Blog Posts

"Olmstead" Housing vouchers greatly improved

8/29/2024

with Waitlists and Admissions Preferences

Richard Cho

U.S. Department of Housing and Urban Development

Senior Advisor for Housing and Services

Val's Take:

THIS IS HUGE!

States have not substantially complied with the HOUSING component of Olmstead.

Olmstead is the 1999 US Supreme Court decision holding that the Americans with Disabilities Act prohibited the unnecessary institutionalization of people with disabilities.

Olmstead specifically assumed a State Plan for People with Disabilities, and required that plan to be:

Comprehensive
Effectively Working, and
Waitlists moving at a Reasonable Pace

Currently, Olmstead and subsequent caselaw are designed to prevent:

Unnecessary institutionalization of people with disabilities, or
The risk of institutionalization.

Housing is expensive! If you live in Colorado, you know that.

People with Disabilities and States have needed the FEDS to step up --- and they STEPPED UP.

We are grateful!

Hud takes action to Support Community Living for People with Disabilities

HUD’s Mainstream Voucher program is a special purpose voucher for people with disabilities.

I often think of them as “community living” vouchers or “Olmstead” vouchers.

But until now, there were challenges with using these vouchers to quickly connect people with disabilities leaving institutional settings or homelessness to community based housing and supportive services.

I’m excited that today [August 27, 2024] U.S. Department of Housing and Urban Development announced new requirements and flexibilities for Mainstream Vouchers that make them an even more effective tool for supporting community living.

First, public housing agencies that administer Mainstream Vouchers can now establish separate waiting lists and also establish admissions preferences that prioritize people referred by the services agencies that support community living or ending homelessness for people with disabilities.

Second, PHAs [Public Housing Authorities] must allow at least 120 days to help people find an accessible and affordable unit, along with 90-day extensions.

These flexibilities and new requirements open the door to new partnerships between PHAs [Public Housing Authorities] and Medicaid, Centers for Independent Living, Continuums of Care, and state mental health and IDD [Intellectual or Developmental Disability] agencies to help further the goals of Olmstead v. L.C.

Very proud of this!

[Why did the U.S. Supreme Court Justices in 1999 assume the States had a "State Plan" for People with Disabilities?

Georgia (and other States) told them that.

Further, that is why the Justices held that the States could not be required to make a "FUNDAMENTAL ALTERATION" to the STATE PLAN.

You can imagine that has been subject to considerable interpretation.

The big flies in the ointment: MOST STATES don't have a comprehensive, effectively working plan for people with disabilities or waitlists moving at a reasonable pace.]

Federal Housing Vouchers as a Key to STATE Olmstead Compliance

8/3/2024

Val's Take

Colorado's Nursing Home Transition Program was designed to transition nursing home residents to the community where appropriate.
I remember asking --- what about housing. They were flush with housing vouchers. That wasn't the most pressing issue.
In that situation, the Feds and the States were bearing very high nursing home costs and --- there was a clear financial benefit to the Feds and the States to transition people with disabilities out of nursing homes if they could safely live in the community.
In contrast, Chronic Homelessness often involves people with some type of Neuro-Developmental or Psychiatric difference/disability and an IQ over 70.

When it comes to homelessness, it's Municipalities and Counties that are bearing the brunt of the costs --- as it relates to governmental entities.
The people themselves, their families and the communities are bearing large costs as well.
The Feds, including CMS (Centers for Medicare and Medicaid Services), US Interagency Council on Homelessness, etc. and scattered disability advocates may appreciate the responsibility of States to provide Housing under Olmstead.
Outside the initiated, most people are not going to know much about Olmstead.
It appears that Denver is getting Housing Vouchers.
It is important that the Feds make available Housing Vouchers and Housing + Care Vouchers to meet the need to address Chronic Homelessness.
In Denver, Mayor Mike Johnston and his staff learned the hard way (as so many of us have), of the importance of Case Management.
The State has also identified Case Management as a Critical Issue.

Chevron, the ADA & Olmstead and the need for State Statutes & ReGulations

7/11/2024

Val's Take:

I don't know that there is anyone "gunning" for Olmstead the way conservatives targeted Roe v. Wade and Chevron.
Disability services have often enjoyed bipartisan support.
Olmstead was not decided on constitutional grounds, but on statutory grounds and associated regulations, specifically Title II of the Americans with Disabilities Act and the Integration Mandate.
The "balancing of equities" of people with disabilities and the State in the Olmstead decision is Solomon-like.
Further, the decision announced by Justice Ruth Bader Ginsburg in 1999 is a landmark decision in disability law, but it actually is extremely deferential to States.
The US Department of Justice provided "Guidance" not even regulations regarding enforcement of Olmstead.
Agency "Guidance" didn't go through a formal rule-making process as regulations do.
That "Guidance" is not particularly prescriptive, but does say that Olmstead Plans should provide measurable goals, reasonable time frames and funding to support the plan.
The "Olmstead Plan" is the State's defense to a lawsuit under Title II of the ADA alleging unnecessary institutionalization of people with disabilities.

