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HCBS Settings Regulations:Interpretation, Implementation, and Technical Assistance
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High Performance Transformation: Leading and SucceedingNYSACRA’s 12 Annual Leadership Conference
December 4-5Saratoga Springs, NY
Daphne K. SaneholtzSenior Advisor
Maureen M. CorcoranPresident
Overview
• Final home- and community-based services (HCBS) regulation– HCBS settings– Person centered planning– Provider owned or controlled– Presumed not to be home-and community-based (heightened
scrutiny)
• Implementation issues, regulatory considerations, ambitious timelines
• Transition plans: trends, NY’s transition plan• Helping NYSACRA members plan for transition• Questions/next steps
Technical Assistance for NYSACRA
• Survey NYSACRA member providers in advance of OPWDD to understand steps taken to begin implementation/transition
– Three or four surveys
– Preparation, settings, person-centeredness, day services
– Results anonymous, used to aggregate
– Ability to link providers across all surveys for big picture
• Results will inform NYSACRA’s strategy to proactively position the association to advocate on behalf of members with OPWDD
Survey 1st of Several
• Survey 1: profile of agencies & ‘readiness’
REMINDER: Still can complete the survey or finish it!(Log on from the same
computer, as many times as you want.)
Survey 1st Profile: Categories of Services
• Residential & Housing• Care Coordination• Other Supportive services• Other Clinical• Day Habilitation & Work related • Services for Youth that are not IDD Specific
REMEMBER: Rules apply to waiver funded services.• Some are very heavily waiver funded, • Some a mixture• Some-little waiver funding, if at all.
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RESIDENTIAL- HOUSING SERVICES: Which residential or housing services does your agency provide?
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CARE COORDINATION: Do you provide Medicaid service coordination or PCSS?
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Final Regulation on HCBS Services –Who is Impacted?
Three categories of providers to think about:
– HCBS settings – ARE home- and community-based; regs related to HCBS settings DO apply
– Institutions – (e.g., ICFs, NFs) are NOT home- and community-based; regs related to HCBS settings do NOT apply
– Settings presumed NOT to be home and community-based – settings where Medicaid HCBS may be paying for the service now, but setting is questionable under regs; heightened scrutiny applies; regs related to HCBS settings MAY apply
Final Regulation on HCBS Services – Intent
• Regs reflect federal requirements for Medicaid reimbursement for HCBS
• To ensure that individuals receiving long-term services and supports through HCBS programs under the 1915(c), 1915(i) and 1915(k) Medicaid authorities have full access to benefits of community living and the opportunity to receive services in the most integrated setting appropriate
• To enhance the quality of HCBS and provide protections to participants
Final Regulation on HCBS Services – Intent (cont’d)
• The final rule defines, describes, and aligns setting requirements for HCBS provided under three Medicaid authorities:– 1915(c) – HCBS Waivers (including DD waivers);
– 1915(i) – State Plan HCBS; and
– 1915(k) – Community First Choice State Plan Option.
• Effective Date March 17, 2014.
• The states must submit a transition plan, but the rule was effective on this date.
Final Regulation on HCBS Services
HCBS Settings Requirements – General
• Is integrated in and supports full access to the greater community;
• Provides opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS;
• Is selected by the individual from among setting options (including non-disability specific settings and an option for a private unit in a residential setting);
Final Regulation on HCBS Services
HCBS Settings Requirements – General (cont’d)
• Ensures individual rights of privacy, dignity and respect, and freedom from coercion and restraint;
• Optimizes autonomy and independence in making life choices (including but not limited to daily activities, physical environment, and with whom to interact); and
• Facilitates choice regarding services and who provides them.
Additional Requirements for ProviderOwned or Controlled Settings
• The unit/dwelling is a specific physical place that can be owned, rented or occupied under a legally enforceable agreement (by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under landlord/tenant law);
• If tenant laws do not apply, state ensures lease, residency agreement or other written agreement is in place providing protections to address eviction processes and appeals comparable to those provided under the jurisdiction’s landlord tenant law;
Additional Requirements for ProviderOwned or Controlled Settings (cont’d)
• The individual has privacy in his/her, unit including lockable doors, choice of roommates if sharing and freedom to furnish or decorate the unit;
• The individual controls his/her own schedules and activities, including access to food at any time;
• The individual can have visitors of his/her choosing at any time; and
• The setting is physically accessible to the individual.
