Transcript Slide 1

Slide #1
© Copyright
2008
McKay
& Associates
© Copyright
2008
NanNan
McKay
& Associates
Reasonable Accommodation for
Public Housing Managers
NMA Trainer: Emily Wilcox
Slide #2
© Copyright 2008 Nan McKay & Associates
Reasonable Accommodation for
PH Managers
Slide #3
© Copyright 2008 Nan McKay & Associates
We Will Cover…
 Resources, applicable laws, PIH Notices
 Best practices: processes, forms, reporting
 HUD civil rights review documents/VCAs
 HUD’s New Freedom Initiative
 Reasonable accommodation
• Hot topics and approaches
Slide #4
© Copyright 2008 Nan McKay & Associates
Section 504 - 24 CFR Part 8
 8.1 Purpose. (a) The purpose of this part is to effectuate
section 504 of the Rehabilitation Act of 1973…to the end
that no otherwise qualified individual with handicaps in the
United States shall, solely by reason of his or her handicap,
be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance
from the Department of Housing and Urban Development.
 Equally effective housing opportunities
Slide #5
© Copyright 2008 Nan McKay & Associates
Section 504 – 24 CFR Part 8
 Applies to recipients of federal dollars
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Program access
504 Coordinator
Transition plans
Notice of non-discrimination
Effective communication
Grievance procedures
Reasonable accommodation
Physical accessibility standards - UFAS
Slide #6
© Copyright 2008 Nan McKay & Associates
Section 504
 Obligation to administer the program in the
most integrated setting appropriate
• Better that a person with a hearing
impairment participates in general tenant
meetings with a sign language interpreter
than to talk with the person individually
• Accessible units throughout your properties
– not segregated in one or two buildings
Slide #7
© Copyright 2008 Nan McKay & Associates
Section 504
 PHAs administering public housing will incur
costs to fully comply with the law
• Modifications to a unit for a person with a
physical disability
• Costs for communication assistance
 In HCV, neither PHA nor private landlord is
obligated to pay for modifications to a unit
Slide #8
© Copyright 2008 Nan McKay & Associates
Section 504
 If a PHA employs fifteen (15) or more people it
must have a designated employee to
coordinate compliance with Section 504 and…
• PHA must adopt grievance procedures that
incorporate due process standards to provide
for resolution of complaints (24 CFR § 8.53)
Slide #9
© Copyright 2008 Nan McKay & Associates
ROLE OF 504 COORDINATOR
Slide #10
© Copyright 2008 Nan McKay & Associates
ROLE OF 504 COORDINATOR
 Reporting, data collection
 The “decider” with “grey area” reasonable
accommodation decisions
 Educates staff about front line “black and
white” reasonable accommodation decisions
 Confidentiality, resources, big picture PHA
understanding (money)
Slide #11
© Copyright 2008 Nan McKay & Associates
Forms
 PHA creates or adopts standardized forms
 Get away from the doctor’s note*
• Letters to grant AND deny - communicates
• Ask the same questions of everyone
• NOTE: PHA must still give consideration to
requests for reasonable accommodation if
requester makes the request orally or doesn’t
use PHA’s preferred forms or procedures
Slide #12
© Copyright 2008 Nan McKay & Associates
PHA Process
Best Practice Idea
 TWO TYPES OF REPORTING:
(1) All accommodation requests that are
granted and denied (obvious) are reported
(2) All accommodation requests in which you
need assistance with final decision
Slide #13
© Copyright 2008 Nan McKay & Associates
Mini-Procedural List
 PHA should have written procedures:
• Time periods for decision and implementation
• Right of appeal/hearing processes
• Handling confidential information
 What is a “need to know” basis
 What happens when medical records or detailed
disability information is received by the PHA?
Slide #14
© Copyright 2008 Nan McKay & Associates
Discrimination under the Fair
Housing Act
 No person shall be subjected to discrimination
because of
• race, color, religion, sex, handicap, familial status or
national origin
• in the sale, rental or advertising of dwellings, in the
provision of brokerage services in or in the
availability of residential real estate-related
transactions. 24 CFR 100.5
Slide #15
© Copyright 2008 Nan McKay & Associates
Chicago Commission on Human
Relations Fair Housing Ordinance
 Because of his race, color, sex, gender
identity, age, religion, disability, national origin,
ancestry, sexual orientation, marital status,
parental status, military discharge status or
source of income in the terms, conditions, or
privileges or the sale, rental or lease of any
housing accommodation...
