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Work as a Priority: A Resource for Employing People who have Serious Mental Illnesses and are Homeless

The Right to Work^[1]

Several Federal statutes (discussed below) provide a foundation to help people with disabilities move from lives of dependency and despair to lives of independence and hope. A number of excellent resources provide detailed information about these statutes. The purpose of the discussion that follows, however, is to provide highlights of these key statutes. Readers are encouraged to consult the documents and Internet sites referenced for more information.

Rehabilitation Act of 1973

The Rehabilitation Act of 1973 (as amended in 1992) promotes the philosophy, principles, and practices of integrated employment for people with disabilities by affirming:

• Respect for individual dignity, personal responsibility, self-determination, and pursuit of a meaningful career, based on the informed choice of individuals with disabilities;
• Respect for privacy, rights, and equal access for individuals with disabilities;
• Inclusion, integration, and full participation of individuals with disabilities;
• Support for the involvement of family, advocates or authorized representatives, if desired or requested by the individual with a disability; and
• Support for individual and systemic advocacy and community involvement.

The 1992 amendments support the provision of individuals with disabilities with the tools necessary to help them make informed choices and receive equal opportunities in such areas as employment, independent living, finances, and self-sufficiency.

Rehabilitation Act Amendments of 1998

The Rehabilitation Act Amendments of 1998, part of the Workforce Investment Act of 1998 (see below), amended and extended the authorization of the Rehabilitation Act of 1973 for five years.^[2] Key provisions of the new statute included expanded customer choice, streamlined administrative procedures, and increased employment outcomes. In particular, the Amendments called for the development of innovative approaches to expand and improve VR services, particularly for individuals with the most significant disabilities. Eligibility was streamlined by establishing presumptive eligibility for individuals who receive Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI). While this does not entitle individuals to services, it recognizes they are a group with the most severe disabilities who will apply for VR services.

In addition, eligible individuals have the option either to develop their own Individualized Plan for Employment (IPE), or request the assistance of a qualified VR counselor. To increase successful employment outcomes, the Amendments recognize telecommuting, self-employment, and small business operation as legitimate employment outcomes.

The Americans with Disabilities Act^[3]

The Federal Americans with Disabilities Act of 1990 (ADA) is one of the most sweeping statutes for people with disabilities since the Rehabilitation Act of 1973. The law prohibits discrimination against, and guarantees equal opportunities for, qualified people with disabilities in employment, government programs and services, public accommodations and services, and in telecommunications. This statute is not an affirmative action law, but rather a Federal statute designed to guarantee qualified people with disabilities a "level playing field".

The ADA promotes full-inclusion for individuals with disabilities, and stresses empowerment, dignity, respect, and independence. As Federal legislation, the ADA has been developed to help people understand not just their responsibilities to individuals with disabilities, but also the rights with which every person with a disability is endowed.

The ADA has a number of key employment-related provisions and definitions:

• Covered entities: The ADA applies to employers with 15 or more employees, employment agencies, labor organizations, or joint labor management committees engaged in an industry affecting commerce. Employers with fewer than 15 employees are exempt.

• efinition of "disability":^[4] Any physical or mental impairment that substantially limits one or more major life activities; a record of such impairment; or being regarded as having such impairment. Related definitions include:
  • Physical or mental impairment: (a) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; and/or (b) any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and special learning disabilities.
  • "Substantially limits": (a) an inability to perform a major life activity (caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working) that an average person in the general population can perform; (b) significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the average person in the general population.
• Qualified individual: An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position. Essential functions are defined as tasks that are fundamental, not marginal.

• Discrimination: No place of employment shall discriminate against a qualified individual with a disability with regard to application procedures, hiring, promotions and transfers, training, compensation, fringe benefits, layoffs, terminations, or other terms, conditions, and privileges of employment.

• Reasonable accommodation: Modifications to the job application process, the work environment, or job that will enable the qualified individual with a disability to perform the essential functions and enjoy equal benefits and privileges of employment. Employers do not need to provide accommodations if they can demonstrate that doing so would result in an undue hardship.

