Olmstead

OLMSTEAD DECISION UPDATE:  June, 2001

On June 18, 2001 President Bush issued an Executive Order related to the implementation of the Olmstead Decision.  To support the mandates of the Order, Health and Human Services (HHS) Secretary, Tommy Thompson, announced that efforts to improve access to community-based alternatives for individuals with disabilities will be pursued aggressively.  Highlights of both the Order and the related HHS initiatives follow:

Key Provisions of the Executive Order Implementing Olmstead Decision

• Calls for the placement of qualified individuals with disabilities in community settings wherever appropriate;

• Emphasizes the nation’s commitment to community-based alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans;

• States that unjustified isolation or segregation of qualified individuals with disabilities is a form of discrimination prohibited by the ADA and states must avoid this unless doing so would fundamentally alter the nature of the services provided;

• Calls on the Federal government to assist States and localities to implement swiftly the Olmstead decision;

• Directs the Attorney General, the Secretaries of HHS, Education, DOL, HUD, and the Commissioner of the Social Security Administration (SSA) to work cooperatively to ensure the Olmstead decision is implemented in a timely manner;

• Calls on the named Federal agencies to ensure that existing Federal resources are used in the most effective manner to support the goals of the ADA;

• Directs the Secretary of HHS to take the lead in coordinating these efforts of Federal agencies;

• Instructs the Attorney General, the Secretaries of HHS, Education, DOL, HUD, and the Commissioner of SSA to evaluate the policies, programs, statutes, and regulations of their respective agencies to determine whether any should be revised or modified to improve the availability of community-based services for qualified individuals with disabilities; and

• Directs that this review ensure the involvement of consumers, advocacy organizations, providers, and relevant agency representatives.

• The entire text of the President’s Executive Order is available at… http://www.whitehouse.gov/news/releases/2001/06/20010619.html

RESPONSE TO AN EXECUTIVE ORDER

As the result of the above-referenced order, HHS initiated many activities to address the mandates of the Presidential Order.  While details of these activities can be found at the web addresses listed at the bottom of this page, one critical component
is the Preliminary Federal Report on Eliminating Barriers that was released on December 21, 2001.  This 48 page report, Delivering on the Promise:  Preliminary Report of Federal Agencies’ Actions to Eliminate Barriers and Promote Community Integration was transmitted to President Bush by HHS Secretary Tommy  G. Thompson and is based on two premises:  1)  through collaboration, more can be achieved, and 2) through demonstrations and continued efforts, positive effects can be illustrated and then replicated to give persons with disabilities the freedom to live as independently as possible. 

Highlights of the report follow:

Health Care Structure and Financing: Institutional bias stems largely from the way in which the Medicaid program was structured nearly 40 years ago, when few community-based alternatives were available. Today, despite the possibility of community alternatives, approximately 73 percent of Medicaid long-term care funding goes to pay for institutional care, while only 27 percent is directed toward home and community-based services.

• HHS will establish the following:

• a Medicaid Community Services Reform Task Force to advise the Department on actions to remove barriers;

• a Disability Advisory Committee that includes substantial representation by all of the constituencies described in Executive Order 13217, including individuals with disabilities...providers....to review and advise HHS on the implementation of other solutions set out in HHS’ report and to provide information and advice to HHS on community integration issues; and

• an Office of Disability and Community Integration to oversee the coordinated development and implementation of policies.

• HHS will ensure the provision of a national program of technical assistance to states to maximize the use of existing Medicaid authority to enhance opportunities for community living and community participation, including productive employment.

• HHS will propose a coordinated package of regulatory or potential legislative improvements that would reduce some of the barriers to community living and reduce institutional biases in the Medicaid program, including proposals that:

• make waiver renewal requirements less burdensome;

• clarify the ability of Medicaid to cover individuals’ one time transition costs from institutional settings;

• allow states that tighten eligibility for hospitals and ICFs to do so without simultaneously narrowing eligibility for HCBS waiver eligibility; and

• let states disregard state-specified income or assets of HCBS waiver recipients specifically for those who meet an institutional level of care and are served through HCBS waivers.

• HHS will work with states and persons with disabilities to improve the quality of home and community-based services.

• HHS will develop a multi-pronged strategy to address quality of care issues in home and community-based services, including:

• establishing defined expectations for home and community-based services;

• assisting states in using the results of HHS quality reviews;

• providing technical assistance to states and HHS regional staff in effective systems design or quality improvement strategies; and

• implementing new quality assurance and improvement systems suited for services in one’s own home.

• The Centers for Medicare and Medicaid Services (CMS) will work with states, universities, foundations and others to ensure that there is an adequate base of applied research and knowledge to inform public policy-making with regard to:

• the impact of the Medicaid and Medicare actions under the President’s Executive Order;

• state initiatives to improve community living services;

• methods for designing long-term care systems so that they promote the ADA and are capable to address the population growth expected due to demographic changes; and

• methods for designing quality assurance and improvement systems uniquely suited for services in one’s own home.

