Comments on Olmstead Plan from Tom Weaver

Submitted by Tom Weaver, CEO, Achieve Services, Inc.
Thank you for the opportunity to comment on the development of Minnesota’s Olmstead Plan.
The following comments are respectfully submitted on behalf of the board of directors, staff,
and clients at Achieve Services, Inc., a day training and habilitation (DTH) program located in
Blaine, Minnesota.
At Achieve Services, we recognize the abilities that every one of our clients brings to work every
day. The range of talent and ability is deep and wide, and we’re always looking for new and
creative ways to unlock our clients’ potential. Sometimes that happens quickly, and sometimes
it takes a bit more time. And when it comes to employment, we need as many employment
options as possible to match the skills and abilities of our wonderfully diverse client base.
We currently serve 180 adults with a range of developmental disabilities. Our first priority is to
place our clients in community jobs. When that’s not possible or “appropriate,” we provide
work in our center-base production area. About 59% of our clients are working in the
community, while 36% are working in our (center-based) facility. The remaining 5% receive a
variety of job training, life skills, and therapy services, and engage in community integration
activities – like volunteering at Feed My Starving Children and delivering Meals on Wheels.
We applaud and support the Dayton Administration’s efforts to develop an Olmstead Plan, and
we whole-heartedly agree with the principle, as stated in the Attorney General’s Title II
regulations, that states should “administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified individuals with disabilities.” See 28
CFR sec. 35.130(d) (1998). As a state, there’s no question we can do more to facilitate
integration, and the Olmstead Plan should chart a course for doing so. However, the Plan must
be about expanding choices, not restricting them.
As you develop the final Olmstead Plan, I would ask that you address three important
First, what programs and services will be available to clients for whom communitybased employment may not be “appropriate?”
Second, what options will be available to those clients who do not desire community
And finally, will funding be shifted from segregated programs and services – despite
those programs being the choice or most appropriate option for many – to integrated
community-based employment programs?
Integrated Community-based Employment is Not Always “Appropriate.”
Most of the discussion around the Olmstead Plan is focused on those with disabilities for whom
community-based employment is appropriate, and whether sufficient integration opportunities
are available to them. That’s fine, that’s what the Olmstead case was about. See Olmstead v.
L.C., 527 U.S. 581 (1999). But for some, community-based employment is not appropriate, and
it is imperative that those people not be forgotten or left behind.
Achieve, along with many other DTH facilities around the state, provides services to clients with
a broad spectrum of abilities and challenges. Some are non-verbal and unable to communicate.
Some are non-ambulatory. Some are unable to feed themselves or perform other basic daily
functions without 1:1 assistance throughout the day. Some have anxiety disorders or
behavioral issues that make community integration extremely stressful. While we provide
those clients with integration opportunities through various community outings and volunteer
activities, community-based employment may not be appropriate.
As you develop the Olmstead Plan, we ask that you keep this higher-needs population in mind.
As we work to expand integration opportunities, as we should, please do not forget or sacrifice
the services that are most appropriate for our clients with higher needs. And yes, those
programs are often segregated. They are also safe environments where clients receive therapy,
life skills, and a variety of work opportunities.
In Olmstead, the Court cautioned against taking a whole-sale community-based approach: “We
emphasize that nothing in the ADA or its implementing regulations condones termination of
institutional settings for persons unable to handle or benefit from community settings.” See
Olmstead at 601-602. While our center-based programs are a far cry from “institutional
settings,” the Court’s point is nevertheless valid: for some individuals, integrated settings are
preferable to community settings, and those integrated settings should therefore be preserved.
Some Clients Do Not Want Community-Based Employment.
The Olmstead decision has properly been characterized as requiring more integration
opportunities for people with developmental disabilities. Despite what some advocates argue,
however, Olmstead does not suggest that integrated employment should be the ONLY option.
In Olmstead, the court specifically recognized that for some, a more restrictive, segregated
setting is the most appropriate: “[T]he State generally may rely on the reasonable assessments
of its own professionals in determining whether an individual meets the essential eligibility
requirements for habilitation in a community-based program. Absent such qualification, it
would be inappropriate to remove a patient from the more restrictive setting….Nor is there any
federal requirement that community-based treatment be imposed on patients who do not
desire it.” Olmstead at 602. The Court further recognized that “Persons with disabilities must
be provided the option of declining to accept a particular accommodation,” citing 28 CFR pt. 35,
App. A, p. 450 (1998).
