Federal disability rights directive could put a bull's-eye on Minnesota

A new disability rights directive from the Obama administration has cast fresh doubts on the future of Minnesota's decades-old system of subsidizing specialized workshops that employ people with disabilities.

In a 13-page guidance issued in late October, the U.S. Justice Department said millions of Americans with disabilities spend the majority of their hours in segregated work centers known as "sheltered workshops" and in adult day programs. Many are capable of joining the mainstream workforce, but lack services that would enable them to succeed. That is "unnecessary segregation," the agency said, and likely violates the 1990 Americans with Disabilities Act, or ADA.

The strongly worded statement comes as the Justice Department steps up efforts to protect the civil rights of people with disabilities and is seen as a signal that the agency will pursue legal action against states that have fallen behind. Some national disability law experts say Minnesota is particularly vulnerable because of the large numbers of people here who continue to work in sheltered workshops.

A Star Tribune investigation in 2015 found that many individuals with disabilities feel trapped in sheltered workshops because they lack transportation, job coaching and other support services that would allow them to find and retain more meaningful work. Only 11 percent of Minnesotans with developmental disabilities who received state services in 2014 worked in the community alongside people without disabilities — the sixth lowest rate in the nation.

"Clearly, if you look at the numbers, Minnesota is a potential target" for legal action, said Alison Barkoff at the Center for Public Representation, a national public interest law firm. "This is like the police saying, 'Hey, you guys, we're watching.' "

Throughout Minnesota, nonprofit providers employ people with disabilities to package products and do other light assembly work on contract for companies. Many of these providers hold special certificates from the U.S. Department of Labor that exempt them from the federal minimum wage and allow them to pay employees based on productivity. Pay through this system, known as "piecework," often amounts to pennies an hour. A recent state analysis found that 15,400 Minnesotans with disabilities — far more than previously thought — work for employers that hold these sub-minimum wage certificates.

"Minnesota is definitely on the Justice Department's radar screen," said Allison Wohl, executive director of APSE, a national organization that promotes integrated employment. "This is a very clear message that the federal government wants to see a massive systems change and that states like Minnesota cannot continue to isolate people with disabilities from the broader community in perpetuity."

Last year, the administration began to implement a detailed blueprint, known as an "Olmstead plan," for reducing segregation and improving community services for people with disabilities. That plan calls for moving nearly 20,000 individuals with disabilities into the mainstream labor force by mid-2020 and doing more to prepare students for work in the community.

Mary Tingerthal, chair of the subcabinet that oversees the plan's implementation, said she will contact individual state agencies to determine whether the plan needs to be revised in light of the federal guidance. "There is already a very high level of urgency" around integrated employment, Tingerthal said in an interview, adding that she did not expect major changes to the Olmstead plan.

Even so, the guidance should help Minnesota's main workforce agency make the case for inclusion at a time when it is undertaking ambitious reforms. In July, a new federal law took effect that requires workers with disabilities who earn less than minimum wage in sheltered work sites to be provided with regular career counseling and information about more integrated work options.

Since August, counselors contracted by the state have fanned out across Minnesota to educate thousands of workers and their families about their employment options. Many of these individuals have not been regularly consulted about their career ambitions, or have been told that they are incapable of working outside of a workshop setting, state officials said.

Kim Peck, the state's vocational rehabilitation services director, whose office is overseeing the outreach effort, said the guidance will help the state make the case that recent reforms are about protecting people's civil rights and not just government meddling. "We can now hold this [guidance] up and say, 'Look, this is the law of the land,' " Peck said.

"It's forced isolation," said Rossum, who is J.J.'s guardian. "Other opportunities need to be made available."

The Justice Department made it clear the ADA does not prohibit sheltered workshops or day programs. But the agency said that people must be given "a real opportunity to make an informed choice" about staying in such settings.

The statement comes after two cases in which the Justice Department pressured states to reduce reliance on segregated workshops. In 2014, Rhode Island adopted a 10-year plan to move thousands of people from menial work in segregated sites to jobs that match their interests and abilities.

Chris Serres • 612-673-4308