Episode 15: Protection and Advocacy, and the low down on sub minimum wage

Demand and Disrupt

Roving reporter, Keith Hosey, interviews Beth Metzger with the Department for Protection and Advocacy.

Protection and Advocacy phone number is 1-800-372-2988.

http://www.kypa.net

To let your federal elected officials know that you oppose the continued existence of a subminimum wage, call the United States capital at

[phone]

They will ask you for your ZIP Code, then connect you with your US representative. Once that’s done, call back and ask to speak to your senator. Once you’ve done that, feel free to call back again and asked to speak to your other senator. The number above is the capital switchboard and will connect you to all of your US elected officials.

Kentucky senators are Senator Rand Paul and Senator Mitch McConnell

To find out information about your member of the Kentucky General assembly, visit: https://legislature.ky.gov/LRC/Pages/default.aspx

Thanks to Chris Ankin for use of his song, “Change.”

The book "A Celebration of Family: Stories of Parents with Disabilities." is available from Amazon here.

Send comments and questions to [e-mail]

Demand and Disrupt is sponsored by the Advocado Press and the Center For Accessible Living.

Thanks to Steve Moore for the transcription which you can find in the show notes below when they become available.

Transcript

Kimberly Parsley 00:05 Welcome to Demand and Disrupt, the disability podcast. Here, we will learn to advocate for ourselves and each other. This podcast is supported with funds from the Advocado Press, based in Louisville, Ky.

Kimberly Parsley Welcome, everyone! We're here with Keith Hosey. Keith Hosey has been a guest on Demand and Disrupt before. He is on the board of directors for the Center for Accessible Living and he is now serving in his capacity as “roving reporter” for Demand and Disrupt. Hey, Keith! How are you?

Keith Hosey 00:40 Hey, Kimberly! Thanks for having me. I appreciate it and love the “roving reporter” title.

Kimberly Parsley 00:50 [chuckle] You went out and did some interviewing for us. So, tell me where you went.

Keith Hosey 00:57 I went to the Ky State ABSE Conference, which is the Association of People Supporting Employment First. It’s a membership association. They used to be the Association of Professionals in Supported Employment. So, this is a conference for individuals who are working in the field of helping people with disabilities find jobs.

Kimberly Parsley 01:28 I see. So, tell us really quick. What are we talking about when we say supported employment?

Keith Hosey 01:33 Supported employment is a type of employment support where an individual helps someone who has a disability gain and maintain a job. In my day job, I work in supported employment, actually, and I've done that for a long time. What we do is we meet with an individual, we get to know that person, we get to know their strengths, their abilities, what they like, what their goals are, what their aspirations are, and we work with them in tandem to help them gain a job. Then, we help them maintain that job for a period of time until they feel stable in that job.

Kimberly Parsley 02:21 Okay, so this conference is a lot of people in various aspects of doing that kind of work. Right?

Keith Hosey 02:27 It is. It's a good coming together and chance for collaboration between our state vocational rehabilitation staff, who are the individuals who are paying for some of these services, and our direct service providers, the individuals who are actually out there in the field day to day helping people find jobs and then supporting them in their workplace, as well as some of the other ancillary groups that work around that field. For example, our interview today that we're going to be showcasing is [someone] with Protection and Advocacy who is not involved specifically in supported employment, but has some roles around supported employment in the state of Ky.

Kimberly Parsley 03:21 So, who are we going to be talking to today?

Keith Hosey 03:24 We’re going to be talking with my friend, Beth Metzger, who is an employee of Ky Protection and Advocacy (PNA is what sometimes people refer to that agency as). It is a state agency. I've known Beth for years now. I believe we met – oh my goodness – we might even know each other for close to 20 years. She's been with Protection and Advocacy for a long time. She’s a very knowledgeable person. I enjoy her company, I always enjoy her intellect and she does a great job with everything she does there at Protection and Advocacy. It's really a great group over there, as well: I've had the pleasure of working with a number of people there at Protection and Advocacy.

Kimberly Parsley 04:13 Okay. Before we hear your interview with Beth, I think we wanted to clear up a few acronyms and things. Right?

Keith Hosey Absolutely.

Kimberly Parsley So, tell me. What do we got first?

