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CMS HCBS Regulation Overview: Module 1

Welcome to Module 1, an overview of the new CMS HCBS regulation, which is the first in the Home and Community-Based Services Settings Training Series.

In this module, we will refer to “Home and Community-Based Services” as “HCBS.”

We recommend that you complete this module before listening to the second module, Qualities for All HCBS Settings.

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Intent of the Final Rule

The Centers for Medicare and Medicaid Services (or, CMS) is committed to ensuring that individuals who are served in a Medicaid HCBS program have access to the benefits of community living and the full opportunity to be integrated into their communities.

The federal rule wants individuals who receive Medicaid-funded HCBS to have the opportunity to receive these services in a manner that protects their choice and promotes community integration.

In January 2014, CMS published regulations in the Federal Register, which implemented new requirements for Medicaid’s HCBS programs furnished either through a 1915(c) waiver or through a 1915(i) state plan option.

The final federal rule was developed over a five-year period and represents significant input from a wide range of stakeholders and perspectives. The regulation became effective on March 17, 2014.

The final federal rule applies to all eight of Ohio’s 1915(c) and 1915(b)(c) waivers. These include the Ohio Home Care Waiver and My Care Ohio, which are operated by the Ohio Department of Medicaid;

Assisted Living and PASSPORT, which are operated by the Ohio Department of Aging;

and Individual Options, Level One, S.E.L.F and Transitions DD, which are operated by the Ohio Department of Developmental Disabilities.

The final federal rule also applies to the Ohio’s 1915(i) state plan option known as the Specialized Recovery Services Program, which is scheduled to become effective on July 1, 2016.

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Highlights of the Final Rule

A community-based setting maximizes opportunities for individuals to have access to the benefits of community living and the opportunity to receive services in the most integrated setting.

A community-based setting ensures individuals receiving Medicaid HCBS have the same degree of access to the broader community as individuals who do not receive Medicaid HCBS services.

The federal rule establishes the requirements for the qualities of settings where individuals live and/or receive Medicaid-reimbursable HCBS.

CMS is moving away from defining home and community-based settings by “what they are not,” and moving toward defining them by the “nature and quality of participants’ experiences.”

The HCBS setting provisions in this final rule establish a more outcome-oriented definition of HCBS settings, rather than one based solely on a setting’s location, geography, or physical characteristics.

The changes related to clarification of HCBS settings will put into practice the law’s intention for Medicaid HCBS to offer alternatives to services provided in institutions and increase opportunities for waiver participants to have access to the benefits of community living,

which include receiving services in the most integrated setting.

The federal rule also describes the minimum requirements for a person-centered plan developed through a process that is directed by the individual with long-term service and support needs.

The person-centered plan will assist the individual to achieve his or her personally defined outcomes in the most integrated community setting.

The federal rule includes a transition period for states to ensure that their waivers and Medicaid state plans meet the HCBS settings definition. New 1915(c) waivers or 1915(i) state plan options,

like the Specialized Recovery Services Program, must meet the new requirements in order 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,

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if there are settings that do not fully meet the final HCBS rule definition, work with CMS to develop a plan to bring their program into compliance.

Ohio’s statewide transition plan was submitted to CMS on March 13, 2015. CMS may approve transition plans for up to five years, as supported by an individual state’s circumstances, to ensure full compliance.

The Ohio plan is posted on the Office of Health Transformation webpage under “Current Initiatives” at www (dot) healthtransformation (all one word) (dot) ohio (dot) gov.

If CMS finds a Medicaid agency does not meet the requirements outlined in the federal rule, it may employ such strategies as a moratorium on waiver enrollments and/or withholding a portion of federal payment for waiver services to ensure compliance.

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HCBS Requirements

The federal rule:

• Establishes the qualities required for all HCBS settings,

• Defines the additional conditions that must be met in a provider-owned- or -controlled setting, and

• Identifies settings that are not home and community-based.

Further, the federal rule requires the state to identify and assess any setting that may have the effect of isolating individuals from the greater community (this is also referred to as settings that are “presumed to be institutional”) to determine if home and community qualities are present.

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Mandatory Requirements for HCBS

Any residential or non-residential setting where individuals live and/or receive HCBS must exhibit the five mandatory requirements, listed in Slide 5, of a community-based setting by March 2019.

The State may presume that an individual’s private home or a relative’s home where an individual resides meets the HCBS settings requirements.

However, it is the state’s responsibility to ensure that the individual living in a private home or a relative’s home have opportunities for full access to the greater community.

Integration and access includes opportunities to do the following:

• Seek employment and work in competitive integrated settings,

• Engage in community life, and

• Control personal resources.

It also ensures individuals receive services in the community to the same degree of access as individuals not receiving HCBS.

Person-centered plans must document the setting options available to the individual based on the individual’s needs and preferences; and for residential settings, resources available for room and board.

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Additional Conditions

In addition to the five mandatory requirements for any community-based setting, a provider-owned or -controlled setting must comply with eight conditions in order to be considered a community-based setting.

These additional conditions are applicable only to residential settings where individuals live and/or receive Medicaid HCBS services.

The additional conditions relate to ensuring tenant protections, privacy, and autonomy for individuals receiving HCBS who do not reside in their own private, or family, home.

A residential setting is provider-owned or -controlled when the setting where the individual lives is a specific physical place that is owned, co-owned, and/or operated by a provider of HCBS.

Examples of a residential provider-owned or -controlled setting in Ohio’s long-term services and supports delivery system include, but are not limited to the following:

• Licensed residential care facilities furnishing the Assisted Living waiver service,

• Adult care facilities, and

• Residential facilities licensed by the Ohio Department of Mental Health and Addiction Services.

