At our law firm, we assist clients with securing and planning for safe and appropriate residential services for loved ones with limitations like those caused by older age, physical and mental disability, and mental health problems. In Colorado and across the country, securing quality housing and support services for people who need assistance because of these conditions has been and continues to be challenging.
Careful financial planning is needed to preserve eligibility for public benefits, but another serious obstacle is the wait listing of applicants for benefits and the shortage of appropriate housing for these populations. For example, a Colorado state website provides detailed information about the Medicaid “waiver” programs available that pay for residential services, including information about our waiting lists.
The average wait time to receive waiver services in our state is five to seven years.
Proposed bill would make housing in community for those with disabilities a civil right
On July 29, Disability Scoop reported that H.R 555, the Disability Integration Act of 2019, which would ban wait lists for these people and make community-based living a legal and civil right, has been sitting in two committees of the U.S. House of Representatives since January. The bill has a long list of sponsors from both parties, including Colorado representatives:
- Rep. Ed Perlmutter, D-Arvada
- Rep. Diana DeGette, D-Denver
- Rep. Jason Crow, D-Aurora
- Rep. Scott Tipton, R-Cortez
- Rep. Ken Buck, R-Windsor
- Rep. Joe Neguse, D-Lafayette
- Rep. Doug Lamborn, R-Colorado Springs
The aim of this proposed legislation is to move people out of institutional settings into community-based care, which in most cases is less expensive and more beneficial for quality of life. The bill would forbid states and insurance companies that pay for these services from having wait lists, limiting cost or creating policies that would prevent community placements. In essence, these are anti-discrimination in housing provisions.
The proposed law responds to a 1999 U.S. Supreme Court case, Olmstead v. L.C., which interpreted the Americans with Disabilities Act as establishing the right of a person with disabilities to receive residential and support services in their community instead of in an institutional setting.
Legal remedies
Violations of the legislation would entitle the aggrieved individual to sue the state or insurer for a violation or potential violation of the act in federal court. The court may appoint an attorney for the individual free of cost. Potential remedies include:
- Money damages for compensation for losses
- Punitive damages to punish the wrongdoer
- Court order (permanent or temporary injunction) to keep the person out of an institution or to provide or continue community-based services
- Recovery of legal costs and attorney’s fees
In addition, the U.S. Attorney General would have enforcement powers that would include bringing a lawsuit in which the court can order relief, a change in policy and substantial fines.
In the U.S. Senate, co-sponsors Sen. Charles Schumer, D-N.Y., and Sen. Cory Gardner, R-Colo., introduced the Disability Integration Act, which has also been in committee since January. Advocates for the elderly and disabled will watch the progress of this bill in Congress with concern.