Keith Hosey 04:25 Let’s actually start with the Michelle P waiver. It was mentioned in the interview. Our listeners may not know what the Michelle P waiver is. Here in Ky like many other states, we have what are called Medicaid waivers, 1915C Medicaid waivers, here in Ky. What those things do is someone who’s on Medicaid, they can utilize these waivers to get additional services to support them in the community. Michelle P waiver provides assistance to individuals with intellectual or developmental disabilities to help them live in the community as independently as possible. There’s a menu of services under each of those Medicaid waivers. Other Medicaid waivers in the state of Ky: there's an Acquired Brain Injury waiver, there's a Home and Community-Based waiver and then there's a Supports for Community Living waiver, as well as another waiver that is called the Model II waiver.

Kimberly Parsley 05:28 So, these are all ways for people who are on Medicaid to get extra supports. Correct?

Keith Hosey 05:35 Absolutely! And the point of all of them is, other than the Model II waiver – I’m not as familiar with that; I believe that's more medically based as far as medical services – but all these other ones, I can speak to them. All of them, their purpose is to help individuals with disabilities get out into the community and become part of the community, with services such as personal care if they need it or behavioral supports if they need it, respite for caregivers or community living supports where you can [for instance] have someone take you out and, if you want to start a hobby or you want to go to a social setting and meet people, they can be your paid wing man.

Kimberly Parsley 06:28 Okay, excellent! If any of our listeners feel like you might be those supports might be something that would help you, you can reach out to your nearest center for independent living. In Ky, reach out to The Center for Accessible Living and, if you're anywhere else, maybe reach out to a department for community-based services or equivalent?

Keith Hosey 06:50 It is. It's the Cabinet for Health and Family Services.

Kimberly Parsley 06:53 Okay. All right then. Now let’s listen to Keith's interview.

Keith Hosey 07:00 I'm sitting here with Beth Metzger with the Ky State Protection and Advocacy program and she's going to tell us a little bit about what PNA does and how they're involved in the employment programs in Ky. Beth, welcome!

Beth Metzger 07:18 Thank you, Keith. Ky Protection and Advocacy was created as the state's federally mandated system to protect and promote the disability rights of folks in Ky. It came out of a revision to the Developmental Disabilities Act and our office was created in 1975. We are physically located within the public defender's office, which is kind of unusual because they don't handle civil cases and we don't handle criminal cases but it actually works, because we provide them with a lot of technical assistance, because quite a few of the individuals who are represented by public defenders are folks with disabilities.

Our office is located in Frankfort, but we cover all 120 counties of the Commonwealth. All of our services are free regardless of income and regardless of citizenship status. We provide information and referral services, technical assistance, do educational trainings and we are able to do some limited legal representation. I keep using the word “legal” because our office is considered as a law practice, but we're a bit unusual because we have both attorneys and non-attorneys like myself on staff. Amazingly enough, we do (the attorneys and non-attorneys) work very well together, so everything that we do is considered to be legally based. Everything that I handle is reviewed by at least one attorney to make sure that there is legal accuracy and, also, if there are any questions about whether or not something is covered by law and, specifically, how, I can consult with the attorneys on staff. For those of you all who have ever heard of the Michelle P waiver, that actually came about because of a settlement agreement between PNA and the Cabinet for now the Health and Family Services (it was something else back when it was first filed). The settlement came out of us filing a law suit against the cabinet over the Supports for Community Living waiver waiting list being incredibly, incredibly long and people were frankly dying before they got services. We never dreamed that Michelle P would actually have a waiting list, but hindsight is 2020 when it comes to that.

Even though our office was created out of the Developmental Disabilities Act, we can provide our services to all people with every type of disability. It’s basically cradle-to-grave and folks with disabilities contact us, their family members, professionals; we have providers, we have attorneys, law enforcement – you name it. People will contact us and everyone who contacts us, they will not get sent directly over to an attorney or an advocate; we do have a process because we average over 200 calls a month – new calls – which is huge for a staff of 21 (and that includes our support staff). We do contact people within three business days. If a situation is not considered as, whatever is going on with the individual, is not considered as being directly related to the person's disability, like someone with a disability who's going through a divorce. A divorce can happen to anybody, so our office is not able to provide representation on that. Unfortunately, there are other agencies that, if folks contact them about that same issue, they'll say, ‘Oh, sorry. We don't do that,’ and that's it. We at least try to steer people in the right direction and in also understanding that, as much as we would love to represent every individual, it just is not humanly possible with our resources.

