Transcript of “Rights Here, Rights Now –

Episode 23: All About Evictions & Housing Rights!”

Produced by the disAbility Law Center of Virginia.                                                            

[INTRO]: The information provided on this podcast does not, and is not intended to, constitute legal advice. Instead, all information, content and materials available are for general informational purposes only.

[REN]: Welcome to Right Here, Right Now!, a podcast about disability advocacy and activism. I'm your Advocate host, Ren Faszewski.

[VIRGINIA]: And I'm your Advocate host, Virginia Pharis.

[REN]: Every two weeks we dig into to relevant issues, current events, and avenues for self-advocacy.

[VIRGINIA]: Because someone has to.

[REN]: And it might as well be us.

[VIRGINIA]: This podcast is produced and edited by the disAbility Law Center of Virginia, the Commonwealth’s protection and advocacy agency for disability rights. Find out more at: www.dlcv.org.

[Enter, Ren Faszewski.]

[REN]: So, Virginia, today we have…quite a complicated topic- that we’re going to be discussing today.

[Enter, Virginia Pharis.]

[VIRGINIA]: Complicated and like newly emerging. And everything’s changing so fast, but it’s so important.

[REN]: Yes! So, we’re going to be talking about Medicaid Waiver Group Homes, and evictions, which, I know that we get calls about all the time. But it is quite the gray area.

[VIRGINIA]: Yes, we have the fabulous Erin Haw & Zachary Devore on (yay!) to tell us more about, um, what the current rules are, and how to protect yourself (ourselves) and others, a loved one, from being evicted, or at least have the best chance possible, at, um, protecting yourself.

[REN]: But before we jump into that – let’s check out disability in the news.

At age 39, Melissa Blake’s dreams of becoming a fashion model came true. She was among 24 people chosen worldwide to model in the Runway of Dreams fashion show, as part of the annual New York Fashion Week. The Runway of dreams show features clothes designed for people with disabilities. Melissa has been interested in fashion since she was young, but she never thought she’d be a fashion model due to having genetic bone and muscle disorders. She never saw herself in any fashion magazines or fashion shows. Despite being virtual, Melissa was able to wear a fully adaptive outfit created by Zappos Adaptive. Tommy Hilfiger’s adaptive clothing line was also featured in the show. The Runway of Dreams founder and CEO Mindy Schieier knew it was important to feature Melissa in the show to show how important it is to expand who consumers are in the fashion industry as well as who should be on runways. This is just the one of many of Melissa’s accomplishments, she has also written for the New York Times, Washington Post, the Wall Street Journal, as well as the magazines she loved as a young girl, Glamour and Cosmopolitan. Melissa said, we often think of accessibility as buildings and parking lots but the fun and enjoyable sides of life need to be accessible too.

[VIRGINIA]: All right. So, we have Erin and Zack joining us on the podcast today! Thank you guys for coming on and talking to us about such an important topic.

[Enter, Erin Haw]

[ERIN]: Thanks for having us.

[REN]: So today we’re going to be talking about evictions from Medicaid Waiver Group Homes (MWGH). I think that, first- Erin, if you wouldn’t mind- helping us set the stage and tell us about why this is such an important issue. With & for Virginians with disabilities.

[ERIN]: Absolutely! This is definitely kind of a niche area of disability rights, law, & practice for us, but I do think that it something that’s really important & has an impact on thousands of Virginians, so…For those of you who may not be familiar, thousands of people who live in VA with developmental disabilities, have opted to live in a community-based setting rather than an institutional setting. And to do that, they have something called a Medicaid waiver that is used for their services in the community. Um, and so there’s a number of providers, group home providers, run homes where they can pay for services using the person’s Medicaid wavier; so, the services are going to be things like: personal care assistance, meal prep assistance, supervision, behavioral support, so Medicaid plays a part and is paying for A BIG STAY in those MWGH’s.

But Medicaid, in home and community base settings, is not pay, for, essentially, room and board. What we have in Virginia is there’s thousands of people living in these settings where Medicaid is reimbursed for services, but they’re also paying money out of pocket to essentially rent a room. In those group homes. What can get really tricky, is that, if a Medicaid Waiver provider decides- for whatever reason- that they can’t or don’t want to serve you anymore, in their MWGH, they can, essentially, discharge you from their program. Which is kind of like the provider [just] saying, “Okay, our time is up- we’re no longer going to have a professional relationship with you and you need to go and find someone else to take care of you- but, at the same time, because you are living in a home that that person//provider owns and operates, they’re essentially EVICTING YOU, as well.

