February 16, 2001
Office of the General Counsel
U.S. Department of Housing and Urban Development
451 7th Street, SW
Washington, DC 20410
RE: Access Housing 2000 Initiative, Docket Number FR-4641-N-01
Dear Sir or Madam:
The National Alliance for the Mentally Ill (NAMI) is pleased to provide comments to HUD on the Notice of Public and Indian Housing: Access 2000 Initiative. NAMI is the nation's largest organization representing people with severe mental illnesses and their families. With 210,000 members and 1,200 affiliates in all 50 states, NAMI places the highest priority on increasing access to decent, safe and affordable housing for adults living with severe mental illnesses.
As a national disability organization, NAMI is a member of the Consortium for Citizens with Disabilities (CCD) Housing Task Force and works through this coalition to ensure that all federal housing policies and federal housing programs are responsive to the needs of extremely low-income people with disabilities - particularly people with severe disabilities receiving Supplemental Security Income (SSI) benefits. NAMI is particularly proud of its advocacy work with the CCD Housing Task Force. This work resulted in over 40,000 new Section 8 vouchers being appropriated by Congress for people with disabilities who have been adversely impacted by the implementation of federal "elderly only" housing policies by HUD public and assisted housing providers.
While NAMI supports the general goals of HUD's Access 2000 initiative, we believe that this program, as currently structured in the Notice published in the Federal Register on December 19, 2000, is seriously flawed.
Since its inception in 1979, NAMI has placed the highest priority on increasing access to decent, safe, and affordable housing for non-elderly adults with severe mental illnesses. Central to NAMI's advocacy efforts to further this goal has been the development and implementation of federal policies that promote the use of "mainstream" HUD programs and resources to promote housing stability for individuals with severe disabilities. NAMI is therefore compelled to oppose this misguided effort to redirect resources already appropriated for all people with disabilities for special purposes. To redirect these resources encourages different groups of individuals with disabilities to "rob from Peter to pay Paul" within the extremely limited resources that are now available to people with disabilities, rather than seek new HUD resources not now targeted to people with disabilities.
Consistent with our mission, NAMI has supported the Medicaid Home and Community-Based waiver preference that HUD included in the Section 8 incremental/fair share Notices of Funding Availability for 2000 and 2001. This approach ensures that people with disabilities will have more opportunity to obtain Section 8 vouchers provided by Congress for all low-income households. Unfortunately, because the proposed Access 2000 program does not follow these important principles within disability housing policy, NAMI strongly opposes the implementation of Access 2000 as described in the Notice published in the Federal Register.
Listed below are NAMI's detailed comments concerning the Access 2000 program proposed by HUD. In addition to these comments, NAMI would also like to offer specific recommendations for HUD to consider when developing new policies to address the serious housing needs of people with disabilities living in "restrictive settings" covered under the recent U.S. Supreme Court's Olmstead decision - including people currently living in nursing homes who will be assisted by Nursing Home Transition Grants.
1. NAMI does not believe that HUD has the authority to re-direct 400 Section 8 vouchers to the Access 2000 initiative. These vouchers were provided by Congress with clear legislative history and intent and should have been distributed in accordance with the terms and conditions of the Notice of Funding published by HUD on February 24, 2000.
The 400 "unobligated" vouchers proposed for use as part of Access 2000 were appropriated by Congress specifically for people with disabilities who have been adversely impacted by the designation of "elderly only" housing by HUD assisted housing providers. If HUD had followed the legislative intent for these vouchers and the process clearly outlined in the NOFA for these funds, - the vouchers would have been obligated last year along with thousands of others to PHAs that applied during 2000.
For the past five years, Congress has provided Section 8 vouchers specifically for people with disabilities who can no longer move into HUD assisted housing designated as "elderly only." To ensure that these vouchers were directed to geographic areas most in need, Congress directed HUD to undertake an inventory of HUD assisted housing - which HUD has yet to complete. Because the inventory was not available to help distribute these vouchers, Congress - since 1998 - has directed HUD to provide all remaining vouchers to PHA applicants under the Section 8 Mainstream Housing Opportunities Program for People with Disabilities. In NAMI's view, there is no legislative authority to use these vouchers for any other purpose.
