legal and advocacy issues in supportive housing narpa conference september 5, 2014 seattle, wa

LEGAL

AND ADVOCACY IS

SUES IN

SUPPORTIVE

HOUSING

NARPA C

ONFERENCE

SEPTEMBER 5

, 2014

SEATTL

E, WA

PA

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LA

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TO

RN

EY

DI S

AB

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CA

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- Supportive Housing: What & Why?

- Supportive Housing Advocacy - ADA Integration Mandate- Fair Housing Laws- Land Use and Planning- Siting Strategies

OVERVIEW

SUPPORTIVE HOUSING: WHAT AND WHY?

WHAT IS SUPPORTIVE HOUSING?

-Permanent: No time limits-Supported: Flexible non-mandated onsite or offsite services and supports to maximize independence-Rights and responsibilities of tenancy-Affordable -Integrated-Choice of units and roommate

NEW HCBS MEDICAID RULE

All Settings Eligible for HCBS Waiver Reimbursement

Must:- Be integrated in and support full access to the

community;- Be selected by individual from among options;- Ensure rights to privacy, dignity, respect and

freedom from coercion and restraint;- Optimize autonomy and independence in making

life choices; and - Facilitate choice regarding services and providers

NEW MEDICAID HCBS RULE

Additional Criteria for Provider-Owned or Controlled Home and Community-Based Residential Settings:

- Individual has lease or similar agreement;

- Individual has privacy in unit including lockable doors, choice or roommates and freedom to furnish or decorate the unit;

- Individual controls his or her own schedule including access to food at any time; and

- Setting is physically accessible .

NEW MEDICAID HCBS RULE

Rebuttable presumption that these are NOT community-based settings:

- Nursing Facilities

- Institutions for Mental Disease

- Intermediate Care Facilities for People

- Hospitals

- Any other setting that has the effect of discouraging integration of individuals from the broader community

SUPPORTIVE HOUSING WORKS

SH is a successful, cost-effective model for

providing housing & services to people who

would otherwise be institutionalized or at risk of

institutionalization. - National Governors Association;

NASMHPD; DOJ; HUD; Surgeon General; SAMHSA; National Council on Disability

SUPPORTIVE HOUSING ADVOCACY

- ADA Integration Mandate

- Fair Housing Laws

- Land Use and Planning Laws

- Siting Strategies

ADA INTEGRATION MANDATE

ADA INTEGRATION MANDATE

States must “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”

28 C.F.R. § 35.130(d)

28 C.F.R. § 41.51(d)

UNNECESSARY INSTITUTIONALIZATION:

- Perpetuates unwarranted assumptions that people with disabilities are incapable or unworthy of participating in community life; and

- Severely diminishes everyday life activities, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.

Olmstead v. LC, 527 U.S. 581 (1999)

COMMUNITY PLACEMENT REQUIRED WHEN:

1. The state’s treatment professionals have determined that community placement is appropriate; 2. The individual does not oppose community placement; and 3. The placement can be reasonably accommodated, taking into account the resources available and the needs of others with disabilities.

Olmstead v. LC, 527 U.S. 581 (1999)

OLMSTEAD PLANS

A state can establish a fundamentalalteration defense through acomprehensive, effectively working planfor community placement, and a waitinglist that moves at a reasonable pace notcontrolled by endeavors to keep

institutionsfully populated.

SUPPORTIVE HOUSING AS OLMSTEAD REMEDYRemedies for Olmstead violations

“typically

require the public entities to expand the capacity

of community-based alternatives by a specific

amount, over a set period of time.”

- Statement of the DOJ on Enforcement of the Integration Mandate of Title II of the ADA and Olmstead v. L.C. (Jan. 22, 2011)

CONSUMER CHOICE

“Individuals who have been institutionalized andsegregated have often been repeatedly told that theyare not capable of successful community living and havebeen given very little information, if any, about how theycould successfully live in integrated settings. As a result,individuals’ and their families’ initial response whenoffered integrated options may be reluctance orhesitancy.” - Statement of the DOJ on Enforcement of the Integration Mandate of

Title II of the ADA and Olmstead v. L.C. (Jan. 22, 2011)

Housing- Preservation of Housing- LHH Rental Subsidy Program

Services & Case Management -Access to NF/AH Waiver Services - Diversion and Community Integration Program

-Targeted Case Management - Community Living Plans

- City-Funded Community Living Fund- City-Provided MH & SA Services

CHAMBERS V. SAN FRANCISCO (ND CA 2006) SETTLEMENT (2008)

O’TOOLE (DAI) V. CUOMO (ED NY 2003) SETTLEMENT (2013)

NY state will provide as many scattered-site,supported housing units as necessary toafford all adult home residents with seriousmental illnesses the opportunity to live in themost integrated setting appropriate to theirneeds, and will provide and maintain

communityservices and supports.