What we’ve seen a lot over the years is- this is kind of anecdotal, I don’t know that we really have statistics- we’ve seen through our advocacy work over the years is that a lot of evictions are in fact occurring outside the boundaries of ….{..} outside of the acceptable landlord/tenant requirements. So, people may not be getting notice of their eviction from a MWGH, and, perhaps more importantly, they’re missing out on an opportunity for due process protections, which typically we have in VA. Such as: the opportunity to go before a judge to say, you know, “I disagree with this eviction, like, I don’t think that this is a legal eviction.

And so, Zack, who’s our legal expert, will get to that a little bit further later on. [Phew!] But hopefully that kind of helps us set the [this] stage. We worry about this b/c people are being…kicked out of their homes- where they pay rent. And that often happens without having time to make that transition successfully. And, of course, missing out on some of their due process rights.

[VIRGINIA]: Erin, do Virginians with developmental disabilities, who live in these MWGH’s that you’re talking about…do they have any evictions protection?

[ERIN]: So, in theory, yes. But it’s still kind of evolving at both the Federal level and the State level. So, back in 2014 there was a really, really important federal policy shift. The Federal Medicaid agency, through their rule setting process implemented what the call the Home and Community based services, Settings: Final Rule. So, the HCBS settings is what you’ll hear advocates refer to. And this was a really important policy initiative at the Federal level that said, hey, you know, you guys haven’t always done a great job, (lol) when you’re helping people live in community-based homes, services, to actually enjoy the full benefit of community integration. So, a lot of people have these Medicaid waivers, in Virginia and elsewhere, but were still essentially living in kind of institutional settings.

So, maybe a group home that had something like 15 residents living there all with disabilities and missing out on opportunities for integrated day activities and employment. So again- several years ago the federal government was like: “We need to do something about this. We're going to implement all of these rules and these timelines that basically say: States- if you want to continue to participate in these Medicaid waiver programs you need to -transition away from these institutional kinds of models- into really, truly integrated Community settings.

[Continued.]

And, several years on, you know, we've come a long way, but I think Virginia and other states have- Zack can current me if I’m wrong- I think they have until 2022 to come into FULL compliance with those settings rules? [Pause.] Oh- I’m sorry, Zack is correcting me, 2023- And of course, that could change down the line as well, depending upon what the federal gov’t decides to do. So basically VA & a whole bunch of other states, um, implemented those transition plans to help guide those efforts. That’s a very long-winded way of saying that one of the most important efforts, which was imbedded in the HBCS, settings final rule is making sure that people who live in MWGH settings, in Virginia and elsewhere, where their Medicaid provider owns & controls the home where they’re living- that they have meaningful protection- whatever that might mean [for them] because it varies from state to state.

So, in theory, everybody in VA now should be having some form of rental agreement offered to them when they move into these settings—to help, kind of put some additional provisions and protections in place. At the state level, where we see this happening is through our State Medicaid Agency, the department of Medicaid-- Medical Assistant Services, DMAS. They are kind of the lead agency for implementing this transition. So, they have some, kind of, model guidelines and policies that they have pushed out to Providers to help them understand what they should be doing in terms of pulling together lease agreements and those sorts of things. So yes, in theory, there should be some protections in place, but in practice we’re not quite there yet.

[REN]: So, Zack, as Erin said, you're sort of the legal expert we have talking about this. She' mentioned the HCBS final Rule, and you know, this guidance that requires providers of residential services to protect from eviction in Virginia, like the VA landlord tenant laws. Can you tell us a little bit more about that and why this provision is so important for individuals with developmental disabilities?

[Enter, Zack Devore.]

[ZACK]: Sure! The- the- really for the purpose of people with developmental disabilities, the most important provision in the VA landlord tenant act or residential landlord tenant act, I should say is- [it]- provides immediate protection from eviction or termination of the lease in most circumstances. Now, the provisions include-for an issue which involves potential sort of risk of safety or a breach of the lease- it requires a 30 day minimum period. In addition, in the VA landlord tenant act, it requires the landlord to provide a 21 day mediation period. Which means that if the person comes in compliance, with the program rules, within 21 days, they are not allowed to terminate the lease.

Under the VA landlord tenant act. And that’s important for two reasons: One, is it keeps away— it actually provides a way that even if people get a 30 day discharge notice, they can actually go out there and stop the discharge. And, the second one is, even if they do- if they kept the termination, say—[pause] and they decide is not a good program for them they still have 30 days to look for new provider. They do not immediately wind up on the streets.

