Tuesday, April 26, 2011

Assisted Living Settings/ Facilities and the ADA.

Assisted Living Settings/Facilities and the ADA. Information Bulletin # 331 (4/2011)

CMS issued proposed rules regarding Medicaid’s Home and Community-Based waivers. 76 Federal Register 21311 (4/15/11). One part of the proposed rules focused on Assisted Living Settings and whether these qualify under Olmstead’s “the most integrated setting” mandate. CMS stated that “a State’s obligations under the ADA and Section 504 are not defined by, or limited to, the cope or requirements of the Medicaid program; however, the Medicaid program provides an opportunity to obtain partial Federal funding to assist in compliance with the ADA and 504 through the provision of Medicaid services.”

CMS noted that older Americans “ with and without disabilities” may wish to live together. Because so many nursing homes have “converted” to ALS by changing their names and repainting the facility, it is important that advocates for older Americans “with and without disabilities” hold your State Medicaid agency accountable to make sure that the following CMS criteria are really being applied. CMS will permit Medicaid waiver funding only if the ALS were really community-based settings. Advocates can make sure the following criteria are implemented.

Here are the CMS criteria. Unless they are complied with, a Medicaid funded ALS waiver does not comply with the ADA and 504.

1. “The individual has a lease.” Leases trigger tenant rights and the proprietors of the ALS take on landlord duties. They are written and enforceable. State tenant rights statutes provide legal requirements and recourse that residents in an ALS could use if the landlord, aka provider, tries illegally to evict the tenant or act contrary to the lease.

2. The “Setting is an apartment with individual living, sleeping, bathing and cooking areas.” These rights will prevent nursing home providers from just changing the name of their facilities. Each apartment must have an individual cooking area - like a kitchen or kitchenette. Individual bathing is more than a toilet, but includes a shower and/or bathtub. Wow, this is beginning to sound like a real apartment.

3. “Individuals can choose whether to share a living arrangement and with whom.” Hey, isn’t that like what nondisabled tenants do?

4. “Individuals have lockable access to and egress from their own apartments.” That’s fancy talk for a key and a lock. Yes, the person in an ALS has the right to lock the door to her/his own apartment. What next? Invite whomever they wish into thei apartment?

5. Yes. “Individuals are free to receive visitors.” Providers cannot screen of guests.

6. Individuals can also “leave the setting at times and for durations of their own choosing.” They can go out whenever they want. No night curfews.

7. “Aging in place, or allowing individuals to remain where they live as they age and/or support needs change.” Advocates better make sure this is explicitly spelled out in the lease!

8. “Leases may not reserve the right to assign apartments or change apartment assignments.” Make sure it’s explicitly in the lease so there is no doubt about this right.

9. “Access to the greater community is easily facilitated based on the individual’s needs and preferences.” This means that the ALS provider, i.e., landlord, cannot arbitrarily deny a person the right to leave the ALS. More affirmatively, does it suggest providing some assistance in gaining such access - i.e., “easily facilitated”?

10. If there is a “person-centered plan,” compliance with it is “not in and of itself a condition of the lease.” Although the intent of this one is good, we’re not sure why compliance should ever be a condition of a lease. People in ALS should be treated like adults.

If these points are not provided for, then the ALS are “not home and community-based because they are not integrated in the community. A setting that is integrated in the community is a setting that enables individuals with disabilities to interact with individuals without disabilities to the fullest extent possible.”

CMS wrote that “we are particularly interested in gaining comments on these aspects of the proposed rule.” Anyone want to wager that the ALS industry will be against these basic rights?

Advocates for the elderly and disabled Americans should let CMS know these rights are long, long overdue. If advocates do not respond, CMS will be swamped with ALS providers opposing the changes.

Please let CMS know what you think about ALS. You have only until June 14 to respond. If you do, refer to the file code CMS-2296-P.

Electronically - http://www.regualtions.gov and follow the instructions under the “more search options” tab.

Regular Mail: CMS, Dept of HHS, Attention: CMS-2296-P [yes, I know that is different but I do not know which is correct.], P.O Box 8016, Baltimore, MD 21244-1850.

