Transition Policy changes
on Steroids
“Suit the Actions to the Words”
Texas Transition Conference
Dallas, Texas
February 20, 2015
Allan I. Bergman
What’s Driving all of
these Changes?
2015: Happy Anniversary





25th
40th
45th
50th
80th
ADA
IDEA
DD Act
Medicare and Medicaid
Social Security
The tough question is:
What has been achieved???
Employment participation 2011
Percent
Working
American Community Survey
Poverty By The Numbers
SUBPOPULATION
2009 Poverty Rate
2010 Poverty Rate
Children
20.7%
22.0%
African-American
25.8%
27.4%
Hispanic
25.3%
26.6%
Disability
25.0%
27.9%
Total U.S. Population
14.3%
15.1%
U.S. Census Bureau (13 September 2011)
46.2 million Americans were living in poverty in 2010.
Persons with Disabilities experienced the highest rates of poverty
of any other subcategory of Americans for the tenth year in a row.
It is expected that SSDI/SSI annual payments will reach over $1
trillion by 2023.
5
American Community Survey
Lives Below Poverty Threshold
2011
2008 Government Expenditures for
Working-Age Adults with Disabilities
What’s wrong with this picture???
 $357 Billion, Federal (12% of federal
spending)
 $ 71 Billion, State spending
 Healthcare; 55%
 Income Maintenance; 41%
 Housing & Food Assistance; 3%
 Education, Employment & Training; 1%
 Livermore, Stapleton and O’Toole, 2011
Medicaid Overview: 2012 data from
Congressional Budget Office; 5-2013
 67 million beneficiaries:
 47 % children ; 21% of expenditures
 28% adults;
15% of expenditures
 9% seniors; 15% of expenditures
 16% PWD;
44% of expenditures
Total expenditures for state and federal
governments, FY'11: $432 Billion…
Employment and Day Supports
IDD Agencies: Nation
ICI National Survey of State IDD Agencies
Choice
Paid job
15%
Does not Wants job
want job
47%
53%
No paid
job 85%
605,680
243,339
National Core Indicators Project 2012-2013
Job goal
30%
No job
goal in ISP
70%
170,337
Data on SSI Beneficiaries, 2010
 4.6 million between ages 18 and 64 years
(25% of these beneficiaries also received
some type of Social Security payment)
 Only 5% of the SSI beneficiaries of
working age reported earned income
 The average earned income is $286/year
(for individuals who are blind, $460/year)
 Less than 1% leave the rolls per year and
only ½ of those for employment
Source: SSA
Annual Expenditures for Federal Cash and Health
Benefits for Persons With Severe Disabilities
FY 2008 – FY 2020
1400
$1 Trillion
Billions of Dollars
1200
$1,100
1000
$861
800
600
400
$543
$426
200
0
2008
2012
2016
©2008. Institute for Economic Empowerment
2020
Current Policies Are Not
Fiscally Sustainable
Source: CBPP projections based on CBO data.
Heading for a crash!
Weighty Legacy
Services & Structures
Budget
Shortfalls
Rising Unmet
Demand
Workforce
Shortages
Fragmentation
Quality
Problems
Antiquated
Technologies
14
The Employment First
Imperative
 Why do People Work?
 Why should People with Disabilities
seek competitive, integrated
employment?
 Why should People with Disabilities
not work and not be expected to
work?
Why Pursue Employment & The
Employment First Imperative?
Get out of poverty; pay taxes
Increased independence & economic selfsufficiency
Opportunities to make friends and expand
relationships
Make a contribution to the community
Positive image and valued role within the family
and community
Opportunities for learning
Perception is Reality
What we believe to be
true is the basis of our
personal reality and the
key to how we experience
the world around us.
DISABILITY CONSTRUCT IN MULTIPLE
FEDERAL LAWS
 “Disability is a natural part of the human
experience and in no way diminishes the
right of individuals to:






Live independently
Enjoy self determination
Make choices
Contribute to society
Pursue meaningful careers
Enjoy full inclusion and integration in the
economic, political, social, cultural, and
educational mainstream of American society.
What To Do???
We can’t stay on
this spot
We need to rethink
what we do – affirm
our values and
resolutely search for
“valued outcomes”
220
0
Arc of the United States
mission statement
“The Arc of the United States promotes
and protects the human rights of
persons with intellectual and
developmental disabilities and
actively supports their full inclusion
and participation in the community
throughout their lifetime.”
United Cerebral Palsy
The mission of UCP is to advance
the independence, productivity
and full citizenship of people
with a spectrum of disabilities.
Life without limits for people with
disabilities
Autism Society of America
 Vision: …meaningful participation
and self-determination in all aspects
of life for individuals on the autism
spectrum and their families;
 Advocating for inclusion,
participation & self-determination
in all aspects of life for individuals
on the autism spectrum and their
families.
Defining Recovery
A process of change
through which
individuals improve
their health and
wellness, live a selfdirected life, and strive
to reach their full
potential.
– SAMHSA, 2011
Recovery Support Strategic
Initiative
HOME
↑ Permanent
Housing
HEALTH
↑ Recovery
Health
Wellness
Individuals
and
Families
PURPOSE
↑ Employment/
Education
COMMUNITY
↑ Peer/Family/
Recovery
Network
Supports
Values,
Outcomes and
Guiding
Principles
within Federal
Legislation,
Guidance &
the Court
PUBLIC POLICY
IS
VALUE-BASED
Purpose of DD Act (mission)
“to assure that individuals with DD & their
families participate in the design & have
access to needed community services,
individualized supports… that promote
self-determination, independence,
productivity, and integration and
inclusion in all facets of community life,
through culturally competent programs
authorized…unique strengths,
resources, priorities, concerns, abilities
and capabilities of such individuals."
