Advocacy Update: A Dialogue with the Bazelon Center by Alison

January 8, 2018 | Author: Anonymous | Category: Social Science, Law
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Major Areas for Disability Advocacy Alison Barkoff Director of Advocacy Bazelon Center for Mental Health Law [email protected]

Areas for Discussion Today • Employment of people with disabilities • Compliance with CMS’ Home and Community-Based Services Settings Requirements • Compliance with Department of Labor’s Fair Labor Standards Act (FLSA) regulations for Home Care


Employment of Persons with Disabilities


What Do We Want our Disability Service Systems to Help People Do? • Help people with disabilities live like people without disabilities • Help 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 membership • Ensure quality services that meet people’s needs and help them achieve their own goals


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; and – Providing meaningful ways for people with disabilities to spend their days. 5

Current State of Employment of People with IDD • Major findings from ICI’s “National Report on Employment Services and Outcomes 2012” – Only 18% of people receiving IDD day services are in integrated employment • This is DOWN from a peak of 25% in 2001 • For those working, it is often for very limited number of hours – Investment in facility-based programs and community-based nonwork is INCREASING


Current State of Employment of People with Mental Illness • Only 10 to 15% of people with serious mental illness are working. • According to the most recent SAMHSA data (2012), only 1.7% of people receiving mental health services are receiving evidence-based supported employment services. • In contrast, states are spending significant portions of their MH funding and have far more people receiving day treatment services. 7

Policies Leading to Increased Focus on Employment of Persons with Disabilities • Enforcement of the ADA and the Olmstead decision • Medicaid policies – New “settings rule” for HCBS – Guidance on employment-related services

• Other laws and policies – Workforce Innovation and Opportunities Act – State “Employment First” initiatives


NOW IS THE TIME FOR CHANGE • Our systems can do better to support people with disabilities! • Change is hard, but many states and even providers have recognized that many service models are outdated, cause lasting dependence, and do not support what people with disabilities want. • These policies may create a new environment in your state, where real and meaningful change is possible. 9

Olmstead Application to Segregated Day Services • ADA and Olmstead applies to all types of services, both residential and non-residential – Segregated 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 treatment

– Integrated 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 10

Progression of Olmstead Litigation • 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 Virginia

• Direct challenge to over-reliance on providing employment services in segregated settings (i.e., sheltered workshops), seeking supported employment services as a remedy – Example: litigation against Oregon 11

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 with Rhode Island

• Future Olmstead litigation will likely challenge over-reliance other types of segregated day services, such as day treatment


HCBS Settings Rule and Its Impact on Employment • Rule is clear that the settings requirements apply to ALL services provided under HCBS authorities, both residential and non-residential • Expectation is that states will closely examine the day service settings in their HCBS programs and will transition noncompliant settings – This 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) 13

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: 1. Is integrated in and supports access to the greater community; 2. Provides opportunities to seek employment and work in competitive integrated settings, engage in community life, and control personal resources 3. Is selected by the individual from among setting options, including non-disability specific settings 14

HCB Setting Characteristics (cont’d) 4. Ensures the individual receives services in the community to the same degree of access as individuals not receiving Medicaid HCBS 5. Ensures an individual’s rights of privacy, dignity, respect, and freedom from coercion and restraint 6. Optimizes individual initiative, autonomy, and independence in making life choices 7. Facilitates individual choice regarding services and supports, and who provides them 15

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 services – Settings on the grounds of, or adjacent to, a public institution – Settings 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 disabilities Are comprised primarily of PWD and staff providing services Where PWD are provided multiple types of services onsite Where PWD have limited interaction with the broader community Use restrictive interventions


Day Service Settings that Will Need to Be Closely Examined Under the Regulations • Many day service settings may have trouble meeting the affirmative requirements of the regulations or may have characteristics of “settings that isolate” including: – Pre-vocational services in sheltered workshops – Employer services through crews and enclaves – Day habilitation – Day treatment

• States need not wait for additional CMS guidance to start examining their day services; there are some settings that clearly will not meet the reg under existing guidance


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. 18

Workforce Innovation and Opportunities Act of 2014

• A goal of the law is to increase employment of people with disabilities in integrated employment settings; attempts to significantly limit the use of 14(c), particularly for youth: – Defines and prioritizes integrated employment as work at or above minimum wage, with wages and benefits comparable to people without disabilities and fully integrated with co-workers without disabilities – Requires anyone under 24 to explore and try integrated employment before they can be placed in a sub-minimum wage setting; prohibits schools from contracting with sub- minimum wage providers • Attempt to align with expectation of integration in schools for students with disabilities (least restrictive environment requirement)


