Medicaid and Permanent Supportive Housing for Chronically Homeless Individuals: Emerging Practices From the Field. 8.2. Olmstead Compliance and Consent Decrees


In several of the states included in this study, the requirements of the Supreme Court's 1999 Olmstead decision were stimulating Medicaid and other state agency officials to focus attention and resources on efforts to re-balance their long-term care systems and expand the availability of home and community-based services linked to housing for people with disabilities. In Illinois, these efforts were taken in response to several lawsuits and resulting consent decrees. In the Olmstead decision, the Supreme Court ruled that Title II of the Americans with Disabilities Act (ADA) prohibits the unjustified segregation of people with disabilities. The ruling creates a mandate for states and other public entities to reduce the isolation and segregation of persons with disabilities in institutional settings and instead provide community-based services.
In recent years lawsuits have been filed in several states to enforce the ADA's "integration mandate" and require that states provide opportunities for people with disabilities to live in the "most integrated setting." This has been defined as "a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible."95 Since 2009, the U.S. Department of Justice (DOJ) has made enforcement of Olmstead a top priority and has intervened in several class action lawsuits filed against states.
The Supreme Court's Olmstead decision and the related lawsuits, consent decrees, and enforcement actions do not specifically concern people with disabilities who are experiencing homelessness, but instead have focused on persons with disabilities who are living in restrictive institutional settings or who are at risk of institutionalization. Olmstead and the legal actions related to the Supreme Court's decision have significant implications for people with disabilities who are experiencing homelessness, however, as states and other public entities invest in supportive housing and other strategies that provide community-based services connected with housing for people with disabilities. For example, in the U.S. v. Georgia, the consent decree includes specific mention of individuals with mental illness who are chronically homeless.96 These decisions in turn have implications for efforts to use Medicaid financing for services in PSH.
8.2.1. What Is the "Most Integrated Setting" Under the ADA and Olmstead?
The Department of Justice provided this guidance in 2011:97
Integrated settings are those that provide individuals with disabilities opportunities to live, work, and receive services in the greater community, like individuals without disabilities. Integrated settings are located in mainstream society; offer access to community activities and opportunities at times, frequencies, and with persons of an individual's choosing; afford individuals choice in their daily life activities; and provide individuals with disabilities the opportunity to interact with nondisabled persons to the fullest extent possible. Evidence-based practices that provide scattered-site housing with supportive services are examples of integrated settings. By contrast, segregated settings often have qualities of an institutional nature. Segregated settings include, but are not limited to: (1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals' ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities.
Consistent with this DOJ guidance, lawsuits and consent decrees related to Olmstead and ADA's integration mandate have often required states to invest in supportive housing and community-based services using a scattered-site approach to PSH, or using single-site PSH models in which some units are set aside for persons with disabilities within an apartment building or development in which most of the units are affordable or market rate rental housing that is not designated for persons with disabilities.
In some communities, including several that were part of this study, a significant number of the PSH units that have been created to serve people with histories of chronic homelessness are in single-site PSH, and often all or nearly all of the housing units in these developments are designated for homeless persons with disabilities. For purposes of funding coming through HUD's Office of Special Needs Assistance Programs, Supportive Housing Program, permanent supportive housing is defined as housing for homeless persons with disabilities, and HUD funds used to subsidize rents in these programs must be used for persons with disabilities. This is true for PSH supported by HUD's Supportive Housing and Shelter + Care programs.98 There is no requirement that the people benefiting from these rent subsidies have to have been experiencing chronic homelessness before being housed, but for the past several years HUD's announcement for annual Continuum of Care funding has expressed a strong preference for programs serving people coming from chronic homelessness for any new PSH project requests. Funding from state and local sources devoted to paying for the capital and operating costs associated with PSH usually follow the HUD definition. Many state and local governments and PSH developers have pursued this approach as a strategy to maximize the number of housing opportunities available to persons experiencing chronic homelessness, who often encounter significant barriers to getting and keeping housing in other settings.
There is some ambiguity about where this sort of single-site PSH fits within the legal and policy framework described by DOJ and used by the plaintiffs and courts in lawsuits related to the mandate of the Olmstead decision. On the one hand, this approach is arguably not as integrated as a scattered-site model of PSH. On the other hand, living in single-site PSH offers more opportunities for meaningful community integration than sleeping on the streets or in emergency shelters, or in jails, emergency rooms, detox facilities, and other settings in which people who are experiencing chronic homelessness often find themselves as a result of repeated crises. The services and supports available in PSH can help people access a wide array of resources and opportunities in the community. High-quality PSH, including the PSH we often saw as part of this study, is not characterized by the regimentation of daily activities, lack of privacy or autonomy, or other qualities of an institutional nature described by DOJ.
