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Following close behind last month’s announcement by the Department of Labor (DOL) of a “comprehensive review” of 14(c), the program that allows some agencies to pay a subminimum wage to a subset of largely intellectually disabled participants, the Department of Justice (DOJ) has waded into the debate, issuing new guidance on “Employment and Day Services for People with Disabilities.”
I find it to be a perplexing, frustrating, and scary document that opens with the threat of litigation: “State and local governments that fail to provide services to people with disabilities in the most integrated setting appropriate to their needs may be failing to comply with Title II of the Americans with Disabilities Act (ADA).”
Could Disability-Specific Settings Be at Risk?
What's at stake here may not just be the subminimum wage; it’s all disability-specific services, including day and residential settings designed to serve more than three people. These include but are not limited to farmsteads, campuses, intentional communities, and all facility-based day programs. Such larger models are often preferred by family members of profoundly impaired individuals with behavioral challenges—including aggression, self-injurious behavior, and elopement—who require more structure, stability, and specialized care than can typically be provided safely in small, dispersed settings.
But what does “appropriate to their needs” mean, exactly? Or “may be failing to comply”? And is integration really a “mandate,” as the DOJ states in the title of this new guidance?
Disability-Specific Settings Don't Violate the ADA
No, it’s not—as the guidance itself makes clear immediately after the statement cited above. It even cites the qualifications for the right to community treatment articulated in the 1999 Olmstead decision—most notably, that “the affected persons do not oppose community-based treatment.”
In fact, the Justices were very much aware that inclusive settings are not appropriate for, nor desired by, everyone. As Justice Anthony Kennedy wrote, in a concurring opinion, “It would be unreasonable, it would be a tragic event, then, were the Americans with Disabilities Act of 1990 to be interpreted so that States had some incentive, for fear of litigation, to drive those in need of medical care and treatment out of appropriate care and into settings with too little assistance and supervision.”
So the Department of Justice knows perfectly well that disability-specific settings do not violate the ADA—and they do concede, at the end of the new guidance, that “state and local governments are not required to provide community-based services to individuals who oppose receiving those services.” But they also add: “On the other hand, state and local governments have no obligation under the ADA to provide services in segregated settings.”
This is an odd statement: With the exception of those states that still operate public Intermediate Care Facilities (ICFs)—residential facilities for severely intellectually and developmentally disabled people who require intensive, round-the-clock care—states typically don’t act in the role of service providers. Rather, state disability offices are charged with managing Medicaid waivers, jointly funded by the state and the federal government—from designing those waivers (which often come in different sizes to reflect different levels of support), selectively distributing them, and setting parameters about how they may be used.
It's this last responsibility that I suspect the DOJ is referring to. Despite the fact that the entire disability service sector is purportedly based on individual needs and preferences (the foundational document is the Individualized Service Plan (ISP)); it is incontrovertible that some intellectually disabled adults and their families have been fighting to preserve 14(c) programs and other disability-specific settings; and that these settings, as acknowledged in the new guidance, do not violate the ADA. Despite this, the DOJ appears to be urging states to deprioritize and potentially eliminate these options.
Protections Already in Place to Ensure Access to Inclusive Settings
Perhaps there are some intellectually and developmentally disabled adults trapped in 14(c) programs or facility-based day programs who want to pursue competitive employment—although, interestingly, over three listening sessions conducted by the DOL as part of their “comprehensive review,” not a single person shared that story, either on behalf of themselves or a family member. There were a couple of speakers who described how they had successfully moved from a 14(c) placement to a minimum-wage job—but in my view, that’s just evidence the system of protections already in place is working.
As the DOJ guidance acknowledges (in a footnote), vocational rehabilitation programs are already required “to offer individuals with disabilities opportunities to obtain competitive integrated employment, including to individuals in sheltered workshops.” And not just once—the Workforce Innovation and Opportunity Act (WIOA) requires this option to be presented every year. Overwhelmingly, 14(c) participants choose to remain in their current placements for a host of reasons repeatedly articulated in the DOL listening sessions, mostly by parents and siblings on behalf of loved ones with profound cognitive impairments: the inability to work a competitive, minimum-wage job; the preference to work with similarly disabled peers; the need for constant structure and support; the satisfaction of a job well done.
There’s much about supporting people with significant intellectual and developmental disabilities that is challenging, but this is easy: No one should be forced into a disability-specific setting, but no one should be forced out of one either. That’s it.
Now, let’s move on to the real work that needs to be done: fixing our broken system, supporting innovation and expansion, and ensuring that every intellectually and developmentally disabled person has meaningful choices over where and with whom they live and work.
