Applicability of the ADA to Ticket to Work Employment Networks

Report
Applicability of the ADA
to Ticket to Work
Employment Networks
Presentation based on article
by Peter Blanck, Lisa Clay,
James Schmeling, Michael
Morris, & Heather Ritchie
Ticket to Work and Work
Incentives Improvement Act
Passed in 1999
 Recipients of SSDI and SSI receive
“ticket”
 Ticket used to receive services from
qualified Employment Network (EN)
 The ADA is applicable to EN’s in several
ways

Reflects Paradigm Shift

From charity and compensation ….
TO

Medical Oversight ….
TO

Civil Rights
Disability Policy Framework
Federal Initiatives
Workforce Investment Act of 1998 (WIA)
Ticket to Work and Work Incentives
Improvement Act of 1999 (TWWIIA)
Americans with Disabilities Act of 1990
(ADA)
Intersection of ADA and
TWWIIA
Complimentary, but different policy
purposes
 TWWIIA to facilitate work
 ADA to provide equal opportunity for
persons with disabilities, full participation,
independent living, and economic selfsufficiency

Title I TWWIIA





Establishes Ticket to Work and Self-Sufficiency
Program
Voluntary program
Implemented nationally over 3 years
SSDI and SSI recipients receive “ticket” to
purchase services from qualified EN’s
(Employment Networks)
EN’s provide employment, vocational
rehabilitation services, and other supports
ADA Overview
First comprehensive law preventing
discrimination against persons with
disabilities
 Intended to improve lives and employment
prospects of qualified people with
Disabilities
 Establishes rights, obligations, and
protections in a range of areas

ADA Titles
I. Employment discrimination on basis of
disability
 II. Governs discrimination in programs
and services by state and local
governments
 III. Prohibits discrimination in
accommodations and services offered by
private entities that affect commerce

Disability under the ADA is
defined as….

“a physical or mental impairment that
substantially limits one or more of the
major life activities of such an individual”
A person also may be “disabled”
if

He or she has a “record of such
impairment”
OR

Is “regarded as having such an
impairment”
Bragdon v. Abbott



First ADA case decided by Supreme Court
Title III case
Supreme Court endorsed a broad reading of the
ADA’s definition of disability, as well as of its
public accommodation anti-discrimination
provisions
Trilogy of Title I Employment
Cases-1999
Sutton v. United Airlines
 Murphy v. United Parcel Service
 Albertson’s Inc v. Kirkingburg

“Mitigating measures” must be considered
 Not substantially limited in major life
activity if impact of impairment effectively
mitigated

Olmstead v. L. C.-1999
Title II Anti-discrimination provisions
 Placement of qualified persons with
mental disabilities in state institutions into
community settings
 Supports ADA’s goal to prevent unjustified
exclusion of persons with disabilities from
programs and services of Title II entities

PGA Tour v. Martin 2001
Broad reading of Title III’s antidiscrimination provisions
 Accommodations do not fundamentally
alter the nature of the golf tournament

Historical barriers to
independence & inclusion of
persons with disabilities
Economic disincentives to work
 Lack of choice in rehabilitation services
 Lack of early access to rehab services
in SSDI and SSI programs

SSA Program Inadequacies
Lack of adequate and affordable health
insurance for beneficiaries/working
disabled
 Lack of choice in and access to
employment services, vocational
rehabilitation, and other supports
 Attempts of beneficiaries to work frustrated
by potential loss of benefits

Ticket to Work and Work
Incentives Improvement Act
(TWWIIA) of 1999

Initiated to address barriers &
compounding factors of SSA programs
Purposes of TWWIIA

Reduce dependence on government cash
benefit programs by providing health care
and employment training for persons with
disabilities

Encourage states to allow those qualified
to purchase Medicaid insurance, allowing
them to retain employment
Purposes of TWWIIA, cont.

Allow working persons with disabilities the
option of maintaining Medicare coverage

Encourage persons with disabilities to
seek employment and rehabilitation
services to reduce dependence on cash
benefits program
Prior to TWWIIA
SSDI and SSI recipients who would
benefit from vocational rehabilitation were
referred to state VR agencies
 VR agencies were reimbursed for their
services after beneficiary found work
deemed “substantial gainful activity” (SGA)

After TWWIIA Enacted

SSA is no longer required to refer
individuals to state VR agencies

Benefits may continue while beneficiary
receives VR services or is a participant in
the Ticket Program
Beneficiaries eligible until…

Until SSDI benefits end

A Social Security disabled widow(er) turns
65

A blind or disabled SSI participant turns 65
and qualifies for SSI benefits because of
age
How TWWIIA Works
Most SSI and SSDI recipients between
ages of 18-64 are eligible
 Ticket participants receive a voucher or a
“ticket” to obtain vocational services
 Services are available from qualified
Employment Network (EN) to help them
return to gainful employment

TWWIIA, cont.
Continuing disability review (CDR) by SSA
is not triggered by return to work of
participant using a Ticket while making
progress
 Progress toward discontinuation of cash
benefits through SGA for purposes of CDR
suspension is evaluated by program
standards

TWWIIA, cont.
EN works with participant to form
“individual work plan”
 Participant has up to 2 years to prepare
for employment
 By year 3 of Program, participant is
required to work at least 3 of 12 months at
SGA (not necessarily consecutive)

TWWIIA, cont.
By year 4, participant works 6 of 12
months at SGA
 By year 5, participant works 6 of 12
months at a level high enough to eliminate
SSI or SSDI benefits
 If participants do not meet requirements a
medical CDR may be initiated by SSA

Employment Networks (EN)




Provide employment, vocational rehabilitation,
and other supports and services to beneficiaries
Any public or private organization may apply to
be an EN
Must meet qualification requirements
An EN may be one or multiple organizations
ENs cont.

