Legislation Would Expand Right to Community Integration

Senator Charles Schumer (D—NY) has introduced the Disability Integration Act (DIA). The legislation, modeled on the Americans with Disabilities Act (ADA) and the ADA Amendments Act, expresses in law an explicit civil right for people with disabilities to receive Long Term Supports and Services (LTSS) in the community. It reads: “No public entity or LTSS insurance provider shall deny an individual with an LTSS disability who is eligible for institutional placement, or otherwise discriminate against that individual in the provision of, community-based long-term services and supports that enable the individual to live in the community and lead an independent life.”

Under the Act, discrimination by a public entity or LTSS insurance provider includes:

• “the imposition or application of eligibility criteria or another policy that prevents …an individual with an LTSS disability, or any class of individuals with LTSS disabilities, from receiving a community-based long-term service or support;
• the imposition or application of a policy or other mechanism, such as a service or cost cap, that prevents…an individual with an LTSS disability, or any class of individuals with LTSS disabilities, from receiving a community-based long-term service or support;
• a failure to provide a specific community-based long-term service or support or a type of community-based long-term service or support needed for an individual with an LTSS disability, or any class of individuals with LTSS disabilities;
• the imposition or application of a policy, rule, regulation, or restriction that interferes with the opportunity for an individual with an LTSS disability, or any class of individuals with LTSS disabilities, to live in the community and lead an independent life, which may include a requirement that an individual with an LTSS disability receive a service or support (such as day services or employment services) in a congregate or disability-specific setting;
• the imposition or application of a waiting list or other mechanism that delays or restricts access of an individual with an LTSS disability to a community-based long-term service or support;
• a failure to establish an adequate rate or other payment structure that is necessary to ensure the availability of a workforce sufficient to support an individual with an LTSS disability in living in the community and leading an independent life;
• a failure to provide community-based services and supports, on an intermittent, short-term, or emergent basis, that assist an individual with an LTSS disability to live in the community and lead an independent life;
• the imposition or application of a policy, such as a requirement that an individual utilize informal support, that restricts, limits, or delays the ability of an individual with an LTSS disability to secure a community-based long-term service or support to live in the community or lead an independent life;
• a failure to implement a formal procedure and a mechanism to ensure that individuals with LTSS disabilities are offered the alternative of community-based long-term services and supports prior to institutionalization…
• a failure to ensure that each institutionalized individual with an LTSS disability is regularly notified of the alternative of community-based long-term services and supports…; and
• a failure to make a reasonable modification in a policy, practice, or procedure, when such modification is necessary to allow an individual with an LTSS disability to receive a community-based long-term service or support.”

The bill also includes “a failure to ensure that there is sufficient availability of affordable, accessible, and integrated housing to allow an individual with an LTSS disability to choose to live in the community and lead an independent life, including the availability of an option to live in housing where the receipt of LTSS is not tied to tenancy” as a part of its definition of discrimination.

The legislation defines an “individual with an LTSS disability” as an individual with a disability who requires assistance in accomplishing activities of daily living, instrumental activities of daily living, or health-related tasks in order to live in the community, who is currently in an institutional placement or is at risk of institutionalization if that person does not receive community based long term services and supports.

The bill’s definition of community is quite similar to the language in the recent definition of HCBS settings issued by the Centers for Medicare and Medicaid Services (CMS), with a couple of key differences, especially that no more than four unrelated individuals with an LTSS disability may reside in the same group or shared residence. This definition would not supersede the CMS regulation—rather, Medicaid policy would still allow for states to provide HCBS in settings that meet the CMS definition, but they may not satisfy the DIA’s requirements, in much the same way that Medicaid policy allows for activity that does not meet Olmstead requirements. Also similar to the relationship between Medicaid policy and the Olmstead mandate is the fact that under the Disability Integration Act, the Attorney General has the authority to enforce this law in a manner that is consistent with ADA enforcement. In other words, CMS would continue to determine whether a state Medicaid HCBS action is consistent with Medicaid policy; meanwhile, the US Department of Justice (DOJ) would determine whether such an action (along with non-Medicaid and even non-state-related actions) are consistent with DIA requirements.   

The legislation requires that all public entities and LTSS insurance providers must complete a self-evaluation within six months after implementing regulations are released. Within one year of completing the self-evaluation, public entities must submit a transition plan for addressing the issues identified in the self-evaluation and achieving the purpose of this legislation. The plan must address these issues as soon as practicable, but public entities have up to 10 years to complete the plan. The Secretary of Health and Human Services (HHS), through the Administration on Community Living (ACL), is charged with reviewing and approving state transition plans. ACL will also make an annual determination as to whether the state is complying with its transition plan; a state determined to be in compliance will receive a 5% increase in federal match for HCBS expenditures related to compliance efforts. 

The prospects for passage of this bill are uncertain. The legislation is currently before the Committee on Health, Education, Labor, and Pensions (HELP).

FMI: To read the bill or track its progress, go to https://www.congress.gov/bill/114th-congress/senate-bill/2427.