Among those who service the disability community, there has been a welcomed focus placed
on “person-centered” programing. In other words, we should listening to what our clients
want, and honoring their choices whenever possible. The concept of respecting client choice is
also embodied in the Olmstead decision.
In recognizing that persons with disabilities must have the option of declining community-based
employment, the Court implies that other options – like center-based work programs - should
continue to be available. At Achieve, we have some clients who have been given opportunities
to work in community jobs, but have chosen to work in our center-based shop instead. Some
have gone so far as to self-sabotage their community jobs so they could return to our center.
Obviously, that’s not in the client’s best interest. Moreover, these incidents can jeopardize the
employer’s willingness to hire other workers with disabilities.
When we work with employers, we work hard to provide workers whose skills and abilities are
a good fit for the demands of the particular job. We send job coaches out to learn the job first,
so they can help ensure that the work gets done right. And often times it is completely
appropriate to nudge a client out of his or her comfort zone, and to gradually increase the
difficulty of assignments. However, pushing a client too hard, too fast, can result in failures that
are bad for the client and the employer. And if community-based employment is the only
option available, we fear that more clients will be force into jobs for which they are ill-suited or
unprepared, and the rate of failure will rise – again to the detriment of clients and employers
We feel strongly that center-based programs will always be “appropriate” for some clients, and
that those programs should continue to be available and adequately funded. And it is
important to understand what center-based programs like Achieve’s are, and what they are
not. They most certainly are not the first or only option. They are not boring or institutional.
They are not places where anyone is taken advantage of, or meaningless tasks are performed.
They are safe environments where clients have the opportunity to perform real work for real
customers. They are places where clients get paid fairly, based on their productivity, and in
accordance with standards strictly regulated by the U.S. Department of Labor. They are places
where clients develop employment skills, along with self-esteem and a sense of self-worth. And
our clients are there because they and/or their guardians have made informed choices to be
there. They are lively, high-energy places with lots of activity where clients are generally happy
for the opportunity to contribute and earn a paycheck. They are one option - an option that
should be preserved.
Community-based services should not be funded at the expense of Center-Based Services.
Obviously, we rely heavily on government funding to operate our programs and services,
including our center-based programs. If funding were diverted from center-based services to
community-based services, we could no longer serve our higher-needs population, and we
worry about what would become of them.
What would happen to our high-needs clients if our center-based programs were closed? In a
perfect world, all those workers with disabilities would then find jobs in the community. But
we don’t live in a perfect world. The reality is, jobs for people with disabilities are hard to find.
In fact, the unemployment rate among workers with disabilities is roughly double what it is for
non-disabled workers, and only 21% of those with disabilities are participating in the labor force
at all. So most of the people who are now happy and productive working in center-based
programs would suddenly be unemployed, and for most - spending their days in residential
settings with more limited opportunities for community engagement and integration, and no
opportunity to earn a paycheck. What would that do to their self-esteem and sense of selfworth? Would that enhance their quality of life? Of course not!
Some have argued that a lack of resources is not an acceptable excuse for providing integrated
community options, and have encouraged the shifting of funds from community-based
programs to community-based programs. Unfortunately, this would directly translate to
robbing from the higher-needs populations for whom community integration in not
appropriate, to better serve those higher-functioning populations for whom community
integration is appropriate.
Moreover, the Court in Olmstead recognized that the availability of resources should, in fact, be
considered, suggesting that states are not required to fund community-based programs at the
expense of other programs. The Court concluded that state’s must provide community-based
treatment when “such placement is appropriate, the affected persons do not oppose such
treatment, and the placement can be reasonably accommodated, taking into account the
resources available to the State and the needs of others with mental disabilities.” Olmstead at
607 (emphasis added.) Again, we are adamantly opposed to eliminating options – or funding –
for our higher-needs clients, and ask the Olmstead Subcabinet to ensure that their services are
not sacrificed or compromised in the Olmstead Plan.
In conclusion, we respectfully request that the Olmstead Plan expressly acknowledge that (1)
community-based programming is not appropriate for all persons with disabilities; (2) that
persons may choose to reject community-based programing, and (3) that programs and funding
for other “appropriate” or “chosen” options should be maintained. Again, the Olmstead Plan
should be about expanding options, not restricting them, and it should not advance its goals at
the expense of funding and programs serving those with higher needs.