[VIRGINIA]: Are there…any limits to this protection against immediate eviction?

[ZACK]: There is. There is one limit that can come up in certain circumstances. And that is that the landlord is is allowed to move for immediate eviction in cases where a tenant commits criminal act involving violence, or [some] violations of illegal drugs – violations of the laws involving illegal drugs.

[REN]: But my understanding is, doesn't an eviction require going to court in the first place?

[ZACK]: Yes, that is true. In order to have… well, [pause…] while a lease can be terminated without going to court, any time that someone is evicted-- and that includes any sort of conviction, whether it is convictions for a criminal act, or it’s an eviction for violating program rules, or whether say an eviction for unpaid rent, you always have to go to court for that. And that can be important protection because it does allow people to go in and challenge the circumstances for the eviction. Now, there's certainly some risk going in and challenging the eviction because under the Virginia law the tenant is required to pay damages.

This is actually one of the few cases where a landlord can actually go out there and get attorney fees, if they have to go to court and evict a person. So, those are some things to talk about. But also, there's also cases where you can also go in and challenge, say, for instance, that the landlord violated the lease, for example. If you have mediated within 21 days- the violation of rules for which to try to kick you out for- you can go out there and say, “Well I am in compliance with the lease.”

And therefore, “You cannot evict me.” And that becomes a very important protection—because if the tenant wins, the tenant can get attorney’s fees, as well. And, could also get monetary damage as well, from the landlord. So, because of the due process, you, know it kind of goes both ways, and it has some disadvantages and has some advantages but—the due process requirement [that] is extremely important!

[VIRGINIA]: So, something that I've seen a lot in my advocate work is situations where like a client gets evicted from their group home program because the group home is saying that they've created a risk to health and safety. [Pause.] If there’s a situation like that, where the landlord is trying to evict somebody w based on You know “breaching a contract, for health and safety. Can an individual challenge that that determination or that reasoning?

[ZACK]: Yes. So, the individual really has two options. The first option is the option we already mentioned. Telling the landlord, or the provider, I'm not leaving. You know, like, “I believe that this is invalid; you have to take me to court.” The other one is the tenant can also take a less passive approach, and take the landlord to court themselves, and seek a court order by blocking the eviction. And you can do that in a couple ways- one, is you can claim that the landlord is actually violating the least by the discharge, by saying that the situation can be mediated. Or, that they are in compliance with the lease. The second is- a tenant can also seek court order is being unlawful under other state or federal laws. That might apply to situations where people are in the Home Community Waiver setting.

[REN]: And, what other state or federal laws might apply under that circumstance?

[ZACK]: There are a few laws on the federal level the first one is the Fair Housing Act because- the Fair Housing Act can apply in the circumstance, because, you know, it is effectively a residential lease, depending upon the circumstances. Another one is the ADA. Because: these providers don’t just provide housing, they also provide food, they also provide medical care—[pause].They may also be providing medication administration. […] And the third is: Because these providers receive funds out of a federal Medicaid program, they could be covered under section 504.

Under the Rehabilitation Act of 1973- which is a federal law that applies to contractors. Now, what's important about these laws is that… they require reasonable modifications, especially the ADA or the Rehab Act. Which- should apply to any Medicaid recipient. Based upon the court cases that evolved there. […Pause.] And this is extremely important because there’s no way to really mediate this kind of rule.

[ERIN]: Can you give an example of that? What would an accommodation or a modification be in this kind of scenario?

[ZACK]: Actually, I have the perfect example! A “No Pets Policy! No dogs allowed!” The modification is: I require a service animal. And you can’t say that like, the dog creates like, a health risk. If it is a service animal, the person is allowed to have the dog with them. One important thing to note about the the Fair Housing Act versus the Americans with Disabilities Act is with the fair housing act, the person is generally required to pay for it themselves. In Virginia there’s also: State laws that apply. And these are really, really, easy to remember because, first, you had the Virginia Fair Housing Act (VFHA) and the Virginians with Disabilities Act (VDA).

And the reason why they’re easy to remember is that they’re the state equivalent to the federal laws! [misc. pause…] And the VDA is especially important because all these providers receive state funds, which really means that you don’t have to argue, Well, are they providing their services. When they receive state funds the VDA applies.

[VIRGINIA]: So..[pause]… You’ve given some really good examples of modifications and accommodations through these laws and how make somebody's environment that they're living in better. But, how can the state and the federal laws that you mentioned potentially help somebody who is facing an unwanted discharge from a community residential provider?