The U.S. Department of Housing and Urban Development issued guidance related to Olmstead on June 4, 2013.99 The guidance describes how HUD-assisted housing providers can support state and local Olmstead efforts to increase the integrated housing opportunities for individuals with disabilities who are transitioning from, or at serious risk of entering, institutions and other restrictive, segregated settings. This guidance does not include any numerical specifications, and indicates that HUD expects to continue funding single-site PSH. How this guidance will affect a number of aspects of HUD-funded PSH, including the range of disabilities that such housing might accommodate, remains unclear.
8.2.2. Linking Medicaid Services and Housing to Support Olmstead Implementation
In the years since the Supreme Court's Olmstead decision, CMS has partnered with states to use Medicaid funding and services to provide long-term services and supports that can be linked to affordable housing in community settings to meet the community integration mandate. Medicaid's home and community-based services (HCBS) are often an essential part of the financing strategies for delivering these services and supports, including HCBS waiver services authorized under Section 1915(c) and HCBS state option services authorized under 1915(i).
At the federal level, HUD and HHS have worked together to help states develop strategies for "rebalancing" their systems of long-term services and supports, and both HUD and HHS have provided guidance, technical assistance, and resources to support state efforts to expand the availability of home and community-based services linked to affordable housing for people with disabilities. Some of these efforts are described in an Informational Bulletin released by CMS in 2012: New Housing Resources to Support Olmstead Implementation.100 The focus of most of these initiatives has been on people with disabilities who are transitioning from institutions to the community and people at serious risk of institutionalization.
8.2.3. Opportunities to Align Approaches
In complying with consent decrees, states are responding to specific complaints and accordingly, their proposed remedies are tailored. In two of the communities that were part of this study, efforts to meet the requirements of Olmstead have been reasonably well-aligned with efforts to reduce chronic homelessness. In these communities, public agencies and providers have created or expanded PSH opportunities for people experiencing chronic homelessness as well as for people currently residing in institutional settings. In some other communities, public agencies are facing significant budget constraints as they seek to invest in housing and service interventions that can both meet their obligations under the terms of consent decrees and sustain progress in reducing chronic homelessness.
Louisiana's Permanent Supportive Housing Program (PSHP), described in Chapter 6, is a large-scale, cross-disability integrated PSH initiative that aligns affordable housing and services for people with a broad range of disabilities who are homeless as well as those who are exiting institutions, including psychiatric institutions, jails or correctional institutions, and nursing homes.101 This initiative was launched after Hurricanes Katrina and Rita at the urging of homeless and disability advocates, with substantial support from philanthropy and major housing (Shelter +Care and Section 8 project-based vouchers) and supportive services (Community Development Block Grant) resources from HUD. It reflects an extraordinary commitment and collaboration among state agency partners responsible for housing, health care, and human services, working with housing and service providers to adopt new PSH models. Most of the housing units created through the PSHP are secured through scattered-site arrangements in the private rental market and by requiring developers of affordable housing to set aside at least 5 percent of the units in new rental properties financed with Low Income Housing Tax Credits (LIHTC) for PSH.
Supportive services, including outreach, referral, and service coordination, have been developed to meet the needs of PSH tenants with a range of disabilities. These services are voluntary, individually tailored, and flexible, and focused on helping people get and keep housing using a housing-first approach. After launching the PSHP program with other funding in 2007, Louisiana made several changes to its Medicaid state plan, adopting new types of benefits and service definitions to provide coverage for many of the services that have been part of the PSHP approach. Some PSHP clients already receiving Medicaid were able to enroll in these services starting in March 2012; the remaining clients enrolled during 2013.
The state's approach to targeting and eligibility for PSHP gave the highest priority to persons who were chronically homeless or exiting institutions at the time of referral. By the end of 2011, program data showed that 58 percent of those entering the program were homeless or at risk of homelessness, and 10 percent had been institutionalized or were at risk of institutionalization. Efforts were under way to increase the number of referrals from institutional settings.
In the District of Columbia, the implementation and expansion of Medicaid-reimbursed Assertive Community Treatment services, described in Chapter 5, has been an important part of a strategy to link services with housing using a housing-first approach to reduce chronic and unsheltered homelessness among people with serious mental illness. This model of Medicaid-covered Assertive Community Treatment services linked to housing was also a major approach for returning people to the community from St. Elizabeth's Hospital, the District of Columbia's psychiatric institution.102
In some states this alignment of program models and financing strategies has helped to expand PSH opportunities for people with disabilities who are homeless, including those at risk of cycling between homelessness and stays in institutional settings and people who might otherwise experience homelessness when they return to the community from institutions. While people who have resided for many years in institutions are not homeless, they can benefit from policies that align the financing strategies, resources, provider capacity, and approaches to delivering housing and services. At the same time, some people who are experiencing chronic homelessness may qualify to receive community-based services and supports that are designed to coordinate with affordable housing for people returning to the community from institutional settings.