Assistive Technology Defined:
“…any item, piece of equipment, or product
system, whether acquired commercially,
modified, or customized that is used to
increase, maintain, or improve
functional capabilities of individuals with
disabilities.”
Includes accessibility adaptations to the
workplace and special equipment to
help people work;
Identical definition in 4 federal laws:
Assistive Technology Act; DD Act; IDEA;
and Rehabilitation Act
Individuals with Disabilities
Education Act: Purpose
“to ensure that all children with
disabilities have available to them a
free appropriate public education that
emphasizes special education and
related services designed to meet their
unique needs and prepare them for
further education, employment, and
independent living.”
20 U.S.C. 1400(d)(1)(A)
LRE National Data, FFY 2011; April 2013
Students with Intellectual Disability
Ages 6-21 years
 > 80% of day included
 40-79% of day included
 < 40% of day included
 Separate school or
Residential facility
17.0%
26.6%
48.8%
6.5%
IDEA Transition Amendments of
2004
“The term ‘transition services’ means a
coordinated set of activities for a child with
a disability that:
• Is designed to be within a resultsoriented process, that is focused on
improving the academic and functional
achievement of the child with a disability to
facilitate the child’s movement from school
to post-school activities, including…..
IDEA Transition amends. of 2004,
cont.
postsecondary education, vocational
education, integrated employment
(including supported employment)
continuing and adult education, adult
services, independent living, or
community participation;
• Is based on the individual child’s needs,
taking into account the child’s strengths,
preferences and interests; and,
IDEA Transition amends of 2004,
cont.
• Includes instruction, related services,
community experiences, the
development of employment and other
post-school adult living objectives, and,
if appropriate, acquisition of daily living
and functional vocational evaluation.”
Dept. of Ed. to Disability Rights WI.
 January 2012 informal guidance on the
application of LRE to transition IEPs
 Melody Musgrove, Ed.D, Dir, OSEP
 Work placement can be an appropriate
transition service and, if determined
appropriate by team, it must be in the IEP
 Placement decisions, including those
related to transition services (including
work placement) must be based on LRE
principles and made by the IEP team
IDEA 2004 says that transition is…
“A Coordinated Set of Activities”
Planning must begin no later than age 16
Employment
Skills
Development
Community
Experiences
PostSecondary
Education &
Training
Transition
Goals
Independent
Daily Living
Skills
Transition &
Career
Assessment
Who is Involved in Transition
Planning?
Does the student
feel ‘invited’ or
engaged in the
process?
Educators
Community
Agency
Staff
Family
The
Student
Businesses
/
Employers
Friends
Support
Staff
37
What does youth engagement look like
in transition?
Do not just
provide me
options; let’s
co-create
them
We can both
ask &
answer
questions
Discussion
We, as a
team, will
make the
decisions;
not just, ‘a
few of us’
Decision-Making
A Daily
Experience
Implementation
I do not feel engaged in
transition when…
You tell me to
be a selfadvocate…
But your
actions show
otherwise
I feel like I shouldn’t even be
there if they are not going to
ask me questions or
acknowledge me.
Youth Employment Data, August 2011,
Bureau of Labor Statistics
Youth Without Disabilities
 29.2% for youth between
the ages of 16 to 19
Youth With Disabilities
 13.2% for youth between
the ages of 16 to 19
 62.9% for youth between
the ages of 20 to 24
 31.2% for youth between
the ages of 20 to 24
Ohio Federal Court Case on Transition
Services – February 11, 2014
 Southern District of Ohio, W. District
 Joe & Laurie Gibson, as next friends of
Chloe Gibson v. Forest Hills School
District Board of Education
 Chloe’s DOB is 12-16-1990
 Began with administrative due process
complaint on 12-14-2009; mixed decision
from state level review officer (SLRO)
 Filed for Judicial review of SLRO on
6-6-2011; Chief Judge Susan J. Dlott
Gibson v. Forest Hills, cont.
 Court concluded that Forest Hills violated
IDEA by not providing Chloe with
adequate transition services on 6-11-2013
 Settlement conference with Court held on
8-20-2013 did not reach agreement
 Plaintiffs then filed Motion for Transition
Remedy with the Court.
Findings of the Court
 Chloe was not invited to the IEP
 The informal approach to determining
Chloe’s postsecondary preferences and
interests was not sufficient (“based upon
teacher’s knowledge of what she likes to
do and her interests at school.”)
 “focus away from job-training is consistent
with Forest Hill’s belief that Chloe would
participate in a recreational/leisure
environment after leaving h.s., not a
supported work environment.”
Findings of the Court, cont.
 Goodwill evaluation in summer and fall of
2010 “not able to meet competitive
standards for quality and pace…did show
a willingness to learn and to try new
things.” Recommended if Chloe was
interested in supported employment, she
“participate in site specific-extended
Community Based Assessments that
would allow Chloe to fully identify interests
assess stamina over time, & … see if
repetition would improve pace & quality.”
Findings of the Court, cont.
 “ The Court concludes that Forest
Hills failed to invite Chloe to meetings
to discuss postsecondary goals and
failed to otherwise fully consider her
interests and preferences. This
resulted in substantive harm and a
denial of FAPE.”
 “The Court based its decision upon a
preponderance of the evidence.”
Findings of the Court, cont.
