Picture of Karen Mayry

Victory in South Dakota

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From the Editor: In states across the country in recent months blind consumers have repeatedly found themselves fighting legislative or executive branch plans to combine the separate state rehabilitation agency serving blind citizens with the general rehabilitation agency. North Carolina's blind consumers have won two rounds in this war, but it seems likely that more battles will follow. Despite hard work by blind people in Texas, their commission lost a good bit of its autonomy last spring. Kentucky's blind citizens have won for now, but the Pennsylvania agency has just been swallowed whole. And so it goes.

One of the most recent struggles has taken place in South Dakota, where one might have hoped for some appreciation of the importance of a separate agency. After all, the director of the Division of Services for the Blind and Visually Impaired (DSBVI) regularly attends NFB state conventions and has enabled members of his staff to attend National Conventions. Karen Mayry, President of the NFB of South Dakota, and other Federationists are active in agency programs and governance. Both the NFB and the ACB affiliates have clearly articulated their opposition to the combined agency concept.

According to Karen Mayry, in December of 1998 the advisory board for South Dakota's general rehabilitation agency expressed its willingness for the umbrella agency, the Department for Human Services, to investigate the idea of combining the two agencies as a cost-saving measure. But at its April 16 meeting the SBVI Board learned that a combined state plan had been developed and would be submitted to the Rehabilitation Services Administration (RSA) after a series of public meetings across the state to allow consumers and other interested people to express their views. In other words, having received the go-ahead to investigate the concept, Human Services Secretary John Jones had his staff develop a combined plan, which was described in April as preliminary, but which was introduced around the state as the one they intended to submit to RSA and implement in October.

The NFB of South Dakota conducted its 1999 convention the weekend after the combined-agency bombshell was dropped. Predictably the NFB passed a resolution condemning the single state plan for a combined agency. Federationists then began letting public officials know what they thought. On May 3 Karen Mayry sent a letter and the resolution to every member of the state legislature. Pay particular attention to the postscript in Karen's letter. Here it is:

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Dear South Dakota Legislator:

Blind South Dakotans need your help. The South Dakota Department of Human Resources wants to eliminate the Division of Services for the Blind and create a new Division of Vocational Rehabilitation, which would "serve all disabled persons." Blind persons know that this type of system does not work for them. We, the smallest minority of disabled persons, thus have the least clout when it comes to obtaining dollars and services when there is no special budget or separate division.

The Department of Human Services was created in 1988, and at that time SBVI (Services for the Blind and Visually Impaired) came into being. Blind people in South Dakota banded together to achieve this goal. Since its creation blind citizens have received better service, and more blind individuals have been employed. Why would we be happy about changing a good program? We aren't.

Enclosed is a resolution passed during the annual convention of the National Federation of the Blind of South Dakota. It states very well our negative feelings toward this new proposal put forth by Secretary John Jones. History taught us that blind citizens do not fare well when there is no separate agency of the blind.

Please attend one of the upcoming town meetings being held near you. The purpose of the town meeting is to discuss the current state plan and receive comments from the public. The meetings are scheduled for Rapid City, May 10; Pierre, May 11; Aberdeen, May 12; and Sioux Falls, May 13. All meetings start at 6:30 p.m. and conclude at 9:00 p.m. Join to help us work to maintain a system we know is right and working to better the lives of blind South Dakota citizens.

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Sincerely,

Karen S. Mayry, President

NFB of South Dakota

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P.S. In addition, you should be aware that consolidation of the agencies as of October 1, 1999, appears to be a violation of the South Dakota Constitution since such a consolidation may not become effective until ninety days after the Governor has submitted an executive order so providing to the South Dakota legislature and neither House of that body has overruled the executive order.

Should you have any further questions regarding the State's compliance with the public participation requirement, please contact me at your earliest convenience.

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cc: Dr. Fred Schroeder, Commissioner, Rehabilitation Services Administration

Dr. Marc Maurer, President, National Federation of the Blind

Loerance Deaver, Regional Commissioner, RSA Region VIII

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In addition to this letter to the members of the South Dakota Legislature, Mrs. Mayry wrote to Governor William Janklow and to a dozen newspapers across the state. She also wrote to the chairmen of the DSBVI and general rehabilitation agency boards. In every case she argued the consumer case for a separate agency to serve blind South Dakotans based on the improved statistics for blind people served and returned to work and community life since establishment of the separate agency in 1988. Through the efforts of Dawn Flewwellin, President of the ACB affiliate in South Dakota, the consumer organizations met with Governor William Janklow on May 24. They had earlier discussed the crisis with Human Services Secretary Jones without making any discernible impact. The governor listened and actually engaged in debate with NFB Second Vice President Peggy Elliott, who took part in the meeting.

