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For Immediate Release                                         
8/20/2013

Contact: David Card
202.408.9514 x122
press@ndrn.org

Statement by Executive Director Curt Decker Supporting Section 511 of the Rehabilitation Act

“The perfect is the enemy of the good”

WASHINGTON, DC – I read with interest Professor Bagenstos’ analysis, “Section 511 is Not a Step Forward” as he is a nationally known leader in the disability civil rights movement, did great work for people with disabilities at the Department of Justice, and is a friend of the Protection and Advocacy (P&A) and Client Assistance Program (CAP) Network. Unfortunately, I must disagree with the conclusion he reached in this article. While Section 511 is not perfect, I choose to not let the perfect be the enemy of the good. I also know from decades of legislative work that if you ask for all or nothing, you more often than not end up with nothing at all.

Let me begin by saying that I believe Section 14(c) of the Fair Labor Standards Act should be abolished. This provision is out-of-date, discriminatory, contrary to the civil rights of people with disabilities, and keeps people with disabilities from achieving self-sufficiency. Unfortunately, my hope for this does not mean that it is going to happen any time soon. There are powerful groups allied against this change including business, some family members of people with disabilities, and unfortunately other disability groups who use this provision to pay their employees a sub-minimum wage while their executives make a salary of hundreds of thousands of dollars. In fact, while we have been able to get legislation introduced that would eventually get the sub-minimum wage phased out, it has barely garnered a blip of interest in Congress.

With that as a backdrop, Senator Harkin, a known champion in the disability rights world, included Section 511 as part of the Workforce Investment Act of 2013. As Professor Bagenstos says, Senator Harkin’s intent is to stop people from being tracked directly from school into sub-minimum wage positions. Professor Bagenstos’ analysis of the intent of the provision is correct; however, I think his subsequent arguments against the provision are off target for a number of reasons.

First, Professor Bagenstos ignores that Section 511 is part of a much larger bill that throughout makes improvements to encourage the employment of people with disabilities in competitive integrated situations. Section 511 cannot just be viewed on its own, but needs to be looked at as one piece of a much larger legislative puzzle. Major portions of the reauthorization focus on increasing competitive integrated employment for youth with disabilities. For example:

  • Section 7 - clarifies and strengthens the definitions of competitive integrated employment, customized employment, and also revises the definition of supported employment;
  • Section 101 – strengthens Vocational Rehabilitation (VR) reporting requirements so that VR providers must report the number of people provided supported or customized employment services and the amount of time necessary to attain an employment outcome, and requires that VR state plans include strategies to implement pre-employment transition services;
  • Section 102 – presumes that an individual with a significant disability is eligible for and can benefit from VR services, requires that an Individualized Plan for Employment (IPE) have a goal of competitive integrated employment, and requires that an IPE be developed within 90 days;
  • Section 110 – sets aside 15% of a state’s vocational rehabilitation funds to serve young people with disabilities who are transitioning from school to competitive integrated employment, and also designates funds to provide technical assistance and to support model demonstration projects on this issue.
  • Section 114 – establishes local and national pre-employment transition coordinators to ensure that VR has an active role in special education services to promote the goal of higher education or competitive integrated employment for transitioning youth;
  • Section 204 – promotes research to convert sheltered workshops into locations for competitive integrated employment for people with disabilities and to provide opportunities for people with significant disabilities to work in integrated settings at competitive wages;
  • Section 303 – authorizes activities to improve the transition of youth with disabilities from school to post-secondary education or competitive integrated employment;
  • Section 621 et seq.– provides grants to assist States in developing programs to provide supported employment services for youth to achieve an employment outcome of competitive integrated employment, and requires states to develop plans to expand supported employment opportunities for youth;
  • Section 801 – permanently establishes the Office of Disability Employment Policy, Services and Supports within the Department of Labor with the goal of increasing competitive integrated employment and training opportunities for people with disabilities, and
  • Section 803 – provides for a public education campaign about employment of people with disabilities.

In addition to recognizing that something needs to be done to stop children with disabilities going directly from school into sub-minimum wage positions, Senator Harkin understands that the VR system also needs improvement. So, Section 511 needs to be viewed as part of a set of improvements to the entire workforce system (including VR) for people with disabilities. There are new provisions in the legislation which address some valid concerns expressed in Professor Bagenstos’ paper. While Section 511 is not perfect, I choose to not let the perfect be the enemy of the good.

