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Employment First, WIOA and
the HCBS Final Rule,
Simplified
Presented by: Nicole Jorwic, JD
Director of Rights Policy, The Arc of the United States
How Far We’ve Come
• A safe place for people to go during the day.
• A place for people to go to learn daily living skills.
• A place for people to go to prepare for work.
• A place for people to go to work with others who have disabilities.
• Support for people to work in the community.
• Support for people with disabilities to choose and prosper in community jobs.
Employment First
Employment First
• 45+ states have some type of “Employment First” movement
• About 2/3 of efforts are directed by state policy units or are legislatively based
• About 1/3 of efforts are grassroots based –i.e., outsiders working to influence state policy and practice
• At least 30states have official Employment First legislation and/or polices
Employment First
Employment in the community is the first/primary service option for individuals with disabilities
• Where the assigned work tasks offer at least minimum or prevailing wages and benefits,
• Where typical opportunities exist for integration and interactions with co-workers without disabilities, with customers, and/or the general public,
• And being the first and preferred outcome for working-age youth and adults with disabilities, including those with complex and significant disabilities, for who working in the past has been limited, or has not traditionally occurred.
Employment First and
Systems Change• Supporting people with disabilities to work in
integrated employment in the community is critical to:– Access the greater community;
– Facilitating relationships with non-disabled peers;
– Building new skills and self-esteem;
– Helping bring people with disabilities out of poverty;
– Reduced utilization of other Medicaid services; and
– Providing meaningful ways for people to spend their days
• Employment should be the centerpiece of systems change.
WIOA
The Workforce Innovation and
Opportunity Act (WIOA)
WIOA State Plans• The Workforce Innovation and
Opportunity Act (WIOA) of 2014 (P.L. 113-128) reauthorizes and updates existing federal workforce development programs including the Rehabilitation Act, which provides for vocational rehabilitation (VR) services for people with disabilities. WIOA focuses VR outcomes on competitive, integrated employment as well as promotes greater emphasis on transition services for youth with disabilities through: emphasis on coordination between VR and other agencies; extending the initial time period for VR supported employment services (from 18 to 24 months); and modification of eligibility determination to promote access to VR by people with the most significant disabilities.
• Interagency coordination
• The department of education, the DD agency and VR must work together.
• July 22, 2016: deadline for provisions related to subminimum wage for people with I/DD.
Workforce Innovation and Opportunity Act
• Goal is to increase employment of people with disabilities in integrated employment settings; attempts to significantly limit the use of 14(c), particularly for transition-age 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
– Limits entry into sheltered workshops: Anyone under 24 must try integrated employment before being placed in a sub-minimum wage setting; schools cannot contract with sub-minimum wage providers
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WIOA
• 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 pre-employment 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 for youth (up to age 24) with most significant disabilities
WIOA
• Created Advisory Committee on
Increasing Competitive Integrated
Employment for Individuals with
Disabilities
– Representatives include federal
agencies, providers, national experts,
reps from national disability advocacy
groups, and self-advocates
HCBS Rule
HCBS Rule
• Released in March of 2014
• 5 year transition period
• Person Centered Planning aspects of the
rule took IMMEDIATE effect
Evolution of HCBS definition
• 2008 – NPRM 1915(i)
• 2009 – ANPRM 1915(c)
• 2011 – NPRM 1915(k)
• 2011 – NPRM 1915(c)
• 2012 – NPRM 1915(i) and 1915(k)
• 2014 – Final Rule
Goal and Scope of the Rule
•To “ensure that individuals receiving services through
HCBS programs have full access to the benefits of
community living”
•To “further expand the opportunities for meaningful
community integration in support of the goals of the ADA
and the Supreme Court decision in Olmstead”
•Applies to all HCBS authorities (1915(c), 1915(i), 1915(k))
as well as 1115 demo’s and 1915(b)(3) managed care
• Supports compliance with ADA, Section 504, and Olmstead
• Supports access to the community
• Defines the qualities of HCBS settings
• Provides one definition of HCBS Setting across HCBS authorities
REMEMBER! Intent of the regulations is to improve HCBS participants’ community integration
and experiences
The goal is not to shut down settings, but to ensure that HCBS funds are used in settings that
are truly community-based
Most states plan on technical assistance for providers to help them move towards compliance
Focus is supposed to be on the HCBS participant’s experience!!