• Choice of provider in a provider owned setting.
Person-Centered Plan Must Reflect Modifications
• Modifications of the additional requirements for provider owned or controlled settings must be:
– Supported by specific assessed need
– Justified in the person-centered service plan
– Documented in the person-centered service plan
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How often does your agency use a person centered planning methodology?
Answered: 48 Skipped: 22
Person-Centered Planning
• Person-Centered Planning: Rule requires “person centered-planning” that focuses on outcomes and where possible is “led by the individual receiving services and supports” (including the individual’s representative).
• Person-Centered Planning Process Requirements:– Includes people chosen by the individual;– Provides necessary information and support to ensure the
individual directs the process to the maximum extent possible;– Is timely and occurs at times and locations of convenience to
the individual;– Reflects cultural considerations of the individual; – Includes strategies for solving conflict or disagreement within
the process;
Person-Centered Planning (cont’d)
• Person-Centered Planning Process Requirements: (cont’d)
– Providers of HCBS for the individual, or those who have an interest in or are employed by the HCBS provider for that individual, cannot provide case management or develop the person-centered plan (with exception);
– Offers choices to the individual regarding services and supports the individual receives and from whom;
– Includes methods to request updates to plan, as needed; and
– Records the alternative home and community-based settings that were considered by the individual.
Person-Centered Service Plan
• Person-Centered Service Plan: Must reflect services and supports that are important to the individual to meet his/her needs and what is important to the individual with regard to preferences for delivery of services/supports.
• Written Person-Centered Service Plan Requirements:
– Reflects setting is chosen by the individual and is integrated in, and supports full access to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community to the same degree of access as individuals not receiving Medicaid HCBS;
– Reflects individual’s strengths and preferences;
Person-Centered Service Plan (cont’d)
– Reflects clinical and support needs;– Includes goals and desired outcomes;– Reflects providers of services/supports, including unpaid
supports provided voluntarily in lieu of waiver or state plan HCBS;
– Reflects risk factors and measures in place to minimize risk;– Be understandable to the individual/written in plain language;– Identify individual/entity responsible for monitoring plan;– Informed consent of individual in writing and signed by all
individuals and providers responsible for implementation;– Distributed to the individual and others involved in plan;– (More)
Person-Centered Service Plan (cont’d)
– Includes purchase/control of self-directed services;
– Prevents unnecessary or inappropriate services and supports;
– Documents any modification of additional conditions must be supported by specific assessed need and justified in plan; and
– Must be reviewed and revised upon reassessment of functional need as required every 12 months, when the individual’s circumstances or needs change significantly, and at the request of the individual.
What the Regulations Mean
• In light of Final Regulation, waiver residential providers may need to revise policies on the following:– meals;– visitation; – access to individual’s private sleeping or living areas;– outings;– lease agreements with individuals;– home furnishings; – general schedule of activities; and – having multiple provider organizations working in one
residential setting.
Remember…
1. HCBS settings – ARE home- and community-based; regs related to HCBS settings DO apply.
2. Institutions – (e.g., nursing facilities, intermediate care facilities, hospitals); are NOT home- and community-based; regs related to HCBS settings do NOT apply.
3. Settings presumed NOT to be home- and community-based – settings where Medicaid HCBS may be paying for the service now, but setting is questionable under regs; heightened scrutiny applies; regs related to HCBS settings MAY apply.
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RESIDENTIAL- HOUSING SERVICES: Which residential or housing services does your agency provide?
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Please identify the number of residential beds that you have at each separate site or location.
• 44 answered this question– This is the HARDEST question !
• 19 had more than 20 locations• Why are we looking at locations?– character
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Please indicate the TOTAL number of beds/homes that your agency has in each of the following categories.