Housing:  The lack of accessible, affordable housing continues to present a major barrier to the participation of people with disabilities in their communities....There currently is not enough appropriate or affordable housing for those people with disabilities who already live somewhere in the community. As more people with disabilities leave institutions to enter community life, this housing shortage will become even more acute.

• HUD will provide technical assistance to local Public Housing Authorities (PHAs) to expand knowledge of need and utilization of vouchers for people with disabilities and strongly encourage PHAs to consult with local disability organizations to maximize use of vouchers.

• HUD proposes to allow Section 811 tenant-based assistance to be used for homeownership, and will seek changes to the Section 811 statute to allow greater flexibility in terms of supportive services.

• HUD’s Office of Community Planning and Development will issue a notice informing Community Development Block Grant (CDBG) Entitlement and State grantees of what the Olmstead decision means to grantees.

• HUD’s Office of Public and Indian Housing will develop a notice to PHAs and HUD Field Offices explaining the New Freedom Initiative, the Executive Order, and what the Olmstead decision means to grantees.

• DOJ will work with other agencies to improve the accessibility of public housing and to ensure that tax incentives do not go to those who discriminate on the basis of disability in housing.

• HHS will work with HUD and other agencies to devise and implement strategies on housing issues as part of the Interagency Council on Community Living.

Personal Assistance, Direct Care Services and Community Workers:  As the President’s Executive Order is implemented and more people with significant disabilities live in home and community-based settings and enter the workforce, the already critical need for personal care assistants and other direct care staff and community service workers will become even more pronounced. A chronic inability to attract and retain dedicated people in these fields can be traced to the fact that traditionally, across the country, these workers earn very low pay, work long hours, and often receive no benefits. There is an urgent need to address the areas of recruiting, training, retaining, promoting, and improving the earnings/benefits of personal assistants and other community service workers.

• HHS will, together with a limited number of volunteer states, initiate a national demonstration designed to address workforce shortages of community service direct care workers and test the extent to which workforce shortages and instabilities might be address through better coordination with:

• the Temporary Assistance for Needy Families (TANF) program and

• the availability of vouchers for worker health insurance or for tuition or day care credits.

• HHS components will collaborate on a joint initiative to:

• mobilize and make available to states a coherent body of information about methods to address worker shortage issues;

• research significant issues; and

• partner with foundations, other private sector organizations, DOL, and other agencies to formulate a comprehensive approach to the worker issue.

• HHS will work with other federal agencies to devise and implement additional strategies on workforce issues as part of the activities of the Interagency Council on Community Living.

• DOL’s Office of Disability Employment Policy (ODEP) will work to identify and propose options for increasing the availability of personal assistants for people with disabilities and providing some path of career progression for personal assistants and other direct care staff.

• ODEP will work with DOL’s Wage and Hour Division to assess the impact, if any, of the Fair Labor Standards Act’s minimum wage and overtime exemptions for companionship services and live-in help services on the availability of personal assistance services.

• ODEP and DOL’s Employment Training Administration will explore increased access to personal assistance supports through the One-Stop Center system.

• ODEP will establish an online registry, similar to America’s Job Bank, on DisAbilityDirect.gov where local or community-based organizations that help locate personal assistance can be identified.

• The Department of Education’s Rehabilitation Services Administration (RSA) will seek collaboration and partnerships with appropriate federal agencies in order to explore how funds for attendant services can be more consumer driven, and assess training opportunities for personal assistance service providers, consumers, and family members.

Employment:

• The Department of Education’s Office of Special Education and Rehabilitation Services (OSERS) will continue to actively enforce the new VR regulation that eliminates extended employment as a final employment outcome.

• ODEP will collaborate with the Wage and Hour Division to develop training and technical assistance on increasing earnings and customized employment for individuals with significant disabilities earning commensurate wages under section 14(c).

• ODEP will initiate an Olmstead Community Employment Initiative, developing a coordinated strategy to address the employment needs of people with disabilities who transition from institutions or are risk of institutionalization.

• ODEP will facilitate the development of an employment-focused memorandum of understanding between agencies/departments in the workforce investment system to clarify integrated employment goals for adults with significant disabilities and to serve as a model for ensuring employment as a part of transitioning from institutional care to the community.

• ODEP will award Olmstead Community Employment Planning and Implementation Grants to states that develop an employment focus in their Olmstead state implementation plans and activities with recipients to be a consortia of nonprofit advocacy or service agencies and local Workforce Investment Boards.

• ODEP will launch a comprehensive and coordinated public awareness campaign to increase employment opportunities and to focus on making people with disabilities aware of mainstream employment-related services.

• ODEP will expand its DisAbilityDirect.gov web site to better serve the employment-related needs of people with disabilities.

More details are available at:  

• http:/www.hcfa.gov/Medicaid/realchoice/default.htm
• Olmstead/New Freedom Initiative Report (Response to Presidential Executive Order):  http://www.hhs.gov/newfreedom/presidentrpt.html
  

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