 Plaintiff’s expert: Margaretha Vreeburg
Izzo, Ph.D., professor of Psychiatry at the
Ohio State University and transition
services consultant
 Recommended major set of services as
compensatory education with a focus on
customized employment and communitybased Discovery experiences, assistive
technology assessment, job coaching,
transportation and a trust fund for
compensatory educational needs.
Findings of the Court, cont.
 Forest Hills: questions whether Chloe,
given the extent of her cognitive
disabilities would receive a meaningful
benefit from the employment-related skills
instruction & other services proposed…
contends that remedy more appropriate for
children who qualified for the Turpin High
School life skills classroom…she will work
best in a familiar environment, with familiar
individuals, and with appropriate supports.
Findings of the Court, cont.
 Forest Hills’ expert: Thomas Sullivan,
Ph.D. clinical neuropsychologist, certified
by American Board of Prof. Psychology
 Never met or observed Chloe
 Concluded Chloe “suffers from functional
degradation” due to seizures that have
never been fully controlled by her earlier
surgery or medication
 …moderate to severe intellectual
impairment & her ability to acquire & use
new information & skills appears to be
degraded.
Wisdom from President John
F. Kennedy
“ The great enemy of the
truth is very often not the lie
– deliberate, contrived and
dishonest – but the myth –
persistent, persuasive, and
unrealistic.”
Findings of the Court, cont.
 Dr. Sullivan recommended: for Chloe to
obtain vocational services from the
Hamilton County DD Services, also stating
that Chloe could not go into the community
without one-to-one assistance (which was
not Dr. Izzo’s recommendation
 After evaluating all of the evidence and
recommendations from all parties, the
Judge issued her orders:
The Court Orders
 120 hours of community-based
employment discovery services at a rate of
no more than $70 per hour
 190 hours with a job coach at a rate of no
more than $56 per hour
 165 hours of instruction on employmentrelated skills at a cost of no more than $26
per hour
 115 hours of services from a customized
employment consultant or approved by Dr.
Izzo at a rate of $70 per hour
The Court Orders, cont.
 Forest Hills reimburse the Gibsons for
transportation costs up to 100 round trips
into the community at a cost not to exceed
$40.18 per trip
 Forest Hills reimburse the Gibsons for the
reasonable costs of Dr. Izzo’s services for
providing the transition services remedy
assessment.
State V.R. Program Policy…
“(3) It is the policy of the United States that such a program
shall be carried out in a manner consistent with the following
principles:
“(A) Individuals with disabilities, including individuals
with the most severe disabilities, are generally presumed
to be capable of engaging in gainful employment and the
provision of individualized vocational rehabilitation services can
improve their ability to become gainfully employed.
“(B) Individuals with disabilities must be provided the
opportunities to obtain gainful employment in integrated
settings.
Rehabilitation Act, 1992
Rehab Act’s Presumption of Benefit
“(2) Presumption of benefit
(A) Demonstration: For purposes of this
section, an individual shall be presumed to
be an individual that can benefit in terms of
an employment outcome from V.R. services,
…unless the designated State unit involved
can demonstrate by clear and convincing
evidence that such individual is incapable of
benefiting in terms of an employment
outcome from V.R. service due to the
severity of the disability of the individual.
Rehab Act’s Presumption of Benefit..
(B) Methods: In making the demonstration
required above, …shall explore the
individual’s abilities, capabilities, and
capacity to perform in work situations,
through the use of trial work
experiences…with appropriate supports
provided, except when an individual cannot
take advantage of such experiences. Such
experiences shall be of sufficient variety and
over a sufficient period of time to determine
eligibility of the individual or to determine the
existence of clear and compelling evidence..
V.R. Employment Outcome, 2001
“Employment outcome means, with respect
to an individual, entering or retaining fulltime or, if appropriate, part –time competitive
employment as defined in 361.5(b) (11), in
the integrated labor market, supported
employment, or any other type of
employment in an integrated setting,
including self-employment, telecommuting or
business ownership, that is consistent with
an individual’s strengths, resources,
priorities, concerns, abilities, capabilities,
interests &informed choice 34CFR361.5(b)1
Additional Federal V.R. Policy
 January 22, 2001: RSA implemented the
principle of integrated employment in a
regulation that:
Prohibits placement in sheltered
workshops or other segregated settings for
“extended employment” from being counted
as an employment outcome for the V.R.
program.
Transforming the Front Door to
Adult Supports and Services
Transition from school to adult life in
the community requires:
a system of seamless supports,
from Education to Rehabilitation to
LTSS
in order to prevent regression, and
loss of a significant investment in
human capital.
WAITING LISTS ARE UNACCEPTABLE!
Rehabilitation Services Administration
Technical Assistance Circular 14-03
 May 6 2014
 Carol Dobak, Chief, VR Program Unit
 Transition Planning & Services
Provided Through the State VR
Services Program
Rehabilitation Services Administration
Technical Assistance Circular 14-03
 “…all students with disabilities,
including those with significant and the
most significant disabilities, are
presumed to be eligible for VR
services, unless the VR agency
concludes, based on clear and convincing
evidence……an employment outcome
(integrated employment)”
R.S.A. TAC 14-03, cont.
 “ ‘Clear and convincing evidence’ is
defined, in part, as the highest standard
in our civil system of law whereby VR
agencies must have a high degree of
certainty before concluding that an
individual is incapable of benefiting from
services in terms of an employment
outcome. The term ‘clear’ means
unequivocal.”