Answered: 53 Skipped: 17
ICF/IDD
IRA Supervised (full time supervision)
IRA Supportive (periodic support)Community ResidencesFamily Care (host home)
965
3171
656
3740
TOTAL 4,869 922
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659
184
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BEDS HOMES
Settings Presumed Not to be HCBS- “Heightened Scrutiny”
• Any locations that have qualities of an institutional setting (and do not meet the threshold for Medicaid HCBS), including:– Those in a publicly or privately owned facility that
provides inpatient treatment;
– On the grounds of, or immediately adjacent to, a public institution; or
– That have the effect of isolating individuals receiving Medicaid-funded HCBS from the broader community of individuals not receiving Medicaid-funded HCBS.
Settings Presumed Not to be HCBS- “Heightened Scrutiny” (cont’d)
• Settings not HCBS programs unless:– A state submits evidence (including public input)
demonstrating that the setting does have the qualities of a home and community-based setting and NOT the qualities of an institution; AND
– The Secretary finds, based on a heightened scrutiny review of the evidence, that the setting meets the requirements for home and community-based settings and does NOT have the qualities of an institution.
– In general, the state will be seeking decision from CMS as part of their waiver renewal and transition plan.
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“READINESS”
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Does your agency use CQL POMS administered by certified CQL interviewers? Answered: 48 Skipped: 22
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How often does your agency use a person centered planning methodology?
Answered: 48 Skipped: 22
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Does your agency use certified CQL interviewers for personal outcome measures & person centered
planning? Answered: 49 Skipped: 21
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Is your agency's executive leadership conducting a planning process for how to address the CMS HCBS
regulations? Answered: 44 Skipped: 25
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Other Readiness Activities
• Does your agency have a plan for self assessment, to gather data regarding the regulations or needed improvements?– YES 27% SOMEWHAT 59% NO 14%
• Does your agency have a written plan for staff communication and staff training on the regulations? – NO 84%
• Does your agency have a written plan that identifies information and other communication issues that needs to be shared with individuals, family members and other stakeholders of your agency regarding the regulations?– NO 95%
• Has your agency identified steps you will take to engage individuals, family members and others in improvements that may be needed?– NO 75%
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What methods have you used to engage others?
• Train 24 Staff per year as interviewers • Self Advocacy training • On going meetings with DSPs, Managers, Coordinators
to discuss the implementation process. • Evaluation of current system • QA staff will conduct a group training for staff that
participate on individual planning teams • Using the DQI assessment tools, we are beginning to
look at changes necessary to come into compliance • Training families
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MORE: methods have you used to engage others
• Family support group meetings • Notified Board of Directors about the regulation
and process • Training of all staff • Actively working to implement the CQL POM tool
and CQL philosophy throughout the agency. • Sending out new information • Intranet and agency website • Move to electronic documentation • Involving consumers and families in planning
Implementation Issues
• Non-licensed setting is not site specific
• HCBS certification is not based on/tied to the site
• Who at the state will regulate this and how?
– If licensed, will it be combined with licensure requirements and processes?
Implementation Issues (cont’d)
• If there is a question about a setting, how will a decision be made about whether it qualifies per HCBS regulations?
– Will there be an appeal process? Especially with regard to departmental discretion
– Medicaid payments denied?
– Will denial trigger other sanctions?
Implementation Issues (cont’d)
• What if providers have a setting that they know is not compliant? How much time to comply? Amnesty?
– Examples: day services in an ICF/IDD, provider owned, other?
• Settings that have the effect of “isolating” etc.
• The process for “operationalizing person-centered planning in order for states to bring their programs into compliance”
• Process for CMS “heightened scrutiny” for existing or new waiver settings
• “Right to refuse” and components of the regs that can be useful to address concerns
• CMS will revise the 1915(c) template
Subregulatory Guidance Promised
Regulatory Implications
• Requirements may impact:– Rules and potentially statute• Licensure and certification rules
• HCBS payment rules
• Compliance rules
• Care planning/ISP
– Associated regulatory process, inc. who does what?– Case management/service coordination– Waiver requirements
Final Regulations – Timelines
• Additional guidance will be forthcoming from CMS, but this is the sequence of events.
• As soon after March 17, 2014 as the state submits any HCBS submission, renewal, or amendment request, the state must submit the transition plan for ALL of its HCBS waivers.
• OPWDD Comprehensive Waiver renewal (set to expire 9/30/14) triggered this process in NY; renewal request included transition plan for CMS’ review.– NYSACRA provided comments/feedback.