WIOA (cont’d) • Additional relevant provisions to increase access to integrated employment for people with disabilities: – Requirement for formal cross-agency cooperative agreement between voc. rehab., state IDD agency, and Medicaid agency – Requirement that at least 15% of voc. rehab. funds be used for preemployment transition services – Definition of supported employment clarified to make clear that it is integrated, competitive employment – Post-employment support services extended from 18 to 24 months – Requirement that at least half of supported employment state grant funds used to youth (up to age 24) with most significant disabilities


State “Employment First” Initiatives • Many states are developing and implementing “employment first” initiatives to prioritize integrated, competitive employment for people with disabilities – As part of these initiatives, states are closely examining their existing day service capacity, Medicaid definitions and coverage, and incentives – Many states are exploring “rebalancing strategies” (including using Balancing Incentive Funds) – But many states’ employment first policies are on for people with IDD and do not include people with psychiatric disabilities 21

Advocacy Efforts Around Employment • Developing Olmstead litigation regarding over-reliance on day treatment, day habilitation, etc. and seeking expansion of supported employment as relief • Ensuring states’ affirmative Olmstead planning includes transition from segregated day services to integrated employment • Advocating for revising Medicaid service definitions and funding to incentivize supported employment • Pushing for state development of 1915(i) state plan services to cover supported employment (particularly for funding for people with psychiatric disabilities. • Advocating for cross-disability Employment First policies 22

HCBS Settings Rule Advocacy


Major Points for HCBS Advocacy • States should engage stakeholders (people with disabilities, families, disability advocacy groups) early in the transition planning process. Do not wait for engagement until the 30 day public comment period. • States must develop a process to evaluate their settings 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 consumers and their families about settings. – Use other tools in place in states (eg, National Core Indicators data). 24

Major Points for HCBS Advocacy (cont’d)

• Transition plans should describe the process for ensuring that people are given a choice of settings (including non-disability specific settings) – There cannot be a choice of non-disability specific settings if there is not capacity; there may need to be a plan for expansion of those types of settings.

• Plans should include the process for monitoring compliance with any “modifications” to provider-owned setting requirements • Plans should include a process for on-going monitoring of settings


Major Points for HCBS Advocacy (cont’d) • If a state’s initial transition plan is a “plan to plan,” public engagement and comment will need to occur when substantive changes are made (including if a state has a separate time frame for developing a substantive evaluation of non-residential settings). • States should see the HCBS regulations as an opportunity to align their affirmative Olmstead efforts and to modernize their disability service systems. Disability advocates can help can help support these goals. – States can help us engage advocates by ensuring we have accurate information at


DOL’s New Home Care Rule


Basics of the Home Care Rule • Final Home Care Rule issued on Oct. 1, 2013 and will become effective on January 1, 2015. • Previously most home care workers were excluded from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime provisions under the “companionship exemption” or overtime under the “live-in” emption • Starting Jan. 1, 2015, most home care workers will be covered by the FLSA’s requirements 28

Major Provisions of the New Home Care Rule • Narrows the definition of “companionship services” – No more than 20% of hours worked can be care, defined as assistance with ADLs and IADLs – No “medically-related services” can be performed (in any amount) – In almost all cases, personal care services will not “companionship services”

• Prohibits “third party” employers from claiming the companionship or live-in exemptions – “Third party” employers include states, other public agencies, fiscal intermediaries, or managed care organizations who are “joint employers” in consumer-directed programs


DOL Additional Guidance on Implementation Issues • Shared Living Guidance (March 2014) – Describes different shared living models – adult foster care, host home, paid roommate, shared living, or life sharing models – Gives examples of models that are set up as independent contractors, so FLSA does not apply (this is most adult foster care programs) – In other models, there is enough control by a third party entity (like an agency) or a consumer that there is an employment relationship. In these models, it describes the relevant rules for calculating “hours worked” (including rules around sleep time) and pay (including offsets for room and board 30

