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A General Overview of the New Federal Rules for Home and Community Based Settings

Office of Aging and Disability ServicesDecember 19, 2014

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What is Happening?

• There are new rules issued by the federal government for some Medicaid services.

• Medicaid is a joint federal and state program that pays for medical and other related services.

• States must follow the federal Medicaid rules.

• In Maine, the Medicaid program is called MaineCare.

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What are the Rules About?

• The new rules are about certain home and community based services.

• These services are sometimes called “HCBS” for short.

• HCBS services are intended to be services received in a community – as compared to institutional—setting.

• Examples of institutional settings are services in a hospital, nursing facility or intermediate care facility.

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Do the New Rules Apply to All HCBS?

• There are lots of types of HCBS services.• The new rules only apply to certain types of

HCBS services.• In Maine the rules apply to the MaineCare

“Waiver” programs.• The federal rules also apply to other types of

programs but Maine does not operate any of those programs now.

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What are the Medicaid Waiver Programs?

• Maine has several Waiver programs. These are shown on the next slide.

• These programs provide services to people who are also eligible for institutional services but choose to get their services in the community.

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Maine’s Waiver Programs• §18 Home and Community Benefits for Adults with Brain Injury • §19 Home and Community Benefits for the Elderly and for Adults with

Disabilities• §20 Home and Community Services for Adults with Other Related

Conditions• §21 Home and Community Benefits for Members with Intellectual

Disabilities or Autistic Disorder• §22 Home and Community Benefits for the Physically Disabled

(merged with Section 19 as of 12/27/2014)• §29 Support Services for Adults with Intellectual Disabilities or

Autistic Disorder• §32 Waiver Services for Children with Intellectual Disabilities or

Pervasive Developmental Disorders

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Do These New Rules Only Apply to Waiver Services?

The new rules apply to: 1. Any services funded by Maine’s Waiver

programs; and2. To some other services that are received by

Waiver members.

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Why Were These New Rules Created?

• Even if a person is not receiving services in an institution, some home and community based services may have some characteristics of, or may feel like, an institutional service for the person getting the service.

• The concern is that Institutional settings can isolate people from the greater community.

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What Do the New Rules Do?

• The goal of the new rules is to be sure that home and community based services do not seem institutional or otherwise isolating for the people getting services.

• The new rules set new standards and requirements about the settings where waiver services may be provided in order to be sure this does not happen.

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What Does This All Mean?

• It means that the State must look at the new rules and see if the services that Waiver members are getting in Maine:1. Have institutional qualities; and 2. Meet the new standards for HCBS.

• This is a process that will take place over time and the steps in this process are explained later in this presentation.

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How Does the State Decide if Services Seem Institutional?

• The new rules provide information on what should be considered by the State in deciding if a setting isolates a person from the greater community.

• This includes physical location of the services and factors that suggest the setting isolate the member from the larger community.

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What are Some Examples?

• One example is a setting that is the same building as a nursing facility.

• Another example of a setting that might be isolating is a program and setting that only serves people with a specific disabilities and all services are received through a single provider.

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What Happens if a Service Does Have Institutional Qualities?

• If a service seems to be institutional in nature based on the new rules, the State can give the federal government additional information about the setting and why the services meet home and community based goals.

• The State may also make changes so that the setting can meet the requirements of new rules.

• The State could discontinue the service for the Waiver member or program if it cannot meet the standards.

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New HCBS Standards

• To be an HCBS setting, setting must not be institutional in nature and it also must meet new standards.

• The new rules have standards that apply to all services received by waiver members and other additional standards that apply to provider owned or controlled residential services.

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Community AccessAll HCBS Settings

Regulatory Requirement Examples of Acceptable Practice

Opportunities to seek employment and work in competitive integrated settings

Individual works in an integrated setting or, if the individual would like to work, there is activity that ensures the option is pursued.

Engage in community life

Individual regularly accesses community as chooses (shops, attends religious services, schedules appointments, lunch with family and friends)

Individual has access to public transportation, accessible transportation for appointments and shopping; training to use public transportation. Where public transportation is limited, other resources are provided.

Individual participates regularly in meaningful non-work activities in integrated community settings for the period of time desired by the individual

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Community AccessAll HCBS Settings

Regulatory Requirement Examples of Acceptable Practice

Control personal resources

Individual has checking or savings account or other means to control own funds; access to own funds.

Receive services in the community

Individual can choose from whom they receive services and supports.

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RightsAll HCBS Settings

Regulatory Requirement Examples of Acceptable Practice

Privacy Individual can make private telephone calls/text/email at the individual’s preference and convenience. Health information is kept private.Assistance provided in private, as appropriate, when needed.

Dignity and respect Individual is assisted with grooming as desired; assisted with dressing in their own clothes appropriate to the time of day, weather and preferences. Staff communicates with individuals in dignified manner. Informal (written and oral) communication conducted in a language that the individual understands.