Slide #16
© Copyright 2008 Nan McKay & Associates
What is Discrimination?
We will be treating
people differently to be
sure that we are not
discriminating…!
What is the barrier to
housing?
Slide #17
© Copyright 2008 Nan McKay & Associates
Reaching Out
Slide #18
© Copyright 2008 Nan McKay & Associates
What is Discrimination?
 Under the FHA, discrimination is when PHAs:
• Are neutral or do nothing proactive to further fair
housing opportunities in your community
• Are passive about housing needs in the community
– NEED FOR ACCESSIBLE HOUSING NOT
ADDRESSED BY PHA
• Treat people with disabilities the same instead of
giving equal access – proactive steps to remove
barriers
Slide #19
© Copyright 2008 Nan McKay & Associates
Open to Change
 Reach out to advocates:
• Powerful words: “We want your help.”
 Ask others/ask yourself:
• How can we do better?
• You are a business
• Approach your work with the nonprofit community on the
offensive – don’t wait for a lawsuit!
Slide #20
© Copyright 2008 Nan McKay & Associates
PIH Notice 2006-13
 “Additionally, to ensure continued compliance with
Section 504 and Title II of the ADA, PHAs are
encouraged to conduct needs assessments and
self-evaluations, at least yearly, working with
persons/residents with disabilities and local
advocacy groups for persons with disabilities.”
 Page 2
Slide #21
© Copyright 2008 Nan McKay & Associates
Google It - WHO
Domestic Violence Service Providers
Fair Housing council
Legal Aid
Disability rights organizations
Nonprofits/faith based groups who work
with particular immigrant communities
 Nursing homes/rehab centers/mental health
institutions
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Slide #22
© Copyright 2008 Nan McKay & Associates
Steal, Cheat and Use
 Has your neighbor PHA developed
RA forms?
 Recent audits in your jurisdiction?
• Ask your field office
 Has your neighbor PHA contacted
Legal Aid?
Slide #23
© Copyright 2008 Nan McKay & Associates
After You Meet…
 Follow-up with a thank-you (even if there is
not going to be a partnership)
 Can you “formalize” an agreement?
 Learn: What perceptions did the groups have
of the PHA? How can those interactions be
brought to your Board, Exec Dir?
 Trust and accountability with the community
Slide #24
© Copyright 2008 Nan McKay & Associates
The Advocate Who Loves
Advocating
 You have the same goals to keep folks
housed…
• Do you have suggestions/ideas about how to
prevent this situation in the future?
• Do you have sample language you’d prefer?
• What is your ideal solution to this situation?
• Did you know that our HUD regs require…?
Slide #25
© Copyright 2008 Nan McKay & Associates
Notice
 How and when do you share reasonable
accommodation information?
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Applications** (or Pre-Apps for Wait list)
Annuals
Termination notices
Marketing materials (pictures)
Slide #26
© Copyright 2008 Nan McKay & Associates
PHA Obligation to Notify
 Must inform applicants and participants of right
to request a reasonable accommodation
• Forms, letters, posters, signs
• FHEO will interview your staff and residents
• “If you or anyone in your family is a person
with disabilities, and you require a specific
accommodation in order to fully utilize our
programs and services, contact…”
Slide #27
© Copyright 2008 Nan McKay & Associates
Inviting FHEO for a Visit?
 Poor processing of RA transfers, modification work orders,.
service animal requests, not enough accessible units
 No fair housing complaint process
 No Section 504 coordinator
 No PHA office building accessibility
 No reasonable accommodation procedures for staff/families
 No fair housing training for staff (including etiquette and
interviewing)
 Poor confidentiality policies
Slide #28
Fair Housing and Equal
Opportunity (FHEO)
© Copyright 2008 Nan McKay & Associates
www.hud.gov/offices
/fheo/library/index.cfm
• VCAs
• http://www.hud.gov/conte
nt/releases/cuyahogavca.
pdf
Asset Manager Duties
Slide #29
© Copyright 2008 Nan McKay & Associates
Customer Service and Fair
Housing
Slide #30
© Copyright 2008 Nan McKay & Associates
Customer Service and Fair
Housing Complaints
 Can be filed with HUD, state/local human
rights commission, state ct, federal ct
• HUD has a duty to investigate and respond
within 100 days
 Actions can be brought against a PHA by an
individual, HUD, or DOJ
Slide #31
© Copyright 2008 Nan McKay & Associates
Attitudinal Barriers and Etiquette
People have an instinct
whether you are working with
them or against them.