For the past four years, the CCD Housing Task Force (of which NAMI is a member) has worked closely with Congress to ensure that the vouchers would be distributed in this way. CCD and NAMI have urged HUD on many occasions - without success - to complete the "elderly only" assisted housing inventory. Not only would an inventory have facilitated a more strategic distribution of the vouchers (as contemplated by Congress), but the inventory was necessary to ensure that people with disabilities were not being discriminated against by HUD assisted housing providers. An unpublished HUD commissioned study by Abt Associates provides ample documentation that this discrimination is - in fact - occurring. It should be noted that NAMI joined a number of CCD organizations in filing a Section 504 complaint against HUD because of the agency's failure to conduct this inventory and distribute the vouchers accordingly.
NAMI believes that it was disingenuous at best for the former Administration at HUD to assert that these 400 Section 8 vouchers were somehow "available" for the Access 2000 initiative. In redirecting these vouchers for Access 2000, HUD did not even follow the provisions of its own NOFA which stated that "any portion of the $40 million ...remaining unobligated will be added to the approximately $50.25 million ...available under this announcement." These NOFA provisions are consistent with direction provided by Congress each year since 1998. In fact, HUD received requests for over 30,000 vouchers in response to the FY 2000 NOFA, and had less than 9,000 vouchers to award, including the 400 vouchers HUD has arbitrarily "held back" for the Access 2000 program. Thus, any claim by HUD that these 400 vouchers are "unused" or "leftover" is simply inaccurate and at odds with the process that the agency has used to allocate these resources since 1998.
Over the past four years, CCD and NAMI - through the work of the Technical Assistance Collaborative (TAC) - has been working extremely hard to encourage PHAs to apply for the "Designated" and Mainstream Section 8 programs. Using private philanthropic funding, TAC has spent literally thousands of hours distributing information about the NOFAs to disability groups and PHAs, advising PHAs on the telephone, helping form partnerships between PHAs and disability organizations, conducting workshops, posting Section 8 information on the internet, etc. TAC provided technical assistance to over 100 organizations in conjunction with the NOFA for the FY 2000 Section 8 funds. It is important to note that none of TAC's work has been supported by HUD. NAMI feels strongly that HUD should be bound by the provisions of the NOFA, should honor the PHA applications submitted, and award these 400 vouchers to the PHAs that actually applied in accordance with HUD's instructions.
2. NAMI cannot support the Access 2000 initiative because it targets a very narrow group of people with disabilities - those residing in nursing homes - and excludes other groups that are covered by the Olmstead decision, particularly individuals with severe mental disabilities who are in institutional settings (e.g., state psychiatric hospitals, board and care homes) that are not nursing homes.
NAMI believes that the restrictive eligibility criteria established by HUD as part of Access 2000 in all likelihood constitute a violation of Section 504 of the Rehabilitation Act of 1973 (the federal law that bars discrimination against people with disabilities in federal programs). Further, NAMI believes that this discriminatory effort to set-aside resources for one disability group, on the basis of where they currently reside, lacks specific legislative authority from Congress.
As the Supreme Court noted in the Olmstead decision, there is a legacy of federal programs furthering isolation and segregation of people with disabilities. This is the result of a string of federal funding streams that finance intensive services, only if provided in an institutional setting. It is this bias in federal policies that many believe the Supreme Court has attempted to overturn in the Olmstead decision. However, in Access 2000 - a program that is justified as furthering the objectives of Olmstead - HUD is articulating a policy that is consistent with this legacy of federal discrimination. By limiting eligibility on the basis of where a person with a disability resides (i.e., nursing homes), Access 2000 necessarily discriminates against a much broader range of disabled Americans who are covered by Olmstead and are not currently in nursing homes.
In fact, an examination of the court record in L.C. v. Olmstead reveals that the original two plaintiffs in the case (identified as L.C. and E.W.) would not eligible for assistance under Access 2000. According the facts of the case, both were residents of public psychiatric hospitals in Georgia at the time the case was filed (L.C. cycled between a state psychiatric hospital and a local homeless shelter). In NAMI's view it is indefensible for HUD to pursue a policy that discriminates against the very plaintiffs that brought this case forward.
