Presentation on theme: "Bazelon Center for Mental Health Law"— Presentation transcript:
1 Bazelon Center for Mental Health Law The HCBS Settings Rule and Olmstead: Impacts for Employment and Day ServicesAlison BarkoffDirector of AdvocacyBazelon Center for Mental Health LawAPSE Webinar, Feb. 4, 2015
2 What Do We Want Our Disability Service Systems to Help People Do? Help people with disabilities live like people without disabilitiesHelp people with disabilities have true integration, independence, choice and self-determination in all aspects of life – where people live, how they spend their days, and real community membershipEnsure quality services that meet people’s needs and help them achieve their own goalsThe HCBS rule and Olmstead can be a path towards this vision!
3 Transformation of States’ Residential System Most states have already begun transforming their residential service systems (although there is still work to do):13 states have no publicly operated ICFs, numerous more with only one; 15 states have no private ICFsMost people with IDD (77%) are now living in their own home, family home or in a small setting. 9% of people live in large congregate settings (7-15 people) and 14% in 16+ person institutionsState mental health systems focusing on expanding supportive housing (including through updated HUD 811 program )instead of long term stays in psychiatric hospitals, group homes, board and care homes or single-site buildings for people with MI
4 Current State of Day Service Systems State IDD service systems:Only 18% of people receiving IDD day services are in integrated employmentThis is DOWN from a peak of 25% in 2001For those working, it is often for very limited number of hoursState investment in facility-based programs and community-based non-work is INCREASING
5 Current State of Day Service Systems (cont’d) State MH day service systems:The vast majority of funding in states’ mental health systems goes to day programs, such as day treatment and psycho-social rehab programs.According to the most recent SAMHSA data (2012), only 1.7% of people receiving mental health services are receiving evidence-based supported employment services.
6 Employment is Critical To Meeting Our System Goals Supporting people with disabilities to work in integrated employment in the community is critical to:Helping people with disabilities access the greater community;Facilitating relationships with people without disabilities;Building new skills and self-esteem;Recovery for people with mental illnesses;Helping bring people with disabilities out of poverty; andProviding meaningful ways for people with disabilities to spend their days.
8 Intent of the HCBS Settings Rule Goal and purpose of the rule:To “ensure that individuals receiving services through HCBS programs have full access to the benefits of community living” (Jan Informational Bulletin)To “further expand the opportunities for meaningful community integration in support of the goals of the Americans with Disabilities Act and the Supreme Court’s decision in Olmstead v. L.C.” (IB)“To be a tool to assist states with adhering to the Olmstead mandate and the requirements of ADA” (rule’s preamble)
9 The HCBS Settings Rule Applies to Employment and Day Services Rule is clear that the settings requirements apply to ALL services provided under HCBS authorities, both residential and non-residentialExpectation is that states will closely examine the day service settings in their HCBS programs and will transition non-compliant settingsThis is a real opportunity for states to modernize their day service systems to align with their system goals for people with disabilities and with other efforts (like Employment First)
10 Characteristics of Home and Community Based Settings An outcome oriented definition that focuses on the nature and quality of individuals’ experiences, including that the setting:Is integrated in and supports access to the greater communityProvides opportunities to seek employment and work in competitive integrated settings, engage in community life, and control personal resourcesIs selected by the individual from among setting options, including non-disability specific settings
11 HCB Setting Characteristics (cont’d) Ensures the individual receives services in the community to the same degree of access as individuals not receiving Medicaid HCBSEnsures an individual’s rights of privacy, dignity, respect, and freedom from coercion and restraintOptimizes individual initiative, autonomy, and independence in making life choicesFacilitates individual choice regarding services and supports, and who provides them
12 Presumptively Non-HCB Settings Settings that are presumed to be unallowable, unless a state can prove that it does in fact meet the HCB characteristics and does not have institutional qualities:Facilities providing inpatient institutional servicesSettings on the grounds of, or adjacent to, a public institutionSettings that have the effect of isolating HCBS recipients from the broader community, which may include settings that:Are designed specifically for PWD or with specific disabilitiesAre comprised primarily of PWD and staff providing servicesWhere PWD are provided multiple types of services onsiteWhere PWD have limited interaction with the broader communityUse restrictive interventions
13 Presumptively Non-HCBS Settings (cont’d) CMS has provided specific examples of residential settings that isolate, including:Disability-specific farmsGated disability communitiesResidential schoolsCongregate, disability-specific settings that are co-located and operationally relatedCMS has not provided non-residential examples of “settings that isolate”
14 CMS Q&A Regarding Non-Residential Settings (Dec. 2014) Although facility and site-based day service settings are not per se prohibited, they must be closely examined and may be unallowable “settings that isolate”States have flexibility to limit or even prohibit facility or site-based day services (including sheltered workshops)Pre-vocational services are not limited to being provided in facility or site-based settings (like sheltered workshops) and may be offered in the community
15 CMS Guidance Regarding Non-Residential Settings (cont’d) Day services offered in any institutional setting (ICF, hospital, or nursing home) or on the grounds or adjacent to a public institution are presumed unallowableDay services on the grounds of or adjacent to private institutions are not automatically presumed to be non-HCBS but must be closely examined and may be unallowable “settings that isolate”States have flexibility to limit or even completely prohibit all day settings in or on the grounds of all institutions
16 CMS Q&A Regarding Non-Residential Settings (cont’d) States can get FFP for settings that are not currently in compliance with the rule during the transition periodJanuary 12, 2015 Joint statement by ANCOR, NASDDDS and disability and aging advocates (including APSE) highlight that this guidance addresses misinformation that people are facing imminent risk of losing services
17 CMS “Exploratory Questions” Regarding Non-Residential Settings Lays out specific questions regarding each required HCBS characteristic that states may (but are not required) to use in their assessment of non-residential settingsQuestions include ones about geographic location, access to the broader community and transportation, opportunities for employment, and choice of non-disability specific settingsFor employment settings, do they “provide individuals with the opportunity to participate in negotiating his/her work schedule, break/lunch times and leave and medical benefits with his/her employer to the same extent as individuals not receiving Medicaid funded HCBS?”
