Federal Home and Community Based Service Settings Rules

An Overview

Medicaid Final Rules The Centers for Medicaid and Medicare Services (CMS) made the new rule

CMS is the Federal agency that runs Medicaid in all states

Published in Federal Register on January 16, 2014 and became effective on March 17, 2014

Main Points of Rules Defines and describes home and community based settings under section 1915 (c) waivers and section 1915 (i) state plans

Sets forth requirements for person-centered planning process and person-centered service plan

Lays out transition timeframe and requirements

Medicaid Final Rules

In Idaho we use Medicaid for Home and Community Based Services provided through State Plans (Section 1915(i)), or HCBS waivers (Section 1915(c))

Goal of the rule: Truly community based services

Action to Support Goal: Medicaid will only pay for services and supports when they are provided in an integrated manner

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Qualities of a HCBS Setting◦ Is integrated and supports access to the greater

community

◦ Provides opportunities to seek employment and work in competitive integrated settings, engage in community life, and control personal resources

◦ Ensures the individual receives services in the community to the same degree of access as individuals not receiving Medicaid home and community-based services

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Qualities of a HCBS Setting◦ Setting is selected by the individual from among options,

including non-disability specific settings

◦ Ensures an individual’s rights of privacy, dignity, respect, and freedom from coercion and restraint

◦ Provides for individual initiative, autonomy, and independence in making life choices

◦ Allows individual choice about services and supports, and who provides them

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Additional Requirements for Provider-Owned Residential Settings

◦ Specific unit/dwelling is owned, rented, or occupied under a legally enforceable agreement such as a lease or other legally enforceable agreement

◦ Same responsibilities/protections from eviction as all tenants under landlord tenant law of state, county, or city or other designated entity

◦ Each individual has privacy in their sleeping or living unit

◦ Units have lockable entrance doors, with appropriate staff having keys to doors as needed

Additional Requirements for Provider-Owned Residential Settings◦ Choice of roommate

◦ Freedom to furnish or decorate the space according to the lease agreement

◦ Individuals have freedom and support to control their schedules and activities including access to food at any time

◦ Individuals may have visitors at any time

◦ Setting is physically accessible to the individual

Settings Excluded from the Rule◦ Nursing facilities

◦ Institutions for mental diseases, intermediate care facilities for individuals with intellectual disabilities (ICF/IID)

◦ Hospitals providing long-term care services

Settings that May Isolate

Some settings are presumed to have institutional qualities and will not meet the rule’s requirements for home and community-based settings

Settings that May IsolateSettings that have the following qualities might be isolating:

◦ Designed specifically for people with disabilities, often for people with a certain type of disability

◦ Individuals in the setting are primarily or exclusively people with disabilities, and are served mostly by on-site staff

Settings that May IsolateOther things to consider:

◦ If the setting is designed to provide multiple types of services and activities on-site

◦ If people have limited interaction with the broader community

◦ If interventions and restrictions are used that are typical in institutional

Settings that May IsolateExamples of settings that may isolate:

◦ Farmstead or disability-specific farm community

◦ Gated/secured community for people with disabilities

◦ Residential Schools

◦ Multiple settings co-located and operationally related

◦ CMS will be providing further guidance with examples of non-residential settings that isolate

Person Centered Planning

Person centered planning has been part of the delivery of services to children and adults with disabilities for many years

For the first time, the HCBS rule puts the requirements for person-centered planning into regulation – known in the HCBS rule as “person centered service planning.”

Person Centered Service Planning

◦ The individual may invite anyone they want. Interpreters or communication device should be provided if needed

◦ Meeting must be held in a manner that respects the individual’s culture and is conducted in a language the individual understands

◦ It should be clear how conflicts or differences among team members will be resolved

Person Centered Service Planning◦ The process should offer the individual choices about the types of

services they want, where they want them provided, information on residential options, where they spend their day, and why those choices were made

◦ All those providing services to the individual must sign off on the individual’s plan that they have reviewed the individual’s plan

◦ The plan must be changed or updated at the individual’s request, but must be renewed at least annually

Person Centered Service PlanningThe written plan should include:

◦ Options presented to the individual about where to live, what was chosen, and why

◦ Where the individual chose to receive other services, like supported employment

