LEGAL OBLIGATIONS AND BEST PRACTICS FOR WORKING WITH PEOPLE WITH DISABILITIES: A Training For Health Plan Care Managers 1Center for Independence of the

LEGAL OBLIGATIONS AND BEST PRACTICS FOR WORKING WITH PEOPLE WITH DISABILITIES: A Training For Health Plan Care Managers

1Center for Independence of the Disabled, NY © 2015

Why is disability awareness important to health plans?

Health plans that serve Medicare and Medicaid populations are more likely to have ahigher percentage of members who have disabilities.

People who have both Medicare and Medicaid have significant health needs, are morelikely than Medicare beneficiaries to be in fair or poor health, and havesignificant functional limitations.

• Within dual eligibles, four identifiable high needs groups: (i) adults under age 65 with physical or sensory disabilities; (ii) those 65 or older with multiple chronic conditions and functional limitations; (iii) individuals with serious psychiatric disabilities and/or drug or alcohol

disorders; and (iv) individuals with cognitive limitations including intellectual/developmental

disabilities or dementia.

Center for Independence of the Disabled, NY © 2015 2

Why is disability awareness important for care managers? (cont’d)

• One in five people in the U.S. have disabilities. That figure increases as people age.

• In New York City, at least 887,640 people have disabilities (American Community Survey).

– 11.0 percent of adults ages 35-64 (348,410);

– 27.0 percent of older adults ages 65-74 (145,147);

– 55.3 percent of older adults ages 75 and older (256,159).



• Plans are required to conduct a disability accommodation needs assessment, which includes the task of identifying any functional needs and any accommodation needs as part of the Person Centered Services Plan (PCSP).

• Care Managers and the Interdisciplinary Teams are charged with assessing the need for reasonable accommodations. This includes collecting information that impacts a person’s “health and well-being,” such as“physical or cognitive limitations, communication styles, and language barriers.”

• Care Managers also must ensure that members receive reasonable accommodations.



• The PCSP also requires that services are provided in the “most integrated and least restrictive setting that will meet the needs of the member safely.”

• You will likely have participants with disabilities who have invisible and/or undiagnosed disabilities (learning disabilities, other cognitive disabilities, hearing or vision disabilities that the person acquires as they age).

• You may have participants with disabilities who don’t know they have a right to accommodations and therefore don’t ask for them.



• People with disabilities face physical and other barriers at plans and at provider sites, such as architectural barriers, inaccessible exam tables and weight scales, lack of interpreters, inflexible office procedures.

• People with disabilities report being treated unfairly at practitioner offices because of their disabilities. They report negative attitudes and lack of knowledge about treating people with their type of disability.

• A survey of primary care physicians found that almost 20 percent were unaware of the Americans with Disabilities Act (ADA) and 45 percent were not aware of ADA architectural requirements.

• Physicians receiving training on disability issues were in the minority. Lack of knowledge or disability-related education is consistent with other reports finding inadequate preparedness to provide health services to people with disabilities.


WHAT DOES THE LAW SAY?


The Americans with Disabilities Act (ADA)

• The Americans with Disabilities Act (ADA), the landmark disability rights law passed in 1990, prohibits discrimination against people with disabilities in five major areas: employment, state and local government, public accommodations, transportation and communication. Health care plans are covered under the state and federal government provisions.

• The intent and spirit of the law is that people with disabilities have the

right to participate with their nondisabled peers in all aspects of society, including access to health care.


Defining Disability

There are many definitions of disabilities under various federal, state and local laws. Disability is defined differently by the Americans with Disabilities Act, New York State Human Rights Law, and New York City Human Rights Law.

The ADA is a landmark disability rights law passed in 1990. Because of its importance, courts often look to the ADA for guidance about disability rights.


The ADA Definition of Disability

Under the ADA, a person with a disability is:

•A person with a physical or mental impairment that substantially limits one or more major life activities;

•A person with a record of such physical or mental impairment;

•A person who is regarded as having such impairment.


Equal Treatment vs. Equal Opportunity

Basic distinction between the ADA and other civil rights laws based onrace, gender, other factors.