18 CMS “Exploratory Questions” Regarding Non-Residential Settings (cont’d) The nature of day services (clinical/medical vs. rehabilitative vs. employment) as well as the duration (i.e., short-term vs. long-term services) may impact how to comply with the rulesWhether the “right” service is being provided is relevant“For individuals seeking supports for competitive employment, the state should consider whether the right service is being appropriately provided to achieve its goal, including the duration of the service and the expected outcomes of the service, or whether the provision of a different type of service would more fully achieve competitive employment in an integrated setting for the individual”
19 Some Day Service Settings Will Need to Be Closely Examined As recognized in several state transition pans, some day service settings, as currently structured, may have trouble meeting the affirmative requirements of the regulations or have characteristics of “settings that isolate” including:Pre-vocational services in sheltered workshopsDay habilitationDay treatment
20 Transition PlansStates must submit transition plans to CMS that outline the changes to the HCBS program to come into compliance with the new regulationsFor existing programs, a plan must be submitted byFor renewals, plan must be submitted with the renewal applicationTransition plans may be as long as five years
21 Transition Plan – Public Input A State must provide at least a 30-day public notice and comment period and two statements of public notice and input proceduresThe full plan must be available to the publicThe State must consider and modify the plan to account for public commentIf a state substantively amends the plan, the new plan must be put out for public commentTHIS IS A CRITICAL OPPORTUNITY FOR ADVOCACY!
22 Common Themes in Public Comments From Disability Advocates Process for evaluating settings must based on multiple sources of information. Paper review of regulations and/or provider self-assessment is not sufficient.There should be some on-site reviews, particularly of settings that raise concerns (like ones that might be “settings that isolate”).Should seek input from participants and their families about settings.Use other tools in place (e.g., National Core Indicators data).Plans should include a process for on-going monitoring of settings.
23 Common Themes (cont’d) Transition plans should describe the process for ensuring that people are given a choice of settings (including non-disability specific settings)There may need to be a plan to expand non-disability specific settings to ensure a choice.States must seek additional public comment when substantive changes are made to the plan, including when findings from assessments are made or settings are proposed to go through the “heightened scrutiny” process.
24 1915(c) Employment Guidance States should be re-examining their service definitions in light of CMS’ September 2011 guidance on employment services under 1915(c) waivers:Describes the importance of, and Medicaid’s support of, competitive work in integrated settings for people with disabilities.Clarifies that the expected outcome of prevocational services is competitive, integrated employment in the community at or above minimum wage. Prevocational services are not a pre-requisite for supported employment services, and they must be time limited.Allows for a separate career planning service.
25 Using the HCBS Rule To Further Olmstead Compliance in States’ Employment and Day Service Systems Barkoff
26 Title II of the ADAProhibits discrimination by public entities in services, programs and activitiesIntegration regulation requires administration of services, programs and activities in the most integrated setting appropriateMost integrated setting is one that enables people with disabilities to interact with people without disabilities to the fullest extent possible
27 Olmstead v. L.C.: Unjustified segregation is discrimination S. Ct. held that ADA prohibits unjustified segregation of PWD and that public entities are required to provide community-based services when:Such services are appropriate;Affected persons do not oppose community-based treatment; andCommunity-based treatment can be reasonably accommodated, taking into account the resources available to the entity and the needs of others receiving disability servicesApplies to all facilities, services, or programs funded/designed by the state, not just those directly operated by the stateApplies to people in and at-risk of entering segregated settings/programs
28 What is an Integrated Setting? Integrated settings provide people with disabilities the opportunity to live, work and receive services in the greater communityLocated in mainstream societyOffer access to community activities when and with whom the person choosesChoice in daily life activitiesAbility to interact with people without disabilities to the fullest extent possibleExamples: scattered site supportive housing, supported employment in a mainstream jobNote the ADA definition similar to the HCBS settings requirements.
29 What is a Segregated Setting? Have institutional qualities, including:Congregate settings with primarily or exclusively people with disabilitiesRegimentation in daily activities, lack of privacy/autonomy, limits on ability to freely engage in community activitiesSettings that provide for daytime activities primarily with other people with disabilitiesExamples: ICFs, nursing homes, adult care homes, sheltered workshops, segregated day programsNote that the language is similar to the HCBS regulations about “settings that isolate”.
