This following is an exerpt from the National Senior Citizens Law Center Health Network Alert:
On Friday, January 10, the Centers for Medicare and Medicaid Services (CMS) released the Medicaid Home and Community-Based Services (HCBS) settings final rule. These regulations detail the requirements states must adhere to when providing Medicaid home and community-based long-term services and supports to older adults and persons with disabilities. Advocates have eagerly anticipated the release of the final regulations, and they will require significant changes in some HCBS.
The rule is part of the Affordable Care Act’s Community Living Initiative.
CMS has used a thoughtful comment and review process in order to design Medicaid regulations that provide beneficiaries with greater ability to receive necessary services in a non-institutional environment. In the near future, NSCLC will provide a summary and analysis of the new regulations.
Without conducting an extensive review of the regulations, we note several significant provisions:
- Choice of service provider. Medicaid beneficiaries must have free choice of a provider, and they cannot be forced to receive services from the same entity where they receive housing.
- Modification of requirements based on service plan documentation. Any modification to conditions that apply to a provider-owned or controlled residential setting must be documented in a person-centered service plan. Specifically, the plan must document a number of requirements, including specific need, positive interventions and supports used prior to modifications, less intrusive methods that were tried and failed, and informed consent.
- Heightened scrutiny for locations with qualities of an institutional setting. Home and community-based settings do not include locations that have the qualities of an institution as determined by CMS. Any setting within, on the grounds of, or immediately adjacent to a facility that provides inpatient institutional treatment, or any other setting that effectively isolates Medicaid HCBS beneficiaries from the broader community is presumed institutional unless CMS determines otherwise through heightened scrutiny.
- Grandfathering to protect beneficiaries penalized by increased stringency of level of care (LOC) after modification. Individuals receiving state plan HCBS are protected from service denial due to the state performing a modification to make its criteria more stringent. NSCLC is concerned that the current regulatory language will end protection for an individual who leaves the program only temporarily-who might, for example, have a short stay in a hospital or temporarily be enrolled in a dual-eligible managed care plan.
The final regulation is available online. Read it here.