• Undue hardship: The ADA requires that a reasonable accommodation be made, where requested, unless the employer can demonstrate that the accommodation would impose an undue hardship on the business (Sec. 102(b)(5)(A)). "Undue hardship" means the requested action will lead to significant difficulty or expense when considered in light of business size and type, number of employees, and nature and cost of accommodation.

On June 22, 1999, the Supreme Court’s Olmstead v. LC ruling indicated that, in appropriate circumstances, the ADA requires the placement of people with disabilities in a community-integrated setting whenever possible. The Court concluded that "unjustified isolation," e.g., institutionalization when a doctor deems community treatment equally beneficial, "is properly regarded as discrimination based upon disability."^[5]

Workforce Investment Act of 1998

The Workforce Investment Act (WIA) of 1998 is a landmark law that has changed the Nation’s workforce preparation and employment system.^[6] Together with the Personal Work and Responsibility Act of 1996—the centerpiece of welfare reform—WIA sets the stage to move thousands of unemployed or underemployed individuals back into the nation’s workforce. It sets forth changes to funding streams, target populations, delivery systems, accountability, long-term planning, labor market information system, and governance structure, and gives states greater authority over training and employment programs. Responsibility for providing services under the Act is assumed by local Workforce Investment Boards (WIBs) which play a key role in identifying demand for occupations, linking employers and jobseekers, and contracting for services for special needs jobseekers.

A key provision of Title I of the Act is the establishment of "one-stop career centers," the focus of local workforce development services that replaces Job Training and Placement Administration (JTPA) "re-employment centers." Title IV links Rehabilitation Act programs to state and local workforce development systems to facilitate access for people with disabilities to mainstream training and employment services. For people with mental illness who are homeless, the implications of the link and consolidation of local employment services are significant.

As the Workforce Investment system evolves, performance standards and accountability could help increase access to mainstream workforce investment services for people who are homeless and have serious mental illnesses. Areas for adaptation suggested by the Corporation for Supportive Housing include:^[7]

• Outcome orientation. Such an orientation is essential for service providers to employ people with mental illnesses who are homeless and to participate in the workforce development system. However, the benchmarks used to measure vocational progress must account for the multiple barriers that challenge this population. For example, when measuring employment outcomes, benchmarks might include counting the number of hours worked per quarter (rather than measuring job retention in terms of months) and recognizing credentials acquired over an extended period of time.

• Accountability measures. One of the greatest obstacles for people with multiple barriers interested in accessing the workforce investment/JTPA system is the performance accountability required for service providers and participants. Providers that offer employment services to people with multiple barriers have been unable to compete for contracts because expected performance outcomes are unrealistic and do not reflect the pathway to success for this population. Furthermore, outcomes and indicators do not allow for flexibility or the more incremental process of most consumers. When employment programs are designed more specifically for people with multiple barriers and allow for slower progress, even those with long histories of mental illness, substance abuse, and/or homelessness, should be able to find and keep jobs.
  
  Partner agencies selected under the Workforce Investment Act (WIA) to deliver specialized one-stop services and training are held accountable for performance in entry into unsubsidized employment; retention in unsubsidized employment (six months after entry into employment); and earnings received in unsubsidized employment (six months after entry into employment).

• Performance benchmarks. To ensure strong performance success and labor market appropriateness, the local WIB, in partnership with providers, should review and evaluate performance rates of those agencies offering services to people with multiple barriers. The following provides recommendations for adjusted performance benchmarks in serving people with multiple barriers:
  • Successful placement nto employment should include temporary and part-time work and should measure work hours on a quarterly basis. For example, a total of 100-130 work hours for the first quarter might qualify as a successful placement. This encourages incremental participation in the workforce for people who are not able to maintain full-time employment due to the range of issues associated with multiple barriers.
  • Retention in the same job for longer than six months may be unrealistic for many individuals with multiple barriers. A more appropriate benchmark must reflect the total number of hours worked per quarter over a four-quarter period. The total hours worked per quarter could be evaluated to determine the trend in hours worked by the participant over time. Trends that show an increase in total hours worked per quarter beyond the initial 100-130 hours might qualify as successful work retention.
  • The definition of earnings needs to be expanded to capture other critical components beyond wages. When evaluating earnings beyond the second quarter of employment, other areas to be reviewed should include: advanced employment status (e.g., advancing from temporary to permanent; from part-time to full-time); advanced benefits status (e.g., attaining medical coverage, paid sick leave and vacation, pension contributions); increased wages/earnings (e.g., increased earning rate, bonuses); and increased working hours.