EN’s are compensated through “outcome based
reimbursement” (OBR) payments

Payments represent a portion of cost savings
from SSDI or SSI cash benefits

EN receives outcome payments for the months
(up to 60) that the participant does not receive
SSDI or SSI
ENs cont.


Milestone payment system available for ENs
with beneficiaries who achieving goals of IWP,
but not yet employed
EN services include:
 Case
management
 Workplace accommodations
 Peer mentoring and training
 Transportation assistance
Applicability of ADA to the
Ticket Program

EN classification affects applicability of
ADA
 Individuals
 Cooperatives
 Community
rehab providers
 WIA “One-stops”
 State VR agencies
 Private companies
ENs and Governing Law
TITLE I
Protects employees of
EN’s
TITLE III
Governs relationship
between EN and
Ticket participant
(private entity)
TITLE II
Governs relationship
between EN and
Ticket participant
(public entity)
SECTION 504
Governs EN’s receiving
federal grants or
contracts
Olmstead Court
Title II of ADA is to
prevent public entities
from excluding
qualified individuals
with disabilities from
enjoying benefits of
public services and
activities
USDJ
Interprets Title II as
requiring covered
entities to make
reasonable
accommodations in
services to avoid
discrimination on
basis of disability
Under Title III
Places of public accommodation must
provide equal access to all persons with
disabilities, not just those who are
“qualified”
 Includes private social service centers
 Includes those who own, lease,or operate
a place of public accommodation as an EN

All Title II and Title III entities
must provide Ticket participants
 Physical
and programmatic
access to their facilities and
services
ENs May not Discriminate
BUT
They may select beneficiaries to whom they
will offer services based on
- assessment of the needs of the ticket
holder
- abilities to assist the individual
As Title II Entities, ENs



Must be physically and programmatically
accessible
Are not required to modify existing programs
when these services are offered through
alternative methods
Are not required to modify services when doing
so would fundamentally alter programs, or cause
undue financial or administrative burden
Participant may choose to
assign ticket to any public or
private EN
BUT
Participant is also free to reassign the
Ticket to another EN, and may choose to,
for various reasons
As Title II Entities, ENs
Must be physically and programmatically
accessible
 Not required to modify existing services
when these services are offered through
alternative methods
 Not required to modify services if to do so
would fundamentally alter the programs, or
cause financial or administrative burden

Under ADA, Title III entities
Must remove barriers or provide services
through alternative methods when “readily
achievable”
 Have a less stringent “undue burden”
defense compared to Title II entities,
because Title II is presumed to enable
persons with disabilities to participate in
governmental programs

Both Title II and Title III

Require covered entities to ensure effective
communication with those with disabilities
 Applicants
 Participants
 Members

of the public
Covered ENs are required to provide auxiliary
aids and services when necessary to allow
equal program access
Ticket Program requires ENs

To have policies and procedures that
protect the confidentiality of participants &
those seeking services

To prevent discrimination on the basis of a
participant’s age, gender, race, color,
creed, or national origin
If EN is not qualified to serve a
particular individual,
The ADA’s undue burden provision does
not require the EN to serve that Ticket
holder
 Where ADA accommodations are possible
and reasonable, public or private ENs may
not charge an individual to cover the cost
of accommodations

Implementation Questions
What is an ENs responsibility under the
ADA to serve individuals with multiple
disabilities?
 Does the ADA prevent ENs from choosing
to provide services only to the pool of least
disabled or so-called “creamed”
participants?

Concerns about program implementation
expressed by disability advocates reflect the
potential emergence of

•
•
Two separate and perhaps unequal
markets for EN services:
Those served by private specialized ENs
Those served by state VR programs
Potential EN market imbalance
As of August 1, 2002, in the 13 states
piloting the Ticket program, less than 1%
(.21) of Ticket holders have been assigned
to 374 ENs
 In Iowa, for the same period, less than 1%
(.34) of Ticket holders have assigned
Tickets to 27 EN’s

Virtually all program participants
have either:

Not used their Tickets
OR

Remained in state VR system instead of assigning their
Ticket to an EN of their choice (85-95% of program
participants who have assigned their tickets)
Although SSA is monitoring
outcomes to ensure service
choice
Analysis of the Ticket payment structure
is needed to assess the incentives and
disincentives for employment providers
and EN program specialization
The statute requires:
SSA to design and implement a payment
structure that allows individuals with
significant disabilities to participate in the
Ticket Program
 SSA is required to report to Congress on
the adequacy of incentives for ENs to
serve this population prior to full
implementation of the program