[ZACK]: With [in compliance with] the 21 day compliance period…because these accommodations and modifications [actually] […] policy…that can be a way to actually stop a discharge, because in order to discharge someone after 30 days, in order to terminate the lease, they have to prove that there’s, in no way, a modification. [Meaning] There has to be something to modify. And because the federal law says it, that you have to provide these accommodations…so with all of that combined you really do have a powerful way to stop a discharge. You say to them, “Look, this modification applies” there’s 21 days to implement it, if it’s implemented and there’s another accommodation- And those rules were changed for me; therefore, I should not be discharged.

And, of course, it’s also very important because the state and federal laws also apply for attorney’s fees. Which means that- there can be some good incentives to go out there and not have to pay that! And, the Fair Housing Act can also apply for some pretty major statutory damages as well- So if it’s because of that, then you really get a much more powerful tool that did not previously exist in VA. […] (Pause)

[REN]: So, Zack, what can a person do, if they are facing discharge or eviction from a MWGH?

[ZACK]: First, if you receive a 3 day discharge notice then you can consult with the attorney to discuss your typical situation and what options they may have. Some examples of people you can contact include us here at dLCV, the local legal aid office, and in Charlottesville and RVA you can contact the legal justice center, they also […] They do some landlord/tenant work, and there’s also some opportunities at …? ..Virginia. And all those are places you can contact. Now, you can also file complaints through the state government. If the program is violating licensing rules you can file a license complaint through eviction services. If they’re violating the human rights regulations, you can file a human rights complaint.

Now, I don’t know if either of those were able to stop a discharge. But that’s a way you can go out there and provide some information if you think they’re violating it. You can also file a complaint with the local fair housing board. And…then you can file complaints with the Federal gov’t. With uh, HUD, which is the department of housing urban development; if you apply to your state fair housing board, it’ll actually only go to one or the other, so you only have to apply to the local fair housing board OR the Federal level for HUD. You don’t have to apply to both. You can also file if you think that there’s a violation of ADA requirements. You can file a complaint with the U.S. Dept. of Justice. And, a third option on the federal level is that through Medicaid programs, you can file a complaint with health and human services.

[VIRGINIA]: So, if somebody’s listening to this that is living in a group home, and they have already gotten that notice and they are down to the wire, you know, it’s no longer 30 days…say...it’s five days or it’s two days; if it’s a real emergency like that and this person’s afraid of being, um, turned onto the street, who can they call in that situation?

[ZACK]: That’s actually a really good question because at that point it is really difficult, but they should contact DBH&HR because at that point, well, in that case they really should have been involved before because that’s a really urgent one. It’s very unlikely that you’d actually be able to go out there and issue like an emergency complaint. Although, it is important, again, within these group home settings, because there’s really no way to know how it’s going to turn out…in that group home setting because they are the service provider. If it was a normal tenant, you could go out there and just not move out, and just say evict me.

Now I don’t know if that’s going to work (laughs)…in a GH setting where you’re dependent upon the provider for food and medical care. You know, getting medication. It’s a lot less clear then. It’s important to note where this is still being developed- And if a person actually IS discharged, then they can go out there and actually challenge, or file a complaint, with F or S gov’t after the discharge. They don’t- you know they can still file a complaint and that can bring some pretty serious fines. They can even get monetary damage from those complaints.

[VIRGINIA]: So as always, you know, it’s important to remember that situations vary and circumstances and legal protection always vary depending upon the situation. Call one of the numbers for dLCV, your local aid justice center(s), local legal aid office, or Opportunities Made Equal. So, to wrap everything up, Erin, do you have any self-advocacy tips that people should consider when they’re thinking about moving into a new group home.

[ERIN]: Absolutely. So there’s a lot of proactive advocacy tips- moving into a new proactive self-advocacy --and then I think there are some reactive self-advocacy text we can probably share as well. So, when you maybe have recently been awarded a Medicaid waiver perhaps you've been living with family or with roommates that you're now venturing out into the world and want to find a place using your waiver to live you might consider a group home setting though that's certainly- not the only way I encourage folks as they are maybe going out to visit with providers to tour the homes it to learn about the services while you're there go ahead and ask for a copy of the provider's policies, are all of them related to discharge and admissions or in program planning, and ask for copies of those policies, ask for copies of the house, you know, like, are you allowed to smoke on the premises of your group home?