When it comes to employment for folks with disabilities within the Commonwealth, we have our hands in a lot of things. We have a grant, which is [called] Protection and Advocacy for Beneficiaries of Social Security. All that mouthful basically means that if someone receives SSI or SSDI and they want to go back to work, but are experiencing issues with getting on the job accommodations and so forth, they can contact us and we can see about possibly opening a case and representing them with the employer to try to get reasonable accommodations. I spend an awful lot of my time talking to people about what reasonable accommodations are and the fact that getting accommodations is a negotiation process. Just because a doctor writes a prescription for something does not mean that the employer has to do it. It’s just like if a doctor did the same thing for a child in special education. Neither the employer nor the schools are required to fill prescriptions like a pharmacy would. So, I talk an awful lot with folks about that I have cases right now where I am representing folks with their employers to get those reasonable accommodations. Sometimes it’s a quick fix, other times it’s not. As long as the folks want us to be involved and what they're asking for is reasonable, I'll stick with them.

Another way that we are involved with [and] about employment, too, is the Client Assistance Program, which gets involved if there are any types of issues a person may have either with services through Vocational Rehabilitation or the Centers for Independent Living. That program used to be housed within Voc Rehab (which is problematic in itself). The program was officially re-designated by Governor Beshear over to PNA and that re-designation became final in September of 2021 (actually September 11 th of 2021) and I became the state's Client Assistance Program Coordinator on March 1 st of 2022. I've worked for PNA for over 20 years, working with folks with disabilities to get make sure that their rights are upheld is a long-time dream and goal and I, frankly, don't see myself being anywhere else. As for the Client Assistance Program, since I am in charge of the Beneficiaries of Social Security Grant and the Client Assistance Program, I'm able to do an awful lot in supporting folks with disabilities when it comes to employment. With the Client Assistance Program, I am able to provide representation to them with Voc Rehab, which means that it's not like we go in and say, ‘We're going to sue you,’ or anything like that. It starts with communication. In fact, I am federally mandated to try to resolve issues with Voc Rehab and the CILs at the lowest administrative level possible and the number one thing that I have found in the little over a year that I've been doing this is that [often] there's a breakdown in communication. So, for the most part, with the exception of a couple of cases, a couple of incidents, issues have been successfully resolved within a few months and some of them are just simply [a matter of] talking to the person's counselor. Other times, it is actually representing people with an appeal to a denial. That’s how that works.

I've also created an employment rights training, an interactive training, that I have taken on the road. I have primarily focused on the sheltered workshops, because we have 25 certificate holders (last time I checked) through the Department of Labor that allows these programs to pay sub minimum wage to individuals with disabilities. It’s really interesting that the law that created that was from 1938. That law, it was created out of good intentions, because there were all of these disabled war veterans who wanted to work, but nobody would hire them. So, the Feds decided to create this law. It's the Fair Wages and Standards Act, I do believe.

Keith Hosey The Fair Labor Standards Act, right? Fair Labor…

Beth Metzger Yes. Yes. Fair Labor Standards Act. Sorry about that. I have lots of names of laws running around in my head and our lawmakers very rarely will pick short names for laws. [chuckle]

Keith Hosey 18:57 I want to talk about this, because not everyone knows [about] 14C certificates. There are 2,425-ish agencies in the state of Ky and there are a lot more across the US who are legally allowed to pay people with disabilities under minimum wage, because it's a very old law. As you said, it had good intentions. I want to ask you your perspective, both personally and Protection and Advocacy. What do you think it will take for Ky to end sub minimum wage?

Beth Metzger 19:44 That’s a really, really great question, Keith. Ky PNA’s stance and my stance are one in the same and that is sub minimum wage should not exist because everybody – EVERYBODY – regardless of disability status, guardianship status – WHATEVER – has the right, and if they want to work, they have the right to try. My office has the stance, too, and also the National Disability Rights Network that our agency is part of, that everyone, regardless of disability, has the right to earn at least minimum wage. Employers being able to provide that or to pay less than minimum wage? Well, first of all, it sends a terrible, terrible message to the individuals that they are less than. Also, while the folks are doing work for sheltered workshops for sub minimum wage, we have to think about the other side of that with the contracts. Who and what businesses are contracting for this and are they truly unable to pay people a living wage? Because what sub minimum wage does is keeps people with disabilities in [poverty] and it's like, ‘Okay, not only are you going to have to fight for services, fight for accommodations and fight for an accessible place to live, we aren't going to let you get out of poverty,’ which is horrible. Absolutely horrible!