“The tone is set in the first 7
seconds of any interaction
that will determine tone for
the remainder of
conversation….”
• Change the Way You See
Everything Through Asset
Based Thinking
Slide #32
© Copyright 2008 Nan McKay & Associates
Customer Service
 We are not responsible for people. We are
responsible to people.
 We can not control people. We can control
processes.
 2 types of customers:
• People are upset and PHA could have controlled or
avoided situation, and
• People are upset but it has nothing do with PHA or
what PHA controls
Slide #33
© Copyright 2008 Nan McKay & Associates
Supervisory Goals for Reasonable
Accommodation
 Training (reception, maintenance, management)
• What to listen for/when do I refer – listening between
the lines
 Waiting for “magic words” and perfect forms
• Etiquette and support around tough issues such as
mental illness and domestic violence
• What if I do it wrong?
Slide #34
© Copyright 2008 Nan McKay & Associates
Request Starts Process
 Sometimes the need for accommodation
presents itself through a complaint or
noncompliance with family obligations
• PHA to participant: “What can we do to
help?”
Slide #35
© Copyright 2008 Nan McKay & Associates
Attitudinal Barriers and Etiquette
 LANGUAGE MATTERS - People with disabilities
are people first
• Not handicapped/disabled people (respect)
 Presume Competence
 Presume Ability
• Approach working with people with disabilities as
people with different abilities
Slide #36
© Copyright 2008 Nan McKay & Associates
Reasonable Accommodation
Language - Samples
 www.hud.gov/local/pa/working/ph/2005reasonaccpo
licysample.pdf
 San Antonio Housing Authority
• www.saha.org/section%208/pdf/ReasonablAccommodation.pdf
 Boston Housing Authority
• www.bostonhousing.org/detpages/hservices111.html
 City of Los Angeles Housing Authority
• www.hacla.org/section8/home.htm
Slide #37
© Copyright 2008 Nan McKay & Associates
Websites
 DOJ
• http://www.usdoj.gov/crt/housing/
 Mental Health
• www.bazelon.org/issues/housing/infosheets/13livein.htm
 Disability
• http://www.hud.gov/offices/pih/programs/ph/rhiip/phguidebook.cfm
• http://www.hud.gov/offices/fheo/disabilities/sect504faq.cfm
 Accessibility
• http://www.fairhousingfirst.org
• http://www.hud.gov/offices/fheo/disabilities/fhefhag.cfm
• http://www.fairhousing.com/index.cfm
Slide #38
© Copyright 2008 Nan McKay & Associates
Disaster Planning
 http://www.fema.gov/oer/reference/
 www.fema.gov/plan/prepare/specialplans.shtm
 www.disabilityinfo.gov/digovpublic/public/DisplayPage.do?parentFolderId=213
(disaster/fire/safety planning for persons with
disabilities)
 Best Practice: Ask everyone if they will need any
special assistance in case of emergency
Slide #39
© Copyright 2008 Nan McKay & Associates
PHA Civil Rights Monitoring
Slide #40
© Copyright 2008 Nan McKay & Associates
Civil Rights Review Forms
 11/9/2006 & 3/1/2007 – Fed Reg Notices
 6/13/2007 – Final civil rights review
documents posted on www.hudclips.org
• Joint effort by PIH and FHEO to increase
oversight of fair housing issues
 Two checklists – attachment A & B
Slide #41
© Copyright 2008 Nan McKay & Associates
Attachment A – General FH
 Very broad criteria that is being examine:
• (Part II) “Is there anything else that is related to civil
rights or fair housing that should be noted…?”