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RightsAll HCBS Settings

Regulatory Requirement Examples of Acceptable Practice

Freedom from coercion

Individuals are free from coercion: e.g., able to file complaints, discuss concerns; able to make personal decisions such as hairstyle and hair color

Freedom from restraint

Individual has unrestricted access in the setting: no barriers to exit and entrance; physical accessibility.

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AutonomyAll HCBS Settings

Regulatory Requirement Examples of Acceptable Practice

Initiative, autonomy and independence

Individual is free to come and go at will (no curfew or other requirement for a scheduled return to the setting)

The setting is an environment that supports individual comfort, independence and preferences (e.g., kitchen with cooking facilities, dining area, laundry, and comfortable seating in shared areas).

Daily activities Individual chooses and controls a schedule that meets his/her wishes in accordance with a person-centered plan.

Participates in unscheduled and scheduled community activities in the same manner as individuals not receiving Medicaid HCBS services.

The individual chooses when and what to eat.

The individual chooses and controls a schedule that meets his/her wishes in accordance with a person-centered plan.

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AutonomyAll HCBS Settings

Regulatory Requirement Examples of Acceptable Practice

Physical environment The individual has his/her own bedroom or shares a room with a roommate of choice.

With whom to interact

The individual chooses with whom to eat or to eat alone.

Visitors are not restricted.

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Choice of ProvidersAll HCBS Settings

Regulatory Requirement Examples of Acceptable Practice

Choice of services Staff ask individual about needs and preferences. Individuals are aware of how to make a service request. Requests for services and supports are accommodated as opposed to ignored or denied. Choice is facilitated in a manner that leaves the individual feeling empowered to make decisions.

Choice of providers The individual chooses from whom they receive services and supports. Individual knows of other providers who render the services s/he receives. Individual knows how and to whom to make a request for a new provider.

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Additional RequirementsProvider-Owned or Controlled Residential Settings

Standards that Apply to Provider-Owned or Controlled Residential Settings

Responsibilities and rights of tenant, Legally enforceable agreement

Privacy in sleeping or living unit

Control own schedule and activities and access to food at any time

Choice of roommates for shared rooms

Able to have visitors at any time

Physically accessible

Lockable doors, staff have keys only as needed

Freedom to furnish and decorate

Provider-owned or controlled residential settings must also comply with some additional requirements.

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Do These Requirements Always Apply?

In some cases, some of these requirements may be changed or modified if the modification can be:• Supported by a specific assessed need; • Justified in the person-centered service plan;

and • Documented in the person-centered service

plan.

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What Must Be Documented in the Person-Centered Plan?

A few examples of what must be included in the person-centered plan if a requirement is modified are:• Established time limits for periodic reviews of the

modification.• Informed consent of the individual.• Assurances that interventions and supports will not

cause harm.• On-going data about how well the intervention is

working.

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What Are the Next Steps?

• This is a long process with many steps.• The first big step is that Maine must file a

Transition Plan with the federal government.• This Transitional Plan describes the work that

Maine must do to be sure that its services meet the requirements of the rule.

• Maine has written a draft Plan that is available to the public. We are hoping to hear your comments and questions about it.

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What is in the Transition Plan

• A best estimate of the number of settings:–Currently in full compliance– To be brought into compliance – That cannot comply–Presumed to be institutional

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What is in the Transition Plan

• Documentation, where we think we are already in compliance

• A description of the steps we will take to come into compliance

• When we need to, evidence to overcome the presumption that the setting is institutional

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What Kinds of Changes May Be Needed?

• Policy changes, e.g., statutes, regulations and operational standards

• Practice changes, e.g., facility and program operations, training programs

• Settings modifications, e.g., privacy, lockable doors• Relocation of individuals from any setting that does

not qualify as an HCBS setting• Improvements to our systems for verifying

compliance

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How Long Does the State Have to Make Changes?

• If our transition plan requires major changes, we will ask CMS for extra time to make those changes– When justified, CMS can allow up to four

additional years (until March 17, 2019) to complete all steps under their transition plan

– Our transition plan will describe a process for engaging stakeholders in any major change

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How Long Does the State Have to Make Changes?

• If our transition plan requires relocating any members, we will comply with CMS requirements for fair notice and appeal

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Can I Be Involved?

• Prior to submission, we must: – Allow a minimum of a 30-day public comment

period on the Draft Transition Plan– Consider public comments and modify the Draft

Transition Plan accordingly– Submit evidence of public comment and our

response to comments• We would like to hear from people throughout

this process.

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We Would Like Your Ideas and Suggestions

• The Transition Plan will be formally published next month.

• Please provide your written comments on the current draft by December 31, 2014. You can e-mail your comments to OADS@maine.gov

or mail them to “HCBS TRANSITION PLAN, Office of Aging & Disability Services, 41 Anthony Avenue, State House Station #11, Augusta, ME 04333

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Formal Process

• In January a formal hearing will be held on the final plan. Details of the hearing will be announced in the news media and list serves.

• This process will be just like a formal MaineCare rule making. Public comment will be accepted and responded to using this legal standard.

• Once complete the plan will be submitted to the Centers for Medicare & Medicaid for their approval.

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Questions?

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Thanks for your help !

• Have a wonderful holiday!