In some other states, the systems that finance and deliver affordable housing and community-based supportive services for people with disabilities who are experiencing homelessness are separate from, and not well-aligned with, the systems that finance and deliver housing and supports for people who are leaving institutional settings or at risk of institutionalization. Sometimes state policies contribute to the challenges of aligning efforts for these overlapping groups of people with disabilities who need assistance to live in community housing. For example, some circumstances in Minnesota have resulted in the separation of the systems of housing and services for people with disabilities who are homeless and for other people with disabilities. Some of these state policies go beyond the requirements of federal rules that define the settings in which Medicaid-reimbursed home and community-based services can be delivered, so the state could modify them if it chose to do so.
8.2.4. What Is a Home and Community-Based Setting?
In 2012, CMS published a Proposed Rule that includes a definition of the "home and community-based" settings in which Medicaid home and community-based services may be delivered. During the study period, many state Medicaid officials and PSH providers were relying on the Proposed Rule to guide their thinking about home and community-based settings. In January 2014, CMS issued a Final Rule regarding Medicaid home and community-based services, including a definition of the settings in which these services can be delivered.103
The approach CMS took in both the Proposed Rule and Final Rule was to describe the qualities that make a setting a home that is integrated into the community, consistent with priorities that have been articulated by persons with disabilities. To be eligible for the delivery of HCBS, a setting must be integrated in and facilitate the individual's full access to the greater community, including facilitating opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community.
Notably, both the Proposed Rule and the Final Rule did not set limits on the number or percentage of units in a housing development that are designated for persons with disabilities. Instead the CMS Rule uses more qualitative criteria to describe the distinctions between community settings and the types of housing settings that have the qualities of an institution.
In general, the PSH that we visited and learned about in this study is consistent with all or nearly all of the criteria described in the Final Rule. Whether in scattered-site or single-site PSH, housing is integrated into the community, and tenants have privacy and autonomy in their daily activities and interactions with other people. PSH residents have the rights, responsibilities, and protections specified under landlord-tenant law. Generally, participation in services and supports is voluntary and not a condition of tenancy, and people can choose to get services from providers other than those associated with their housing. Some PSH programs impose minimal requirements related to participation in supportive services, although most do not. Some PSH programs require tenants to see a case manager at least once a month, for example, but tenants can choose whether or not to receive other services from the program.104 While most scattered-site PSH programs offer participants a choice of where to live, and people who are experiencing chronic homelessness always have a choice about whether or not to accept an offer of housing, for some people choice may be limited. For example, a person may be offered only the opportunity to live in a single-site PSH development if other housing options are not available at that time.
During site visits conducted as part of this study, most PSH providers who were familiar with the Proposed Rule indicated that the focus on the qualities of housing settings, rather than the quantity or percentage of units designated for people with disabilities, makes it easier to use Medicaid's HCBS benefits for people with disabilities living in PSH, including those who had experienced chronic homelessness. Some expressed concern, however, that some states have enacted policies that are more restrictive than those that were ultimately reflected in the Final Rule when it was issued by CMS in 2014.
For example, in recent years Minnesota's state policies prohibited the delivery of Medicaid-reimbursed home and community-based services to persons living with more than four people with disabilities "under one roof," meaning four or more people sharing a home, or four or more apartments in a building or apartment complex. Because nearly all single-site PSH that has been created for persons experiencing homelessness has more than four units, this limitation meant that home and community-based services covered under the state's waiver program could not be provided to a person living in this type of PSH, even if the person might otherwise be eligible to receive those services.
In 2012, the Minnesota Department of Human Services Disability Services Division proposed modifications to this policy, allowing people to receive Medicaid-covered home and community-based waiver services to live in "community living settings" where individuals with disabilities may reside in all of the units in a building of four or fewer units, and no more than the greater of four units or 25 percent of all units in a multifamily building of more than four units. The revised policy was enacted in state law, which is more restrictive than federal rules regarding settings for home and community-based services. This has the effect of allowing the delivery of waiver services to a person with disabilities residing in some types of PSH settings, including small buildings (less than four units) or in larger buildings as long as no more than four units or more than 25 percent of the units are occupied by persons with disabilities, but it maintains a state policy that does not permit residents of other types of single-site PSH to receive Medicaid home and community-based services.

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