Further, when talking about Olmstead Plans there are many Stakeholders, including:

Providers,
Taxpayers,
Family Members,
Community Organizations,
Law Enforcement,
Municipalities and Counties,
Etc.

in addition to the State and People with Disabilities.

Code of Federal Regulations -- Title 28
PART 35—NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES
Authority:5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.

We need State Statutes and regulations to provide the specificity sufficient to address process issues, provide transparency and accountability.

Olmstead Plans can be thought of as a Portfolio of several Projects:

Housing
Employment
Education
Transportation accessibility
Service Provision
Etc.

Historically, many states did not create an Olmstead Plan and if they did it was vague and almost always lacked "measurable goals."

Further, the plan was not modifiable often because it wasn't really doing anything.

To me, Olmstead Planning needs fair time frames to occomplish specific objectives with measurable goals and CONTINUOUS FEEDBACK on accomplishing those goals that is posted on a State Public Website.

Further, the Olmstead Plan or Sub-Project Plans need to be relatively easy to modify.

Chronic Homelessness and Olmstead

7/4/2024

Val's Take/Conjecture

Long Term Homelessness is often indicative of serious cognitive problems involving neuro-developmental disorders, psychiatric disorders, substance issues and/or brain injury, and
Inadequate health and social supports.

We do currently have the "POINT IN TIME COUNT" for Homelessness.
We also count those people who are "CHRONICALLY HOMELESS."
We need to drill down on that "CHRONICALLY HOMELESS" number and build in some Voluntary Individual Assessments.
And share the "AGGREGATE DATA" publicly and also with permission provide connections to appropriate Medicaid entities and providers.

National Development Team for Inclusion: Research on Homelessness & Neurodiversity.

Trying to address pretty much anything while living on the streets is difficult, but adding on to that serious health challenges --- it's ridiculous.

We are seeing Homelessness as a MORAL ISSUE which is important --- it is also a PUBLIC HEALTH ISSUE for the individuals as well as the communities involved.

Some understandings of these public health issues have not been great and that has led to a lot of bad things.

Those understandings appear to be improving in a big way but ---- it is taking years and decades to incorporate the research.

In the meantime, the US Supreme Court decided Olmstead in 1999.

Homelessness, Harm reduction & Long Term cARE

6/14/2024

Val's Take/Conjecture

I would say to Denver, Aurora and the State --- the people who are chronically homeless in Colorado generally are contending with various combinations of:
- Neuro-Developmental Disorders
- Psychiatric Disorders
- Brain Injury, and
- Substance Issues
Those are serious health issues, some requiring long term care.
Mike Johnston's "We're gonna help people get back on their feet" ---
- Seems absolutely clueless as to the serious and complicated health issues people are actually contending with.
Aurora's "Tough Love" Approach and a "HARD COURT" --- that is maybe not that "hard" ---
- Still seems an inappropriately punitive way to deal with health issues --- even if it is trying to be a step up from not so "benign neglect."

9 News Next: Aurora City Council Approves "Tough Love" Approach to Homelessness

Bottom Line:

Chronic Homelessness is a State Olmstead Issue.

What is the scope of the supported Housing Obligation Under Olmstead in Colorado?

6/13/2024

An Olmstead Plan is a Project --- maybe the State could assign some project managers to work with stakeholders

because it is not getting done

Val's Take

Some states have pointed out rightly that the Olmstead Decision does not apply to every person with a disability.

Olmstead is designed to prevent the unnecessary institutionalization or risk of institutionalization of "people with disabilities."
Medical judgment plays a role in this in determining whether the person with disability can safely live in the community outside an institution.
- I think that medical judgment can be challenged, but generally the burden is going to be on the person challenging the instant medical judgment.

There are a lot of ways one could think of an Olmstead Plan --- one way is as a Work Breakdown Structure in Project Management --- maybe not quite as detailed, but it needs to have Measurable Goals, Reasonable Time Frames and Funding to support the plan..

The State of Colorado is very familiar with Project Management in a wide range of areas.

Especially in the area of Supported Housing, we need the State to bring that expertise to the table and get us a Supported Housing Plan for People with Disabilities who are Institutionalized or at risk of institutionalization and medical professionals support community living.

The American Bar Association begins to consider Olmstead & Criminal Justice

5/30/2024

ABA Section on Civil Rights & Social Justice
The Future of Olmstead: 2020 & Beyond

Criminal Justice discussion begins at 32:20

ABA Transcript

Olmstead & Criminal Justice

5/22/2024

Val's Take

Olmstead Cases are generally brought in relation to specific populations or issues.
2010 US Dept. of Justice - Georgia Settlement addressed among other issues those with persistent mental illness being released from jails and prisons.