Steve Gold, The Disability Odyssey continues

Back issues of other Information Bulletins are available online at http://www.stevegoldada.com with a searchable Archive at this site divided into different subjects. Information Bulletins are also be posted on my blog at http://stevegoldada.blogspot.com/
To contact Steve Gold directly, write to stevegoldada@cs.com or call 215-627-7100.

Wednesday, April 6, 2011

Attacking Medicaid - Myths and Some Realities.

Attacking Medicaid - Myths and Some Realities. Information Bulletin # 320 (4/2011)

There have been a lot of articles and speeches attacking Medicaid: “GOP Governors Seek Leeway to Cut Medicaid,” “Fiscal Health Hinges on Containing Costs of Care.”

Now comes Rep. Ron Paul plan to change Medicaid.....

From article to article to political speech, the drum beat is the same: “Block Grant” Medicaid so states can set their own rules and achieve, hear the drum roll, “flexibility.”

Block grants are allocate federal funds based on the total number of people or the number of low-income people, or some other criteria. Under block grants, States would decide who will be eligible and which “medically necessary” conditions to cover. States would receive a dollar grant to spend as they wish. If you think politicians, lobbyists, and pressure groups are active now, just wait if there are block grants and no federal standards or requirements.

There are a number of reasons for the current activity.

First and probably the most important reason, this is a backdoor attack against the 2010 Health Care Reform Act. Last year, Congress, for the first time in our history, enacted that all low-income people - below 133% of the poverty level - will be eligible for Medicaid in 2014. That’s an addition 16 million low-income Americans.

In the past, Medicaid eligibility was federally based primarily on categories, so that two people with the same income but different sources of income were treated differently. The Health Care Reform Act ensures that two people in the same or different states with the same income and same impairments will not be treated differently.

When you hear Medicaid Block Grants, think “eligibility.” As David Wessel wrote in the Wall Street Journal, “The argument is that with ‘flexibility,’ states can do more with less. But the biggest ‘flexibility’ that states now lack - given that many already rely heavily on managed care and low provider fees - is the authority to reduce the rolls. That leaves them to do less with less.”

What’s fascinating about this conservative attack is that they do not articulate who currently on Medicaid does not need or does not “deserve” to receive health care. What’s at stake is the answer to the question “If a low-income American needs health care, should they receive it?”

Second, States presently have a lot of authority to control their Medicaid costs. Medicaid costs can be contained under the present system, but it does take some political backbone. Despite the drum roll of “out of control” Medicaid costs, these costs can be and have been in some instances controlled. For example, between 2000 and 2005, Medicaid reimbursements for drugs increased by 95.9%. To counter that, States took control and by 2009, reduced Medicaid’s drugs expenditures by 44%.

Another example of States controlling Medicaid costs should focus on why 17.4% of all Medicaid nationally in FY 2009 went to keep people with disabilities institutionalized. States control this. Yes, States throughout the country spent more on nursing homes and institutions for persons with development disabilities than they spent on in-patient hospitalization and drugs! The federal government did not make States do this. Medicaid did not make the States do this! Moreover, many of these institutions provide at most custodial care; they’re the 21st century’s poorhouses and homeless shelters paid for by Medicaid.

Again, as David Wessel wrote in another column, regarding “often overlooked facts.... Medicaid pays 43% of America’s long-term care bill, including bills for about 60% of nursing-home residents.” He correctly points out that right now, without any changes in Medicaid, States could “keep the elderly and disabled out of nursing homes by helping them pay for home or community-based care... It’s cheaper and often preferred by the individual. That push has been under way for years. It’s now at risk as states scramble to save money, and eye cuts to home and community-based care.”

Cheaper, preferred? Why is it not happening? States control this and have decided to buckle under to the nursing home lobby! Ask your State’s nursing home lobby how much they contributed to your Governor’s campaign. It’s not the present Medicaid statute.

Third, presently States pay with State general revenue funds at most 50% of Medicaid costs, and the federal government matches States expenditures. About 36 states receive more than 50% from the federal government depending on the state’s per capita income. The poorer the State the more federal match. Don’t be fooled that the push for “Block Grants” is to help States financial situation. The feds pay an enormous share of Medicaid.