• Under most civil rights laws, nondiscrimination means “equal treatment.”

• Because of the extent and nature of barriers for people with disabilities, the ADA requires that affirmative steps (reasonable accommodations, modifications or provision of auxiliary aids) be taken to ensure that people with disabilities are given equal opportunity to participate.


What are examples of affirmative steps to ensure equal opportunity?

• Architectural modifications

• Reasonable accommodations

• Auxiliary aids


What are Health Plans’ Obligations Under ADA?

Plans are covered under Title II of the ADA and/or Section 504 of theRehabilitation Act when they contract with the government to providehealth care coverage.

• Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

• Title II also states “All governmental activities of public entities are covered, even if they are carried out by contractors. For example, a state is obligated by Title II to ensure that services, programs, and activities of a state park inn operated under contract by a private entity are in compliance with Title II’s requirements.”


ADA Requirements

• Programs must provide meaningful access to programs and services. – Phil is 30 and a veteran – he takes medication that makes him slow in the

morning, so meaningful access for Phil may mean scheduling later appointments with providers. What are some other examples you can think of?

• Reasonable modifications in policies and practices must be made when necessary to avoid discrimination against individuals with disabilities. – Tina has difficulty focusing because of her TBI. She needs help filling out forms

and understanding directions. How would you work with her so she can get the accommodations she needs at her providers’ offices – what kinds of accommodations might those be?


ADA Requirements (cont’d)

• Programs must provide an equal opportunity to participate in and benefit from programs and services to people with disabilities.

– A prospective enrollee, Maria, calls to say that she has been sent a letter that tells her she can apply for the plan online. She doesn’t have a computer and needs help with forms. How can you accommodate her?


ADA Requirements (cont’d)

• Communication with people with disabilities must be as effective as communication with others.

– Winnie, a 40-year-old woman with a mild cognitive disability tells you that she doesn’t understand what the member services operator is telling her when she calls. She’s also having trouble with instructions from her PCP’s staff. How can you help her?

• Auxiliary aids and services must be provided to individuals with disabilities when necessary to provide an equal opportunity to benefit.

– Joe, a 60-year-old member who has diabetes, is taking the plan-offered nutrition course. When you ask how the class is going, he tells you he’s not sure he remembers what was taught in the first class. What would you ask him and what kinds of things can you do to help him succeed in the class?


The ADA & the Olmstead Decision

The Supreme Court Olmstead decision says care must beprovided in the most integrated setting – what does that mean?


Olmstead Decision

Background: In Olmstead, Lois Curtis and Elaine Wilson, who hadmental illness and developmental disabilities, were voluntarilyadmitted to the psychiatric unit in the state-run Georgia RegionalHospital.

After the women's medical treatment there had ended, mentalhealth professionals determined that each was ready to move toa community-based program. However, both women wereconfined in the institution for several years after the initialtreatment was concluded. They filed suit under the Americanswith Disabilities Act (ADA) for release from the hospital.


Olmstead Decision (cont’d)

• On June 22, 1999, the U.S. Supreme Court held that unjustified segregation of persons with disabilities constitutes discrimination under the ADA, Title II, and public entities must provide community-based services when:

such services are appropriate; the person receiving services are not opposed to community-based

treatment; and community-based services can be reasonably accommodated when

considering the available resources and the needs of others who are receiving disability services from the entity.


ADA standards are augmented by FIDA requirements in the MOU, the 3-Way Contract, and NYS DOH Guidance


In New York, Fully-Integrated Dual Advantage (FIDA) plans are subject to disability rights requirements through other agreements, contracts, etc.

– The Center for Medicare & and Medicaid Services (CMS) and New York State Department of Health (NYSDOH) negotiated a Memorandum of Understanding (MOU) detailing requirements re: how programs must operate with regard to people with disabilities.

–CMS, NYSDOH and FIDA plans have a 3-way contract that defines need to ensure rights of people with disabilities.

–NYSDOH has issued a Letter to Providers about accessibility of their clinics and practices.