If you're a smoker, you know that might be something that's important for you to find out before you move in. And then probably you might find yourself violation of a house rule if you didn't know that that was one in advance. Also, it’s really, really importantly like we were talking about today your group home provider or your perspective on group home provider should be fully complying with the HCBS settings final rule so that means they need to have some kind of like who legally enforceable state recognized rental agreement for you- [pause.] I'm sure you can ask for a copy of those forms you didn't have to be filled out; it doesn't have to be that form that you're going to sign but just have a basic understanding of what you may be agreeing to should you move into that particular group home.

This can be a great opportunity to engage and supported decision-making as well, you know, maybe ask a friend or family member that you trust to help you with getting copies of those records and just sit down and go through everything and ask questions about anything that you're unsure about, that’s really proactive. And what I think the thing that Zack noted is really important I mean you can do this proactively but I think he was actually going to be a reactive step. A lot of times as soon as somebody that your group home provider mentions that you may be issued a 30-day discharge notice for example that's often the terminology they're going to use a group home settings go ahead and start reaching out to attorneys, and supported family members, and friends that you have.

But also attorneys sometimes we for example hear about things a little bit too late in the process! We may hear about an improper eviction after somebody's already been evicted. And so that doesn't mean we can't do an investigation or anything. Also, ask them to provide us with another Legal Services organization as soon as possible before something like that happens. If the attorneys assist with and then finally just understand your rights more as they relate to on your housing rates but also your other rights could have meaningfully integrated Community Services. You can check out the National Coalition of advocacy groups that's been focusing in on the HCBS settings final rule -for the website- HCBS advocacy.org You can go on there and read about what's happening at the federal level around implementation and federal monitoring you know what I was explaining to pass up earlier another self-advocacy tip is certainly true if you […] Do you have an emotional support animal or a service animal go ahead and proactively ask for those accommodations and modifications before things might reach a kind of this […] and your at risk of being put out of the place that you live on. Did you have any other self-advocacy tips are recommendations, Zack?

[ZACK]: You know, the most important thing really is to…ask those questions at the beginning. Talk at the beginning about the modifications & accommodations. Talk about what you need…talk about what support you need…It’s also not a bad idea, when you get those modifications/accommodations, get them in writing, because…that’s what you’re going to need. Document! If you can’t, have someone else you trust document! Because that’s important.

Even emails! Emails are (count as) written records. Because…let’s say you want to dismiss this discharge, because the people there are treating you unfairly, they are trying to kick you out? So, but, either way having that documentation is going to be key for you to enforce your rights. Even if it’s just to file a complaint, their still going to want to see that documentation.

[Pause.]

[VIRGINIA OR REN]: Well thank you both for joining us today, I know that given this time this is quite the complicated topic, but we really appreciate you giving us the information and I know our LISTENERS DO appreciate you giving us the/this information!

[ERIN]: Thank you for having us on.

[ZACK]: You are welcome- uh- It was a pleasure to be on!

[ERIN]: We can log off right? YES

Well, you guys, thank you for having us on the podcast and HANNAH, our fabulous editor, (yay!) I know this one was kind of at the end of the fiscal year for you guys, but we do appreciate it!

[REN]: And now for a dLCV highlight!

dLCV advocated on behalf of Destiny, a young woman that reported that she was abused and neglected while at a state hospital. While she had reported these rights violations to the hospital multiple times, they failed to respond to her complaints. dLCV stepped in, and filed a complaint for her, based on the hospitals total failure to acknowledge or investigate Destiny’s allegations. The hospital at first refused to respond to dLCV but we elevated the process to the Local Human Rights Committee, or LHRC, an administrative body that hears human rights complaints, among other things. The LHRC found in Destiny’s favor on every issue and demanded the hospital improve it’s oversight to ensure this never happens again.

[REN]: So... thanks again to Erin and Zack. They have done a fabulous job in trying to break down some—a very complicated topic!

[VIRGINIA]: Yeah, my head hurts and my heart is heavy, but I am glad that they are doing this important work so that people are able to – stay in their homes- like- what more basic of a thing?!?

[REN]: Particularly right now! Now is the time when we want to be aware of these rules and stay safe.

Thank you all for listening to this ep of Rights Here/Rights now, brought to you by dLCV (disability Law Center of Virginia.)

[VIRGINIA]: If you need more information about dLCV and what we do, you visit us online at www.dLCV.org.

[REN]: You can also follow us on social media- we have a Twitter: @disabilitylawva & we also have a Facebook at disability Law Center of Virginia.

[REN]: Until next time, I’m Ren Faszewski.

[VIRGINIA]: And I’m Virginia Pharis. And this has been Rights Here-

[REN]: Rights Now!

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