The same day Joe Cordova, Director of the Division for the Blind and Visually Impaired of the Rehabilitation Services Administration, wrote to Governor Janklow laying out the RSA position on separate agencies. Here is that letter:

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Washington, D.C.

May 24, 1999

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Honorable William Janklow

Governor

Pierre, South Dakota

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Dear Governor Janklow:

We have recently received an inquiry from the National Federation of the Blind (NFB) of South Dakota concerning the planned reorganization of the South Dakota Division of Services for the Blind and Visually Impaired, which is responsible for administering vocational rehabilitation services for individuals who are blind and visually impaired in the state of South Dakota. We have been informed that plans are currently underway to consolidate the Division of Services for the Blind and Visually Impaired with the general agency providing vocational rehabilitation services to persons with other disabilities, the South Dakota Division of Rehabilitation Services. The NFB of South Dakota has raised concerns as to how this planned reorganization will affect the quality of services to blind and visually impaired consumers in the state and what impact it will have on current federal law regarding the provision of vocational rehabilitation services.

Under the Rehabilitation Act of 1973 (as amended) Section 101 (a)(2) (State Plan Requirements), states have the option of designating a separate agency or unit for the administration of vocational rehabilitation services for blind persons in that state. In the submission of the state plan for vocational rehabilitation services, the state must identify the particular organizational structure it has designated for the administration of its state plan in accordance with all applicable requirements under this section. Any planned changes to the current state plan regarding the designated state agency or unit must be submitted as part of a state plan amendment for final approval by the Rehabilitation Services Administration and must identify the designated state agency organizational structure in accordance with the state plan requirements under the Rehabilitation Act.

Currently, nearly half (twenty-five) of all states in the country have chosen the separate-agency structure as the model for providing vocational rehabilitation services to individuals who are blind. According to data compiled by the Rehabilitation Services Administration, those states that have separate agencies for the blind have consistently reported higher employment outcomes than agencies which have a combined-agency structure. These findings have also been consistently supported and extensively documented by numerous other independent professional studies for nearly two decades now. These studies suggest that a separate-agency organizational structure is, by its very nature, better able to respond to and meet the special rehabilitation needs of individuals who are blind more effectively and efficiently, and this accounts for the higher performance in achieving employment outcomes by separate agencies for the blind.

In light of this record of performance by separate agencies for the blind and given the critically high unemployment rate among the blind (approaching nearly 80 percent nationally), the NFB of South Dakota has expressed serious concerns over the potential decline in the quality of services and responsiveness to the needs of blind consumers in the state if this reorganization is to take effect. For this reason we wish to bring these concerns to your attention, and we hope this information will be useful to you as you further consider this important matter.

If we can be of any further assistance in this regard, please do not hesitate to contact us at your convenience.

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Respectfully,

Joe D. Cordova, Director

Division for the Blind and

Visually Impaired

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By June all four town meetings had taken place, and at each one consumers rose to protest the abolition of DSBVI, and of course the governor had had the opportunity to read and reflect on Joe Cordova's letter. None of this made any difference. John Jones apparently met with him and wrote a memo assuring him without proof that $450,000 could be saved by combining the rehabilitation agencies and pointing out that the blind were a small minority of the disability community, so it wouldn't do to provide specialized services to this tiny fraction of the disabled. That was apparently enough to persuade the governor to back the combined agency. The governor's rationale for dismissing Cordova's argument that specialized agencies across the board produce better results is amusing in a wry way. He says that South Dakota does not look at results beyond its borders. The justification is reminiscent of the old saw, "I know what I think; don't confuse me with the facts." Here is the letter Governor Janklow wrote to Karen Mayry and copied to Dawn Flewwellin:

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Pierre, South Dakota

July 23, 1999

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Karen S. Mayry, President

NFB of South Dakota

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Dear Karen:

It was my pleasure to meet with you and Dawn Flewwellin and listen to your concerns about the Department of Human Services's (DDS) plans to combine divisions. Since then I've met with Secretary Jones, and we've talked about the issues you have and what government can do to ensure the blind consumers that our intentions are honorable and specialized services for the blind will continue.