Plan Policies and Procedures

Plans should have internal policies and procedures that detailcare managers’ roles in the reasonable accommodationsprocess.


HOW DOES THE LAWS AND OTHER REQUIREMENTS AFFECT YOUR WORK?


Common ADA Issues for Care Managers

• A common issue regarding people with disabilities is thinking too narrowly about the types of disabilities that members might have. In plan materials and trainings, sensory (blind/vision impaired, deaf/hard of hearing) and mobility impairments are mentioned, but other less obvious disabilities (e.g. speech impairments, cognitive impairments, mental illness) are often not discussed.

• Care managers should be looking more broadly at disabilities when completing the comprehensive assessments and reassessments for the Person-Centered Service Plan (PCSP).

• You are key, as leaders of the Inter-Disciplinary Team (IDT), to ensure that members are getting the assistance they need and to identify any gaps in procedures that need to be filled.


BEST PRACTICES: IDT and Care Managers Assessing Need for Reasonable AccommodationThe FIDA plans call for person-centered care, which includes care managers and nurses who must have knowledge of the ADA. They also have the obligation to provide and/or arranging for reasonable accommodations and modification of policies, conducting participant assessments and reassessments.

Assessing Disabilities and Accommodation Needs: – Using the NYS Department of Health Uniform Assessment System (UAS) or

AgeWell Environmental/Accommodation (EA) forms does not fully meet the plan’s need to determine a disability and need for reasonable accommodation for all plan services.

– Both the UAS and AgeWell EA focus on independent living skills at home and does not adequately capture someone’s need for accommodations to access services outside the home. Example – do you need help with accessible transportation to your appointments? Do you need help understanding your doctor’s instructions? etc.

– Also, be aware of what disabilities/accommodations fall in the “other” category.


BEST PRACTICESIDT and Care Managers Assessing Need for Reasonable Accommodation (cont’d)

– Plans should assess a person’s ability to understand information about health care or health plans.

– Plans should assess a person’s ability to communicate: speech or sensory impairments.

– The assessment should note any functional limitations outside the home and any necessary reasonable accommodations.

– The assessment should note if the effect of medications or treatments require reasonable accommodations.

– Reassessments are required every six months and if there is a significant change in health status or needs, when requested by the member, caregiver or provider, or other trigger events.


BEST PRACTICES: IDT and Care Managers Facilitating/Arranging Reasonable Accommodations (cont’d)

In addition, under FIDA, the IDT coordinates care, including facilitating reasonable accommodations.

• Everyone on the IDT should be working in a person-centered way. They need to be proficient in cultural competence, disability, accessibility and accommodations, independent living and recovery, wellness principals, and ADA/Olmstead principals. Working in a person-centered way must include, among other things, identification of:

• Participant’s preferred language • Barriers or obstacles that need to be addressed• Reasonable accommodations

• Care managers should be assigned based on individual needs, (e.g., communication, cognitive, or other barriers.) Participant has a right to choose and change care manager.


BEST PRACTICES: IDT and Care Managers Facilitating/Arranging Reasonable Accommodations (cont’d)

• How a plan member gets a reasonable accommodations must be made clear to members by member materials and the IDT.

• Records of functional limitations and reasonable accommodation needs should be kept so that requests for reasonable accommodations, e.g., materials in alternate formats, do not have be made repeatedly.


Reasonable Accommodations: Thinking more broadly to help yourparticipants with disabilities (cont’d)

When are reasonable accommodations available? – Often the materials and training limit reasonable accommodation

discussions, e.g., communicating with the call centers or availability of alternate formats, rather than clearly making known to staff and members that reasonable accommodations are available at any stage of interaction with the plan—e.g., call center, grievances, and advisory boards.

– Understanding that each interaction or service for participants may require reasonable accommodations.

– Train staff that reasonable accommodations are not limited to certain times, e.g., call center or member materials.


Areas where accommodations are critical

Providing Information/Communications: – Call Centers– Informational/Marketing Sessions– Marketing Materials

Enrollment:– Printed materials– Online applications– Telephone assistance with applications

Member Services– Access to services – Ensuring adequate network of ADA compliant providers – Information Access


Reasonable Accommodations

What types of accommodations are available?

