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 - http://www.regualtions.gov 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.

Debate Over Institutions Flares As Feds Seek Comment - Disability Scoop

By Shaun Heasley

A government agency’s proposal to “eliminate congregate care” for people with disabilities is stirring strong reaction from advocates on both sides of the debate over institutions.

The issue came to the forefront as the Administration on Developmental Disabilities works to finalize a five-year strategic plan.

The federal agency plays an influential role over the state councils on developmental disabilities and the protection and advocacy organizations throughout the country in addition to other programs benefiting Americans with disabilities.

After holding listening sessions in five cities, the agency drew up a list of priorities — touching on everything from access to competitive employment to strengthening family support — which will be used to establish the final plan.

But a recommendation to support closing the nation’s remaining institutional care facilities seems to be evoking the greatest response in the final days of an online public comment period, which ends Friday.
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Marki Flannery: Home Health Aides: On the Front Lines of Caregiving

by Marki Flannery

Although home health aides provide assistance with all the "stuff" of daily life, the job of a home health aide cannot and should not be done by just anybody -- contrary to all-too-popular belief. Trained home health aides are highly skilled, compassionate caregivers; every day they man the vital front lines of healthcare for vulnerable seniors and others who are not stable enough to be on their own. These talented aides are the best offense for keeping at-risk individuals out of the hospital and living safely and as comfortably as possible in their own homes.

A good home health aide knows that daily activities -- bathing, dressing, eating, sleeping -- are really barometers of health. Subtle changes may indicate deteriorating health or issues with medication.

• If a patient is eating less or sleeping more than usual, do medications or dosages need adjusting?
• If the patient did not previously need help dressing and now does, has his or her condition degenerated?
• If a patient is refusing to bathe, are there emotional issues that need addressing?

A well-trained home health aide is much more likely to notice changes in a patient's behavior or well-being and act immediately and appropriately.
Full Article

Reform Plans Encouraging for Long-Term Care Facilities | NewsOK.com

Image by programwitch via Flickr
BY JIM KILLACKEY Oklahoman

If, when and how much Obamacare is overturned or modified, Oklahoma seniors need to be concerned about aspects of the health care reform package that directly affects their interests and those of elderly family members and friends. At issue is improving quality and safety at all of the state’s long-term care facilities: nursing homes, assisted-living centers, adult day-care centers, residential care homes and others.

Some $777 million is being used nationally during the next four years to institute reforms ranging from new criminal background checks of employees by using fingerprinting; the immediate reporting of crimes in long-term care facilities to law-enforcement agencies; tougher financial penalties for not reporting crimes of abuse; and penalties against long-term care administrators who retaliate against whistleblowers.
Facilities with repeated “noncompliance issues” will be inspected every six months instead of longer periods between inspections of long-term care locations.

“I like so much of this,” said Esther Houser, state ombudsman who’s considered the top advocate for nursing home residents and their families. Most of the reforms start in 2011 and 2012. Oklahoma currently has about 20,000 residents in 325 nursing homes. The state also has another 11,500 licensed beds for people occupying assisted-living centers, residential care facilities and intermediate care facilities for the mentally handicapped.

As Houser noted, Obamacare provides improved disclosure requirements related to nursing home ownership. “Many owners now hide behind various corporate disguises, and it has been harder for the average person, let alone enforcement agencies, to identify the true owner,” she said.

The law stipulates improvements in new compliance and ethics standards for nursing facilities intended to identify criminal or other violations. Improvements to the current www.Medicare.gov “Nursing-Home-Compare” website are being sought to provide better information for consumers.

There are benefits, too, aimed at helping long-term care centers that have high staff turnovers. There’s planned a study by the Center for Medicare and Medicaid Services, or CMS, on establishing a National Nurse Aide Registry.

There’ll be incentives to attract and support new direct-care workers for long-term care settings.

Many pros and cons exist about Obamacare requirements affecting long-term care facilities.
Full Article

New Research Demonstrates the Value of Social Connectedness for Older Adults

by Richard Shank on October 29, 2010

The research reported in this article is not directly about the move-in process into Long Term Care (LTC) or Senior Living (SL); however, it implies that competitive organizations will have to recreated the same sense of community within their residence that older adults feel they have left behind when they move in.

Researchers from University of South Carolina outlined the importance of salient social connections in the lives of older adults. “Salient connections…form the basis for all human existence and it is the phenomenon of connectedness that brings quality of life.” This seemingly commonsensical statement is far too often taken-for-granted and thus overlooked by many. Just as in the1980s when economists had to be reminded that market relationships are embedded in a web of social connections, today many service providers can stand to benefit from being reminded that the social connections their residents have help drive the satisfaction and quality of life of their residents. Additionally, these social connections help shape the decision to move into your residence. So paying attention to the social needs and relationships of residents or potential residents will help both program development and marketing.
Full Article

THE GREENHOUSE COTTAGES OF SOUTHERN HILLS IN RISON, ARKANSAS

FY 2009 Institution vs Community-Based Medicaid Services for Older and Younger Americans with Disabilities

Steve Gold's Information Bulletin #321 (8/2010)
   
Each State's FY 2009 Medicaid expenditures provide extremely helpful information to analyze your State's distribution of its Long Term Care expenditures between its Institutional versus Community-Based Services.