• Form suggests for PIH reviewers to gather
information from “media reports” and “racial/ethnic
tensions” complaints at developments
Slide #42
© Copyright 2008 Nan McKay & Associates
Attachment B
 Specific questions regarding:
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Section 504 coordinator
Units meeting UFAS-accessibility standards
Distribution of accessible units
Reasonable accommodation policy/process
 Including how/when RA policy is given to
applicants and residents
Slide #43
© Copyright 2008 Nan McKay & Associates
Attachment B
 Additional inquiry into (are you documenting this?):
• Service animals/deposits
• TTY/Alternative forms of communication
• How many dwelling units has the PHA
designated UFAS-accessible?
• What is the distribution by bedroom size of the
accessible dwelling units?
Slide #44
© Copyright 2008 Nan McKay & Associates
Attachment B
 Final question is very broad:
• “What other rules or policies has the PHA
implemented that affect persons with
disabilities?”
• Be prepared to show affirmative steps the
PHA has taken to market to and support
people with disabilities in the community
Slide #45
© Copyright 2008 Nan McKay & Associates
New Freedom Initiative
Slide #46
© Copyright 2008 Nan McKay & Associates
New Freedom Initiative
Federal agencies/federally funded state programs:
 “Person-centered” planning & de-institutionalization
 Money Follows the Person dollar sources for PHAs
 HHS has implemented the “Money Follows the
Person (MFP)” program with $1.75 billion over 5
years to build Medicaid programs for people with
disabilities to transition from institutions to the
community
Slide #47
© Copyright 2008 Nan McKay & Associates
PIH Letter 2007-01
 PIH Letter (Issued May 2007)
• Extended PIH 2006-21, reinstated PIH 2005-5
• Oct 2006/July 2007 HUD “strongly supports
expanding accessible, affordable and
integrated housing options…”
• http://www.hud.gov/offices/fheo/disabilities/MFPRebalancingMemo.PDF
• http://www.hud.gov/offices/pih/publications/medicareinitiative.pdf
Slide #48
© Copyright 2008 Nan McKay & Associates
Cuyahoga Metropolitan Housing
Authority – July 2008
 VCA explicitly includes New Freedom Initiative
 “In addition to creating accessible housing, the
agreement makes CMHA an active coordinating
agency in the ‘Money Follows the Person (MFP)
Rebalancing Initiative’….”
• http://www.hud.gov/news/release.cfm?content=pr08-112.cfm
• http://www.hud.gov/content/releases/cuyahogavca.pdf
Slide #49
© Copyright 2008 Nan McKay & Associates
HUD References
 PIH Notices regarding disability laws:
• Notice 2002-01-Section 504 and accessibility
• Notice 2003-31- Fair Housing Act of 1988, Section 504,
the ADA, Architectural Barriers Act.
• Notice 2005-5 - New Freedom Initiative
• 05/2004 and 03/2008- HUD and DOJ Joint Statement
• Notice 2006-13 - Compliance with the ADA, Section
504, the Architectural Barriers Act of 1963, and the Fair
Housing Act (Letter 2007-05)
• PIH Notice 2008-20 – Live in aides/medical equipment
Slide #50
© Copyright 2008 Nan McKay & Associates
People with Disabilities and
Reasonable Accommodation
Slide #51
© Copyright 2008 Nan McKay & Associates
Working with People with
Disabilities
 Reminder: person is not required to
disclose a disability (even if it’s obvious!)
• And sometimes a person won’t until…
Slide #52
© Copyright 2008 Nan McKay & Associates
Fair Housing Act - Definitions
 Person with a disability (handicapped):
1.Has a physical or mental impairment which
substantially limits one or more of such
person’s major life activities; or
2.Has a record of having an impairment; or
3.Is regarded as having such an impairment
Slide #53
© Copyright 2008 Nan McKay & Associates
Excluded Under FHA
 Current drug users
 Pedophiles
 When alcohol use interferes with the rights of
others
 A person with a disability that poses a direct
threat or substantial risk of harm to others
Slide #54
© Copyright 2008 Nan McKay & Associates
Who Determines Disability Status
“Well, I have
depression…”
“When my mother had
her hip replacement…”
This person is just
saying this to avoid ___or
his neighbor just got a
_________
Slide #55
© Copyright 2008 Nan McKay & Associates
What PHA Can Verify
 Can’t limit verification to only doctors
 Could be “professional competent to render the
opinion and knowledgeable about the person’s
situation” (HUD/DOJ Memo 2004)
• Acupuncturist? Social worker? Therapist?