• For the implementation of the transition plan, states will request from 1-5 years to achieve compliance, BUT they must be showing “substantial progress”, and CMS will allow the shortest time period they consider reasonable. All state’s transition plans must be completed by May 17, 2019.
State Transition Plan
• Vehicle through which the state determines its compliance and communicates with CMS.
• Inc. the state’s assessment of the extent to which its regulations, standards, policies, licensing requirements and other provider requirements comport with HCBS regs.
• Provides timeline for full and ongoing compliance.
• Subject to public input, with extensive/specific requirements for ongoing input.
What is Included?
• Detailed description of the state’s assessment of compliance with requirements and a statement of the outcome of the assessment.– If the assessment will take > 6months, must justify.
• State must estimate number of settings:– Fully comply.
– Do not comply, will need modifications.
– Cannot meet the requirements & require removal from the program.
– That are presumptively non-HCBS & state will submit evidence to the contrary.
State Must Specify Remedial Action
• Timelines, milestones & monitoring process, may include state and provider level actions
– New or revised state law, licensing standards, revised service definitions, revised training requirements, plans to relocate individuals to compliant locations
– Description of ongoing state oversight and monitoring process
– Provider may also have a plan for changes
Heightened Scrutiny
• Must include evidence sufficient to demonstrate that the setting does not have the characteristics of an institution.
• Evidence of a “site visit by the state, or an entity engaged by the state, will facilitate the heightened scrutiny process.”
• CMS will consider info from the public input process and info provided by stakeholders. Where input differs from the state, the state must substantiate.
Considerations
• State’s regulations may not be in compliance, however this does not mean that all providers are out of compliance.
• CMS emphasis on site assessment, state regs and an ongoing oversight/monitoring mechanism.
• State may use existing regulatory vehicles to perform individualized assessment, or a statistically significant sample; or develop a tool for qualified entities to conduct site specific evaluations.
Source: OPWDD Comprehensive Waiver Renewal
NY’s Transition Plan
Source: OPWDD Comprehensive Waiver Renewal
NY’s Transition Plan (cont’d)
TRANSITION PLANSExamples from Other States
• 28 preliminary/draft transition plans available
• No transition plan available
– 16 waivers due after January 2015
– 1 waiver expires 10/31/14
• 4 waivers expired 6/30/14
• 2 1115 waivers
Examples from States
• Most have specified big chunks of activity; stakeholder input, assessment, design/implement remediation. Some organized activities by individual waivers.
• Many were “preliminary”, i.e., 4-6 mos.
• Several included a plan for each of the state’s waivers.
• If they specified timelines for completion, most took their plan out to March 2019.
Examples from 28 States
• Few interesting tidbits/observations:– Almost all taking 6 mos. to a year for “assessment”– All addressed residential sites (< ½ day/employ)– AL to add a housing coordinator, develop MOU
w/VR, partner with education– CT case managers and providers will do surveys,
compare results– OR developing Individual Experience Assessment-
develop, conduct, analyze, all of 2015. (TN too)– Many mentioned tools NCI, POMS, IE
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Is there anything that NYSACRA can do to assist your agency with these HCBS related changes?
• Share suggestions on communication with individuals and families
• Share what others in state and out of state are doing ; best practices
• Workshops & Webinars• Synthesize the regulatory guidance to assist with implementation • DSP Training on the CMS HCBS Changes • Identify grants/funding to supplement costs associated with the
staff training. Perhaps advocate with CQL for better pricing /discounts. Funding to assist with strategic planning.
• Technical assistance, template, tools, a guide to implementation • Continue to advocate for a more professional workforce that is
adequately paid in order to truly implement these necessary changes.
About Vorys Health Care Advisors
Vorys Health Care Advisors, LLC helps health care providers, business decision makers and professional associations to achieve their objectives in a constantly
changing governmental and business health care environment and to assist them in making well informed, strategic and tactical decisions tailored to their
individual goals, needs and aspirations.
Contact Information Maureen Corcoran, MSN, MBA
Daphne K. Saneholtz, JD
Vorys Health Care Advisors
52 E.Gay St Columbus OH
614-464-5461
www.VorysHCAdvisors.com