Results-Driven Accountability (RDA) in
Special Education, Summary 4/2012
 Educational outcomes of children & youth
with disabilities have not improved as
much as expected, despite significant
federal efforts to close achievement gaps
through federal IDEA and NCLB
 Children with disabilities are part of,
not separate from, the general
education population. Special education
accountability should strengthen &
complement other ED reforms
R.D.A. in Special Education, 2
 An emphasis on compliance over
results in special education fails to
acknowledge those States where children
with disabilities are achieving and being
prepared for a range of college and career
options appropriate to their individual
needs and preferences
 The accountability system under IDEA
should provide meaningful information to
the public on the effectiveness of State &
LEAs in educating children with disabilities
RDA in Special Education, 3
 The current system places heavy
emphasis on procedural compliance
without consideration of how the
requirements impact student learning
outcomes. In order to fulfill the IDEA’s
requirements, a more balanced approach
to determining program effectiveness
in special education is necessary.
IDEA Selected Indicators
 Indicator 13: the percentage of youth
aged 15 and above with an IEP that
includes coordinated, measurable IEP
goals and transition services that will
reasonably enable the student to meet the
post secondary goals (in the law)
 Indicator 14: Secondary Transition/Post
School Outcomes – Competitive
Employment.
Dept. of Ed. Letter to States, 5/21/14
 Deborah S. Delisle, Asst. Sect. for
Elementary & Secondary Education
 Michael Yudin, Acting Asst. Secretary for
OSERS
 “…Rather, we know that when students
with disabilities are held to high
expectations, have access to the general
curriculum alongside their same-age
peers, and receive effective instruction
and support, they can achieve to high
academic standards.”
Dept. of Ed. Letter, 2
 “Students with disabilities make up
approximately 13 percent of the school
age population, and the majority of
these students spend a significant
amount of their day in the general
education classroom. In fact, 60 percent
of students with disabilities spend 80
percent or more of their day in general
education, and 80 percent of students with
disabilities spend 40 percent or more of
their day in the general education
environment.
Dept. of Ed. Letter, 3
Given these numbers, it is clear that a
comprehensive, integrated strategy which
leverages all available resources , strongly
supported by your agency is essential if we
are to fulfill the ideals of IDEA: equality of
opportunity, full participation,
independent living, and economic selfsufficiency for students with disabilities.”
New Accountability Framework Raises
the Bar for State Special Education
Programs; June 24, 2014
 “To improve the educational outcomes
of America’s 6.5 million children and
youth with disabilities, the U.S. DOE
today announced a major shift in the way it
oversees the effectiveness of states’
special education programs.
Until now, the Department’s primary focus
was to determine whether states were
meeting procedural requirements such as
timelines for evaluations, due process
New Accountability Framework, 2
hearings and transitioning children into preschool services. While these compliance
indicators remain important to children and
families, under the new framework known
as Results-Driven Accountability, the Dept.
will also include educational results and
outcomes for students with disabilities
in making each state’s annual
determination under the IDEA.
New Accountability Framework, 3
‘Every child, regardless of income, race,
background, or disability can succeed if
provided the opportunity to learn,’ U.S. Sect.
of Education Arne Duncan said. ‘We know
that when students with disabilities are
held to high expectations and have
access to the general curriculum in the
regular classroom, they excel. We must
be honest about student performance, so
that we can give all students the supports
and services they need to succeed.’ “
National Center for Systemic
Improvement
 Launched on October 1, 2014
 $50 million technical assistance center
 “Less than 10 percent of our nation’s
eighth graders with IEPs are scoring
proficient in reading…We can and must
do better. RDA is about using the
accountability framework to provide the
states with incentives and support to
implement evidence-based strategies to
improve results and outcomes for students
with disabilities.” Michael Yudin
The Role of Appropriate Data
Every successful
enterprise uses
outcome data and
information to
improve results
National Center for Systemic
Improvement (NCSI)
 Co-Directors: Rorie Fitzpatrick (CA.) and
Kristin Reedy (VT.) of WestEd
 Partners: American Institutes for
Research; National Association of State
Directors of Special Education; Council of
Chief State School Officers; SRI
International; National Parent Technical
Assistance Centers Network;
 Evaluator: Meadows Center for Preventing
Educational Risk at UT-Austin
RDA State Data for 2012-2013
 Meets Requirements: FL, GA, IN, KS, MA,
MN, MO, NE, NH, NJ, PA, VT, VA, WI,
WY, Federated States of Micronesia,
Marshall Islands, Palau
 Needs Assistance: AL, AK, AZ, AR, CO,
CT, HI, ID, IL, IA, KY, LA, ME, MD, MI,
MS, MT, NM, NY, NC, ND, OH, OK, OR,
RI, SC, SD, TN, UT, WA, WV, American
Samoa, N. Marianas, Guam, Puerto Rico
 Needs Intervention: CA, DE, DC, TX,
Bureau of Indian Ed, Virgin Islands
Workforce Innovation &
Opportunity Act
 Bipartisan-bicameral negotiated bill
passed by Congress, July 9, 2014; signed
into law, July 22, 2014: P.L. 113-128
 Reauthorizes Workforce Investment Act
and Rehabilitation Act (V.R.)
 15% of V.R. funds must be spent on
students with disabilities transitioning from
school to work/postsecondary education
Workforce Innovation & Opportunity Act
 V.R. may maintain an open case file for up
to 24 months while in supported
employment
 Section 511 prohibits PWD under the
age of 24 from working for less than
minimum wage unless they first try V.R.
services among other requirements.