• “Licensed professional?” or “Within the scope of
professional competence?”
• Fraud clause
Slide #56
© Copyright 2008 Nan McKay & Associates
Disability Definitions
 Your verification forms must reflect two
different definitions
• Meaning: different verification forms
necessary for reasonable accommodation
versus disability status for HUD program
eligibility, comm service, rent calc deductions
 HUD 5.403 Definition is harder to meet
Slide #57
© Copyright 2008 Nan McKay & Associates
Request Starts Process
 Art of the Reasonable Accommodation
Conversation:
• Process may involve fluid negotiations on a
case-by-case basis
• PHA may offer alternative options
• Document from the beginning
Slide #58
© Copyright 2008 Nan McKay & Associates
What the PHA
Cannot Ask
What’s wrong with you?
How long have you had
that?
Is it serious?
Who gave it to you?
Slide #59
© Copyright 2008 Nan McKay & Associates
What PHA Cannot Ask
 Do you have a disability? A family member?
• Unless necessary to determine qualification
for program or type of housing
 Nature or extent of disability (What kind of
depression? How long have you had it?)
 Any question requiring waiver or discloser of
medical condition or history
Slide #60
© Copyright 2008 Nan McKay & Associates
More on What Not to Ask
 PHA can’t require that a tenant be able to live
independently
• Can require family to be lease-compliant
• And don’t have to throw common-sense
health and safety concerns out the window –
emergency contacts/disaster
planning/mandatory reporting reqs
Slide #61
© Copyright 2008 Nan McKay & Associates
What PHA Can Ask
 Screen to meet obligations of tenancy:
(1) paying the rent;
(2) basic housekeeping requirements;
(3) not interfering with quiet enjoyment of
residents
(4) complying with rules that are designed to
promote health and safety
Slide #62
© Copyright 2008 Nan McKay & Associates
What the PHA Can Ask
 All relevant information
• Verification
• Give people the option of identifying as
disabled for purposes of
 Preferences, special housing types, rent calc
deductions, UFAS units, community service
• *ALL HUD DEFINITION – 5.403
Slide #63
© Copyright 2008 Nan McKay & Associates
Treat Each Case Individually
 Treat each case on
individual merits
 Requestor’s choice
accommodation should be
carefully considered
 No legit reason for denial:
floodgates will open (they
will all want it)
Slide #64
© Copyright 2008 Nan McKay & Associates
Reasonable Accommodation
Slide #65
© Copyright 2008 Nan McKay & Associates
Process
 Process is as important as substance
• Often as critical as making the “right” decision
• Do applicants/participants feel heard?
• Eventually make a decision with eyes wide open
 The framework must be there
• However, flexibility is built into process
Slide #66
© Copyright 2008 Nan McKay & Associates
Short Version of RA
1. Was an accommodation requested?
2. Is this a person with a disability?
3. Nexus between disability and the specific
request?
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•
Missing piece
How are you asking for this information?
4. Is the request reasonable?
Slide #67
© Copyright 2008 Nan McKay & Associates
Consideration of Request
 Maria receives SSDI, she requests that she is
moved from her unit near the elevator to a unit
at the end of the hall where it is quieter.
• PHA decision is:________?
Slide #68
© Copyright 2008 Nan McKay & Associates
Consideration of Request
 Carl is deaf and lives in assisted housing. He
requests a live-in aide and a larger unit size
so that the live-in aide may have a bedroom
as a reasonable accommodation.
• PHA decision:_____?
Slide #69
© Copyright 2008 Nan McKay & Associates
Consideration of Reasonableness
 Yan uses a wheelchair. Parking spaces were
recently re-assigned after expansion of the
parking lot in her development. Her new spot
is much further from her unit. She requests a
handicap parking spot.
• PHA decision is______?
Slide #70
© Copyright 2008 Nan McKay & Associates
Consideration of Request
 Family is composed of: Mom and her 2
children. Her five-year old son has severe
autism. Under the PHA policy a family of this
composition qualifies for a 2-bedroom. Mom
asks for a 3-bedroom because of her son’s
disability. Reasonable?
