Friday, February 17, 2017

Limiting choice and discrimination against disabled: "Legal Vulnerabilities" of the 2014 settings rule Part 4

Families intent on challenging a federal rule that restricts where their DD family members can live while they receive Medicaid-funded services, have found help In the form of a legal memorandum from the law firm of Covington & Burling LLP in Washington, D.C.: “Legal Vulnerabilities of CMS’s Regulation of Home and Community-Based ’Settings’”. 

The legal memo focuses specifically on the effect the 2014 Home and Community-Based Services (HCBS) rule has on individuals using 1915(c) Medicaid Waivers to pay for services in settings other than Medicaid-funded institutions - i.e. Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs/IID), skilled nursing facilities, or mental hospitals. The legal analysis should also be helpful to anyone challenging restrictions on choice of congregate work settings, such as sheltered workshops, or specially designed day and other programs for people with disabilities. Read the Legal Vulnerabilities memo for references to Medicaid law, disability rights law, and relevant court cases.

Discrimination,The ADA, and Olmstead

Title II of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in State and local government services. Federal policy on the provision of services and benefits to people with disabilities is far more flexible and less restrictive than many advocates of full community inclusion are willing to admit. There are no mandates that prohibit particular settings or services for individuals with disabilities in general, and the needs and choice of the individual are a primary consideration. See What does the ADA “Integration Mandate” really mean?

In short, the ADA does not restrict individuals from receiving services in specialized congregate settings for people with disabilities nor does it allow public entities to prevent access to services and benefits available to all. The 1999 U.S. Supreme Court Olmstead decision affirms this interpretation of the ADA and 
protections and choice for people in institutional settings.

Innovative intentional communities have become a reality in many areas where individuals with disabilities choose to live with others with disabilities for mutual support and to share resources. They have been stymied, however, by restrictions in the HCBS Settings rule. The rule not only regulates Medicaid-funded services that people receive, but it attempts to restrict the choice of settings where the person receiving services may live, even though Medicaid law for HCBS is designed to promote choice in living situations for people with disabilities. The preferences of the federal regulatory agency CMS and that of disability advocates who oppose all congregate settings (settings where more than 3 or 4 people with disabilities live or receive services), have been allowed to outweigh the preferences of individuals with disabilities and their families.

Excerpts from the Legal Vulnerabilities Memo

"The Regulations and Sub-Regulatory Guidance Are Discriminatory" 

[Sub-regulatory guidance includes clarifications on implementation of the settings rule issued by CMS since 2014]

”The Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA) each protect individuals from discrimination on the basis of their disability. States that implement CMS regulations and guidance in a manner that restricts the opportunity for individuals with disabilities to live in intentional communities may be violating both the ADA and FHA.

“Courts have long recognized two core principles behind the ADA and FHA:

1. Provide clear, strong, consistent and enforceable standards addressing discrimination against individuals with disabilities; and

2. Afford individuals with disabilities an equal opportunity to live in the dwelling of their choice.

“While CMS’s regulations claim to be supporting the goal of non-discrimination, its treatment of disability-specific settings in sub-regulatory guidance is not consistent with these two core principles. It could result in individuals with disabilities being denied services based on their decision to live with others with disabilities, or result in landlords capping the number of disabled residents who live in their housing complexes..”

Legal Standard

...“There are three ways to make a showing of discrimination under the ADA and FHA:

1) by proving discrimination in the form of disparate treatment or intentional discrimination;
2) by demonstrating that a law, practice, or policy has a disparate impact on individuals with disabilities; or
3) by demonstrating that the defendant failed to make reasonable accommodations in rules, policies, or practices so as to afford people with disabilities equal opportunities, including an equal opportunity to live in the home of their choice.”

  • Policies Restricting Disability-Specific Intentional Communities Constitute Discrimination Under the ADA and FHA

"CMS’s de facto prohibition on Medicaid services to individuals who live in disability-specific communities violates the ADA and FHA by explicitly treating individuals with disabilities differently than individuals without..."
[footnote: The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” ...The FHA prohibits discrimination “against any person in the terms, conditions, or privileges of the sale or rental of a dwelling, or in the provision of services of facilities in connection with such dwelling because of a handicap.”]

..."Even local policies that seem 'neutral' on their face have been rejected by both Congress and the courts, which have recognized that “neutral” policies aimed at restricting 'congregate living arrangements' disproportionately affect disabled individuals, who are less likely to be able to live in the community without assistance, who are less likely to have families that are able to care for them in the community, and who often need to live in congregate settings to receive services efficiently."

..."The fact that the settings rule was intended to promote integration and prevent segregation is not a defense to claims of discrimination."

“benign intentions on the part of lawmakers cannot justify laws which discriminate against protected groups.”...

"...the ADA focuses on individual choice and independence, and federal and state regulations limiting those choices based on an individual’s disability status would not comport with the intent of the ADA.”...

..."For individuals who are dependent on Medicaid-funded services, the alternative to disability-specific housing may not be a more integrated setting, but a move to an institutional setting, contrary to the intent of the ADA and Olmstead v. LC."...

  • A Failure to Provide a Reasonable Exceptions Process to Overcome a Presumption of “Institutionality” Constitutes Discrimination under the ADA and FHA

"The Court held that it [is] unlawful discrimination to 'subject individuals to the ‘rigors of the governmental or administrative process’ . . . with an intent to burden, hinder, or punish them by reason of their membership in a protected class'...

"To the extent the heightened scrutiny process is unduly burdensome, unreasonable, or not effective in allowing appropriate settings to be deemed compliant with CMS’s settings rule, it fails to meet the requirements for a reasonable accommodation."

For more information, see:

Americans with Disabilities Act regulations on general prohibitions against discrimination

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