Why is the Department of Justice’s Statement on Integration Important?

By Lynnette Henderson

Lynnette Henderson, Ph.D., serves the Vanderbilt Kennedy Center as the research registry and recruitment coordinator for the Intellectual and Developmental Disabilities Research Center. In her role as associate director of community services for the VKC University Center for Excellence in Developmental Disabilities, Lynnette leads the employment area of emphasis for the UCEDD and analyzed the 2013-2014 National Core Indicators data for the Department of Intellectual and Developmental Disabilities. She also served as program co-chair of the Tennessee Disability MegaConference for four years.

Last week, I received an email that said on Oct. 31, 2016, the Department of Justice issued the “Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities.”

So, I talked with some knowledgeable colleagues what this statement meant.

The big news is this: The Department of Justice have just laid down the dos and don’ts and answered every question for reluctant states, rather like tired parents in a two-hour-long “But-I-don’t-want-to-go-to-bed routine.” Any states not in compliance with the mandates of integrated settings now may be in a position to get “the hammer dropped” on them. The Department of Justice has demonstrated its willingness to do this in a few states, such as Rhode Island and Oregon, and the department gave everyone time to digest those consequences. [For this background, read the Guide for Provider Transformation to an Employment First Service Model.]

The department waited for the new laws (the Home and Community Based Services “settings rule” and the Workforce Innovation and Opportunity Act) to take effect and for those final regulations to get published, so that there would be no more confusion from the federal government as to what the government wanted and was going to pay for and not pay for, expect and not expect, require and not require.

So, if you are a person with a disability, and your counselor from the Division of Vocational Rehabilitation Services closes your case, saying that you are “unemployable,” please read below.

From the DOJ statement: “In the adult context, people with disabilities could show risk of segregation if a public entity systematically screens out adults with significant disabilities from vocational rehabilitation services, finding such persons “not competitively employable” because of their disability status, increasing the likelihood that such persons would have to receive employment services in a sheltered workshop in order to receive employment services at all.” (Top of page 10)

If your child’s high school is training students to work in sheltered workshops and then setting them up to go there, please read below.

From the DOJ statement: “For example, public entities, including state and local education agencies, may be contributing to a pipeline to segregation if vocational rehabilitation counselors, caseworkers, and other supports are not available to assist youth with disabilities to prepare for and transition to competitive integrated employment. Moreover, such public entities need to ensure that students with disabilities can make informed choices prior to being referred for admission to sheltered workshops by, for example, offering timely and adequate transition services designed to allow students to understand and experience the benefits of work in an integrated setting. For instance, factors relevant to whether students with disabilities are at risk of institutionalization include whether a school, as part of the school curriculum, trains students with disabilities in tasks similar to those performed in sheltered workshops; encourages students with disabilities to participate in sheltered workshops; and/or routinely refers students to sheltered workshops as a postsecondary placement without offering such students opportunities to experience integrated employment.” (Bottom of page 9)

If you have an adult son or daughter, and he or she is involved with a provider agency that continues to have a sheltered workshop or if their community day programs are not integrated into the community, please read below.

From the DOJ statement: “Many states administer day service programs in combination with employment services, and sometimes such programs are co-located in facilities with sheltered workshops. The ADA’s integration mandate applies to public entities’ day service programs. Individuals with disabilities should have access to integrated ways to spend the hours when they are not working, such as chosen activities in the community at times and frequencies and with persons of their choosing, and interacting to the fullest extent possible with non-disabled peers instead of being relegated to services in segregated settings. For instance, integrated day services allow persons with intellectual and developmental disabilities to participate in and gain membership in mainstream community-based recreational, social, educational, cultural, and athletic activities, including community volunteer activities and training activities.” (Middle of page 7)

The Department of Justice finishes with a list of here’s how to fix things.

From the DOJ statement: “This typically means expanding the variety, intensity, and duration of supported employment services made available to allow people to work in competitive integrated employment.”

This means doing it well, long enough and in a way and in a position suited to the person that it works, and the person becomes successful in employment.

From the DOJ statement: “Throughout the decision making and transition processes, individuals may need assurance that services in the integrated setting will be sufficient, flexible, and lasting. To continue to avoid unnecessary segregation for the long term, states addressing a history of segregated employment should engage in affirmative efforts at system transformation.”

States must take an active role in changing the education system, the vocational rehabilitation system, the disability services departments (in Tennessee that is the Department of Intellectual and Developmental Disabilities and the Department of Mental Health and Substance Abuse Services, TennCare) and community provider agencies.

From the DOJ statement: “Employment service system remedies include system-wide capacity-building, transition, and ongoing support, based on measurable goals, outcomes, and timelines. A public entity may need to expand service providers’ capacity to offer supported employment services in integrated employment settings. This may involve, among other things, changes to what services and supports are approved, changes to rates to encourage community-based services, and adjustments to caps or durational limits on services. It may also require assistance to existing segregated employment service providers to help them to transition to community-based models.” (From Page 11)

This is what the Governor’s Employment First Task Force, the various state departments, Tennessee Community Organizations (TNCO) and the TennesseeWorks Partnership have spent the past five years striving to do.

Here’s how you can tell if the employment services are effective in allowing individuals with disabilities to be integrated to the fullest extent possible with non-disabled peers: (From pages 10-11)

Indicators of integrations include parity of hours, compensation, and benefits, including:

  • Interacting regularly and consistently with their non-disabled peers to the same extent (for the maximum number of hours consistent with their abilities and preferences) as their non-disabled coworkers.
  • Being compensated roughly equally to their nondisabled peers performing the same job.
  • Having access to the community at lunch, during breaks, or before and after the work day.
  • Having options for promotion and/or advancement.
  • Having privacy, autonomy, and the ability to manage one’s schedule, work assignments, or breaks.
  • And other employment benefits.

And that their work is real work.

Just as the tired parent who has answered multiple questions from her child in efforts to delay going to bed, the Department of Justice has answered a whole bunch of questions about the integration mandate of the ADA and Olmstead decision with regards to employment that many states have asked as they have delayed implementation of the mandate. But now it’s time for every state to climb on board, put in place the ideas, the policies, the procedures and the funding that allow individuals with disabilities to live integrated lives like individuals without disabilities, including by working, earning a living, and paying taxes.

If you like, you can read more about the Olmstead decision.

As always, if you have questions or comments, please leave them below or email Janet at janet.shouse@vumc.org.

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