John has given me a brief since our meeting, and you will find that attached. I ask that you treat some of the personnel issues in confidence until public announcements are made.

Karen, I've studied your points A to F closely. DDS has agreed that counselors and teachers providing specialized skills of blindness will continue; these are people who recognize the trauma of blindness and the requirements for learning the skills of Braille and cane travel.

Our commitment to ensure positive outcomes for blind consumers is not driven by history or studies done in other states; it is driven by the desire of my administration to provide top quality services to all citizens with any type of disability. I don't want to sound defensive, but the number of South Dakota citizens with all other types of disabilities far outnumbers the blind, and I really want to avoid looking like we favor one disability over another. I have a responsibility to all citizens of South Dakota.

My comment about the money being a drop in the bucket was comparing it to the total state budget of over two billion dollars. It may be a drop in the bucket in that context, but it is a big splash in the division budget.

I have to respectfully disagree that you have lost any clout if one division is created. You have access, not only to the division director, but also to the staff person who is responsible for directing specialized blind services. Most citizens don't care about whose name is in a box on an organizational chart; what they care about is the quality of the services provided.

I've taken the liberty of copying Dawn with this so that both organizations for the blind in South Dakota receive the same information. I strongly encourage you to work with John and his division staff as plans are developed for the continuation of specialized blind services.

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Sincerely,

William J. Janklow

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cc: Dawn Flewwellin, South Dakota Association of the Blind

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The governor's response and the comments by Secretary Jones and other department and division officials clearly demonstrated that the combined agency was, as far as the bureaucrats were concerned, a done deal, regardless of consumer views, statistical evidence, or existing state law. Karen Mayry decided to see if RSA could help slow the juggernaut bearing down on the blind of South Dakota. She wrote to the RSA Regional Commissioner for Region VIII and the woman immediately responsible for South Dakota and neighboring states. This is what she said:

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Rapid City, South Dakota

August 13, 1999

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Loerance Deaver

Regional Commissioner, Region VIII

Denver, Colorado

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Mary Ann Fuller

Rehabilitation Services Administration

Denver, Colorado

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Dear Mr. Deaver and Ms. Fuller:

This letter is written to protest the State Plan submitted by South Dakota for State Vocational Rehabilitation Services Program and State Plan Supplement for the State Supported Employment Services Program. The basis for the protest is that the State of South Dakota's compliance with the public participation requirements imposed by the Rehabilitation Act constituted a sham.

The purpose of the public participation requirements is to ensure that there is input from the public in the plan to be submitted. The purpose of the statutory requirement, obviously, is not to create a charade of consultation where none exists. In this instance the plan offered for comment to the public in April of this year and the plan that has been submitted to your office are in all substantial respects identical. It is apparent, therefore, that the agency did not take into account on matters of general policy the views of individuals and groups of individuals who are recipients of these services, even though the dissent expressed was substantial. It is apparent that there was never any intention by the State of South Dakota to consider the views of the public that were opposed to the consolidation of agencies. We believe that it would be inappropriate for the Rehabilitation Services Administration to approve the State Plan until and unless it has investigated whether the State's compliance with the public participation requirement was a good- faith and real effort to take public input into account and concluded that it has.

In addition, you should be aware that consolidation of the agencies as of October 1, 1999, appears to be a violation of the South Dakota Constitution since such a consolidation may not become effective until ninety days after the Governor has submitted an executive order so providing to the South Dakota legislature and neither house of that body has overruled the executive order.

Should you have any further questions regarding the State's compliance with the public participation requirements, please contact me at your earliest convenience.

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Very truly yours,

Karen Mayry, President

National Federation of the Blind of South Dakota

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cc: Dr. Fred Schroeder

Dr. Marc Maurer

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RSA has the power to withhold all federal rehabilitation funds from a state agency that does not comply with its requirements, and that is certainly a convincing weapon. But it is rather like having a neutron bomb as the chief weapon in a country's arsenal; it is too overwhelming in its repercussions to be employed except in the direst circumstances. There is some evidence to indicate that RSA officials were not happy with the South Dakota decision and methods, but it was also obvious that we had to apply additional pressure if we were going to stop the consolidation plan. After lengthy discussions the NFB's attorney, Dan Goldstein, wrote the following letter to the South Dakota Attorney General:

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August 18, 1999

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The Honorable Mark Barnett

Pierre, South Dakota

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Dear General Barnett:

Together with James Robbennolt, Esq., I represent the National Federation of the Blind of South Dakota, whose members include consumers of services provided by the South Dakota Services for the Blind and Visually Impaired (SBVI).