Institutional Settings
Excluded settings: NF, IMD, ICF-ID/DD, hospitals
Presumed to have institutional qualities:
• Facilities that provide inpatient treatment
• Settings on the ground of, or immediately adjacent to,
a public institution
• Settings that have the effect of isolating individuals
receiving HCBS from the broader community of
individuals not receiving HCBS
All HCB settings must:
be integrated in and support full access to the greater community
be selected by the individual from among setting options;
ensure individual rights of privacy, dignity and respect, and freedom
from coercion and restraint;
optimize autonomy and independence in making life choices; &
facilitate choice regarding services and who provides them
Provider owned or controlled settings have additional obligations
Any modification of these conditions must be supported by a specific
assessed need and justified in the PCP
Community Settings
Non Residential Settings
• HCBS settings, including residential, day or other,
must be delivered in settings that meet HCBS setting
requirements• CMS issued guidance on non-residential settings and
included information on non-residential settings in the Q&As
and other documents
• A person must live in a setting that meets the HCBS
requirements if they receive HCBS services,
including day services
Heightened Scrutiny CMS review the heightened scrutiny request to determine:
• Each and every one of the affirmative HCBS qualities is met;
• People in the setting are not isolated from the greater
community; &
• Strong evidence that the setting does not have the qualities of
an institution
• Evidence that all participants in the setting are afforded the
degree of community integration required by the rule
Suggestions of information a state should include:
• Setting/provider requirements that are different from those for
institutional settings
• Proximity to community resources, activities, and transportation
• Varied schedules based on interest and choice
• Choice of setting (including choice of a non-disability specific
setting)
• On site visit, including participant interviews conducted by
independent entity outside the presence of provider
Heightened Scrutiny (contd.)For settings on the grounds of or adjacent to an institution:
• Evidence must prove that there is a meaningful distinction between the
facility and HCBS setting and that the latter is integrated in and supports
full community access
For settings that isolate, evidence must prove that:
• People without disabilities in the same community would consider it part of
their community and not associate it with the provision of services to PWD
• People in the setting regularly engage in community activities other than
those organized by a provider and in a way that fosters relationships with
community members unaffiliated with the setting
Appropriate Timing for
Capacity-Building, Transitions• Assume that some people may want/need to change settings
Due process protections
Sufficient time for transition
• Build capacity – especially non-disability-specific settings
• Waiting until the end of five-year process = recipe for bad
placements, bad experiences
• States not planning for provider changes/closures
State Transition Plans: Early
Trends
• Plans to plan v. full initial plan
• Systemic review v. minimum compliance
• Ongoing compliance: how do you measure?
• Reliance on biased results
• Participant v. provider focus
• Stakeholder involvement
Ongoing Issues
• Assessments
• Integration standards
• Update of state regulations and policies
• Transparency
• Public education and involvement
• Capacity building
Promising Practices
Some states are proposing to modernize day services through the HCBS
transition process:
• Transforming models for facility-based day services (to a hub-and-spoke
model) Phasing out sheltered workshops
• Expanding the capacity of competitive, integrated employment
• Funding help bring providers into compliance through model changes
• Some states have identified day programs such as sheltered workshops
and day habilitation as “settings that isolate”
• CMS has said the fact that someone chose a setting does not itself make
the setting compliant with the rules
Promising PracticesTiered Standards:
“a state may establish that certain settings currently in use in a home and
community-based services waiver may continue within the waiver, as long as
they will be able to meet the minimum standard set in the rule on or before
the end of the transition period, but the state may suspend admission to the
setting or suspend new provider approval or authorizations for those settings.
Simultaneously, the state may establish or promote new or existing models of
service that more fully meet the state’s standards for home and community-
based services. This arrangement, though established through the transition
plan, may continue beyond the transition period.”
• Must be in the transition plan
• Settings that meet the federal standard can remain in the
waiver
• New settings must meet higher state standard for particular
waiver
• Can continue beyond 2019
States to Look To• Ohio is using an intensive assessment of non-residential settings. Their
plan recognizes that the new HCBS rule applies beyond where
individuals live to include services provided in non-residential settings
such as sheltered employment. Roughly half the plan delves into the
state’s procedures for reviewing and correcting noncompliance in these
settings.
• Recognition of institutional bias in day programs within the DD system.
Not only does it include non-residential settings in the plan, but the
state expresses a meaningful recognition of the historical shortcomings
day services within its DD system. This recognition is bolstered in the
responses to public comments, where the state fully backs integrated
employment opportunities over sheltered workshops.
• *All that being said, in Feb, CR 21 passed out of the house with a
depressing 94-1 vote.
States to Look To
• Washington DC-- The District is engaged in a variety of efforts to build
capacity across multiple agencies and among provider community.
• Worked closely with its HCBS Stakeholders Subgroup to develop tools,
criteria/scoring processes, implementation approaches, and associated
remedial actions.
• They created a Discovery Toolkit, with tools and guidance.