 Sen. Tom Harkin & Rep. Pete Sessions ++
Customized Employment
According to the 2014 Amendments to the Rehab Act
(H.R. 803 Section 7 (7) (29 U.S.C. 705)
Customized Employment means competitive integrated
employment, for an individual with a significant
disability, that is based on an individualized
determination of the strengths, needs, and interests of
the individual with a significant disability, is designed to
meet the specific abilities of the individual with a
significant disability and the business needs of the
employer, and is carried out through flexible strategies,
such as:
Marc Gold & Associates©
78
The “flexible strategies”
of Customized
Employment in WIOA
(A) job exploration by the individual;
(B) working with an employer to facilitate placement,
including —
(i) customizing a job description based on current
employer needs or on previously unidentified and
unmet employer needs;
(ii) developing a set of job duties, a work schedule and job arrangement, and
specifics of supervision (including performance evaluation and review), and
determining a job location;
(iii) representation by a professional chosen by the individual, or self-representation of
the individual, in working with an employer to facilitate placement; and
(iv) providing services and supports at the job location.
Marc Gold & Associates©
79
The Difference between Customizing a
Position and “Job Carving”
Carving
Customizing
 Focus on what the person
CAN’T do
 Focuses on what the
person CAN do
 Highlights that its not a
“full” of “real” job
 Presents as a full job that
fills all needs
 Difficult sell to employer
 Makes sell easy
 Sends a bad message
 Sends a message of
competence
Customized Employment Requires
Building a “Positive Personal
Profile”






Believe in your job seeker
Focus on skills – not deficits
Positive; strengths based
No prerequisites
Everyone is “job ready”
What will employer value about the job
seeker?
Free resources at
marcgold.com
 Activity log for Discovery and CE
 Profile forms, samples and guides
 Worksheets and sample for Customized
Plan for Employment
 Sample Visual Resume
 Employer Needs/Benefits Analysis forms
and sample
 Numerous articles on the CE Process
Marc Gold & Associates©
82
Competitive Integrated Employment
 “…means work that is performed on a fulltime or part-time basis, including self
employment, (A) for which an individual is
compensated at a rate that shall be not
less than the higher of FLSA or the rate
specified in the applicable State or local
minimum wage law; and, it not less than
the customary rate paid by the employer
for the same of similar work performed by
other employees who are not individuals
with disabilities and who are similarly
Competitive Integrated Employment
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 operations or similar
tasks and who have similar training,
experience & skills; & is eligible for the level
of benefits provided to other employees;
Competitive Integrated Employment
(B) 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 who are in
comparable positions interact with other
persons;
Competitive Integrated Employment
 And ( C ), 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.” (Section 7,
U.S.C. 705 as amended in WIOA, July
2014)
Findings of Congress in the
Americans with Disabilities Act
 “physical or mental disabilities in no way
diminish a person’s right to fully participate in all
aspects of society, yet many people with
physical or mental disabilities have been
precluded from doing so because of
discrimination others who have a record of a
disability or are regarded as having a disability
also have been subjected to discrimination.”
 Signed into law July 26, 1990 (24 yrs. ago)
ADA Findings, cont.
 “Historically, society has tended to
isolate and segregate individuals with
disabilities, and, despite some
improvements, such forms of
discrimination against individuals with
disabilities continue to be a serious and
pervasive social problem.
ADA Findings, cont.
 “Individuals with disabilities continually
encounter various forms of discrimination,
including outright intentional exclusion...
overprotective rules and policies, failure to
make modifications to existing facilities
and practices, exclusionary qualification
standards and criteria, segregation, and
relegation to lesser services, programs,
activities, jobs….
ADA Findings
 The continuing existence of unfair and
unnecessary discrimination and
prejudice denies people with disabilities
the opportunity to compete on an equal
basis and to pursue those opportunities
for which our free society is justifiably
famous, and costs the United States
billions of dollars in unnecessary
expenses resulting from dependency
and nonproductivity.
Goals of the Americans with
Disabilities Act of 1990
 The nation’s proper goals regarding
individuals with disabilities are to assure:
 Equality of Opportunity
 Full Participation
 Independent Living
 Economic Self Sufficiency
ADA INTEGRATION MANDATE
 “A public entity shall administer
services, programs and activities in the
most integrated setting appropriate to
the needs of qualified individuals with
disabilities.”
28CFR section 35.130(D)
The Role of the ADA and Olmstead
 Cannot be ignored
 June 22, 2011 was 12th anniversary of the
Olmstead Supreme Court Decision
 DOJ issued:
Statement of the Department of Justice on
Enforcement of the Integration Mandate of
Title II of the Americans with Disabilities
Act and the Olmstead v. L.C.
DOJ on the ADA, June 22, 2011
 Integrated settings are located in
mainstream society; offer access to
community activities and opportunities at
times, frequencies, and with person’s of
an individual’s choosing; afford
individuals choice in their daily life and
activities; and, provide individuals the
opportunities…..
DOJ on the ADA, June 22, 2011
 The “most integrated setting” is
defined as “a setting that enables
individuals with disabilities to interact
with non-disabled persons to the fullest
extent possible.”
DOJ, June 22, 2011, cont.
 Segregated settings include, but are not
limited to:
(1) congregate settings populated
exclusively or primarily with individuals
with disabilities;
DOJ, June 22, 2011, cont.
 Segregated settings include, but are not
limited to:
(2) congregate settings characterized by
regimentation in daily activities, lack of
privacy or autonomy, policies limiting
visitors, or limits on individuals ability to
engage freely in community activities
and to manage their own activities of daily
living
DOJ, June 22, 2011, cont.
