Housing Opportunities for People with Disabilities

1. Housing Opportunities for People with Disabilities Policy Developments NCSHA Annual Conference October 20, 2014 Henry Korman, Partner Klein Hornig LLP

2. Overview:Housing Opportunities for People with Disabilit • Housing for people with disabilities as a civil rights issue. • Medicaid as the primary national tool for fulfilling Olmstead. • HUD Civil Rights-Related Program Requirements • Section 811 PRA Proposed Rules

3. Housing for People with Disabilities: The Civil Rights Lens Section 504 and the ADA incorporate two key principles that inform the delivery of housing services to people with disabilities (including elders with disabilities): • Public services (including housing) must be made available in the most integrated setting appropriate to the needs of the individual. • It is discrimination to provide different or separate services to people with disabilities, except when necessary to assure equal opportunity.

4. Housing for People with Disabilities:Medicaid as the Federal Integration Tool Olmstead v. L.C. (1999) • Challenged state use of Medicaid funds to improperly institutionalize people with significant disabilities. • Established the concept that institutionalization and segregation of people with disabilities is a violation of the “most integrated setting rule.” • Transformed MA by redirecting services for people in and at risk of institutionalization to community-based settings.

5. Housing for People with Disabilities:Medicaid as the Federal Integration Tool Olmstead made operational through long-term care that target services to categories of people with disabilities (including frail elders) in community-based settings through waiver of the comparability rule:

6. Housing for People with Disabilities:Medicaid as the Federal Integration Tool Medicaid “Community-Based Setting” • Integrated • Selected by the individual • Privacy & autonomy • Facilitates choice in services • Tenancy rights • Separate, lockable dwelling • Freedom to come & go and host visitors • Choice of roommates • Not a nursing home, ICFMR, facility for people with mental illnesses, long-term care facility or on or near the grounds of an institution

7. Housing for People with Disabilities:HUD Civil Rights-Related Program Requirements • Public Housing, HCV & PBRA: Preferences for disabled families but not by category of disability • PIH 2012-31 (HA): Preferences for MFP, persons in or at risk of institutionalization, as part of Section 811 PRA leveraging, or by category under an OGC-approved “remedial action” to further state Olmstead plans

8. Housing for People with Disabilities:HUD Civil Rights-Related Program Requirements • PBV: No waiver of HCV rule; preferences based on need for services; limited to disabled families facing barriers to housing where housing cannot be supplied in a “non-segregated setting;” services are voluntary; marketing to target group permitted; housing must serve all who qualify for the services. • HOME: Same; based on need identified in ConPlan; targeting permitted if housing involves other forms of targeted financing (HOPWA, Continuum of Care, Section 811)

9. Housing for People with Disabilities:Melville Act & Section 811/202 Reform HUD Notice of Proposed Rulemaking Section 811 & 202 Reforms 79 Fed. Reg. 60590 (October 7, 2014) Section 202: • Unit set-aside for frail elders • Assisted Living Conversion Program • Senior Preservation Rental Assistance Contracts for units converted to assisted living or service-enriched housing

10. Housing for People with Disabilities:Melville Act & Section 811/202 Reform HUD Notice of Proposed Rulemaking Section 202 & 811: • ePRAC (Enhanced PRAC) pays for debt service in connection with leveraging • TA grants to support funding applications • Codification of AHEO and Section 202 Act of 2010 (direct loan prepayment and refinancing “old program” Section 202 properties)

11. Housing for People with Disabilities:Melville Act & Section 811/202 Reform HUD Notice of Proposed Rulemaking Section 811 PRA: • Grants to HFAs and housing credit agencies • Interagency partnerships with Title XIX agencies • No capital advance • Extremely low-income disabled families receiving supports under interagency partnership; 25% per project set-aside limit • Leveraging LIHTC, HOME and other resources

12. Housing for People with Disabilities:Melville Act & Section 811/202 Reform HUD Notice of Proposed Rulemaking Section 811 (General Provisions & Non-PRA): • Disabled family is > 18 and < 62 years • Group homes, ILC and multifamily still eligible • 25% per project set-aside limit for supportive housing units in multifamily • HOME program cost limits (except group homes) • Leveraging incentives (i.e., ePRAC) • Leasing protections (i.e., HOME program) • Targeting only to disabled families that can benefit from services offered; other occupancy requirements approved by HUD • Conversion to non-811 housing

13. Housing for People with Disabilities: Resources Medicaid HCBS: Center for Medicare & Medicaid Services: http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Supports/Home-and-Community-Based-Services/Home-and-Community-Based-Services.html Community Integration Center at TAC: http://www.tacinc.org/cictac/ HUD CRRPR: PIH 2012-31 (HA), Assisted housing for persons with disabilities under Olmstead http://portal.hud.gov/hudportal/documents/huddoc?id=12-31pihn.pdf Section 202 and 811 Proposed Rule: 79 Fed. Reg. 60590 (October 7, 2014) http://www.gpo.gov/fdsys/pkg/FR-2014-10-07/pdf/2014-23276.pdf