In NAMI's view, the Olmstead case presents unique opportunities and challenges for states. NAMI strongly supports the goals of community integration and creating new options for placement in "least restrictive settings." Without question, access to stable housing is critically important to state efforts to meet these goals. The challenge will be for states to move forward on this policy without devastating public programs that are already overburdened serving individuals with severe mental disabilities who are already in the community living in substandard housing or are homeless. NAMI believes that it is extremely important for HUD create and implement policies that ensure that all people with disabilities covered under Olmstead - including individuals with mental illnesses in institutions or restrictive board and care settings, people with mental disabilities living in "restrictive settings" or on waiting lists - have facilitated access to federal housing programs.
By targeting this narrowly defined group in its first initiative, HUD is also sending an inappropriate message to PHAs. NAMI believes that PHAs cannot help but infer from HUD's program design that "Olmstead is about people with disabilities living in nursing homes." Because of the importance of federally subsidized housing to all people covered under Olmstead, HUD must be extremely careful to create policies that clearly articulate to PHAs - and the affordable housing system generally - the broad scope of Olmstead and the possible role that housing providers can play in helping states meet their obligations under the ADA. Access 2000 clearly does not achieve these goals.
3. NAMI believes that the only way for HUD - along with HHS - to rectify this situation is to identify or seek other HUD resources for an Access 2000-type program that is targeted to Olmstead-related activities. HUD's shortsighted decision to redirect Section 8 vouchers from one disability program to another has unnecessarily created division among advocates for people with various disabilities.
In NAMI's view, this Access 2000 program has created a counter-productive dynamic that was prevalent at HUD throughout the past four years, i.e. providing special access to one group of disability advocates at the expense of others. Since 1997, this dynamic (fostered by action of senior HUD officials) prevented significant progress within HUD on disability issues, and prompted Congress to include very specific guidance to HUD on the distribution of Section 8 vouchers intended for people with disabilities adversely impacted by "elderly only" housing policies. In fact, the lack of support for Access 2000 is being characterized by some disability advocates as opposition from "other groups who have a vested interest in maintaining congregation and institutionalization of people with disabilities." This comment could not be further from the truth.
NAMI believes that HUD must rectify this situation, and not create a climate that encourages housing advocates for disabilities to compete for an extremely small percentage of the new HUD resources provided by Congress each year. HUD can do this through the Fair Share Section 8 vouchers distributed in FY 2000, the current Fair Share NOFA for FY 2001, and HUD's upcoming FY 2002 budget request to Congress (see recommendation included below.).
4. Access 2000 targets households that were not targeted for Section 8 Designated or Mainstream vouchers.
NAMI is very concerned about certain populations targeted in the Access 2000 program - specifically elderly people with disabilities and families with disabled children - that are far beyond the scope of Olmstead. In the case of elderly households, it is truly ironic that elderly households would benefit from vouchers appropriated by Congress for non-elderly people with disabilities who have been harmed by "elderly only" housing policies. Given the extremely short waiting lists for federally-funded elderly housing in many localities, sizable appropriation each year in the Section 202 Supportive Housing for the Elderly program, and the increasing development of government-funded assisted living facilities, it is simply not appropriate - given the intent of Congress - that these resources be made available for elderly households. To allow such targeting to elderly households, in NAMI's view, would further exacerbate an existing inequity in affordable housing resources through use of a very resource that Congress directed to non-elderly adults with disabilities.
Further, NAMI is opposed to - and frankly confused about - HUD's targeting of these vouchers for households that have disabled children. For many years, HUD's definition of disabled household clearly and properly excluded households with disabled children. This exclusion was built upon the sound policy rationale that these households otherwise qualify as low-income families. NAMI would recommend and actively support a HUD policy to encourage housing providers, including PHAs, to create a preference for families that are in need of housing and have disabled children. However, we cannot support redirecting these vouchers that Congress clearly intended for non-elderly disabled households for this purpose.
5. NAMI is concerned that HUD's program design is not well conceptualized and needs to be improved. We also believe that Section 8 vouchers for this important purpose should never be distributed through the type of process described in the Federal Register Notice.
NAMI strongly recommends that HUD scrap this current program design and initiate a policy to assist states in targeting the needs of people with disabilities covered under the Olmstead decision. Most PHAs have a poor track record serving people with disabilities and modifying their programs to accommodate people with disabilities. Therefore, HUD leadership and policy guidance will be essential to the program's success.
