Comments Regarding Proposed Rulemaking Amending Medicaid Regulations to Provide Home and Community-Based Setting RequirementsImage Banner

Comments Regarding Proposed Rulemaking Amending Medicaid Regulations to Provide Home and Community-Based Setting Requirements

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Comments Regarding Proposed Rulemaking Amending Medicaid Regulations to Provide Home and Community-Based Setting Requirements

June 28, 2012

Eligibility

The proposed rule would revise Medicaid regulations to define and describe State plan home and community-based services (HCBS) under the Social Security Act (the Act) as added by the Deficit Reduction Act of 2005 and amended by the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act 1). This proposed rule offers States new flexibility in providing necessary and appropriate services to elderly and disabled populations.

In particular, this rule does not require the eligibility link between HCBS and institutional care that exists under the Medicaid HCBS waiver program.  This proposed rule would also amend Medicaid regulations to provide home and community-based setting requirements of the Affordable Care Act for the Community First Choice State plan option up to 300% of FFP to conform with the majority of states financial eligibility criteria.

COMMENT:  ANCOR is pleased that this rule does not require the eligibility link between HCBS and institutional care that exists under the Medicaid HCBS waiver program as it opens up the program to more individuals potentially and will assist states in their rebalancing efforts.

Services

Section 1915(i)(1) of the Act grants States the option to provide, under the State plan, the services and supports listed in section 1915(c)(4)(B) of the Act governing HCBS waivers. The services specifically listed in section 1915(c)(4)(B) of the Act are as follows:

  • Case management.

  • Homemaker/home health aide.

  • Personal care.

  • Adult day health.

  • Habilitation.

  • Respite care.

  • Other services requested by the State as the Secretary may approve. In addition, the following services may be provided for individuals with chronic mental illness:

  • Day treatment.

  • Other partial hospitalization services.

  • Psychosocial rehabilitation services.

  • Clinic services (whether or not furnished in a facility).

QUESTION:  Why are clinic services allowable only for individuals with chronic mental illness?  Other otherwise eligible individuals could also benefit from clinic services which should be allowable regardless of chronic mental illness.

Person-Centered Service Plan

The criteria of the person-centered service plan are delineated in the proposed rule. The person-centered service plan must identify the strengths, preferences, needs (clinical and support), and desired outcomes of the individual. The person-centered planning process is conducted in a manner that reflects what is important for the individual to meet identified clinical and support needs determined through a person centered functional needs assessment process and what is important to the individual to ensure delivery of services in a manner that reflects personal preferences and choices. In addition to being driven by the individual receiving services, the person-centered planning process would—

  • Include people chosen by the individual;

  • Provide necessary support to ensure that the individual has a meaningful role in directing the  process to the maximum extent possible, and is enabled to make informed choices and decisions;

  • Is timely and occurs at times and locations of convenience to the individual;

  • Reflects cultural considerations of the individual;

  • Include strategies for solving conflict or disagreement within the process, including clear conflict of interest guidelines for all planning participants;

  • Offers choices to the individual regarding the services and supports they receive and from whom.

  • Includes a method for the individual to request updates to the plan.

  • Records the alternative home and community-based settings that were considered by the individual.

The plan resulting from this process should reflect that the setting in which the individual resides is chosen by the individual. The plan should reflect the individual’s strengths and preferences, as well as clinical and support needs (as identified through an assessment of functional need). The plan should include individually identified goals, which may include goals and preferences related to relationships, community participation, employment, income and savings, health care and wellness, education, and others (we note that not all goals will have comparable services covered under Medicaid). The plan should reflect the services and supports (paid and unpaid) that will assist the individual to achieve identified goals, and who provides them. The plan should reflect risk factors and measures in place to minimize them, including individualized back-up plans. Consistent with these person-centered principles and the requirements for community integration under the Americans with Disabilities Act, we are proposing that the service plan should be constructed in a manner that promotes service delivery and independent living in the most integrated setting possible.

COMMENT:  ANCOR supports the definition of person centered plan as one that should reflect the individual’s strengths and preferences, as well as clinical and support needs, including individually identified goals, which may include goals and preferences related to relationships, community participation, employment, income and savings, health care and wellness, education, and others in the most integrated setting appropriate.

Conflict of Interest

The State will establish conflict of interest standards for the independent evaluation and independent assessment. To mitigate any explicit or implicit conflicts of interest, the independent agent must not be influenced by variations in available funding, either locally or from the State. We are aware that in certain areas there may only be one provider available to serve as both the agent performing independent assessments and developing plans of care, and the provider of one or more of the HCBS. To address this potential problem we would propose to permit providers in some cases to serve as both agent and provider of services, but with guarantees of independence of function within the provider entity.

COMMENT:  ANCOR is pleased to have conflict of interest defined including the provision to permit providers in some cases to serve as both agent and provider of services, but with guarantees of independence of function within the provider entity.