U.S. v. Georgia – 10-CV-249 – (N.D. Ga. 2010)

• Georgia will serve in community settings by July 1, 2015, 9000 individuals with serious and persistent mental illness who currently are served in:

the State Hospitals,
frequently readmitted to the State Hospitals,
frequently seen in Emergency Rooms,
chronically homeless, and/or
being released from jails or prisons

from DOJ's Fact Sheet

Olmstead at 20: Using the Vision of Olmstead to Decriminalize Mental Illness

By Kevin Martone, Francine Arienti, Sherry Lerch

Criminal Justice Generally and the ADA

Georgetown Journal on Poverty Law and Policy

The Paradox of Inclusion:
Applying Olmstead’s Integration Mandate in Prisons (2020)

By Jamelia N. Morgan

The State's Fundamental Alteration Defense

5/15/2024

In 1999, the US Supreme Court issued a compromise ruling in Olmstead --- and States, people with disabilities and their advocates have been struggling with it ever since.

States ostensibly love Olmstead and people with disabilities, and States really struggle to comply with Olmstead.

Two Key Concepts:

If States have a Comprehensive, Effectively Working Plan to de-institutionalize people with disabilities where possible and support those at risk of institutionalization --- THEN states have a defense to a claim brought under Title II of the Americans with Disabilities Act (ADA)
That Defense is the Fundamental Alteration Defense --- State's are not required to make a fundamental alteration to the State's Plan for People with Disabilities if:
- The State's Plan is comprehensive, effective and moving at a "reasonable pace."

ASIDE

The more science-based that Mental Health becomes --- the easier this will be for:
- the Public to understand and support

Integrating Mental Health with the rest of Medicine is crucial.

Olmstead Condensed including
The Fundamental Alteration Defense

Olmstead Resources
(These Resources are Relatively New)

Most States' Plans for People with Disabilities have been relatively siloed and disjointed --- there has been a lot of effort to address that --- but it hasn't completely been solved.

So one of the points the US Department of Justice has made is that this State Plan for People with Disabilities is NOT LIMITED TO MEDICAID.

The big challenge is that Medicaid does not cover Housing --- that is a HUGE PROBLEM.

With regard to housing and supportive housing, most states do what they want and call it "reasonable."

That fiction becomes harder and harder to maintain if you've got a lot of people with cognitive disabilities incarcerated in jails and prisons or homeless --

and no comprehensive, effectively working State Plan for People with Disabilities moving at a reasonable pace.

Further, a lot of people with cognitive disabilities can live in supportive housing, not necessarily all.

A Conundrum for the States --- A Nightmare for People with Mental Illness

Denver is working with the State --- Denver needs to hold the state accountable for supportive Housing to scale

4/20/2024

Val's Take

I heard Kyle Clark on Next say that Denver ran into REALITY when it came to homelessness and housing.
I think Denver and this Country need to "RUN INTO REALITY" --- a lot more than we have.

Many if not most chronically homeless people are going to meet the criteria for "disability." Now has that been worsened by CHRONIC STRESS --- probably.

I've tried to make this point numerous times --- but it is actually the STATE that has a legal responsibility to provide:
- MEASURABLE GOALS
- REASONABLE TIME FRAMES, and
- FUNDING TO SUPPORT THE PLAN

to prevent unnecessary institutionalization of people with disabilities and the unnecessary risk of institutionalization inherent in homelessness.

So COLORADO should have an adequate Continuum of Care --- NOW --- but we don't --- we need to make that plan and get those MEASURABLE GOALS.

Now we have existing evidenced-based models that can help and provide safe places, and we have EMERGING MODELS that "may" dramatically improve the lives of some people on the neuro-developmental/psychiatric spectrum.

Conceptualizing this as an ENERGY ISSUE with MITOCHONDRIA DYSREGULATION seems to be an important step up in our understanding of some of these issues.

If we don't deal with the MITOCHONDRIAL DYSREGULATION --- it's going to be hard for people to "get back on their feet."

What is Mitochondrial Dysfunction?

<<Previous

Forward>>

"Olmstead" Housing vouchers greatly improved

Federal Housing Vouchers as a Key to STATE Olmstead Compliance

Chevron, the ADA & Olmstead and the need for State Statutes & ReGulations

Chronic Homelessness and Olmstead

Homelessness, Harm reduction & Long Term cARE

What is the scope of the supported Housing Obligation Under Olmstead in Colorado?

The American Bar Association begins to consider Olmstead & Criminal Justice

Olmstead & Criminal Justice

The State's Fundamental Alteration Defense

Denver is working with the State --- Denver needs to hold the state accountable for supportive Housing to scale

Olmstead Law & Order Thursday

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