Despite the complexity of Section 8 statutory and regulatory requirements and its potential linkage to Medicaid and Nursing Home Transition grants, Access 2000 is described in the briefest possible way in the two-page announcement in the Federal Register. Given the potential significance of the first federal housing initiative targeting people with disabilities covered under Olmstead, the program requirements outlined in this announcement fail to meet even minimum standards for an interagency demonstration program of such critical importance. Much more time and attention was provide by HUD in the design of other linkage programs of less complexity, such as the Welfare to Work Voucher program.
Before finalizing any demonstration program, it is critically important that HUD staff develop a solid understanding of the unique housing issues impacting people with disabilities and how the Section 8 and other HUD programs can be used to assist people with severe disabilities. Thus far, HUD's experience extends only to the Section 811 Supportive Housing for Persons with Disabilities program. The Olmstead decision impacts many different sub-populations of people with disabilities as well as public funding streams for supportive services including Medicaid, and other HHS programs such as the Mental Health Block Grant, as well as state appropriated funding.
In NAMI's view, a HUD Olmstead-related demonstration program should be based on a HUD and HHS agreement that specifies the federal housing programs most appropriate for use in implementing various Olmstead-related activities, the housing delivery system issues which must be addressed (i.e. PHA Plans, ConPlans, tenant selection preferences, payment standard and other cost issues, accessibility requirements, etc.), and the leadership and policy direction which both agencies must provide to accomplish this type of systems change at the local level.
This program announcement appears to rely on partnerships between state Medicaid agencies and PHAs that would be developed in an extremely brief period of time. Yet, rather than a thoughtful PHA selection process that would require joint application submission and thoughtful program design, HUD's Access 2000 program simply provides that "interested PHAs may submit in writing to HUD, during the comment period, any reasons they have for desiring to become part of the initiative." Because PHAs are not involved in the financing or delivery of evidence-based services (e.g., assertive community treatment) they cannot (and should not) be expected to provide assurances that necessary and appropriate treatment and supports are available. Likewise, PHAs do not understand the relationship between Medicaid agencies and state/county/local agencies that fund and provide supportive services through Medicaid and other funding streams. NAMI believes that PHAs should know exactly "what they are getting into" before - not after - being selected for participation.
It is difficult to overemphasize the potential harm that will necessarily result from a poorly conceptualized program that attempts to promote much needed housing systems change at the local level. To assure HUD's success in this endeavor, NAMI believes that PHAs must be carefully selected after a much more thorough discussion of how Section 8 vouchers, and the provisions of the Section 8 program, would be used to meet the needs of the target population.
6. HUD's first technical assistance priority should be technical assistance support for the 40,000 Mainstream and Designated Housing vouchers that have already been distributed to PHAs. Only after this high-priority need is addressed should HUD fund technical assistance for a new demonstration program.
For the past four years, CCD and NAMI have urged HUD to provide Section 8 technical assistance to PHAs on the Section 8 housing issues that are critically important to people with disabilities. HUD's continued failure to provide this assistance prompted our consultant TAC (through CCD) to raise over $500,000 of private philanthropic funding during the past four years in order to ensure that PHAs were applying for and properly using 40,000 Section 8 vouchers provided through a congressional initiative for people with disabilities. At the same time, HUD has been providing extensive technical assistance to PHAs on the Welfare to Work voucher program, which (unlike Section 8 vouchers for people with disabilities) was a policy priority for HUD in the previous Administration.
Because of our work, we know there are still many serious problems with PHA use of Section 8 vouchers under the Mainstream and Designated housing programs. Disability advocates continue to be frustrated by PHAs that lack knowledge of disability issues and do not understand their responsibilities under the reasonable-accommodation provisions of federal fair housing laws. In addition, in 1999 and 2000, HUD distributed over 1000 new Section 8 vouchers to non-profit organizations that have yet to receive any HUD funded technical assistance to implement the program. Again, TAC and CCD raised private philanthropic funding to assist these non-profits. It is critically important that any HUD funding for technical assistance must first address these issues BEFORE funds are directed to a new demonstration program.
NAMI is also concerned that HUD is proposing to select an organization that lacks Section 8 knowledge and experience to provide technical assistance to PHAs and disability coalitions on the use of the Section 8 Housing Choice voucher program to meet the housing needs of people with disabilities. It is NAMI's understanding that the Institute on Disability at the University of New Hampshire has done extensive work on the "Home of Your Own Program" and has been involved in the new Section 8 home-ownership program. While these initiatives encompass the laudable goal of promoting home-ownership, NAMI remains concerned that these efforts have thus far been unfeasible for the vast majority of non-elderly adults with severe mental illnesses receiving SSI benefits.
