus far, have resulted in any documented increase in integrated employment or a decrease in segregated employment. Significantly, almost none of actions taken thus far and none of the additional steps being considered by the State

are targeted at the thousands of persons confined in sheltered workshops, most, if not all, of whom could succeed in integrated employment with the appropriate State-funded supports, as demonstrated by a vast body of research and the State's own experience. This is neither consistent with the commands of the ADA nor the State's own goal of reducing its reliance on segregated employment programs.

The Consequences of Segregation and the Benefits of Integration in Employment

Both research studies and our own interviews with individuals in Oregon's sheltered workshops demonstrate the human cost of providing employment services in segregated settings. While it may not be possible to generalize about all aspects of sheltered workshops, their two most salient features are almost universal: (1) individuals with disabilities work in segregated setting, with little contact with non-disabled peers except for a few paid staff; and (2) workshop employees are usually paid below minimum wage and sometimes quite far below minimum wage.

One of the most salient features of sheltered workshops is the segregation and congregation of persons with disabilities in a setting that is divorced from all contact with real workplaces and persons without disabilities. In a typical sheltered workshop funded, administered, or licensed by DHS, the agency's clients with disabilities work in congregated settings, often demarcated in practice, if not by official policy, from other program areas or settings.

Since sheltered workshops by definition do not include people without disabilities, the only interaction that workers with disabilities have with people without disabilities are with program staff and supervisors. These supervisory and program staff regularly receive minimum wage or better, while the disabled workers frequently are "paid" less than one dollar per hour. The contrast in compensation, conditions of employment, and regulation is manifestly unequal, yet genuine differences in ability or even productivity may be minimal or non-existent.

The proffered intent of this segregation - to train persons with disabilities and prepare them for real jobs in real work settings - is illusory. To the contrary, sheltered workshops are, in almost all States including Oregon, a permanent relegation to a separate and unequal job. Employees of sheltered workshops are effectively stuck in these segregated settings, despite the rhetoric of job counselors or workshop managers who describe employment in the workshops as a step on the path to competitive employment. By any measure, they are dead-end programs which employees rarely, if ever, leave.1

Moreover, Oregon funds sheltered workshops, knowing that they pay their employees less - and usually far less - than the federal and the Oregon minimum wage. Indeed, most workshops could not continue to operate without government subsidies, especially if they were required to pay their employees the prevailing legal wage. The meager compensation earned in sheltered workshops virtually guarantees that their employees will continue to live in poverty, limiting both their social mobility and perpetuating their dependence.

By contrast, supported employment services are delivered in integrated settings, provide regular contact with non-disabled peers, foster community integration, promote economic independence by compensating persons with developmental disabilities at prevailing wages, and enhance individuals' productivity and sense of self-worth. The opportunity to interact with non-disabled persons and to form friendships and

connections with them both in and out of the workplace is one of the most significant benefits of supported employment for people with developmental disabilities.

The State of Oregon, through DHS, has extensive experience with the results of supported employment in the integrated workforce for individuals with developmental disabilities. Put simply, it understands the benefits of integration, it has a history of promoting integrated employment services, it has a current policy that requires integration in employment, and it has a network of providers who already offer supported employment to a limited number of persons with developmental disabilities.

Yet despite Oregon's experience, there has been no discernible progress in expanding integrated employment for its citizens with disabilities; instead it continues to fund, support, and administer a system of employment services that promotes segregation, requires isolation, and fosters dependency.

The effects of segregation cannot be overstated. As the Supreme Court noted in Olmstead v. Zimring, 527 U.S. 581, 599 (1999), segregation (1) "perpetuates unwarranted assumptions that persons so isolated are incapable or trustworthy of participating in community life" and (2) "severely diminishes the everyday life activities 1 

Studies consistently show that in reality, no more than 5% of sheltered workshop employees end up in integrated employment of individuals, including family relations, social contacts, work options, [and] economic independence."

Federal Law Requires the State to Provide Services, Programs, and Activities in the Most Integrated Setting Possible

When it enacted the ADA in 1990, Congress recognized that "society has tended to isolate and segregate individuals with disabilities" and that "such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. §12101(a)(2). In fact, the purpose of the ADA is to "provide clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. §12101(b)(1).

The ADA's implementing regulations specifically articulate that a state must "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. §35.130(d). The United States Supreme Court has interpreted this provision, known as the "integration mandate," to mean that unnecessary segregation of individuals with disabilities constitutes discrimination under Title II of the ADA and that services should be provided to individuals with disabilities in the most integrated setting possible. Olmstead v.

Zimring, 527 U.S. at 601-02. Similarly, a State violates Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 when, as a recipient of federal funds, it fails to "administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons". 28 C.F.R. 41.51(d).

Employment services fall squarely within the expansive definition that courts have given to the language of "services, programs, and activities." Title I of the ADA deals exclusively with employment and prevents agencies like DHS from referring persons with disabilities to unnecessarily segregated settings. Title II of the ADA, which targets discrimination by public entities, broadly prohibits discrimination in employment itself and in employment training and services.2 Discrimination and unnecessary segregation in job training programs violate Title II regardless of whether a public entity provides the program directly or contracts with, funds, licenses, or certifies a private entity such as a sheltered workshop.