DOL Additional Guidance on Implementation Issues (cont’d) • Joint Employment in Consumer Directed Programs (June 2014) – Describes the multi-factor “economic realities” test for determining if a third party is a joint employer with the consumer; gives examples of strong, medium and weak indicia of an e-ment relationship – Contains eight detailed models of consumer-direction and describes who is the employer(s) in each – Describes the implications of joint employment, including that hours across consumers must be combined and travel between consumers counts as “hours worked” for the employer The National Resource Center for Participant-Directed Services developed a detailed toolkit about this guidance and implications 31

DOL Additional Guidance on Implementation Issues (cont’d) • Updated Fact Sheet on Paid Family Providers (June 2014) – Final rule said that the scope of the employment versus familial relationship had to be defined in a “reasonable plan of care” – Guidance clarified that “reasonable” plan of care means that the number of paid hours in a particular setting would have been the same regardless if the provider was family or not – Gives examples of reasonable plans of care, all of which recognize that natural supports may differ in different settings


DOL’s Non-Enforcement Policy • On October 7, 2014 DOL announced a time-limited nonenforcement policy – From Jan 1 to June 30, 2015, DOL will not enforce the new home care rule against any employer and instead focus on TA. – From July 1 to Dec. 30, 2015, DOL will use its discretion in bringing enforcement actions (will look if “good faith” compliance efforts) – The non-enforcement policy did not change the effective date of the rule; back wages accrue as of the effective date – Non-enforcement does not impact private enforcement • STATES are immune from suits for money damages, although not prospective injunctive relief, unless there is a state waiver of immunity 33 • Private entities (like other public entities, FIs or MCOs) can be sued

Disability Advocacy Around the Home Care Rule • Advocates are very concerned about states coming into compliance with the new rule in any way that could lead to cuts in consumer hours, negatively impact the quality of services, or lead to the dismantling of consumer-directed programs – A coalition of disability and aging advocates put out “Action Steps for Consumers and Advocates Regarding the New Home Care Rule: How to Prevent Service Cuts and Protect Consumer-Directed Programs”


Steps States Must Be Taking

• Ensure adequate funding in FY ‘16 budgets

– Analyze which programs are affected by the rule and the budget impact of paying overtime (including to people who work across consumer) and worker travel time between consumers – Additional funding will likely be necessary for a reasonable compliance policy, including funding for direct state costs (when the state is a joint employer) or rate increases (when a non-state third party is a joint employer)

• Use Medicaid to help pay for additional costs – Medicaid can be used to pay for OT and travel time; CMS has issued guidance with a variety of options – Consumers SHOULD NOT be required to pay for worker OT and travel not attributable to that consumer out of their individual service budget; otherwise they will lose services they are entitled to receive – Consumers CANNOT be required to pay for OT out of their pockets 35

Steps States Must Be Taking (cont’d) • Develop reasonable compliance policies; Do Not Put in Place Policies that Prohibit All Overtime and Travel – These types of policies will hurt consumers (and workers) and could lead to significant cuts in critical services for consumers. – In many cases, the costs of implementing restrictive policy may be more than reasonable compliance policies – While these policies might technically comply with FLSA, they could violate other laws (including the ADA) if they place people at serious risk of institutionalization. 36

Steps States Must Be Taking (cont’d) • To comply with Olmstead, states must at a minimum have an “exceptions process” – Exceptions process allows consumers who would be particularly harmed by restrictive policies to be exempted from those policies or for alternative services to be put in place for those consumers – ADA and Olmstead apply to state policies, even when implemented through a private entity; thus, a state must develop an exceptions process even when CD program implemented through a non-state third party 37

Steps States Must Be Taking (cont’d) • States Must Be Taking These Steps Now, Even with a TimeLimited Non-Enforcement Policy, To Evidence “Good Faith” – States must evaluate the impact of non-enforcement on their system; impacts depends on the model – Even if non-enforcement gives a system more time, FY ’16 budget will cover the time period after non-enforcement period – In exercising its “prosecutorial discretion” (including possibly seeking back wages from the effective date), DOL will be looking at “good faith efforts” to come into compliance • Good faith efforts can include addressing compliance in FY ‘16 budgets, working with CMS on Medicaid coverage, putting in place technology from tracking OT and travel, and developing an exceptions policy


Home Care Rule Resources • DOL website on the home care rule: • CMS Guidance on the home care rule: • National Resource Center for Participant Directed Services Home Care Rule Toolkit: • Disability and Aging Advocacy Organizations’ “Action Steps for Consumers and Advocates Regarding the Home Care Rule:” 0 (can link from


Questions or Comments? Contact info: Alison Barkoff [email protected] 202-467-5730 x 309 40

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