Public Comment — HCBS Settings Rule to HHSC and DADS

Texas Council for Developmental Disabilities & Employment First Task Force
Comments on HCBS Settings Rule — Provided to HHSC and DADS
October 13, 2014

Good morning. I’m Roger Webb, Executive Director the Texas Council for Developmental Disabilities. I’m also testifying today as Chair of the Texas Employment First Task Force Employment and want to focus these remarks on day habilitation services currently used by HCS, CLASS, and TxHmL waiver participants. While we appreciate that day habilitation programs were developed to meet real needs, our thinking about inclusion of individuals with intellectual and developmental disabilities has evolved over the past two decades. We believe that as currently designed day habilitation services isolate individuals from meaningful involvement in community activities and will require the state’s attention to come into compliance with the new CMS HCBS settings rule.

Work is a fundamental value and aspiration in American culture. All people, including those with disabilities, gain many benefits from having a job. People are healthier, safer and happiest with meaningful work. They have relationships with co-workers, fewer health issues, and an increased sense of well-being. They report a greater sense of accomplishment, increasing their feelings of competence and self-worth, and contribute to the economy.

Many people with disabilities live at or below the poverty level, and earning income helps supplement their resources and improves the quality of their lives. Individuals with disabilities are much less likely to have a job than individuals without disabilities. In June of 2014, about 63% of working-age Americans were employed. In contrast, only 36% of people with disabilities in the United States were employed, and only 23.4% of people with cognitive disabilities. Data for Texans with disabilities is similar.

Employment First is a mindset that integrated competitive employment should be the expected outcome for people with developmental and other disabilities. Federal and state policy has paved the way to support opportunities for people with disabilities to have meaningful jobs in their communities. Texas is one of at least 42 states with Employment First efforts. The wide range of attention and emphasis on Employment First is encouraging, and it provides a potential catalyst for the long needed increase in workforce participation for individuals with disabilities. With an increasing emphasis on integrated employment and an Employment First philosophy, the nation is poised for transformation that could put Americans with disabilities on a path out of poverty and towards self-sufficiency.

The 83rd Texas Legislature passed Senate Bill 1226 that established that it is the policy of the state that earning a living wage through competitive employment in the general workforce is the priority and preferred outcome for working-age Texans with disabilities who receive public benefits. That legislation also established the interagency Employment-First Task Force to promote competitive employment of individuals with disabilities and the expectation that individuals with disabilities are able to meet the same employment standards, responsibilities, and expectations as other working-age adults.

I have provided copies of the Task Force’s first report to the Legislature and policy leadership which includes more than 70 recommendations to various state agencies. Among those are recommendations to refocus day habilitation services provided in various Medicaid waivers including:

  • HHSC and TEA should develop information for students, adults and families about the impact of employment on benefits and how work incentives can be utilized (including Social Security work incentives).
  • HHSC, DADS and DARS should provide guidance regarding coordination of employment assistance and supported employment Medicaid waiver services with DARS vocational rehabilitation services, so that the individual receiving services experiences a seamless transition between agencies/providers as needed.
  • HHSC should
    • Establish goals to increase the number of individuals in integrated, competitive employment and to decrease the number of individuals in workshops and sub-minimum wage.
    • Develop technical assistance and financial incentives for workshop providers to convert services to supported, competitive employment.
  • HHSC enterprise agencies should provide staff training for front-line service delivery staff to implement employment services and supports in a way that will achieve integrated competitive employment outcomes.
  • DADS should ensure that service coordinators and case managers should inform waiver program recipients on the availability of a person-centered planning (PCP) process as an Employment Assistance service delivery option. The PCP process includes discovery about employment options and planning for desired outcomes.

The Task Force also included recommendations concerning sub-minimum wage employment. Texas currently has more than 100 employers that utilize certificates from the Department of Labor to pay “sub-minimum wages” to individuals with disabilities working in sheltered workshops or enclaves. Sheltered workshops and enclaves typically do not promote full inclusion; do not generally teach readily transferrable or relevant work skills; and usually do not provide wages which allow workers to break the cycle of poverty.

Some workers with disabilities in Texas earn as little as 1½–10 cents per hour despite working for a highly profitable local business. A recent report reviewed studies in other states that indicate state’s save money by providing job coaches for individuals to be successfully employed rather than paying for the costs of sheltered employment. Over time, states receive more in taxes paid by those new employees, even considering the costs of job coaching, than they would have paid to keep those individuals in a sheltered workshop.

The EFTF recommends:

  • HHSC and the HHS Enterprise agencies should adopt by September 1, 2016, a plan that provides funding to convert sheltered workshop/enclave work programs to individualized, community based employment services;
  • By September 1, 2019, HHSC and the HHS Enterprise agencies should prohibit the use of state funds for programs offered in sheltered workshops and enclaves.

Texas and other states developed day habilitation programs, work activities centers and sheltered workshops recognizing the need to have viable day program options for individuals with intellectual and developmental disabilities. Those programs are incredibly important in the lives of many individuals, but they are also a legacy of our past. We realize now that we can do better. We also realize it will take considerable work by agencies and providers working together with self-advocates and families to design program options that people want and the resources and incentives for providers to make that transition. It may not be easy, but it is an opportunity for Texas to proactively move forward by ensuring that day programs provided in all Texas waivers comport with the principle and the spirit of the Employment First Policy now adopted by the Legislature. It’s important for people with disabilities, and it’s important for Texas.