– The reasonable accommodations mentioned in materials and trainings are often limited to accessibility and accommodations for sensory impairments (e.g., alternate formats, TTY). Examples of reasonable accommodations for other disabilities, e.g., assistance filling out forms or scheduling flexible appointments due to effects of medications, are often omitted.

– Think of reasonable accommodations as a question: what will make this point of contact/service work for this participant? For example, training staff to simplify or repeat information for a person with cognitive disability or provide help filling out forms for someone who has a limitation (whether cognitive or physical) that makes it difficult for them to fill out forms by themselves.


Reasonable Accommodations (cont’d)

Things to keep in mind when working with a participant with a disability

– People should be able to ask for help in plain language—no magic words.– A family member, friend or health professional may ask. – One size does not fit all-- reasonable accommodations are individualized.– Plan does not necessarily have to provide the specific accommodation asked

for, but the one provided must be effective, and consideration has to be given to what the participant proposes.

– If you turn down a request, you must explain why. A denial of reasonable accommodation is a decision that a member can file a grievance about.

– The accommodation process should be simple and quick.– Sending a participant somewhere else for a reasonable accommodation does

not provide “an equal opportunity to benefit.”


POSSIBLE REASONABLE ACCOMMODATION ISSUES:CALL CENTER

TRAINING– Call Center representatives, who are often the first and/or the main

contact for members, should be identifying accommodation needs, if they do not, you should ensure that needs are identified and recorded according to your procedures;

– Call Center representatives may need more support and training to feel comfortable in providing a reasonable accommodation for the interaction they themselves are having with the member and for arranging reasonable accommodations for them for other plan services.


POSSIBLE REASONABLE ACCOMMODATION ISSUES:Written Information & Communications

Information about rights to reasonable accommodations– Members have to be clear that they have the right to ask for an accommodation

and that they can ask at any interaction point with anyone representing the plan or plan providers;

– The right to appeal a decision about reasonable accommodations, which can be grieved, must be clear to all members with disabilities.

Information about communication accommodations for non-sensorydisabilities, e.g., cognitive disabilities or speech impediments, should be clearand delivered in simple language.

Each accommodation is a negotiation with the person with the disability, whois an expert in their communication needs.


POSSIBLE REASONABLE ACCOMMODATION ISSUES:Written Information & Communication (cont’d)

The list of communication accommodations are often limitedwith no indication that other appropriate accommodations maybe available.– For example, the list of alternate formats are often limited

to Braille or large print.– Other accommodations, such as reading materials to

members or electronic versions of materials, may be what is necessary for effective communication.


BEST PRACTICES:Written Information & Communications (cont’d)

Provide assistance to participants with cognitive impairments; e.g., marketing, outreach and participant communications in simple, clearlanguage at a 4th to 6th grade reading and below, and, if necessary,Individualized assistances to ensure materials are understood.

Provide reasonable accommodations needed to ensure effectivecommunication, including, but not limited to:

– Alternate formats, including, but not limited to: • Large print in at least 16-point font; • Braille;• Materials in formats compatible with optical recognition software:

– Reading materials to members;– Filling out forms upon request;– Using different technology, such e-mail, telephone, text, video relay, etc.


BEST PRACTICES:Written Information & Communication (cont’d)

• Make available information on how to access oral interpretation services and written materials in alternative, cognitively accessible formats.

• Make available information on the availability of reasonable accommodations and how they can be arranged and delivered.


POSSIBLE REASONABLE ACCOMMODATION ISSUE:Grievances

• The right to grieve reasonable accommodation decisions should be among the listed rights for members or made readily known.

• Staff should also inform members of the right to reasonable accommodations during the grievance procedure itself.


BEST PRACTICES: Accessibility of the complaint/grievance system

• In NY, FIDA Plans must provide reasonable accommodations in the grievance process including assistance in completing any forms or other procedural steps, which shall include interpreter services and toll-free numbers with TTY/TTD/VP and interpreter capacity.