O’TOOLE (DAI) V. CUOMO (ED NY 2003) 2013 SETTLEMENT

Community services and supports include, but are not limited to: - Care coordination - Psychiatric rehabilitation services- Employment services- Assistance with taking medication- Home health care- Personal assistance services- Assertive community treatment - Crisis services

- Hundreds of thousands of people with disabilities remain on waiting lists for HCBS services.

- People younger than 65 are increasingly being isolated in nursing homes;

- Progress in providing HCBS for persons with physical disabilities and mental illnesses has lagged significantly behind efforts for individuals with intellectual and developmental disabilities.

U.S. Senate “Harkin Report,” Separate and Unequal: States Fail to Fulfill the Community Living Promise of the Americans with Disabilities Act (July 18, 2013)

FAIR HOUSING LAWS

CONSTITUTIONAL DUE PROCESS

- Land use and zoning ordinances violate 14th Am right to due process if they are not rationally related to a legitimate governmental purpose

City of Cleburne v. Cleburne Living Center, Inc 473 U.S. 432, 446 (1985)

- State constitutions may provide more protection.

FAIR HOUSING STATUTES

- Fair Housing Amendments Act (1988)

- Americans with Disabilities Act (1990)

- Section 504 Rehabilitation Act (1973)

- Similar State Statutes

FAIR HOUSING AMENDMENTS ACT

Unlawful to “discriminate in the sale or rental, or

to otherwise make unavailable or deny, a

dwelling to any buyer or renter because of a

handicap of that buyer or renter, a person residing or

intending to reside in that dwelling after it is sold,

rented or made available, or any person associated

with that buyer or renter.”

42 U.S.C § 3604(f)(1)

USING FAIR HOUSING LAWS TO PROMOTE SHDiscriminatory Actions Directly by

Neighbors- Intimidation, Threats, Harassment & Coercion -Free speech concerns

-Neighbor Buy-Outs- “Normal economic competition”

USING FAIR HOUSING LAWS TO PROMOTE SHDiscriminatory Actions by Local

Government- Siting Barriers

- Numerical Restrictions- Spatial Separation Restrictions- Pretextual Health and Safety Restrictions

- Refusal to Fund- Refusal to cooperate with funding

application

LAND USE AND PLANNING LAWS

FEDERAL AND STATE PLANNING REQUIREMENTS

-Consolidated Plan

- Condition of federal funding for affordable housing

- Similar State Law Requirements- E.g. California Housing Elements

ELEMENTS OF CONSOLIDATED PLANS

Con Plans Must Include:

- Housing and Homelessness Needs Assessment

- Market Analysis

- Strategic Plan

- Annual Action Plan

- Summary of Citizen Participation and Consultation

- Annual Certifications of Compliance

Any housing activities supported by federal funds must be consistent with the jurisdiction’s Con Plan.

USING LAND USE PLANNING TO PROMOTE SH- Participate in planning processes at federal,

state and local levels- Nothing about us without us

- Ensure that land use plans comply with fair housing laws

- Reasonable accommodation ordinances- Ensure that proposed or existing restrictive

zoning ordinances comply with land use plans

- Local officials consult zoning codes, not planning documents

SITING STRATEGIES

SIX STEPS TO BUILDING COMMUNITY SUPPORT1.Plan at least two meetings to research,

assess and plan strategies in key areas.

2.Prepare a political strategy.

3.Prepare a strategy to build public support.

4.Prepare a strategy to work through community issues.

5.Prepare a legal strategy.

6.Prepare a public relations/media strategy.

QUESTIONS?

HELPFUL WEBSITES – US GOVERNMENT

- Center for Medicare and Medicaid Services: www.medicaid.gov

- Department of Housing and Urban Development: www.hud.gov

- Department of Justice: www.justice.gov- Substance Abuse and MH Services

Administration: www.samhsa.gov

HELPFUL WEBSITES – NONPROFITS

- Bazelon Center for Mental Health Law: www.bazelon.org

- Corporation for Supportive Housing: www.csh.org

- Disability Rights California (coming soon: Everyone’s Backyard – Addressing “Not In My Backyard” Opposition to Supportive Housing for People with Mental Health Disabilities) www.disabilityrightsca.org

- Technical Assistance Collaborative: www.tacinc.org

CONTACT INFORMATION

Pamela Cohen

Disability Rights California

1330 Broadway, Suite 500

Oakland CA 95616

(510) 267-1200

Pamela.cohen@disabilityrightsca.org