Segregated settings include, but are not
limited to:
(3) settings that provide for daytime
activities primarily with other
individuals with disabilities
DOJ, June 22, 2011, cont.
 A public entity may violate the ADA if it
promotes or relies upon the
segregation of individuals with
disabilities through its:
 Planning
 Service system design
 Funding choices, or
 Service implementation practices
DOJ, June 22, 2011, cont.
 Public entities are required to have:
 “a comprehensive, effectively
working Olmstead plan…that must
contain concrete and reliable
commitments to expand integrated
opportunities.
DOJ, June 22, 2011, cont.
 The plan must have specific and
reasonable timeframes and
measurable goals… the public entity
may be held accountable, and there
must be funding to support the plan,
which may come from reallocating
existing service dollars
DOJ, June 22, 2011, cont.
 The plan should include commitments
for each group unnecessarily segregated
such as individuals with developmental
disabilities spending their days in
sheltered workshops and segregated
day programs.
 The plan must demonstrate success by
moving individuals to integrated
settings in accordance with the plan.”
Statement of Eve Hill, Sr. Counsel to
Asst. Attorney General for Civil Rights
“ The Supreme Court made clear over a decade
ago that unnecessary segregation of PWD is
discriminatory. Such segregation is
impermissible in any state or local government
program whether it be residential services,
employment services or other programs.
Unfortunately the type of segregation and
exploitation we found [in Rhode Island] is all too
common when states allow low expectations to
shape their disability programs.”
U.S. v. State of Rhode Island
Consent Decree
 April 2014 to resolve complaint filed
January 2013
 Does not impact interim settlement of June
2013 re: Providence
 Ten year plan to transform entire system
from segregated day and sheltered work
 Annual targets and benchmarks
 Many service definitions including
Customized Employment and Discovery
US DOJ-Rhode Island Consent Decree
 Central theme is increasing integration;
ensuring that PWD have same access to
community (employment, leisure and
daily life) as peers without disabilities
 People in R.I. in supported employment
are also entitled to community-based
integrated day services and supports
as a “wrap around” for up to 40 hours
per week.
US DOJ-Rhode Island Consent Decree
 Individuals can seek a variance to
remain in a segregated setting only if
they try integrated employment first,
including a community-based supported
employment assessment, work incentives
benefits counseling and a trial work
experience in the community.
 This constitutes “informed choice”.
US DOJ-Rhode Island Consent Decree
 Transition finding: about 5% of youth with ID/DD
leaving school between 2010-2012 transitioned
into integrated employment
 R.I. Dept. of Ed. will adopt an Employment First
policy, making integrated employment a priority
service for youth
 State agencies will promote the
implementation of school to work transition
planning process with specific timelines and
benchmarks for all youth 14 - 21
U.S. v. Rhode Island, cont.
 Youth in transition will receive
 Integrated vocational and situational
assessments, including Discovery
 Trial work experiences
 An array of other services to ensure that
they have meaningful opportunities to
work in the community after exit school
 Work will average 20 hours/week
 Integrated work & non-work hours will total
40 hours/week.
Maryland Works State Use Program
 Board issued decision July 7, 2014
 “In light of the changing nature of what
constitutes appropriate and acceptable
employment services for people with
disabilities, Maryland Works is phasing
out assignment of Employment Works
Program (EWP) contracts for
completion in sheltered workshops.”
Maryland Works State Use Program
 Any new EWP contract which will be
completed in a sheltered workshop will
have an end-date of June 30, 2015
 All current EWP contracts tied to sheltered
workshops will be discontinued on June
30, 2015.
Maryland Works State Use Program
 “As you know, there has been a flurry of
activity undertaken, by a wide range of
private and public entities, aimed at ending
sheltered workshop services. Chief
among these activities has been the
Department of Justice…”
Maryland Works State Use Program
 “Actions by the DOJ have resulted in
greater clarity as to what is and is not
acceptable in services provided for people
with disabilities. It is abundantly clear that,
when it comes to employment related
services, sheltered workshop services are
no longer acceptable as anything other
than a last resort; and, even that use of
sheltered workshop services is highly
questionable and out of favor.”
U. S. Senate Committee on Health,
Education, Labor & Pensions (HELP)
 Unfinished Business: Making Employment
of People with Disabilities a National
Priority
 Senator Tom Harkin, Chair
 July 2012
Statement of Senator Harkin
“ Specifically, I call for public & private sector
employers to set goals for boosting
disability employment, … opportunities for
entrepreneurs with disabilities, improved
services to young people with disabilities
that can lead to better employment
outcomes after graduation, and bipartisan
reforms to the largest disability entitlement
programs so that they consistently support
the efforts of people with disabilities to
achieve success in the labor market and
become part of the middle class.”
National Governors Association
A Better Bottom Line: Employing
People with Disabilities
 July 2012
 Governor Jack Markell (DE.), NGA Chair,
2012- 2013
Focus on the employment challenges that
affect individuals with intellectual and other
significant disabilities
Partnerships
 “Government,
 business,
 the general public,
 individuals with disabilities, and their
families
…all stand to benefit from
increased employment of people with
disabilities; all have a role and shared
responsibility in reaching this goal.”
A Better Bottom Line: Why?
 The Right Thing to Do – Individuals with
disabilities have demonstrated ability and
are an untapped resource.
 The Smart Thing for Government to Do
- Individuals with disabilities are heavily
reliant on government benefits. When
people with disabilities are employed and
living more independently, they are less
reliant on government payments and
contribute to the economy
A Better Bottom Line, cont.