Other states have completely abolished 14Cs and from what we have seen it's like a two-pronged approach and, of course, this would have to go through legislation. The first prong is to require everyone to be paid at least minimum wage. There are some certificate holders who do not pay sub minimum wage; they pay minimum wage. Unfortunately, on the flip side of that, what's gone on with that is they have seen a decrease in their contracts. So, higher wages but less time worked, so that doesn't really help. But, with anything legislative, it has to be taken in baby steps. First, would be, ‘Everybody is to be paid minimum wage.’ Second, then and only then could it go forward with, ‘If you are unwilling to pay minimum wage, you won't exist as an employer.’ That's the way it has been successfully done in other states. There are 57 (56 or 57) Protection and Advocacy offices throughout the US and states and territories and all of us are in this fight. Through our national network, we are able to share legal information about what has worked and what hasn't worked. Now, call to action here, though: my agency is not allowed to lobby but you are.

Keith Hosey 23:48 As an individual citizen, all of us can call our elected officials.

Beth Metzger 23:55 Correct. Correct. Absolutely! And honestly, sometimes what it takes is the volume. So, if you have a group of friends – you might be organized through a Center for Independent Living (or what have you) or if you just have a group of friends [you can utilize them] (the people who call legislators, they don't have to have disabilities). Oh! One thing, too, about the 14Cs is that they are basically targeted for people with intellectual disabilities. interestingly enough, I don't know if you know this or not, Keith, but the WIOA, the Work Incentives and Opportunities Act, does not allow a sheltered workshop to pay sub minimum wage to a person who is under the age of 24.

Keith Hosey I did not know that.

Beth Metzger So, if your listeners, if anybody out there is below the age of 24 and they are getting sub minimum wage, please call PNA and we can see what we can do about rectifying that. It may be that we would need to bring in the Ky Department of Labor's Wage and Hour Division, since they are the ones who handle that, but that would be a violation of WIOA. That knowledge that I'm passing along to you about the age, that is something that has been in the law, but there has been a recent clarification of that, an explanation of that. But getting back about contacting your legislators (we’re not just talking about your local legislators, we're talking both state and federal), have everybody that you know contact them and say, “Look, this isn't right, because people with disabilities have the right to earn just like everybody else, because we are WORTH something just like everybody else.”

Kimberly Parsley 26:37 Wow! Thanks, Keith, for doing that interview for us. There was a lot of good information there.

Keith Hosey 26:41 Yeah, I really appreciated Beth's explanation of everything. I really couldn't have asked for a better explanation.

Kimberly Parsley 26:51 I wanted to dig in a little bit. She talked about the sub minimum wage issue and I know that's an issue that is very important to you, also. So, can you tell me a little about that? What do I need to know?

Keith Hosey 27:07 Absolutely. Sub minimum wage is something that has been around for a little while. Just a really quick history lesson here… The Fair Labor Standards Act, which was passed in, I think 1934 (somewhere around that time), had a clause in it. 14C was the clause and it allowed for sub minimum wage to be paid to individuals with disabilities. The idea behind it and the intention at the time were good. The idea was people with disabilities just couldn't work as well as non-disabled [people], but we'd love for them to be able to be some type of productive member of the society. So, we’ll allow for these certificates to go out where a company could hire people with disabilities (who had essentially a 100% unemployment rate) and give them a job and pay them a wage that, as they said then, was comparable to the production output value.

At the time, it was probably innovative. It is 2023 right now and it just doesn't jive anymore. The entire premise behind it is that people with disabilities can't contribute in a meaningful way to society in employment and that's just not true and we know it’s not true. I'm a person with a disability and I’m contributing into our workforce and my job is to help people with disabilities do that as well. And I can tell you, there's a whole lot of us out there pulling our weight and the fact that this relic of legislation is still around (it's kind of [like] you buy those funny books in an airport of outdated laws and in Massachusetts and any hotel still has to stable a horse of a traveler), it just doesn't make any sense in current day, but it's still on the books. So [14C], that's something nationally that's still on the books.

Kimberly Parsley 29:32 And I can absolutely see why some employers would want to keep that on the books. Right?

Keith Hosey 29:37 Yeah. When your people who [are] producing are pennies on the dollar per hour and your product is selling for whatever the going rate [is] right now in our economy, you're gonna make some good money, probably. Unfortunately, it is on the backs of people with disabilities. And here's the other thing that often gets lost in the conversation: the whole point of this 14C (the laws have changed [now]): formerly, Medicaid and other entities were not aimed at competitive employment. The idea was that someone can build skills and then move in to competitive employment. The idea was never that someone would go into a sub minimum wage job and stay there. The intent was they would get skills they need and they would go into a competitive job. That's not what we see on the whole scale of places that that utilize 14C.

Kimberly Parsley 30:59 Really? Is that right?