Follow the Medicaid money and you'll see how committed your State really is to ending unnecessary institutionalization of older and younger Americans with disabilities.  How your state allocates its expenditures demonstrates its commitment to provide the elderly and younger persons with disabilities a real choice between unnecessary institutionalization and living in the community.

Let's repeat - "show us the money" and where your state spends it, and you can see how much your state respects both the ADA and the Olmstead decision.  Remember that the Supreme Court in 1999 - more than ten years ago -told states to end unnecessary institutionalization!  The FY 2009 data was just released by Thomson Reuters, an independent contractor which compiles the data submitted by each State to the federal funding agency. Thanks very much.

How much progress has been made?  Let's compare the past five years.

In FY 2004, States spent 74.9% of their total Medicaid LTC funds for "Aged/Disabled" [i.e., older and younger Americans with disabilities] Services in nursing homes, and 25.1% in the community.

In FY 2009, States spent 66.2% of their total Medicaid LTC funds for "Aged/Disabled" Services in nursing homes, and 33.8% in the community.

In dollar terms, in FY 2004, States spent about $46 billion on institutional care and $15 billion in the community.

In FY 2009, States spent about $50 billion on institutional care and $26 billion in the community.

The good news is that there was an 8% shift towards the community in those five years.  The bad news is that ten years after the Olmstead decision, States are still spending nearly twice the amount of Medicaid LTC funds on nursing homes than on services in the community, despite the overwhelming survey data showing that people want to stay at home.

There is nothing magical about where your State allocates its Medicaid money.  Tomorrow States could turn the FY 2009 upside down and spend 66.2% in the community instead of in nursing homes - IF States wanted to do so.  Congress and CMS has given States enormous flexibility during the past five years but most States have not taken advantage of the options.

Why has the change been so slow?  State legislatures and Governors seem to be very beholden to the nursing home industry, which definitely knows how to play the political process much better than elderly and disabled advocates.

Until the political pressure from the people with disabilities - regardless of age- increases, the nursing home industry will prevail.

Let's look at how your State did in FY 2009 with its Medicaid Long-Term Care expenditures for older and younger Americans with Disabilities:

Some States have consistently done very poorly and have been consistently below the national average. 

Some States conversely been consistently above the national average.

Some States seem ripe for class action Olmstead litigation.

What sanctions are CMS and OCR planning for those States that have both lengthy waiting lists for community-based services and spend disproportionately on nursing homes?
                              % nursing      % community
                                  homes
National .....................66.2% ............ 33.8%
Alabama ....................85.1%  ............14.9% 
Alaska ...................... 44.3% .............55.7%
Arizona ..................... 78.6%..............21.4% *
Arkansas....................71.0 .................29.0
California................... 44.9 .................55.1*
Colorado....................56.4..................43.6
Connecticut................75.7..................24.3
Delaware...................87.5...................12.5
D. C..........................54.4..................45.6
Florida......................79.5...................20.5
Georgia......................74.0..................26.0
Hawaii.......................80.8..................19.2*                   
Idaho........................56.7...................43.3
Illinois.......................80.2 ..................19.8
Indiana......................83.8 .................16.2
Iowa.........................70.4 .................29.6
Kansas.......................60.6................39.4
Kentucky...................80.7 ................19.3
Louisiana...................67.5.................32.5
Maine........................75.5 ................24.5
Maryland................... 85.1................14.9
Massachus................ 64.1.................35.9*
Michigan.....................78.5................21.5
Minnesota....................42.5...............57.5*
Mississippi...................84.2...............15.8
Missouri......................66.3 ...............33.7
Montana......................66.1...............33.9
Nebraska.....................75.1...............24.9
Nevada........................65.9 ..............34.1
New Hampshire............82.3...............17.7
New Jersey...................78.8...............21.2
New Mexico.................31.2...............68.8
New York ...................61.9...............38.1*
North Carolina..............57.2...............42.8
North Dakota............... 89.8...............10.2
Ohio..............................75.9 ..............24.1
Oklahoma..................... 67.6...............32.4
Oregon......................... 43.8...............56.2
Pennsylvania................. 82.1...............17.9
Rhode Island................. 95.6................4.4*
South Carolina.............. 72.1................27.9
South Dakota................ 86.0................14.0
Tennessee.................... 91.1..................8.9*
Texas...........................55.5.................44.5*
Utah............................80.4..................19.6
Vermont......................67.5..................32.5* 
Virginia.......................64.9...................35.1
Washington ................38.0 ..................62.0
West Virginia............. 74.5...................25.5
Wisconsin ................. 74.0 ................. 26.0*
Wyoming ...................76.6...................23.4
               
* Data may not include certain LTC expenditures with managed care or 115   waiver data not available.
   
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. 

As of August, 2010, Information Bulletins will also be posted on my blog
located at http://stevegoldada.blogspot.com/

To contact Steve Gold directly, write to stevegoldada@cs.com or call
215-627-7100. 
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