SSA will need to maintain
information on:
Types of individuals with disabilities served
 Data on: disability type and severity
economic status
ethnicity
geographical location
placement rates
acceptance & rejection standards

Information needed, cont.
Placement information on a regional basis
by EN type, organizational size, and
nature of disability served
 About how exclusion of individuals
between ages 16 and 17, and those who
have not had a CDR affects subsequent
employment outcomes

Qualitative & Quantitative
research needed on the Ticket
Program in these areas:
1.
2.
3.
4.
Who is being served in the Ticket
Program?
Who is being rejected, and why?
What is the quality of service and
employment outcomes?
What information or supports are
needed to facilitate use of the Ticket?
Research questions, cont.
5.
6.
7.
What are the economic incentives &
disincentives to participants and ENs?
What is the nature of program access and
accommodation for beneficiaries with multiple
disabilities? And what are the associated
costs and benefits?
What are the characteristics of participating
ENs and service providers not participating?
Research questions, cont.
8.
9.
How does the restriction of Ticket
eligibility to those 18 years or older affect
youth with disabilities transitioning from
school to work?
Have service alternatives and programs
expanded, diminished, or stayed the
same for Ticket holders with different
types and severity of disability?
Research questions, cont.
10.
11.
How has Ticket implementation
enhanced or diminished participants’
informed choice and decision making
about employment options?
What information is gathered and
disseminated to Ticket holders and
others about EN performance &
customer satisfaction?
Research questions, cont.
12.
What types of economic, attitudinal, and
employment information are necessary to
inform policy makers about the successes and
challenges of Ticket Program implementation?
13.
13. Will the ADA’s anti-discrimination
provisions and TWWIIA’s reform of the work
incentives affect attitudes towards workers with
disabilities?
Research questions, cont.
14. Will the ADA and TWWIIA impact the
attitudes of individuals with disabilities
themselves with regard to their
employment needs?
Broader issues about the
American work force

What types of skills will be needed for employers
to remain competitive in the U.S. and abroad
with the development of the knowledge-based
economy?

Will our increasingly diversified and aging work
force include millions of persons with emerging
disabilities, such as TBI, repetitive stress
conditions and multiple disabilities?
Broader issues, cont.



What will be the educational characteristics and
job qualifications of the work force of young
persons with disabilities?
What types of job training, assistive technology,
and accommodations will be available to that
work force?
How will the specific and generic policy changes
in disability, welfare and healthcare affect that
work force?
The Ticket is an important
experiment in social policy

The Ticket program prohibits discrimination not
on the basis of disability per se, but on the basis
of age, gender, race, and other status and
service characteristics

The program’s goals reflect the disability policy
framework and the ADA, which emphasize
choice, equality of opportunity, and economic
independence
New outcome measures
needed
Reduced dependence on government
benefits
 Asset accumulation
 Use of federal and state tax credits and
incentives to foster provision of workplace
accommodations
 Perceived satisfaction of participants and
ENs

Non-traditional measures of
inclusion and self-determination
need to be examined,
augmented by a review of range
of employment activities:
Self-employment
 Entrepreneurial activities
 Temporary employment
 Tele-work

Researchers and Policy Makers
must assess:




The impact of Ticket Program OBR payment
systems on service delivery options and quality
Customer satisfaction with customized
vocational service interventions
The scope and intensity of work supports and
training
Barriers and facilitators to expanded service
choice for Ticket holders
Research needs

Review relation among generic and
disability policies (WIA & TWWIIA) to
assist Ticket holders to obtain & retain
employment through
 Integration
of job-related supports
 Enhancement of work incentives
 Access to affordable health care benefits
Research needs, cont.

Researchers must begin to cumulate information
in ways that include Persons with Disabilities in
 The
research design
 The data collection
 The analysis process
• The development of a body of research on the
disability policy framrwork
• The cummulative research endeavor highlights
perspectives and assumptions embedded in policy
and research
As knowledge about Ticket
Program implementation
emerges:
Education and training must be available
to improve understanding of the
protections afforded by the ADA to
Ticket holders
Information should be disseminated to ENs
about:
- ADA responsibilities
- Rights to enhanced services, programs,
and accommodations that promote equal
participation and supports
The goals of full inclusion and
equal employment opportunity
for qualified persons with
disabilities in the Ticket Program
is grounded in the disability
policy framework
In 2002, the Supreme Court
reiterated these objectives in
US Airways v. Barnett:
[The ADA] seeks to diminish or to eliminate the
stereotypical thought processes, the
thoughtless actions, and the hostile reactions
that too often bar those with disabilities from
participating fully in the Nation’s life, including
thee workplace…..These objectives demand
unprejudiced thought and reasonable
responsive reaction on the part of employers
annd fellow workers alike.
The Court’s enunciated goal is to ensure
opportunity, participation, independent
living and economic self-sufficiency by
all those with disabilities in all aspects
of society The common purpose is to
develop policies that advance
economic independence of all
Americans with disabilities.
THANK YOU
PowerPoint prepared by
Susan Michaelson

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