HUD Issues Olmstead Guidance – Let’s Use It! Information Bulletin #382 (6/2013) On June 4, 2013 HUD released a “Statement … on the Role of Housing in Accomplishing the Goals of Olmstead.” Here is the link to HUD’s Statement: http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2013/HUDNo.13-086 Then click on “Read HUD’s new guidance” for the full Statement. This Information Bulletin quotes some points and suggests what advocates should look for and what can be done if your local and State recipients of HUD funds do not comply. HUD emphasizes the critical role housing plays in implementing the Olmstead and the ADA’s “most integrated setting” mandate by “increasing the housing opportunities for individuals with disabilities who are transitioning from, or at serious risk of entering, institutions, hospitals, nursing homes, adult care facilities, and other restrictive, segregated settings.” Advocates throughout the country have repeatedly testified that the lack of affordable, integrated, accessible housing is and has been a very significant barrier for people institutionalized (who cannot afford or locate housing because they have no money or their money goes to the institution) and people at risk of institutionalization (who, to stay out of an institution, must have accessible units in the community). Advocates know that HUD funded programs, in the past, have not focused on and have not required public recipients of HUD funds to focus on Olmstead and the ADA mandates for integration. The HUD Statement is intended to ensure compliance with Olmstead and the ADA. HUD recognizes that “a critical consideration in each state is the range of housing options available in the community for individuals with disabilities and whether those options are largely limited to living with other individuals with disabilities, or whether those options include substantial opportunities for individuals with disabilities to live and interact with individuals without disabilities.” HUD provides three examples of integrated housing: 1. “scattered-site apartments providing permanent supportive housing [that could be rented with Section 8 vouchers], [2] tenant-based rental assistance [a housing voucher authorized in the HOME Investment Partnership program, administered nationally at both the State and local levels] that enables individuals with disabilities to lease housing in integrated developments, and [3] apartments for individuals with various disabilities scattered throughout public and multifamily housing developments.” HUD told “public housing agencies and other HUD-assisted housing providers to work with state and local governments to provide integrated, affordable and accessible housing options for individuals with disabilities who are transitioning from, or at serious risk of entering, institutions or other segregated settings.” (Let’s hope they will work also with advocates and people with disabilities.) In another example [#4], HUD reminded both public housing agencies and other recipients of HUD assistance that “certain preferences [both with regards to actual housing and housing vouchers] that will enable individuals with disabilities … are permissible.” No more excuses that HUD-funded programs cannot establish preferences to assist institutionalized persons to return to the community or to prevent the institutionalization of people who are at risk of such institutionalization. A fifth example focused on “reasonable accommodations/ modifications (e.g., increasing the payment standard for Housing voucher for accessible units, or an extra bedroom for equipment or live-in aide). The Statement pointed out that “HUD requires recipients of HUD assistance [that includes public housing agencies, housing vouchers, the HOME tenant-based rental assistance vouchers, CDBG, and lots of other recipients] to take affirmative steps to further fair housing. The affirmative furthering fair housing (AFFH) obligation offers an opportunity for HUD and the recipients of HUD assistance to support Olmstead implementation by engaging in activities that will benefit individuals transitioning from institutions or at serious risk of institutionalization by providing integrated, affordable and accessible housing options in community-based settings.” What advocates should do to find out if HUD really means it. Here are a few possible strategies: 1. Do your local and state Consolidated Plans show that all of the above five examples are being implemented? Or even planned for the future? For example, are there “preferences” in both actual housing and housing choice vouchers (aka Section 8) for people institutionalized or at risk? 2. Do your local and/or State recipients of HOME Investment Partnership federal funds provide for tenant-based rental assistance for people institutionalized or at risk? Have any been actually provided in the past to end institutionalization? Are they needed in your State? 3. Has your public housing authority provided for scattered-site accessible housing throughout your community? Are more needed? Planned for? If there are people in institutions whom you, the advocates, know are institutionalized because of housing – either because they do not have funds for rent, security deposits, etc., or because they cannot locate accessible units they can afford, then your local and State recipients of HUD funds have failed to “affirmatively further fair housing.” These local and State recipients of HUD funds are in violation of the federal Fair Housing Act. HUD should be notified of these violations so it can remedy the situation and ensure people are not unnecessarily institutionalized. File a Complaint (be as specific as possible) with HUD Office of Fair Housing and Equal Opportunity in Washington, D.C. and send a copy of your Complaint to Jeanine Worden, Associate General Counsel, Jeanine.M.Worden@HUD.gov, or to Sara Pratt, Deputy Assistant Secretary for Enforcement, Sara.K.Prattt@HUD.gov. All italicizations are added. 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 will also be posted on my blog located at http://stevegoldada.blogspot.com/ To contact Steve Gold directly, write to stevegoldada1@gmail.com or call 215-627-7100. Ext 227.

