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

1

0

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:

-Jorwic@thearc.org

-(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)