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 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)

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

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 anti-discrimination 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 theTicket Program EN classification affects applicability of

ADA IndividualsCooperativesCommunity rehab providersWIA “One-stops”State VR agenciesPrivate companies

ENs and Governing Law

TITLE IProtects employees of

EN’s

TITLE IIIGoverns relationship

between EN and Ticket participant

(private entity)

TITLE IIGoverns relationship

between EN and Ticket participant (public entity)

SECTION 504 Governs EN’s receiving

federal grants or contracts

Olmstead Court USDJ

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

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. Who is being served in the Ticket Program?

2. Who is being rejected, and why?

3. What is the quality of service and employment outcomes?

4. What information or supports are needed to facilitate use of the Ticket?

Research questions, cont.

5. What are the economic incentives & disincentives to participants and ENs?

6. What is the nature of program access and accommodation for beneficiaries with multiple disabilities? And what are the associated costs and benefits?

7. What are the characteristics of participating ENs and service providers not participating?

Research questions, cont.

8. How does the restriction of Ticket eligibility to those 18 years or older affect youth with disabilities transitioning from school to work?

9. 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. How has Ticket implementation enhanced or diminished participants’ informed choice and decision making about employment options?

11. 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 supportsEnhancement of work incentivesAccess 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