HCBS Provided in the Community, Not in Institutions

Section 1915(i) provides States the option to provide home and community-based services, but does not define ‘‘home and community-based.’’  In the Olmstead decision, the Court affirmed a State’s obligations to serve individuals in the most integrated setting appropriate to their needs. A State’s obligations under the ADA and section 504 of the Rehabilitation Act are not defined by, or limited to, the scope of requirements of the Medicaid program.

CMS invites public comments on proposed language to establish the qualities for home and community based settings under both sections 1915(i) State plan HCBS and the 1915(k) Community First Choice State plan option with the goal of aligning the final language pertaining to this topic across the sections 1915(k), 1915(i), and 1915(c) Medicaid HCBS authorities.

QUESTION:  Given that it is CMS’ goal to align the final definition of community across the sections 1915(k), 1915(i), and 1915(c) Medicaid HCBS authorities, ANCOR asks what the timeframe is for this definition to be applied to 1915(c).

We will permit States with approved section 1915(i) SPAs a reasonable transition period, a minimum of one year, to come into compliance with the HCBS setting requirements as promulgated in our final rule.

We are proposing to clarify now that home and community-based settings must exhibit the following qualities, and such other qualities as the Secretary determines to be appropriate, based on the needs of the individual as indicated in their person-centered service plan, in order to be eligible sites for delivery  of home and community-based services:

  • The setting is integrated in, and facilitates the individual’s full access to, the greater  community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community,  like individuals without disabilities;

  • The setting is selected by the individual among all available alternatives and identified in the person-centered service plan;

  • An individual’s essential personal rights of privacy, dignity and respect, and freedom from  coercion and restraint are protected;

  • Individual initiative, autonomy, and independence in making major life choices, including but not limited to, daily activities, physical environment, and with whom to interact are optimized and not regimented; and

  • Individual choice regarding services and supports, and who provides them, is facilitated.

COMMENT:  ANCOR is pleased to note the qualities of community as articulated by the proposed rule, based on the needs of the individual as indicated in their person-centered service plan.  The setting is integrated in, and facilitates the individual’s full access to, the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, like individuals without disabilities. The setting is selected by the individual among all available alternatives and identified in the person-centered service plan.  An individual’s essential personal rights of privacy, dignity and respect, and freedom from coercion and restraint are protected. Individual initiative, autonomy, and independence in making major life choices, including but not limited to, daily activities, physical environment, and with whom to interact are optimized and not regimented.  Individual choice regarding services and supports, and who provides them, is facilitated.

QUESTION:  In a provider-owned or controlled residential setting the proposed rule would allow modifications of the conditions to address the safety needs of an individual (such as someone with dementia or Prader Willie); however, those modifications must be supported by a specific assessed need and documented in the person-centered service plan.  If this is a condition that is not likely to improve, how frequently must the assessment be made?

The proposed rule articulates that in a unit, room, or any specific physical place must be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that the tenants have under the landlord/tenant laws of the State, county, city, or other designated entity.  Other protections, not addressed by landlord tenant law, are included such as each individual has privacy in their sleeping or living unit; units have lockable entrance doors, with appropriate staff having keys to doors; individuals share units only at the individual’s choice; and individuals have the freedom to furnish and decorate their sleeping or living units.  Furthermore individuals have the freedom and support to control their own schedules and activities, and have access to food at any time; individuals are able to have visitors of their choosing at any time; and the setting is physically accessible to the individual.

QUESTION:  First and foremost we support the aforementioned criteria whenever an individual lives alone with no other individuals.  Yet when an individual chooses to live with a roommate, either because s/he chooses the person or s/he chooses the sharing arrangement to afford to live in a place s/he might not otherwise afford, and there are two or more providers supporting two or more different individuals, who is responsible for collaborating schedules such as assuring visitors of one and the times of those visits, do not infringe on the privacy of the other? 

CMS wishes to solicit additional comments:  In addition to the aforementioned criteria there are two criteria that are not included in the proposed regulation, but for which CMS wishes to solicit comments regarding whether they should be added. The first is related to the proposed requirement that in a provider-owned or controlled residential setting, any modification of the conditions must be supported by specific assessed needs and documented in the person centered service plan.  This requirement is meant to address two issues:

  • Individuals receiving HCBS must not have their independence or freedoms abridged by providers for convenience, or well-meaning but unnecessarily restrictive methods for providing person-centered services and supports; and

  • Individuals with cognitive disabilities and other impairments may require modifications of the aforementioned conditions for their safety and welfare.