• Overall performance. In addition to the short-term performance indicators WIA requires local communities to track, WIBs might also develop a tracking tool to monitor the progress of people with multiple barriers while in the labor market. This tool might include the WIA performance benchmarks measured over an extended period of time (e.g. 3-5 years), and might consider disincentives that now exist within government benefit structures and how they affect this population’s motivation toward employment.

Ticket to Work/Work Incentives Improvement Act of 1999

Perhaps the most significant disincentive to work faced by people receiving Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) is the loss of cash benefits and medical coverage. SSI/SSDI cash benefits, even when combined with housing and medical subsidies, are insufficient to move individuals above the poverty level. Often, when individuals earn enough to make them ineligible for disability benefits, their income must be sufficient to replace both cash assistance and health care coverage. Because many consumers are employed in entry-level jobs that do not offer health insurance benefits, they are obliged to keep their income below a level that endangers their SSI/SSDI eligibility. Moreover, many are afraid to risk the loss of benefits, and therefore remain unemployed. Others will take jobs, even it means losing their benefits, in the hope that they will not need medical coverage, or will be financially able to purchase it if they do.

The Ticket to Work Program^[8]

This statute directs the Social Security Administration (SSA) to establish the Ticket to Work program (TTW) enabling SSI and SSDI recipients to obtain vocational rehabilitation services, employment services, and other support services from a network of their choice. Individuals receive a "ticket to work" that they can assign to a network of providers offering services they wish to purchase. SSA enters into agreements with one or more organizations in the public or private sector that will serve as "managers" to assist SSA in administering the program in a given locality. These managers will recommend network providers (public or private entities) to SSA, which is then responsible for the selection and contracting process. After entering into agreements with SSA, the networks assume responsibility for coordination and delivery of services to consumers.

The network can be a one-stop delivery system established under the Workforce Investment Act of 1998, a single provider of such services, a consortium of a group of service providers, state vocational rehabilitation agencies, or other public or private agencies. The providers develop and implement individual work plans with each beneficiary that include a statement of the individual’s vocational goal, services and supports necessary to accomplish that goal, terms and conditions related to the provision of those services and supports, rights and remedies available to participants in the TTW, and the participant’s right to modify his/her work plan if needed.

SSA makes payments to networks in one of two ways. It can use either an outcome-based payment system or an outcome-milestone payment system. Under the outcome-based payment system, an employment network is paid a percentage (not to exceed 40%) of the national average SSI or SSDI payment for each month the beneficiary does not receive a benefit payment due to work activity, for a period not to exceed 60 months. The outcome-milestone payment system combines outcome payments with payments for achieving one or more milestones toward assisting the beneficiary in achieving permanent employment. However, if the employment network is paid under the outcome payment system, the total amount of payments cannot exceed the 40% standard. A key provision of this statute prohibits SSA from initiating continuing disability reviews (CDRs) during the period that a beneficiary is utilizing the TTW.

State VR Participation

State VR agencies can elect to participate in the TTW Program as an employment network, providing services under Title I of the Rehabilitation Act of 1973. If VR is not the designated network, a written agreement is required between the VR agency and the network, prior to acceptance of any referral from the latter, assigned as the beneficiary’s Ticket to Work. On the Federal level, the Secretary of Education and the Social Security Administration will jointly prescribe regulations that specify the terms of such agreements between VR agencies and employment networks. Without such agreements in place, payments to employment networks on behalf of individuals referred to state VR agencies as part of their IEP, will not be authorized.

Since, in the past, state VR agencies were responsible for the provision of employment services for those individuals receiving SSI/SSDI, the TTW/WIIA provisions will potentially heighten competition. While it is difficult to determine with certainty what impact the legislation will have upon VR service provision for people with mental illnesses, it may provide opportunities to implement local flexibility and include recommendations to improve the relevance and appropriateness of VR services for this group of individuals.