Keith Hosey Yeah.

Kimberly Parsley I think one of the things that I personally find offensive about these sorts of laws is that… Again, there's the history aspect and that's all well and good, fine. But, like you said, this is 2023. I personally find these laws offensive, because what this law says is that a disabled person is, just by being disabled, producing less. That means that we are working more slowly, that we are doing less than any person who is non-disabled and that just sucks because this law doesn't compare any other kind of people! It doesn't compare people by race, or gender, or religion, nor should it – I do not say it should in any way. But, it's equivalent to saying, ‘People with blond hair? They work less…’ or any other thing! By that standard, that is discrimination; federally, by the federal standard, that is discrimination and I simply do not understand why these laws are still allowed to be in operation! I mean, do you know why? A good lobby, maybe? What are we talking?

Keith Hosey 32:24 Well, right now it truly is state by state. I think the Fair Labor Standards Act (FLSA) is a national law, but the way it is translated down is really state by state. There are states that have decided that they are going to phase out sub minimum wage; there are states that have said “no.” And to your point, yes! What this says is that people with disabilities, we are not whole. Right? Kimberly Parsley 33:05 Right.

Keith Hosey 33:08 There is no way that we can be as whole as a non-disabled person and that's just not true. So, there are states that have said, ‘No, this is wrong.’ The litmus test is you put in a different marginalized group and if you think it's probably racism or sexism or anything like that, then it probably is for whatever, whoever, whichever group they're doing that to. Right?

Kimberly Parsley 33:41 Right! Yeah.

Keith Hosey and 33:42 For sure, but it's state by state right now and Beth kind of had a call to action at the end there that it really is up to us to contact our legislators. [And] not just our state legislators; our federal legislators, because it is a federal law and we can get it changed on the federal level with enough support and that would then make sure that all the states do it, too. But on the state level, we can also advocate for state laws. There are states that have phased this out: Virginia, Connecticut, Minnesota, New Hampshire, New York and there’s a few others that are in the process of phasing it out, including, I think Tennessee (which is our neighbor, obviously). Ky, interestingly enough, I looked this up, Ky had a failed bill last year. It was House Bill 471. It died in committee, which means that that's where it starts. Right? They wanted to change it to increase the minimum wage. It was tied to increasing the minimum wage to $15 an hour. So, it's hard to tell if it died, it probably died because of that in the legislature, but it did include getting rid of sub minimum wage.

Kimberly Parsley 35:16 So, Beth's call to action: there's a groundswell of support, we just have to keep at it and the way to keep at it is to keep calling or writing, emailing – WHATEVER. Sending social media, whatever is your preferred way to reach out to your elected officials, keep doing that, because they are accountable. They are accountable to us, because we put them there and we put them in those jobs. They have to be accountable and they are accountable to you and they need to tell you why. So, write them. Tell them what you want and then ask them why they haven't done that. Why haven't they done? Why haven't they faced this out? That was a really great interview with Beth… What was her last name? Say again?

Keith Hosey 36:08 Beth Metzger.

Kimberly Parsley 36:11 And if someone wants to get in touch with Protection and Advocacy, how might they do that?

Keith Hosey 36:16 Their main office is in Frankfort. They have a phone number. Their toll-free number is 1-800-372-2988. They also have an email address, [e-mail]. You can also look them up on their website. It is kypa.net and you can contact them through there.

Kimberly Parsley 37:00 Okay. I will put all of those things in the show notes and I will add links to where people in Ky can find lists of their elected officials. Thanks so much, Keith! Thank you for being our roving reporter and everyone else, stay tuned for part II next time when Keith talks to more people at the conference. So, thanks, Keith.

Keith Hosey Thanks, Kimberly.

Kimberly Parsley If you like the podcast, remember to follow or subscribe so you never miss an episode. If you really like the podcast, we'd love it if you could leave us a rating or review on Apple podcasts or Spotify or wherever you get your podcasts. That helps more people to find us. If you really, really like the podcast, then please tell someone about it, either in person or send them an email or just share the link on social media. Thank you all! Every bit helps and it makes a huge difference for us. If you'd like a transcript, please send us an email to [e-mail] and put “transcript” in the subject line.

Thanks to Steve Moore for helping us out with transcripts. Thanks to Chris Onkin for our theme music. Demand and Disrupt is a publication of the Advocado Press with generous support from the Center for Accessible Living located in Louisville, Ky. You can find links to buy the book, “A Celebration of Family: Stories of Parents with Disabilities,” in our show notes. Thanks, everyone!

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