This provision is meant to establish that service planning is the process in which these decisions are made, rather than ad hoc on a daily basis. While the proposed text establishes the requirement that any modification to the conditions are supported by a specific assessed need and documented in the person-centered service plan, CMS is also considering including language to explicitly set forth these activities.  CMS is considering requiring the following points to be identified: identify a specific and individualized assessed safety need; document less intrusive methods that have been tried but did not work; include a clear description of the condition that is directly proportionate to the specific assessed safety need; include regular collection and review of data to measure the ongoing effectiveness of the modification; and establishing time limits for periodic reviews to determine if the modification can be lifted.

COMMENT:  ANCOR supports that the aforementioned criteria that individuals receiving HCBS must not have their independence or freedoms abridged by providers for the convenience of the provider, or well-meaning but unnecessarily restrictive methods for providing person-centered services and supports; and that individuals with cognitive disabilities and other impairments may require modifications of the aforementioned conditions for their safety and welfare.

CMS also solicits comment on a second criterion that would include a requirement that receipt of any particular service or support cannot be a condition for living in the unit.  One interpretation is that this language does not require an individual residing in a provider owned or operated setting to receive HCBS from the setting provider. Rather the individual could choose another qualified individual to provide HCBS. The other interpretation is that this language would prevent the owner of the setting from evicting an individual because the individual refused to accept a particular service. This interpretation could have an effect on residential settings, such as housing programs to address homelessness. Some of these settings include a structure in which individuals are required to participate in treatment (substance use, for example) as a condition of residing there. We acknowledge the complexities that arise, when trying to support an individual’s right to choose while recognizing that there are programs and services that have been developed as a result of identified service needs. As indicated earlier, we are specifically soliciting comments on whether these two criteria should be included as regulatory requirements.

COMMENT AND QUESTION:  With regard to the request to comment on a second criterion that would include a requirement that receipt of any particular service or support cannot be a condition for living in the unit, this could be interpreted in more than one way.  If upon signing a lease with certain services agreed to in a person centered plan for the safety and welfare of the individual, the executed agreement should stand as the modis operandi.  If the individual decides after the fact to participate in activity that is contrary to the person centered plan, putting the individual in danger, then we must ask, who is liable for the outcome of the risky behavior?  If all parties agree to a plan and the individual receiving supports departs from that to which s/he agreed does the provider have standing in requiring the individual to adhere to the plan and take steps to do so?

CMS notes that home and community based settings do not include nursing facilities, institutions for mental diseases, intermediate care facilities for mentally retarded, hospitals, or any other locations that have the qualities of an institutional setting as determined by the Secretary. In considering whether a setting has the qualities of an institutional setting, CMS will exercise a rebuttable presumption that a setting is not a home and community-based setting, and will engage in heightened scrutiny, for any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment, or in a building on the grounds of, or immediately adjacent to, a public institution, or disability-specific housing complex.

COMMENT: We agree that home and community based settings do not include nursing facilities, institutions for mental diseases, intermediate care facilities for mentally retarded, hospitals, or any other locations that have the qualities of an institutional setting as determined by the Secretary.

QUESTION: The lack of a specific definition of public institution leaves this proposed rule open to many interpretations.  While one assumes a public institution is referring to an ICF/MR and not other public institutions such as a university, library, community acute care hospital, etc. the lack of definition is problematic.

COMMENT:  We also presume that this exclusion is intended for residential supports and not supported employment or other vocational activity that may indeed find an individual choosing competitive employment in a setting that may be located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment, or in a building on the grounds of, or immediately adjacent to, a public institution, or disability-specific housing complex.

COMMENT: ANCOR continues to object to the inclusion of disability specific housing in that many people choose, as a function of age, to live with others with similar needs. Senior housing, assisted living, and other such options are freely chosen by seniors without disabilities.  Why should people with disabilities eligible for HCBS be denied the same array of options available to their non disabled peers?  Additionally, there are many individuals with homes currently in HUD 202 and 811 housing.  Are they to no longer be eligible to be supported as an HCBS setting?  The key is that the person centered plan should provide for individuals making free choices in where they live as long as they do not include nursing facilities, institutions for mental diseases, intermediate care facilities for mentally retarded, hospitals, or any other locations that have the qualities of an institutional setting as determined by the Secretary.

QUESTION: In sections 441.530(a)(1)(vi) and 441.656(a)(1)(vi) - The language in this clause seems to preclude the use of a "foster care" model. If provider controlled, the room must be able to be "rented or occupied under another legally enforceable agreement..." and people must have the same "protections from eviction that tenant law of the State, county, city or other designated entity." These requirements do not seem consistent with shared living or a group home situation. Could CMS clarify whether or not shared living or adult foster care will be allowable under the definition of community?

QUESTION: In section 441.674(c)(2)(d) - Why would all the financial information be part of the plan? The services that will address the person's needs, amount of the services and funds to support those are important but it seems that might be expressed in a better way than incorporating it into the service plan. Does this clause also define how an individual budget is developed?