On Friday, April 15, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule for further defining what qualifies as a community-based setting that could be eligible to receive payment under the Medicaid program. The proposed rule is the most recent in a series of policies that have been articulated by CMS or the Minnesota Department of Human Services (DHS) that attempt to define the parameters for home and community-based service settings.

As summarized by CMS (highlights are added): “This proposed rule would revise the regulations implementing Medicaid home and community-based services (HCBS) waivers under section 1915(c) of the Social Security Act by providing States the option to combine the existing three waiver targeting groups as identified in § 441.301. In addition, we are proposing other changes to the HCBS waiver provisions to convey expectations regarding person-centered plans of care, to provide characteristics of settings that are not home and community-based, to clarify the timing of amendments and public input requirements when States propose modifications to HCBS waiver programs and service rates, and to describe the additional strategies available to CMS to ensure State compliance with the statutory provisions of section 1915(c) of the Act.”

In our initial review of the proposed regulations, we have identified several provisions that, if implemented, would prevent a significant portion of our membership from receiving any Medicaid funding for clients served under Medicaid waiver programs:

1.  The greatest concern we have appears to be adjacency restrictions that would limit the very popular campus approaches to the spectrum of care:

“…that HCBS settings: must be integrated in the community; must not be located in a building that is also a publicly or privately operated facility that provides institutional treatment or custodial care; must not be located in a building on the grounds of, or immediately adjacent to, a public institution; or, must not be a housing complex designed expressly around an individual's diagnosis or disability, as determined by the Secretary. In addition, we propose that the settings must not have qualities of an institution, as determined by the Secretary. Such qualities may include regimented meal and sleep times, limitations on visitors, lack of privacy and other attributes that limit individual's ability to engage freely in the community.”

It appears that if your housing with services establishment was located next to another housing with services establishment or next to a nursing facility, you would be excluded from receiving Medicaid HCBS payments. We also question if the Dementia Care Designation that many utilize is an example of a “housing complex designed expressly around an individual’s diagnosis or disability.”

2.  There is language in the background section of the rule listed below relating to “cooking areas” in the definition of an apartment that may also remove current HCBS options, especially when the presence of a stove and other cooking utilities could be a direct threat to the safety of their residents.

“For the purposes of this regulation, we note that ALS (assisted living settings) for persons who are older, without regard to disability, would not be excluded from home and community-based settings when the following conditions are met:

• Individual has a lease.
• Setting is an apartment with individual living, sleeping, bathing and cooking areas, and individuals can choose whether to share a living arrangement and with whom.
• Individuals have lockable access to and egress from their own apartments.
• Individuals are free to receive visitors and leave the setting at times and for durations of their own choosing.
• Aging in place, or allowing individuals to remain where they live as they age and/or support needs change, must be a common practice of the ALS.
• Leases may not reserve the right to assign apartments or change apartment assignments.
• Access to the greater community is easily facilitated based on the individual's needs and preferences.
• An individual's compliance with their person-centered plan (in the event that the individual has shared his/her plan or the landlord is also the provider of services) is not in and of itself a condition of the lease."

Note, the final bullet point above potentially does not address situations where clients do not comply with their “person-centered plan”; becoming a danger to other tenants that could lead to the client violating their landlord/tenant agreement.

3. There appears to be conflicting language in the background section of the proposed rule relating to restrictions noted above and the “any willing provider” language below:

“In addition, we note that this proposal in no way preempts broad Medicaid requirements, such as an individual's right to obtain services from any willing and qualified provider of a service.”

Care Providers of Minnesota and the National Center for Assisted Living (NCAL) will be providing formal comments and feedback by June 14th to some of these provisions that were released on Friday, April 15th. We are encouraging members to submit comments as well, as it is particularly important for CMS to understand the implications of their proposed rule provisions. View addresses to send your comments and any supporting narratives (you can also read the proposed rule on that webpage).

Phil Manz
952.851.2484
pmanz@careproviders.org

Patti Cullen, CAE
952.851.2487
pcullen@careproviders.org