• The right to grieve reasonable accommodation decisions should be made clearly known in the written materials and member materials.

• The right to grieve to external agencies for adverse decisions about reasonable accommodations should be clearly stated.


Scenarios

• What will you say, what will you do?


OTHER POTENTIAL PROBLEMS:Network Adequacy (cont’d)

It is often unclear whether a provider network participant isADA-compliant.– The provider directories only give information about

physical accessibility and is self-attested to by the provider.– There is no clear way members can obtain information

about a provider’s ADA-compliance beyond basic physical accessibility.

– Websites often lack a search feature for accessibility of providers.

– What issues does this raise for Care Managers/IDTs?


OTHER POTENTIAL PROBLEMS:Network Adequacy (cont’d)

Provider ADA Attestation Forms do not capture all thenecessary information to ensure that a provider is ADAcompliant.

• The form lacks specific questions about the accessibility of exam tables and medical equipment.

• No questions about whether the elevator has beeps or audio cues.• Lacks specific questions about communication capacity of providers-TTY,

texting, video relay, alternate formats.• Lacks questions about communication capacity of medical staff or

availability of qualified interpreters.• Does not ask whether provider staff is trained to accommodate a full

range of disabilities, including cognitive or psychological disabilities.


BEST PRACTICES: NETWORK ADEQUACYProvider Physical Accessibility

Physical Barrier Removal

• Providers are responsible for altering or modifying waiting, exam and changing rooms to ensure access to persons with a range of physical, sensory and cognitive impairments.

• Providers are responsible for providing medical equipment that ensures that an individual with a disability can receive the same health care services as others. Examples include but are not limited to: adjustable exam tables, accessible weight scales (platform/roll-on scales).

• Providers responsible for safe and comfortable transfers without using patient’s family member, friend, etc.


BEST PRACTICES: NETWORK ADEQUACYProvider Accessibility/Reasonable Accommodations

FIDA plans must train providers on accessibility and the ADA in the followingareas:

• Reasonable accommodations to those with hearing, vision, cognitive, and psychiatric disabilities;

• Waiting room and exam room furniture that meets needs all participants, including those with physical and non-physical disabilities;

• Accessibility along public transportation routes and/or provide enough accessible parking;

• Clear signage and way finding , e.g., color and symbol signage, throughout facilities; and

• Any other requirements in the ADA Accessibility Attestation Form.


BEST PRACTICES: NETWORK ADEQUACYProvider Obligations

Providers are responsible for:– Ascertaining the need for accommodation;– Methods to ensure privacy during intake procedures;– Transferring and positioning techniques; – Sensitivity and awareness of the needs of individuals with various disabilities, including

cognitive disabilities; – Identify and locate which examination and procedure rooms are accessible, where

accessible equipment is stored and how to use it;– How to uses transfer and positioning aids and equipment, such as patient lifts, gait belts

and variety of stabilizing supports.Their obligations are to:

– Have procedures to evaluate compliance with accessibility standards on an ongoing basis.

– Inform patients of their rights in understandable formats and provide straightforward methods for receive and resolving complaints.

– Have flexibility in scheduling as a reasonable accommodation.


RESOURCES

• CIDNY Disability Etiquette• Plan Forms


Contact information

The Center for Independence of the Disabled, New York’s (CIDNY) goal is to

ensure full integration, independence and equal opportunity for all people with

disabilities by removing barriers to the social, economic, cultural and civic life

of the community.

CIDNY CIDNY – Queens841 Broadway 80-02 Kew Gardens RoadSuite 301 Suite 107New York, NY 10003 Kew Gardens, NY 11415212-674-2300 (Voice) 646-442-1520 (Voice) 646-350-2681 (Video Phone) 347- 905-5088 (Video Phone)www.cidny.org www.cidny.org


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LEGAL OBLIGATIONS AND BEST PRACTICS FOR WORKING WITH PEOPLE WITH DISABILITIES: A Training For Health Plan Care Managers 1Center for Independence of the