• Continue to offer a variety of on-going training and technical assistance to
support the roll out of Individualized Day Supports
• Very involved in the Employment First State Leadership Mentoring Program
through the Department of Labor’s Office on Disability Employment Policy
States to Look To• Massachusetts-- they have been very serious about identifying residential
settings that isolate and encouraging the development of remediation plans
early as well as using the plan to implement significant changes on their
non-residential side
• Massachusetts is also closing their sheltered workshops in conjunction
with the rule.
• Oregon -- will be using tiered standards to "close the front door" to sheltered
workshops, in conjunction with their settlement with DOJ
• Tennessee -- they have made great strides around transforming their non-
residential system, are counting a lot as "settings that isolate" and are using
tiered standards to shut the front door to all facility based day services.
All facility based day/employment settings are to go through
heightened scrutiny.
More on TN
First Approved Plan. On April 13, 2016, the Centers for Medicare & Medicaid
Services (CMS) granted both initial and final approval to Tennessee’s state
transition plan (STP) for bringing settings into compliance with the final HCBS
regulation.
In its approval letter, CMS noted that they granted this approval because:
1. The state completed its systemic assessment which
a. Included the outcomes of this assessment in the STP, and
b. Clearly outlined remediation strategies (both completed
and planned) to rectify issues that the systemic assessment
uncovered,
2. The state completed the site-specific assessment that
a. Detailed the strategies for validation, and
b. Outlined remediation strategies to rectify issues that the
site-specific assessment uncovered
3. The state laid out its heightened scrutiny, ongoing monitoring and
relocation process.
More on TNStrong and/or Innovative Practices to Watch
In addition to the specific steps noted above, Tennessee’s plan included some
strong practices for consideration (some are underway and not yet completed).
• Clear expectations for providers and support to help them complete the work
• Program design strategies in new MLTSS program serving individuals with
I/DD that builds upon the foundation of the rules, in services available, provider
specifications and capacity building within the MCOs.
• Strong family and consumer engagement at every level of the assessments
• Detailed and comprehensive analysis of public comments
• Leveraging existing structures (such as the MCOs) as partners in the review
process
• Living agreements between state level agencies
• Specific state staff assigned to transition planning
• Readiness reviews for MCOs related to their capacity to ensure initial and
ongoing compliance with the HCBS rule
• Rate Methodology Innovations intended to support implementation of the
HCBS rules
ADA, Olmstead
and Employment
Integrated Setting• Integrated settings provide people with disabilities the
opportunity to live, work and receive services in the greater community
– Located in mainstream society
– Offer access to community activities when and with whom the person chooses
– Choice in daily life activities
– Ability to interact with people without disabilities to the fullest extent possible
• Examples: Scattered site supportive housing, supported employment in a mainstream job
***Note the ADA definition similar to the HCBS settings requirements
Segregated Setting?
• Have institutional qualities, including:– Congregate settings with primarily or exclusively people with
disabilities
– Regimentation in daily activities, lack of privacy/autonomy, limits on ability to freely engage in community activities
– Settings that provide for daytime activities primarily with other people with disabilities
• Examples: ICFs, nursing homes, adult care homes, sheltered workshops, segregated day programs
***Note that the language is similar to the HCBS regulations about “settings that isolate”
Department of Justice Olmstead
ActivityLane v. Kitzhaber/U.S. v. Oregon:
• Court decision on motion to dismiss found that ADA and Olmstead applies to all
government services, programs and activities, including employment. Rejected argument
that only applies to residential services and programs.
• Consent decree focuses on youth, state of Oregon is using HCBS Transition Plan to assist
in goals.
• Closed the front door to workshops.
U.S. v. Rhode Island:
• State of Rhode Island violated the ADA and Olmstead by failing to serve individuals with
I/DD in the most integrated day activity service setting appropriate for their needs, and
by placing transition-age youth at serious risk of segregation.
• Relief for 3,250 individuals with intellectual and developmental disabilities.
• Opportunities for real employment in the community at competitive wages, and
integrated day activities for non-work hours.
• Investigation found that the state has over-relied on segregated service settings to the
exclusion of integrated alternatives.
Definitions from Rhode Island
Consent Decree
Integrated Employment means:
•Individualized, typical jobs in the community.
•Earning at least minimum wage.
•Working among peers without disabilities for the maximum hours consistent
with a person’s abilities and preferences.
•Average of at least 2O hours of employment per week across the target
population.
Integrated day services allow persons with I/DD to engage in self-directed
activities in the community (e.g., mainstream community-based recreational,
social, educational, cultural, and athletic activities, including community
volunteer activities and training activities).
Questions:Contact Me:
-(202)783-2229 x322
Resources: HCBS Settings Rule resources:
www.hcbsadvocacy.org (sponsored by national advocates)
• Updated information on state processes
• Factsheets & Q&As
• Alerts on comment periods
www.medicaid.gov/hcbs (CMS)