30 Does Olmstead Require States to Provide a Choice of Segregated Services? Some parents have tried bringing Olmstead claims to stop closures of state-operated ICFs, citing the decision’s language that “there is no federal requirement to impose community services on people who do not want them.”Courts have found, consistent with DOJ’s interpretation, that the ADA and Olmstead require states to provide services in integrated settings and not an obligation to provide them in institutions or segregated settings.Courts have also found that there is no right to remain in a particular institution or segregated setting if a state chooses to close them.This same rationale would apply to segregated day settings.
31 Olmstead Application to Segregated Day Services ADA and Olmstead applies to all types of services, both residential and non-residentialSegregated setting under the ADA include those “that provide for daytime activities primarily with other people with disabilities”This includes sheltered workshops, day habilitation and day treatmentIntegrated settings under the ADA include those that provide people with disabilities the “opportunity to live, work and receive services in the greater community”This includes competitive employment in mainstream jobs in the community
32 Progression of Olmstead Litigation Regarding Day Services Supported employment services (to facilitate employment in competitive wage jobs in integrated settings) part of community services remedy for people leaving or diverted from institutions (both IDD and mental health)Examples: settlement agreements in Georgia, Delaware, North Carolina and VirginiaDirect challenge to over-reliance on providing employment services in segregated settings (i.e., sheltered workshops), seeking supported employment services as a remedyExample: Lane v. Kitzhaber (Oregon)
33 Lane v. KitzhaberComplaint and Motion to Intervene alleges Oregon administers the State’s employment, rehabilitation, vocational, and education service system such that people with disabilities are denied the benefits of the State’s vocational and employment services, programs, or activities in the most integrated setting.Alleges over-reliance on sheltered workshops: 61% received services in sheltered workshops, while only 16% in individual supported employment.Alleges once in workshops, likely to remain: average LOS of years; some remain for as long as 30 years.Alleges Oregon fails to ensure that students with I/DD are provided with meaningful choices and prepared for work in integrated settings (“at-risk” class)
34 Lane v. Kitzhaber (cont’d) Court rejected the state’s argument that ADA and Olmstead not apply to states’ day service systemsCourt found that ADA and Olmstead applies to all government services, programs and activities, including employment. Rejected argument that only applies to residential services and programs.Court agreed with DOJ’s position in statement of interest.
35 Progression of Olmstead Litigation (cont’d) Direct challenge to over-reliance on segregated employment and other day settings (ie, sheltered workshops and day habilitation); remedy includes expansion of supported employment services and “wraparound” integrated non-work day services (e.g., mainstream recreational, social, educational, cultural and athletic activities)Example: settlement agreement in US v. Rhode IslandFuture Olmstead litigation will likely challenge over-reliance other types of segregated day services, such as day treatment
36 United States v. Rhode Island DOJ statewide investigation of entire day services system found:Over-reliance on segregated day settings: over 80% of people with ID/DD receiving state services in segregated sheltered workshops or facility-based day programs; only 12% in individual, integrated e-mentLong-term placement in segregated day settings: almost half of sheltered workshop participants for 10 or more years; 1/3 for 15 or more yearsYouth from schools at serious risk of placement in segregated day settings: only 5% of students transitioned to jobs in integrated settings
37 United States v. Rhode Island (cont’d) United States v. Rhode Island settlement agreement:Expansion of supported employment placements to people currently in workshops and facility-based day programs and to students leaving high school)Benchmark of system average of at least 20 hours per week of employment in integrated settingsAll people provided with “wraparound” integrated non-work day services (e.g., mainstream recreational, social, educational, cultural and athletic activities) so an opportunity for 40 hours of integrated day services per weekDevelopment of a cross-agency Employment First policy (including schools)Provider support: conversion trust fund, institute and TA
38 Advocacy to Align States’ HCBS Transition Process with Olmstead Compliance Transition plans are an opportunity to move your state’s system towards real integration and community membership and further Olmstead compliance.HOWEVER, if CMS approves transition plans that include the very settings that advocates and DOJ have been challenging under Olmstead, this could undermine Olmstead efforts in your state and nationally (even though the ADA and Medicaid create independent obligations).It is critical that advocates provide concrete evidence about people’s experiences in these settings vis-à-vis the rule’s requirements.
39 Take AwaysStates have begun the transformation -- although there is still work to do – of their residential systems to support people with disabilities to live in integrated settings in the community.The HCBS rules and recent Olmstead enforcement – combined with WIOA, Executive Order 13658, and state Employment First Initiatives – have created opportunities for significant change in states’ employment and day service systems to focus on competitive, integrated employment for people with disabilities.
40 Take Aways (cont’d)Successful system change in employment and day service systems will require:Focusing on expanding the services necessary to support people in competitive, integrated employment and not just on downsizing or closing day programs like sheltered workshops, day habilitation and day treatment.Designing services to support all people with disabilities, including those with significant disabilities.Supporting providers to build expertise and capacity to help with this transition.