Applicability of the ADA to Ticket to Work Employment Networks

1. 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

2. 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

3. Reflects Paradigm Shift • From charity and compensation …. TO • Medical Oversight …. TO • Civil Rights

4. Disability Policy FrameworkFederal 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)

5. 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 self-sufficiency

6. 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

7. 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

8. 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

9. 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”

10. A person also may be “disabled” if • He or she has a “record of such impairment” OR • Is “regarded as having such an impairment”

11. 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

12. 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

13. 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

14. PGA Tour v. Martin 2001 • Broad reading of Title III’s anti-discrimination provisions • Accommodations do not fundamentally alterthe nature of the golf tournament

15. 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

16. 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

17. Ticket to Work and Work Incentives Improvement Act (TWWIIA) of 1999 • Initiated to address barriers & compounding factors of SSA programs

18. 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

19. 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

20. 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)

21. 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

22. Beneficiaries eligible until… • Until SSDI benefits end • A Social Security disabled widow(er) turns 65 • A blind or disabled SSI participant turns65 and qualifies for SSI benefits because of age

23. 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

24. 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

25. 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)

26. 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

27. 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

28. 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

29. 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

30. Applicability of ADA to theTicket Program • EN classification affects applicability of ADA • Individuals • Cooperatives • Community rehab providers • WIA “One-stops” • State VR agencies • Private companies

31. 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 ENs and Governing Law

32. Title II of ADA is to prevent public entities from excluding qualified individuals with disabilities from enjoying benefits of public services and activities Interprets Title II as requiring covered entities to make reasonable accommodations in services to avoid discrimination on basis of disability Olmstead CourtUSDJ

33. 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

34. All Title II and Title III entities must provide Ticket participants • Physicalandprogrammaticaccess to their facilities and services

35. ENs May not Discriminate BUT They mayselect beneficiaries to whom they will offer services based on - assessment of the needs of the ticket holder - abilities to assist the individual

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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?

44. 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

45. 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

46. 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)

47. 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

48. 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

49. 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

50. 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