2 The Title II regulations, 28 C.F.R. § 35.140, proscribe employment discrimination to the same extent that it is prohibited by the EEOC regulations implementing Title I, and, for those public entities that do not meet the criteria of Title I, prohibit employment discrimination to the same extent that it is prohibited by Section 504 of the Rehabilitation Act. Like the Title I regulations, the Rehabilitation Act regulations prohibit discrimination on the basis of disability in "[s]election and financial support for training." 28 C.F.R. § 41.52.

The Title II regulations also make all forms of discrimination that are illegal if conducted by a public entity similarly illegal if they are conducted by a private entity with which the public entity contracts or which the public entity licenses or certifies for any purposes, at least where the public entity effectively controls many of the private entities' activities as do most state agencies that contract with vocational providers serving persons with developmental disabilities. 28 C.F.R. § 35.130 (b)(6). For instance, if a private entity discriminates against someone in the provision of job training, a public entity that licenses the private entity is liable for a violation of Title II of the ADA.

5

The ADA's integration regulation, 28 C.F.R. § 35.130 (d), requires that public agencies like DHS administer their employment programs in "the most integrated setting appropriate to the needs of qualified individuals with disabilities." The Department of Justice has recently issued guidance on the ADA's integration mandate, as interpreted in Olmstead and incorporated in DOJ regulations. See Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., ww.ada.gov/olmstead/q&a_olmstead.htm. That guidance makes clear that the mandate applies equally to work and employment supports as it does to living and residential supports. It is implicated whenever a public entity, like DHS, operates (directly or indirectly), funds, or otherwise promotes reliance on segregated settings.

Many individuals currently placed by ODDS in segregated workshops are or would be interested in working in integrated settings and receiving the economic and social benefits of integrated employment. By continuing to fund, oversee, and rely upon segregated sheltered workshops for thousands of consumers, the State of Oregon is violating Title II of the ADA. Despite its recent policies, reports, and efforts, it has not made any measurable progress in transitioning its clients from segregated workshops to integrated employment settings like supported employment, as mandated by federal law. Under the ADA and Rehabilitation Act, the State must take measurable, effective steps to redress this violation.

Proposed Remedial Actions

In an effort to promote a resolution of these issues without resort to litigation, and to more quickly address the needs of individuals with developmental disabilities in Oregon, we suggest the State take immediate action to significantly reduce its funding and reliance upon segregated workshops and enhance its capacity for supported employment. Specifically, it should make a firm commitment to transition a substantial number of workshop clients to supported employment services each year for the next several years, in order to rebalance its employment services system and ensure that all persons currently segregated in workshops have an opportunity to work in integrated settings.

We are interested in discussing the specific actions that the State could take to implement this commitment and to remedy the violation of federal law. However, based upon the input of the many stakeholders and the supported employment experts that we consulted, as well as an analysis of successful strategies implemented in other States, we believe the following remedial actions are necessary to substantially shift Oregon's 

vocational services from segregated to integrated employment:

· Issue a statewide directive, with specific annual numerical targets, to substantially increase the number of persons in supported employment and concomitantly decrease the number of persons in sheltered workshops.

· Issue a statewide directive that youth in schools or transitioning from school will be provided supported employment services and will not be placed in a sheltered workshop setting, absent exigent circumstances.

· Develop policies and procedures to implement both directives, including a vocational profile and assessment process, provider performance contracts, and workforce competencies. Establish a direct link between funding and achievement of annual numerical targets and implementation timelines.

· Incrementally shift current funding from sheltered workshops to supported employment services.

· Ensure that all persons in sheltered workshops have an equal opportunity to access supported employment services.

· Coordinate DHS/ODDS supported employment directives, policies, and procedures with OVRS, so that VR funds can be used for initial supported employment job placement and training activities.

Between 1980 and 2000, Oregon was a national leader in promoting integrated employment opportunities for persons with developmental disabilities. Today, Oregon plans, administers, and funds a system of employment services which relegates over two thousand persons with developmental disabilities to segregated employment programs, even though it has demonstrated the ability to provide integrated employment

services to hundreds of similarly qualified individuals. The State now faces an opportunity to re-assume its leadership role in the area of supported employment while remedying its current, ongoing violation of the ADA and Rehabilitation Act by redirecting its resources from sheltered workshops to providers of supported employment. We look forward to meeting with you to discuss a remedy of this problem that affects our mutual clients.

Representatives from Disability Rights Oregon, the Center for Public Representation, Perkins Coie, and Miller Nash are available to meet with you in September and would welcome the opportunity to discuss these issues and develop an agreed upon plan of action. We know that the State of Oregon shares many of our goals, and we sincerely hope that we can reach a mutually satisfactory agreement without the need to involve the judicial system. We ask that you respond to this letter within two weeks. 

Thank you for your attention.

Sincerely,

Bob Joondeph, Kathleen Wilde, Jim Wrigley, Ted Wenk  Disability Rights Oregon

Steven J. Schwartz, Cathy E. Costanzo  Center for Public Representation

Bruce A. Rubin, Justin Sawyer  Miller Nash LLP

Stephen F. English, Lawrence Reichman  Perkins Coie LLP

C: John Dunbar, Attorney in Charge Oregon Department of Justice, Special Litigation Unit

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