Wednesday, April 27, 2011

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

by Steve Gold

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 - 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.

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