Governor Janklow has submitted a State Plan to the Rehabilitation Services Administration of the United States Department of Education for the provision of rehabilitative services pursuant to the Rehabilitation Act. That plan proposes to abolish SBVI and to create a single Department of Rehabilitative Services. According to a letter from the Division Director of SBVI and the Interim Division Director of DRS, dated July 30, 1999, implementation of the plan would begin October 1, 1999.

The Governor's plan completely ignores the requirements of Article IV, Section 8 of the South Dakota Constitution, which would permit such a consolidation to be effective, at the earliest, ninety days after a proposed executive order has been submitted to the Legislature. By ignoring the constitutional imperative, the Governor confronts the Legislature with a done deal and the concomitant expense and impracticality of unscrambling the eggs. This is clearly the converse of what Section 8 requires.

All that my clients desire is the opportunity to petition the Legislature to disapprove the plan, an opportunity that should be vouchsafed by the South Dakota Constitution. I have been authorized to file suit to enjoin consolidation of the agencies until the Legislature has considered an executive order to that effect but would be amenable to discussing a resolution, without the necessity of suit, that involved amending the plan submitted to the Department of Education to provide for the consolidation to occur after consideration by the Legislature.

Clearly time is of the essence, and I would appreciate a prompt response.

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Very truly yours,

Daniel F. Goldstein

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cc: Hon. William J. Janklow

James Robbennolt, Esquire

Marc Maurer, President, NFB

Karen Mayry, President, NFB of South Dakota

Hon. Fred Schroeder, RSA Commissioner

Joe D. Cordova, RSA Director

Loerance Deaver, RSA Regional Office

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Clearly this letter grabbed the Attorney General's attention. It seems obvious that he concluded that South Dakota had little to gain from a lawsuit brought against it by the state's blind citizens in which they were arguing for a chance to exercise their constitutional right to try to persuade the legislature to protect their services. We don't know what recommendations the Attorney General made, but under date of August 26--just eight days after Goldstein's letter was written--Secretary John Jones sent the following memorandum of surrender to everybody in his department who had taken part in the struggle:

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Memo

Pierre, South Dakota

August 26, 1999

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TO: DRS Board Members

SBVI Board Members

SILC Members

DRS Staff

SBVI Staff

Director, South Dakota Advocacy Services

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FROM: John Jones

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SUBJECT: Organizational Status

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The Department of Human Services (DDS) as the designated state agency for the delivery of the public vocational rehabilitation program in the State of South Dakota, has selected the option to deliver the state program through two designated state units. Separate state plans will be submitted to the Rehabilitation Services Administration by the Division of Rehabilitation Services and the Division of Service to the Blind and Visually Impaired for federal fiscal year 2000.

This decision to pursue the current course resulted from a combination of factors which included a lack of affirmative public support from the disability community, hard-line opposition from the blind constituency, and their refusal to meet or discuss how the Department could address their concern regarding a combined division.

The Department wishes to thank all of those who provided positive input the past several months regarding this important matter. DDS is committed to providing the best possible vocational rehabilitation services to all South Dakotans with disabilities.

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cc: Marian Fuller, RSA Regional Representative

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There you have what the Secretary of Human Services said in all its ill-tempered and churlish detail. One wonders why he was surprised that the NFB refused to take part in discussions intended to smooth the transition to a consolidated agency it knew would diminish the prospects of blind consumers. The lessons we have learned in South Dakota will be useful in the struggles ahead to resist consolidation. The bureaucratic term for what we have learned is stay on task and on message. Consolidated agencies result in less service to the blind and poorer outcomes. We must use every method available to remind officials and the general public of this truth every chance we get.

We won in South Dakota because the consumer groups worked together, and we never lost sight of the central principle: separate agencies provide more effective service to blind people. In one more state and for the time being, we have prevailed. Mr. Jones told the DSBVI Board that the subject of consolidation would not be revisited in South Dakota during his lifetime. That probably means his political lifetime, which may be as little as eighteen months, but we will take every victory we can get. Each one protects the future prospects of who knows how many blind people. The sweetness of the South Dakota victory will strengthen us for all the battles ahead.

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