Modifications of any of the additional conditions may not be arbitrarily applied to the entire setting at the discretion of the provider. Modifications of any of the additional conditions may be implemented for a specific individual

when the modification has been documented in the Person-Centered Service Plan by the 1915(c) waiver case manager or by the Specialized Recovery Service Program Recovery Manager.

The process for making a modification and evaluating the effectiveness and continued need for the modification is outlined in Ohio Administrative Code Rule 5160-44-02, titled Nursing Facility-Based Level of Care Home and Community-Based Services Programs: Person-Centered Planning.

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Settings Presumed to Be Institutional

The regulation categorizes the following settings as “presumed to be institutional”:

• Settings in a publicly or privately owned facility providing inpatient treatment,

• Settings on the grounds of, or adjacent to, a public institution, and

• Settings with the effect of isolating individuals from the broader community of individuals not receiving Medicaid HCBS.

Characteristics of settings in this category include:

• The setting is designed to provide people with disabilities multiple types of services or activities on-site such as housing, day services, medical, behavioral and therapeutic services, and/or social and recreational activities.

• The individuals in the setting have limited, if any, interaction with the broader community;

• The setting uses or authorizes interventions or restrictions used in institutional settings or deemed unacceptable in Medicaid institutional settings, such as seclusion.

CMS has indicated most Continuing Care Retirement Communities (or CCRCs), which are designed to allow aging couples with different levels of need to remain together or close by, do not raise the same concerns around isolation. This is because CCRCs typically include residents who live independently in addition to those who receive HCBS.

For settings in this category, the state has two options:

• One, allow the “presumption to stand” and assist individuals currently living and/or receiving services in the setting to relocate to another setting, or,

• Two, conduct an in-depth assessment of the setting, including an on-site evaluation to determine if there is enough evidence to demonstrate the setting meets the requirements for a home and community-based setting. A state may overcome the presumption that a specific setting has institutional qualities by submitting evidence to CMS demonstrating the setting does not have the qualities of an institution and that it does have the qualities of a home and community-based setting.

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The evidence submitted by the state should focus on the qualities of the setting and how it is integrated in, and supports full access of individuals receiving HCBS, into the broader community.

It should not focus on the aspects and/or severity of the disabilities of the individuals served in the setting.

When the state submits this evidence to CMS, the state triggers a process known as “heightened scrutiny.”

Under heightened scrutiny, CMS reviews the evidence submitted by the state and makes the final determination as to whether the evidence is sufficient to overcome the presumption that the setting has the qualities of an institution

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Settings that are Not HCB

The federal rule reiterates the established federal law that institutions cannot be funded as HCBS settings.

Under the federal rule, the following settings are considered institutions under Medicaid and may not be subject to the heightened scrutiny process to qualify as a community-based setting where HCBS services are furnished:

• Nursing facilities,

• Institutions for mental diseases,

• Intermediate care facilities for individuals with intellectual disabilities, and

• Hospitals

There is one exception to this prohibition: CMS permits the states to use institutional settings for the provision of respite services that typically do not exceed 30 days in duration.

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Ohio Administrative Code Rules

ODM is creating two new rules to codify and implement CMS’s requirements regarding person-centered planning as set forth in 42 CFR 441.301 and 42 CFR 441.725.

These rules are intended to ensure the Ohio Medicaid program offers individuals receiving HCBS choice and control over how they direct and receive services, while at the same time taking steps to ensure the health and welfare of individuals and HCBS program integrity.

The OAC rules are:

5160-44-01, which is called Nursing Facility-Based Level of Care Home and Community-Based Services Programs: HCBS Settings. This rule will establish the requirements for, and characteristics of, home and community-based settings.

The requirements and characteristics apply to both where the individual resides and where the individual receives services. This is likely to have the most impact on the following:

• Adult day service providers in the Ohio Department of Medicaid and Ohio Department of Aging-operated waivers,

• Assisted living providers in the MyCare Waiver,

• Ohio Department of Aging-operated Assisted Living Waiver, and

• Providers of services in the Specialized Recovery Services Program.

The other OAC rule is:

5160-44-02, which is called Nursing Facility-Based Level of Care Home and Community-Based Services Programs: Person-Centered Planning. It will set forth the following:

• The requirements of the person-centered planning process that is led by the individual, wherever possible,

• The required elements included in the person-centered services plan, and

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• The process for modifying the person-centered services plan when changes are warranted regarding the individual’s HCBS setting.

Many of the CMS-required person-centered planning requirements are similar to current requirements that ODM case management agencies, PASSPORT Administrative Agencies and MyCare Waiver plans must comply under their current contracts and agreements.

Language is also being added to the Ohio Department of Medicaid and the Ohio Department of Aging’s waiver enrollment rules to reflect that to be eligible for, and maintain enrollment in those programs, an individual must reside in a setting that possesses the HCBS characteristics set forth in proposed new OAC Rule 5160-44-01.

The individual must also participate in the development and implementation of a Person-Centered Services Plan in accordance with the process and requirements set forth in proposed new OAC Rule 5160-44-02.

These OAC rules are the first two rules in a new Ohio Administrative Code chapter, which will apply across all Medicaid-funded HCBS programs that serve individuals with a nursing facility-level of care and the Specialized Recovery Services Program.

These rules apply to the Ohio Department of Medicaid-administered and Ohio Department of Aging-operated HCBS waivers as well as the new 1915(i) Specialized Recovery Services Program.

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Additional Information

Provided here are website addresses for further information.

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Making Ohio Better

This concludes Module 1: An Overview of the New CMS HCBS Regulation.

Thank you for listening!