Elimination of Work Disincentives

The Ticket to Work/Work Incentives Improvement Act (TWWIA) addresses many of the work disincentives that people with disabilities have fund to act as barriers to obtaining, keeping, and advancing in jobs. SSDI or SSI beneficiaries using a TTW will not be scheduled for medical continuing disability reviews (CDRs) as long as they are using the TTW. In response to the extraordinarily long delays in re-establishing disability and health benefits after they have been terminated, TWWIA allows requests for reinstatement. Although benefits counseling assistance is available for individuals with disabilities, or providers who wish to help clients manage work and benefits, this assistance is often insufficient. As a result, SSA has been directed to establish a corps of SSDI and SSI work incentive specialists to provide accurate information to disabled beneficiaries about the full range of Social Security work incentives provisions, many of which have existed for some time but are largely unknown to providers and beneficiaries alike.^[9]

Expanded Availability of Health Care Benefits

States now have an opportunity to implement a Medicaid buy-in program for working individuals with disabilities who are at least 16, but not more than 65 years of age. States can liberalize limits on individuals’ resources and income without affecting their cash benefits or health care assistance, and can provide the opportunity for employed individuals with medically determinable impairments (as determined by the Department of Health and Human Services) to buy into Medicaid if they are no longer eligible for SSDI or SSI disability benefits due to medical improvement. For purposes of the Medicaid buy-in, states are required to collect premiums or other cost-sharing charges by use of a sliding-scale system. In addition, the Act provides a four and one-half year extension of premium-free Medicare Part A coverage beyond the four years provided under current law for SSDI beneficiaries who return to work.

Chapter Summary

These important statutes safeguard the rights of people with disabilities, including people with mental illness who are homeless, to access employment opportunities and advance in their jobs and careers. In addition to providing new hope and possibility for this population, these initiatives represent the Federal government’s commitment to investing in the potentially powerful, yet underutilized, workforce of people with disabilities.

For more information on these important pieces of legislation, particularly those that have yet to be fully implemented, the following websites may be useful:

U.S. Department of Education, Rehabilitation Services Administration
http://www.ed.gov/about/offices/list/osers/rsa/index.html

U.S. Department of Justice, Americans with Disabilities Act
http://www.usdoj.gov/crt/ada/adahom1.htm

U.S. Workforce.org
http://usworkforce.org

Social Security Administration
http://www.ssa.gov/work

Chapter 7 Notes

^[1] This chapter contains original material authored by Gary E. Shaheen, M.P.A., Advocates for Human Potential, Delmar, NY and John Rio, Corporation for Supportive Housing, New York, NY.

^[2] See http://www.ed.gov/offices/OSERS/RSA/Policy/Legislation/index.html. 

^[3] Bruyere, S. "Legislation Supporting the Rights of Individuals with Disabilities." In Bianco, C., and Shaheen, G. Integrated Employment for People with Serious mental illness: A Rehabilitation and Recovery-Based Approach. Ithaca, NY: Cornell University, 1997.

^[4] The ADA is modeled after Section 504 of the Rehabilitation Act of 1973, which offers this definition of a disability.

^[5] "New Freedom Initiative." President George W. Bush, Washington, DC, February 2001.

^[6] U.S. Department of Labor Employment and Training Administration. An Overview of the Workforce Investment Act of 1998. Washington, DC: U.S. Department of Labor, 1998.

^[7] In examining the impact of the WIA on people with mental illnesses who are homeless, the Corporation for Supportive Housing made the following set of assumptions and recommendations, which they provided specifically for this document.

^[8] House of Representatives Passes H.R. 1180, The Ticket to Work and Work Incentives Improvement Act of 1999. Social Security Administration Legislative Bulletin: 106-11, November 24, 1999.

^[9] For more information on work incentives, see MacDonald-Wilson, K.L. Financial Empowerment for People with Serious Mental Illness: How to Use the Social Security Work Incentives. Training Manual. (Eighth Edition, D.L. Nicolellis, Editor). Boston, MA: Boston University Center for Psychiatric Rehabilitation, 2001.

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