Slide #71
© Copyright 2008 Nan McKay & Associates
Short Summary of Denial
 PHA can deny a request if request wasn’t made
by or on behalf of a person with disabilities or
 No disability-related need (nexus) or
 It poses an undue financial and admin burden or
 It will fundamentally alter the nature of PH or
 Direct threat…
Slide #72
© Copyright 2008 Nan McKay & Associates
Reasonable Accommodation
1. What is the barrier to equal access or meaningful
access to housing that this person is facing?
2. What kinds of accommodations will provide
requestor with full use and enjoyment of the
premises or program?
3. What accommodations will alleviate the effects of
the disability on housing?
Slide #73
© Copyright 2008 Nan McKay & Associates
Determining Undue Burden
 Determination of undue burden made on caseby-case basis, looking at factors such as:
• Cost – document cost analysis!
• Financial resources of the PHA (overall)
• Benefits that the accommodation would
provide to the requester
• Availability of alternative accommodations
Slide #74
© Copyright 2008 Nan McKay & Associates
Fundamental Change
Fundamentally alters the nature of PHA
work…
• changes the primary purpose/benefit of a program
• requesting supports outside housing services
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Take out my trash
Is person requesting social services?
Person requesting nonpayment of rent/no inspection?
Removing a load bearing structure?
Slide #75
© Copyright 2008 Nan McKay & Associates
Requirement to Keep Confidential
 Legal Aid calls to talk about Mr. Jones’ denial
of a reasonable accommodation request…
• Do you have a release to talk with legal aid or
another advocate?
 What is the scope of your release?
Slide #76
© Copyright 2008 Nan McKay & Associates
Live-In Aides
PIH Notice 2008-20
Slide #77
© Copyright 2008 Nan McKay & Associates
Live-In Aides
 Screening your aides
 Verify the need for an “aide” versus a “helper”
 Live-in Aide Criteria and Live-in Aide Housing
Agreement
 Live-in aide signs addendum making clear:
• Only for employment/no property interest in unit
• Family is accountable for any lease violations by
the live-in aide
Slide #78
© Copyright 2008 Nan McKay & Associates
Turnover of Accessible Units,
Transfers, Needs Assessments
Slide #79
© Copyright 2008 Nan McKay & Associates
Turnover of Accessible Units
 PHAs shall adopt notification processes to be
sure that information about the availability of
accessible units reaches people with
disabilities
 PHAs shall take steps to maximize the
utilization of accessible units by eligible
individuals whose disability requires the
accessibility features of the unit
Slide #80
© Copyright 2008 Nan McKay & Associates
Section 504/24 CFR 8/ Set-Asides
in Public Housing
 New construction and substantial
rehabilitation in PH:
• 5% of the units (or at least one unit) must be
accessible for people with mobility
impairments and
• 2% of the units (or at least one unit) must be
accessible for people with hearing or vision
impairments.
Slide #81
© Copyright 2008 Nan McKay & Associates
Transfers
 If a resident needs a transfer due to a verified
medical condition or for a reasonable
accommodation, what priority does that person
have on your move/transfer list?
 How many move/transfer offers will be given?
 Hierarchy of transfers set out in ACOP
• Ex. Emergency transfers, priority admin transfers,
family composition transfers
Slide #82
© Copyright 2008 Nan McKay & Associates
Pet or Service Animals?
Slide #83
© Copyright 2008 Nan McKay & Associates
Only Two Kinds of Animals in this
World…
Slide #84
© Copyright 2008 Nan McKay & Associates
Wacky Wanda
Slide #85
© Copyright 2008 Nan McKay & Associates
Mini-Procedural List
 PHA should have written procedures:
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Notification of all applicants and participants – when?
Standardized forms (live-in aide documentation)
Training front line staff – such as reception staff
PHA staff responsible for receiving request
PHA staff who oversees and reviews verification
Decision-making process
 Ex. Who determines if a RA is an undue administration
and financial burden? How is this documented? Where?
Slide #86
© Copyright 2008 Nan McKay & Associates
Upcoming Lunch ‘n’ Learns…
 Denials and Terminations
September 4
 Reasonable Accommodation
in the HCV Program
September 5