Tuesday, January 14, 2014

Years in the Making - CMS Issues Final HCBS Rule

Dave Kyllo, NCAL Executive Director

CMS issued its much-anticipated final rule defining Home and Community-Based (HCBS) settings under Medicaid waiver programs. Getting this rule right for both the consumer and the profession has been a high priority for us over the past several years, as previous drafts we studied and commented on denied or greatly restricted Medicaid access to seniors and individuals with disabilities who rely on these services.

For our organizations, the profession and consumers, the original rule was a clear threat of possible dislocation to the majority of the 139,000 individuals who rely on Medicaid and are currently residing in assisted living and residential care communities nationwide. However, this final rule is a major relief for everyone, especially AHCA/NCAL given the critical nature of this rule. From the beginning we worked collaboratively with stakeholders to educate CMS about the potential crisis the proposed rule contained.

Regarding some of the specific concerns we had with the last draft version of the proposed rule, CMS made the following modifications:
  • Disability specific complex - Rather than citing disability specific complex in the list of settings presumed to be an HCB setting, the CMS final rule includes language that reads "any other setting that has the effect of discouraging integration of individuals in the broader community.
  • "Rebuttable presumption" - In the proposed rule, there was a provision where the Secretary would have a "rebuttable presumption" that certain settings that are co-located or near institutional settings such as NFs. The "rebuttable presumption" provision has been struck from the final rule and replaced with language stating that these settings will be subjected to heightened scrutiny if states seek to include such settings in their HCBS programs. States will be required to present evidence to CMS that the setting is HCB in nature and does not possess the qualities of an institution. CMS will consider input from stakeholders in such instances and states will be required to seek public input.
  • Choice of provider in provider-owned or controlled settings - In the draft rule, there was language that required that beneficiaries have choice in service providers. The final rule says that when an individual chooses to receive HCB services in a provider-owned setting where the provider is paid a single rate to provide a bundle of services, it is assumed that the individual is choosing that provider and cannot choose an alternative provider to deliver all services included in the bundled rate. For services not included in the bundled rate, individuals may choose any qualified provider including the provider who owns or controls the setting. 
  • Private rooms/roommate choice - The proposed rule required providers to offer Medicaid beneficiaries a choice of whether to share a room. Under the final rule, that requirement has been shifted to states. Now states will be required to offer options available in both private and shared residential units within HCBS programs. Providers will be responsible for facilitating individuals being able to choose their roommates in residential settings.
Here is what's included in the final rule...
  • A transitional process for states to ensure that their waivers and state plans meet the HCBS settings requirements

    New 1915(c) waivers or 1915(i) state plans must meet the new requirements to be approved. For currently approved 1915(c) waivers and 1915(i) state plans, states must evaluate the settings currently in their 1915(c) waivers and 1915(i) state plan programs and, if there are settings that do not fully meet the final regulation's home and community-based settings requirements, work with CMS to develop a plan to bring their program into compliance.

    The public will have an opportunity to provide input on states' transition plans. CMS expects states to transition to the new settings requirements in as brief a period as possible and to demonstrate substantial progress during any transition period. CMS will afford states a maximum of a one-year period to submit a transition plan for compliance with the home and community-based settings requirements of the final rule, and CMS may approve transition plans for a period of up to five years, as supported by individual states' circumstances, to effectuate full compliance.
  • Assisted Living settings are no longer excluded based on proposed physical plant/location requirements.

    As you will recall, AHCA/NCAL had serious concerns with provisions that excluded assisted living settings based on proposed physical plant/location requirements. It appears that many of these issues have been addressed. 
  • Person-centered planning

    The final rule requires that HCBS programs have a person-centered planning that addresses the health and long term services and support needs that are reflective of the individual Medicaid beneficiary's preferences and goals. According to CMS, the agency will be providing additional guidance to states regarding the process for operationalizing person centered planning.
  • HCBS settings must meet certain qualifications.

    These include:
    • The setting is integrated in and supports full access to the greater community;
    • Is selected by the individual from among setting options;
    • Ensures individual rights of privacy, dignity and respect, and freedom from coercion and restraint;
    • Optimizes autonomy and independence in making life choices; and
    • Facilitates choice regarding services and who provides them.
  • There are additional requirements for provider-owned or controlled HCBS residential settings.

    These requirements include:
    • The individual has a lease or other legally enforceable agreement providing similar protections to a lease;
    • The individual has privacy in their unit including lockable doors, choice of roommates and freedom to furnish or decorate the unit;
    • The individual controls his/her own schedule including access to food at any time;
    • The individual can have visitors at any time; and
    • The setting is physically accessible.

Notes: CMS is allowing states a one-year maximum timeframe to submit a transition plan for compliance with the final rule and that the agency may approve transition plans up to five years to ensure full compliance.

Also, CMS has a website that contains fact sheets and other materials related to the new rule.

In addition, CMS will host a webinar on Thursday, January 23 at 1 p.m. EST to discuss the final rule, with a repeat of the webinar on Thursday, January 30, at 1 p.m. EST.

For information on these programs, visit CMS' Home & Community Based Services website.

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