 Makes Good Business Sense –
Individuals with disabilities are a valuable
asset for business. There are business
models throughout the United States with
proven results.
 Community – Providing employment
opportunities for individuals with
disabilities is an important factor in
promoting their integration into the
community
Dept. of Education: PROMISE Grants
Promoting Readiness in S.S.I.
 Competitive aps., Aug. 19, 2013
 Funding for 3-6 states for up to 5 years
 State to develop & implement Model
Demonstration Projects (MDPs) to
promote positive outcomes for children
who receive SSI & their families
 To improve provision & coordination of
services/supports for this population to
achieve improved results with Outcomebased Payment Models (OBP).
Promise Grants Awarded; Sept. 2013
 Arkansas
$32,427.44
 California
$50,000.00
 Maryland
$31,190.76
 New York
$32,500.00
 Wisconsin
$32,497.81
 ASPIRE- 6 state
$32,500.00
Collaboration of Utah, S. Dakota, N. Dakota,
Montana, Colorado and Arizona
CMS Issues Updates to Medicaid Waiver
Technical Guide on Employment
Services; September 16, 2011
“We hope that by emphasizing the
importance of employment in the lives of
people with disabilities, updating some of
our core service definitions, and adding
several new core service definitions to
better reflect best and promising practices
that it will support States’ efforts to
increase employment opportunities and
meaningful community integration for
waiver participants.”
Major Changes in Waiver, cont.
 Adds a new core service definition by
splitting supported employment into
individual and small group
 Adds new service, career planning
 Emphasizes critical role of person
centered planning
 Acknowledges self-determination, peer
support & other best practices
 Clarifies that Ticket to Work Outcome and
Milestone payments are not in conflict with
Medicaid services rendered payments
Major Changes in Waiver, cont.
 Modifies both the prevocational and
supported employment definitions to clarify
that volunteer work and other activities
that are not paid, integrated community
employment are appropriately
described in pre-voc, not supported
employment services.
 Explains that pre-voc services are not an
end point, but a time limited (no limit is
given) service for the purposes of helping
someone obtain competitive employment.
CMS Imposes Special Terms &
Conditions on New York State’s OPWDD
 “The receipt of expenditure authority for
transformation for 4/1/13 – 3/31/14, is
contingent on state’s compliance and
CMS’ receipt of the following deliverables:”
 Baseline # of people receiving supported
employment services & in competitive
employment for 5/1/12 – 4/30/13
 Increase that number by 700 people with
no exception for attrition, and
 Increase by 250 persons by 10/1/13
CMS & N.Y. OPWDD, cont.
 Effective July 1, 2013, New York will no
longer permit new admissions to sheltered
workshops and must report quarterly
enrollment in sheltered workshops
 On 10/1/13, submit a draft plan for review
and final plan by 1,1/2014 on
transformation to competitive employment
 To include detailed work plan (sic) for
number of students exiting educational
system moving directly into competitive
employment
CMS & N.Y. OPWDD, cont.
 Plan must include a timeline for closing
sheltered workshops, and a description of
the collaborative work with the New York
educational system for training/education
to key stakeholders on the availability and
importance of competitive employment.
Social Security’s Mixed
Message to People with
Disabilities
Yes you can go to
work:
Work Incentives,
Ticket to Work,
Medicaid Buy-In
Entitled to benefits
due to disability
and inability to
obtain gainful
employment
CMS Issues Final Rules on HCBS and the
Definition of Community: Jan. 16, 2014
 Applies to 1915 ( c ) HCBS waivers; 1915
( I ) SPA for HCBS; and, 1915 ( k )
Community First Choice SPA
 Extensive criteria for the development of a
“person centered plan”
 “Informed choice”
 “Providers of HCBS for the individual, or
those who have an interest in or are
employed by a provider of HCBS for the
individual must not provide case
management or develop the PCP……
CMS Final Rules, 1-16-2014, cont.
…except when the State demonstrates that
the only willing and qualified entity to provide
case management and/or develop personcentered service plans in a geographic area
also provides HCBS.”
 Home & Community-Based Settings –
“must have all of the following qualities,
and such other qualities that the Secretary
determines to be appropriate, based on
the needs of the individual as indicated in
their person-centered service plan:…..
CMS Final Rule, 1-16-2014, cont.
“ (i) The setting is integrated in and
supports full access of individuals receiving
Medicaid HCBS to the greater community,
including opportunities to seek employment
and work in competitive integrated settings,
engage in community life, control personal
resources, and receive services in the
community, to the same degree of access
as individuals not receiving Medicaid HCBS.
(ii) The setting is selected by the individual
from among setting options including….
CMS Final Rules on HCBS
continued
#3. “Optimizes, but does not regiment
individual initiative, autonomy, and
independence in making life choices,
including, but not limited to, daily activities,
physical environment, & with whom to
interact.”
“Supports full access to the greater community –
opportunities to engage in community life – choice of
daily activities and with whom to interact”
How do people engage in community life? What are daily activities? What is
an everyday life?
Planned activities in the home community within all of life’s activity domains:
 Work
 Volunteering - at soup kitchen, community clean up, or other neighborhood
service
 Learning experiences and activities; books on tape; book clubs and art
classes; self-help classes;
 Joining community organizations
 Recreation – swimming, bowling, dancing, movies
 Social Life – getting together with family and friends;
 Peer support groups
 Shopping
 Maintain health and wellness – walking; gym membership; diet groups;
going to medical appt.