Managed Care Long-Term Services and Supports. Information Bulletin #381 (6/ 2013) The Center for Medicare and Medicaid Services, the federal agency that funds Medicaid on 5/20/2013 issued “Guidance to States using 1115 Demonstrations or 1915(b) Waivers for Managed Long Term Services and Supports Programs” (MLTSS). A copy of this important new federal guidance can be found at http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Delivery-Systems/Downloads/1115-and-1915b-MLTSS-guidance.pdf We are quoting extensively from this CMS document because, for those States contemplating using Managed Care as the mechanism for Medicaid Expansion, as well as for those States that already include MLTSS, this document provides important advocacy handles. Before a State can have a 1115 Demonstration or 1915(b) waiver, CMS must review and approve a State’s application. If your State does not include and really provide for the following, then advocates should let CMS know their opposition to MLTSS. Here are some points that disability and elderly advocates might want to keep in mind. 1. CMS points out that LTSS includes “both home and community based services and institutional-based services.” The guidance encourages states to include both home and community based services and institutional programs in the managed care capitation rate. If your State is contemplating MLTSS, make sure both home and community services as well as institutional services are included and are the responsibility of the Managed Care Organization (MC0). Make sure that institutional-based services are not “carved out” in any way. Our assumption is if a managed care agency is financially responsible for institutional-based services, the MCO will figure out how to serve the person in the community, where on average it’s less expensive. If the MCO is not responsible for institutional services, the MCO will have a financial incentive to dump people with disabilities, especially with severe disabilities, into the institution. 2. The ADA and Olmstead requirements for services apply to MLTSS. CMS points out that “under the law [ADA], MLTSS must be delivered in the most integrated fashion, in the most integrated setting, and in a way that offers the greatest opportunities for active community and workforce participation.” Such a setting “enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” CMS writes that “States are encouraged to include in their benefit packages supports to enable workforce participation such as personal assistance services, supported employment and peer support services, as appropriate and desired by the participant.” If these kinds of supports are not included in your State’s managed care program, then you should advocate with CMS and State officials to get your State to include them. If CMS is not responsive to your concerns, please let us know asap! 3. Under “alignment of payment structures and goals,” CMS requires States “establish rates that support the goals and objectives of their MLTSS program… In keeping with the intent of the ADA and Olmstead decision, payment structures must encourage the delivery of community-based services and not provide disincentives, intended or not, for the provision of services in home and community-based settings.” A number of advocates have voiced serious concerns that the more severely disabled persons will not be able to live in the community because the capitation rates (the dollar amount per person the MCO receives) are too low to cover all the community needs and supports. CMS requires that “State payment structures, systems and review mechanisms must ensure that participants at all levels of need and all types of disabilities have the opportunity to choose their MLTSS providers and have appropriate access to community-based services.” There cannot be any doubt that “States must employ financial incentives that achieve desired outcomes, [such a] provision of services in the most integrated settings and consumer satisfaction.” It is a failure for States not to set rates that ensure the most severely disabled persons have a meaningful choice to reside in the community. States that fail will have “financial penalties… or return of a payment if a MCO does not achieve required outcomes for the provision of services in the most integrated settings.” 4. The State Medicaid agency has the legal duty to “evaluate whether payment rates and structures are adequate to achieve participant access to quality providers for covered services.” 5. “Person-centered” needs assessment, service planning and service coordination are required. CMS urges that MLTSS “should encourage participant self-determination and provide opportunities for self-direction of services.” If your State provides self-direction in its existing fee for service Medicaid program, CMS states that the MLTSS “programs are expected to continue them,” and if your State does not currently offer self-direction, “it should consider providing the opportunity for self-direction within their MLTSS program. 6. “Stakeholders” [which includes us – disability and elderly advocates] must be formally involved, including cross-disability representatives, in the planning, implementation and oversight of the MLTSS. You must be at the table when the State Medicaid agency is developing the contract for MLTSS. The contract sets the enforceable requirements. ALL of the above five points are just words if the contract does not require the provision of these points. In addition to these six points, the State’s contracts with managed care organization should include requirements that managed care staff working with MLTSS programs receive Olmstead training to understand the importance of serving persons outside of the institution. 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 will also be posted on my blog located at http://stevegoldada.blogspot.com/ To contact Steve Gold directly, write to stevegoldada1@gmail.com or call 215-627-7100. Ext 227.