NCD Letter to DOJ on its Recent Investigation of Title II ADA Violations in Rhode Island

January 23, 2014

Eric H. Holder, Jr.
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Attorney General Holder:

On behalf of the National Council on Disability (NCD), an independent federal agency charged with advising the Administration and Congress on disability policy, I write to express NCD’s appreciation for the ongoing commitment and attention by the United States Department of Justice (DOJ) Civil Rights Division to facilitating the integration of people with disabilities in society.

Most notably, we applaud the Civil Rights Division’s efforts against segregated day and employment activities, including sheltered workshops and facility-based day programs, as demonstrated by the recent investigation of Rhode Island’s Birch Vocational School where workers with disabilities performed manual labor for scant wages between $.50 and $2 per hour. As a result of DOJ’s efforts, the Rhode Island Department of Behavioral Healthcare, Developmental Disabilities and Hospitals has recently announced their intention to phase out the use of sheltered workshop settings over the course of the next three years. NCD commends this as an exceptionally positive development.

The DOJ report released on January 6, 2014 stated that the Birch Vocational School subcontracted with and prepared many of its students to work one of the largest sheltered workshop providers in the state where workers were allegedly paid $1.57 an hour on average. In one case, a worker was paid just 14 cents per hour. The DOJ report also revealed that participants were given few, if any, opportunities to integrate into the non-segregated workforce.

Sadly, what occurred in Rhode Island is just one example of what has become the norm for many workers with disabilities when they are placed in segregated, isolated settings outside the mainstream and hidden from public view. The mistreatment and exploitation of these students with disabilities affirm the need to reform an antiquated system that is built on systemic discrimination against workers with disabilities.

As NCD detailed in its August 2012 report “Subminimum Wage and Supported Employment,” significant investments have been made in the last three decades in education and vocational training for persons with disabilities. Technological advancements and improvements in health care provide an unprecedented opportunity to finally tap the potential of this long marginalized population.

As the DOJ noted in its investigation, today’s expectations for young persons with disabilities are higher than those demonstrated by the Birch School and have moved far beyond the expectations held by society when sheltered work programs were first launched in the 1930’s.

In its “Subminimum Wage and Supported Employment” report, NCD stressed the need for a gradual phase out of Section 14c of the Fair Labor Standards Act and the use of sheltered workshops in favor of more modern supported employment services which place and support persons with significant disabilities in community settings alongside peers without disabilities. NCD reaffirms those recommendations today.

NCD commends DOJ for consistently taking constructive action using all enforcement tools available, working in tandem with other federal partners such as the Department of Labor and the Centers for Medicare and Medicaid Services. The work of the DOJ has accelerated the transition away from sheltered workshops and towards integrated employment at competitive wages in states across the country. To date, Massachusetts, New York, Oregon and Rhode Island have each articulated their intention to phase out the use of sheltered work in the years to come. We believe that by continuation of the DOJ’s activities to enforce the Supreme Court’s Olmstead v. L.C. decision in this sector, more states will join that list. Additionally, we urge the DOJ to work closely with partners across the federal government to hold states to their commitment to end the use of sheltered workshop settings and support people with disabilities in real jobs for real pay.

NCD has met with DOJ several times recently in support of its actions and remains available and ready to continue work with DOJ and Congress to ensure that all workers – including employees with disabilities continue to be treated fairly.

Sincerely yours,

Ari Ne’eman
Entitlements Committee Chair
National Council on Disability  

cc:      

Jocelyn Samuels
Acting Assistant Attorney General
Civil Rights Division  

Eve Hill
Deputy Assistant Attorney General
Civil Rights Division