Professor Bagenstos’ argument ignores the fact that we already have hundreds of thousands of people with disabilities working in sub-minimum wage positions. Despite

language in the Rehab Act that sub-minimum wage positions cannot be considered a successful employment outcome, the flow of people into sub-minimum wage positions continues. Clearly more tools to prevent this are needed. Senator Harkin provides one in Section 511, along with additional requirements, such as those that require the provision of pre-employment transition services and that VR provide youth with significant disabilities opportunities to experience competitive integrated employment.

Professor Bagenstos also ignores the largest segment of people with disabilities that Section 511, in conjunction with other provisions of the bill, will ultimately help. These are people who, through lack of proper transition planning or referrals, never get a chance to benefit from VR or try competitive integrated employment before entering a sub-minimum wage position. Section 511 would, for the first time, require that these individuals apply for VR services and if eligible, work toward competitive integrated employment before any consideration of a subminimum wage position. So rather than letting such individuals automatically be placed in a sub-minimum wage position with no chance for supportive services to help them achieve competitive integrated employment, I would rather give the provisions of Section 511 a chance. While Section 511 is not perfect, I choose to not let the perfect be the enemy of the good.

Section 511 creates requirements that give people with disabilities a better chance at competitive integrated employment rather than a sub-minimum wage job. I would rather have a system that at least has a chance to keep people from sub-minimum wage employment, than the current system that seems to funnel people there. While Section 511 is not perfect, I choose to not let the perfect be the enemy of the good.

Professor Bagenstos also has it wrong that Section 511 provides nothing to those that are over the age of 24 or already employed in a sub-minimum wage position. The language of the bill (Section 511 (c)) requires that a person working for a sub-minimum wage receive frequent, ongoing career counseling, information and referrals, self-advocacy, self-determination, and peer mentoring training opportunities to help move toward competitive integrated employment. Once again, this is an improvement over the current system that has no requirements for those that are employed in sub-minimum wage positions. While Section 511 is not perfect, I choose to not let the perfect be the enemy of the good.

Another key point Professor Bagenstos fails to recognize in his discussion of Section 511 is that its enactment will provide the tools for advocates, including the Protection and Advocacy (P&A) system as well as the Client Assistance Program (CAP) agencies, to hold entities responsible for not having complied with the requirements of the section. As a comprehensive and nationwide network providing legally based advocacy every day to people with disabilities, the P&A / CAP Network gladly accepts advocacy tools to get people with disabilities into competitive integrated employment. Especially for those people with disabilities that never see the VR system, the requirements of Section 511 will provide tools that currently do not exist. While additional funding would help to ensure that people get the individualized advocacy they need, the existence of these tools puts advocates in a better position than they are currently in to help people with disabilities find competitive integrated employment. While Section 511 is not perfect, I choose to not let the perfect be the enemy of the good.

Finally, Professor Bagenstos argues that Section 511 is going to undercut the work of the Department of Justice (DOJ) in enforcing the Olmstead decision. While DOJ has been doing some very good work lately, intervening in Disability Rights Oregon’s (the Oregon P&A) Lane lawsuit against the state for failing to provide integrated employment services and getting a settlement addressing the Birch School’s use of segregated employment, DOJ enforcement of Olmstead on its own can never be comprehensive. In many situations DOJ comes in, reaches a settlement and then moves on to the next state and issue, leaving the local advocates to make sure the settlement is followed. As discussed above, Section 511 will provide these local advocates with tools to help enforce these settlements as they pertain to sub-minimum wage. It is important to remember that Section 511 addresses sub-minimum wage issues while Olmstead addresses segregation of people with disabilities in employment. The two concepts are not always interchangeable. There are plenty of examples of people with disabilities who are segregated, but make more than the minimum wage. The Department of Justice is free to pursue Olmstead employment segregation claims all across the country regardless of this legislation. Nothing in Section 511 or the other parts of the WIA reauthorization removes the authority of the Department to pursue these important employment segregation claims.

Without Section 511, hundreds of thousands of workers with disabilities will continue to make far less than the minimum wage with no additional tools for advocates to help get these individuals into competitive integrated employment. While Section 511 may not go as far as we would like, I choose to not let the perfect be the enemy of the good.

# # #

The National Disability Rights Network (NDRN) is the nonprofit membership organization for the federally mandated Protection and Advocacy (P&A) Systems and the Client Assistance Programs (CAP) for individuals with disabilities. Collectively, the Network is the largest provider of legally based advocacy services to people with disabilities in the United States.

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