Right now, the Medicaid standard is that only “medically necessary” services and treatment are required. Let the Block Grant proponents identify and list which specific “medically necessary” services should not be paid for.

It’s critical that advocates for disabled older and younger Americans get into the fray. Our lives and the lives of brothers, sisters, neighbors, friends and all low-income people depend on it.

Steve Gold, The Disability Odyssey continues

Back issues of other Information Bulletins are available online at http://www.stevegoldada.com with a searchable Archive at this site divided into different subjects. Information Bulletins are also be posted on my blog located at http://stevegoldada.blogspot.com/
To contact Steve Gold directly, write to stevegoldada@cs.com or call 215-627-7100.

Monday, April 4, 2011

Worst Case Housing Needs of People with Disabilities - 2009

Worst Case Housing Needs of People with Disabilities - 2009. Information Bulletin # 329 (4/2011)

HUD released its biannual “Worst Case” housing needs report in March. In 2009, for the first time, people with disabilities were asked direct questions regarding their disabilities in the American Housing Survey. The result is that the HUD report is much more accurate regarding disability than previous “Worst Case” reports. Go to

One major limitation is that the survey was only of noninstitutionalized people with disabilities. Ever person with a disability in a nursing home, mental institution, ICF-MR were not included. But heck, why think of them having a housing problem?

Why is “Worst Case” information important for advocates? Because every recipient of federal financial assistance from HUD – public housing authorities for housing and vouchers, Community Development Block Grant recipients, and HOME Investment Partnership recipients – are supposed to prioritize housing needs using real data and supposed to allocate their funds to meet these priorities.

Yes, yes, yes, we know the wiggle words “supposed to.” Well, housing advocates have really dropped the ball and have not previously challenged the use of these federal funds by and large. Too harsh? Quick quiz:

How many of you, housing advocates for people with disabilities, have even read a recent Consolidated Plans and the Public Housing Authorities Annual Plans? How long has it been since you looked at one?

How many of these Plans identify and recognize that People with Disabilities have “worst case” housing needs AND THEREFORE the federal funds must address these needs? Do they use real data? What’s the source?

Who among you has filed a complaint with HUD to stop the federal funds because these Plans either do not use real housing data, or do not really address the priority of people with disabilities, or allocate these federal funds to meet the worst needs?

One million households with nonelderly people with disabilities had “worst case” needs. That’s 38 percent of all very low-income renter households with disabilities, a 13 percent increase from 2007.

HUD’s “2009 Worst Case Housing Needs of People with Disabilities” focuses on the national level, but the data used is available for your locales - whether city, county or state. It’s all on the web!!! The report uses the American Housing Survey which in 2009 asked persons if they had “serious difficulty” hearing, seeing, concentrating, difficulty walking/climbing stairs, dressing/bathing, going outside to shop or go to a doctor’s office.

As in the past, “worst case” means renters who pay more than one-half of their income for rent and/or lived in severely inadequate conditions. HUD also recognized that people with disabilities face additional housing burden that nondisabled persons do not, including significant discrimination and the limited availability of accessible housing.

Once again, we ask advocates if people with disabilities in your locale have these additional burdens? If yes, then does your Consolidated Plan identify, e.g., scarcity of accessible units, as an impediment to fair housing? Does your Consolidated Plan address how it will remedy this impediment? If not, have you filed a complaint with HUD to stop federal funds until this impediment is adequately addressed?

Yes, we know HUD has not had in the past the fortitude to do anything about this impediment, but until we file complaints HUD is completely off the hook.
It’s up to you. Power concedes nothing without a struggle!

Steve Gold, The Disability Odyssey continues

Back issues of other Information Bulletins are available online at http://www.stevegoldada.com with a searchable Archive at this site divided into different subjects. Information Bulletins are also be posted on my blog located at http://stevegoldada.blogspot.com/
To contact Steve Gold directly, write to stevegoldada@cs.com or call 215-627-7100.