NAMI is aware of recently compiled data demonstrating that people with disabilities must have incomes that are at least double the federal SSI amount to afford home-ownership even in the lowest-cost housing markets of the United States. This data reveals that people with disabilities receiving federal SSI benefits cannot afford homeownership even if a Section 8 subsidy is used. While there may be some anecdotal examples of people with SSI who have managed to purchase a home in extremely low cost housing markets, NAMI believes there is strong evidence to suggest that these examples are simply not replicable in the context of a demonstration program.
NAMI strongly believes in and supports expanding affordable homeownership programs for people with disabilities. However, to succeed in creating new housing options for people with severe disabilities covered under Olmstead, NAMI believes that HUD's primary emphasis should be on an expansion of rental housing options.
NAMI Recommendations For a HUD Olmstead Initiative
1. Before implementing any new initiative, NAMI believes that HUD should first allocate the 400 vouchers from the FY 2000 budget to PHAs in accordance with the applicants submitted in the 2000 Mainstream competition and the lottery that was conducted according to the terms and conditions of the NOFA published on February 24, 2000.
2. HUD should reach agreement with HHS on the major policy issues and strategies that HUD can address in the implementation of Olmstead, with a particular emphasis on the relationship between state Olmstead Plans and HUD resources.
3. HUD should begin to assist HHS by developing a demonstration program that would use the thousands of Section 8 vouchers already setaside for people with disabilities that are about to be distributed to PHAs from the 2000 Fair Share competition. HUD should begin this demonstration by emphasizing an important principle - these vouchers were part of HUD's regular Section 8 incremental program, and have been dedicated to people with disabilities because PHAs expressed their willingness to do so under a NOFA. These vouchers were requested by approximately 220 PHAs that have already indicated an interest in assisting people with disabilities, including people with Medicaid Home and Community Based waivers. In fact, if HUD does not do more to assist these PHAs in the very near future, approximately 1,000 vouchers earmarked for people with Medicaid waivers may not be used for this purpose at all. These vouchers about to be distributed to PHAs should be HUD's first Olmstead priority.
4. NAMI recommends that HUD and HHS "match" (1) PHAs with voucher set-asides, (2) Nursing Home Transition Grant localities, and (3) state activities specified in state Olmstead plans that will be reviewed by the HHS Office of Civil Rights and HHS Health Care Financing Administration. HUD, as well as HHS, can then provide technical assistance and support to form coalitions to implement Olmstead-related housing activities that would be appropriately addressed through the Section 8 rental assistance program, including the approximately 5,000 vouchers already requested by PHAs for people with disabilities.
5. NAMI also recommends that HUD's work in this area should be linked as much as possible to the development of Olmstead plans in states, so that the component(s) of Olmstead plans that address housing issues can be strategically linked to the appropriate subsidized housing resources and the subsidized housing delivery system (i.e. HUD, PHAs, states and participating jurisdictions, and non-profit housing organizations.).
6. NAMI recommends that HHS and HUD work together on a joint proposal for HUD's 2002 budget that would be related directly to the implementation of Olmstead plans. Such an approach would be consistent with the pledge to assist states in fully implementing Olmstead, which is part of the President's New Freedom Initiative announced on February 1, 2001. Such an initiative could include Section 8 vouchers, Hope VI funding, Section 202 and Section 811 funding, as well as set-asides in the HOME program that could be targeted for this purpose.
NAMI appreciates the opportunity to comment on this important HUD program. NAMI would like to encourage HUD to undertake a major restructuring of this program to ensure that it serves the needs of ALL people with severe disabilities covered by Olmstead, not just a narrow subgroup of people seeking to enter the community. Finally, NAMI urges HUD to ensure that limited resources are used in way that does not redirect already limited resources for non-elderly adults with severe disabilities currently in the community who in need of decent, safe and affordable housing. Only a major restructuring of this program can ensure that these important goals are reached.
Deputy Executive Director for Policy
cc: Joyce Berry, Ph.D., Project Officer, Center for Mental Health Services, Olmstead Initiative