◦ The individual’s strengths, preferences, and needs

◦ The supports needed, both paid and unpaid

◦ Things the individual wants to accomplish (their goals) and how they will know they have achieved them (outcomes)

Person Centered Service Planning

The plan must also:

◦ Be written in plain language that the individual understands

◦ Note any risks the individual might have and plans for dealing with them

◦ Include the name of the person responsible for making sure the plan is followed

◦ Include the signatures of everyone who participated, and everyone should get a copy

Changing the Setting or Service

Sometimes, in order for a person with a disability to be well-supported and safe in the community, plan changes must be made. For example, some people cannot have unlimited access to food because of risk to their health. If an individual needs supports or changes made, these need to be written into the person-centered plan.

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Transition Plan

◦ States must submit transition plans to the Centers for Medicaid and Medicare (CMS) that outline the changes to the HCBS program to gain compliance with the new regulations

◦ A State must provide at least a 30-day public notice and comment period and two statements of public notice and input procedures on this plan

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Transition Plan

◦ The State must consider and modify the plan to account for public comment

◦ If a state substantively amends the plan, the new plan must be put out for public comment

Public Comment

The draft Idaho State Transition Plan for Home and Community Based Services and Settings closed public comment on November 2, 2014.

But….

After the November 2, 2014 public comment deadline the transition plan will be modified based on public comment and posted again for public comment in January 2015

Things to Think About

◦ What are necessary supports and settings for community integration?

◦ What does “having a meaningful day” really mean? How can an HCBS program support how an individual defines a meaningful day?

◦ How does a program maintain the idea that community integration may look different for everyone?

◦ How can an HCBS program support community integration, foster

friendships and connections, ensure self-determination, and encourage independence?

Things to Think About◦ If a person with a disability values the interactions they have with other

people with disabilities, how can those relationships be fostered in such a way that it does not promote segregation?

◦ In fostering independence and integration, how does an HCBS program maintain the flexibility to meet the desires of an individual?

◦ For example, if a person does not enjoy being social every day and would not like to have supported volunteer activities out in the community, but would prefer to quietly feed the ducks with other people in the park, how can a program support that version of community integration?

Things to Think About

Where are HCBS provided now?◦ Are Medicaid-funded HCBS services currently provided in excluded

institutional settings? Are they provided in settings presumed to be institutional under the new regulations?

◦ For example, are there group homes owned by a provider that also has ICF-I/IDs? Nursing homes? Are these group homes on the same property as the institutional setting?

◦ Are there group homes owned/operated by the State on or adjacent to institutions?

◦ Is HCBS provided in settings that have the effect of isolating individuals?

◦ Is the setting designed specifically for people with disabilities, and often even for people with a certain type of disability?

Things to Think About

◦ Is the setting primarily or exclusively people with disabilities and on-site staff provides many services to them?

◦ Are multiple types of services and activities on-site, including housing, day services, medical, behavioral and therapeutic services, and/or social and recreational activities?

◦ Do people in the setting have limited, if any interaction with the broader community?

◦ Do the settings use/authorize interventions/restrictions that are used

in institutional settings or are deemed unacceptable in Medicaid institutional settings (e.g., seclusion)

Things to Think About◦ What needs to change in the current person-centered planning

process to be compliant with the regulations and to foster community integration, self-determination, and independence? This would include changes to the role of the individual representative.

The above questions are a starting point for the broader discussion. Once there is an understanding about what an HCBS program should look like, with some understanding of what is possible, the next step is identifying which aspects of the current program need to change.

NHeLP | National Health Law Program | August 28, 2014

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Intention of the Rule◦ Support people with disabilities to have lives like people

without disabilities

◦ Provide opportunities for true integration, independence, choice and self-determination in all aspects of life – where people live, how they spend their days, and real community membership

◦ Ensure quality services that meet people’s needs and help them achieve goals they have identified through real person-centered planning

Additional ResourcesCMS Home and Community Based Services Rule and

Fact Sheets

http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Supports/Home-and-Community-Based-Services/Home-and-Community-Based-Services.html

For More Information:

Christine PisaniExecutive DirectorIdaho Council on Developmental DisabilitiesE-mail: Christine.Pisani@icdd.Idaho.govPhone: 208-334-2178Toll Free: 1-800-544-2433Website: icdd.idaho.gov