 Personal care – hairstyling, having nails done,
 Maintaining home; maintenance and improvement; cleaning; laundry
 Caring for others; relatives or friends
 Spirituality: worship; meditation; yoga classes;
132
 Hobbies: Pet care – walking the dog; gardening, painting;
photography
 Going on vacation
Adapting to the “New Normal”
Metrics and measurement; accountability
All costs must produce clear measurable
outcomes; cost effectiveness
Equity in resource allocation & incentives
Pockets of excellence must be scalable
Disparities in outcomes must translate
statewide
Sustainable value that can be quantified
Transformational policy across state
agencies, infrastructure changes and
capacity building are essential
Where Do We Go?
What Do We Do?
Presumption of Employability
“ Everybody is a genius.
But if you judge a fish by
its ability to climb a tree, it
will live its whole life
believing that it is stupid.”
Albert Einstein
Employment First is the Imperative
 General theme:
Employment in the community is the first/primary
service option for individuals with disabilities
APSE Statement on Employment First
Employment in the general workforce is the first and
preferred outcome in the provision of publicly funded
services for all working age citizens with disabilities,
regardless of level of disability.
Employment First is
not just about
“best practice”.
It is about
clear public policies
that employment is
the priority
A critical focus of
Employment
First must be on
shifting public
resources to be
in alignment
with our values…
Texas Employment First Legislation:
SB 1226, 83rd Session; 2013
 Employment established as the first
and preferred option for working age
Texans with disabilities
 Established the Interagency Task Force
to promote competitive employment of
indivdiuals with disabilities & the
expectation that indivdiduals with
disabilities are able to meet the same
employment standards, responsibilities &
expectations as other working age adults.
Employment First in Texas
 “Integrated and competitive employment is
the primary goal and priority for citizens
using publicly funded services regardless
of disability or level of disability”
 Guiding Principles for E.F. in Texas:
 PWD become as self-sufficient as
possible
 Youth with disabilities have integrated
work experiences for transition into the
workforce and self-sufficiency
E. F. Guiding Principles, 2
 Presumed that PWD can earn competitive
wages in integrated employment & have
the right to pursue range of opportunities
 Work key to QOL for all; benefits include:
 Earning & keeping wages to spend
 Developing & expanding relationships
 Seen as contributing member of society
 Full inclusion in all aspects community
 Increased health & safety; more visibility
 Increased self-esteem
 Development of a career path……..
 Power & choice of life beyond services
E.F. Guiding Principles, 3
 Anyone who wants to be employed should
receive education, training & employment
services & support as long as needed to
obtain & maintain integrated, competitive
employment, regardless of disability or
level of disability
 Individual preferences & informed
choice drive the process
 All relevant state agencies have a shared
responsibility to implement E.F.
principles; partnerships, vision & creativity
Is Texas Alone?
 32 states have
formal Employment
First policies
 44 states have
Employment First
initiatives underway
Costs and Outcomes of Supported
and Sheltered Employment
Robert Evert Cimera, Ph.D.
Kent State University
rcimera@kent.edu
What are the Costs of Supported and
Sheltered Employment?
 Cumulative Costs
SE: $18,813
SW: $46,855
 Cost per Hr. Worked
SE: $11.88
SW: $17.12
 Cost per Dollar Earned
SE: $2.02
SW: $9.39
Individuals in both SE and SW at the same time. Source: Cimera (2011)
144
What is the Return on Investment?
• Is SE more cost-efficient to workers?
SE:
$4.20
SW: $0.24
 Is SE more cost-efficient to taxpayers?
SE: $1.21
SW: $0.83
• Regardless of disability or its severity, SE
has a better ROI than SW
Cimera, 2010
145
Are SWs “Value Added”?
(ID)
No Sheltered Settings
 Earnings
 Cost
$137
$4,543
Sheltered Settings
 Earnings
$119
Cost
$7,895
9,808 Supported Employees with Intellectual Disabilities
42.5% decrease in cost; 15.1% increase in earnings (Source: Cimera, 2011)
146
Do Transition Services Matter?
(Rates of Employment—ID)
By Age 14
By Age 16
2006
74.3%*
57.8%
2007
61.7%*
57.0%
2008
69.7%*
53.8%
2009
42.8%*
28.2%
7,520 Transition-Age Students with ID
(Source: Cimera et al., in prep)
147
Be Passionate about the Mission
“Cowardice asks the question: is it safe?
Expediency asks the question: is it politic?
Vanity asks the question: is it popular? But
Conscience asks the question: is it right?
And there comes a time when one must take
a position that is neither safe, nor politic,
nor popular – but one must take it simply
because it is right.”
Dr. Martin Luther King, Jr.
Wisdom from Jim Collins
“Great performance
is about 1% vision
and 99% alignment”
(It all starts with a vision and then a
specific plan and process to execute
that vision.)
Built to Last
Aligning Federal Agency Policy & Financing
1988-2013
EMPLOYMENT
FIRST
DHHS
CMS
AI/DD -SAMHSA
Department
Of Justice
Social Security
Administration
Department of
Labor
ODEP
Department of
Education
W
O
R
K
P
L
A
Y
F
R
I
E
N
D
S
EMPLOYMENT FIRST IMPERATIVE
“All people, regardless of
severity of their disabilities,
are entitled to integrated
employment with the correct
job match and appropriate
supports.” June 23, 2013
Helen Keller
“Alone we can do
so little; together
we can do so
much.”
“Equal Justice Under the Law”
For Additional Information, contact
Allan I. Bergman
President & CEO
HIGH IMPACT
Mission-based Consulting & Training
757 Sarah Lane
Northbrook, IL. 60062
(773) 332-0871
aibergman@comcast.net