Settings Rule for Home and Community-Based Services

Mark Kissinger, Director, Division of Long Term CareOffice of Health Insurance ProgramsNYS Department of Health

November 19, 2015NYSCAL

Updated Requirements for HCBS Settings• A “new” directive that identifies the characteristics and qualities of an appropriate

setting where a recipient of Medicaid-funded Home and Community-Based Services (HCBS) may live and/or receive services.

• Incorporated into CMS-2249-F/CMS-2296-F – the HCBS Waiver Rule.

• Also, included in the state plan HCBS and Community First Choice Option regulations that implement 1915(i) and 1915(k) of the Affordable Care Act.

• Published in January 16, 2014, and became effective March 17, 2014. Only the settings aspect of the rule has a transition period that allows states to come into compliance with its requirements by March 17, 2019.

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In other words. . .

CMS plans to regulate States and change focus from providing home and community based services to more individuals by making them focus on:

• checking off boxes;

• submitting endlessly revised charts, and

• micromanaging the provision of services at the individual recipient level.

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Status Update• States were required to submit Statewide Transition Plans that illustrate how they

are going to comply with the new requirements by March 17, 2019.• New York submitted our plan in March and received feedback from CMS – 6

months later • To date, no State has an approved plan posted on the Statewide Transition Plan

website.• Feels very much like CMS is revising its expectations as time marches on.

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“Why Does it Matter?”• States that fail to submit and implement Statewide Transition Plans could

forfeit associated FFP. • Billions are at stake in New York.

• So, we developed our STP. . .

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Statewide Transition Plan• New York’s STP:

• Estimated the proportion of residential settings thought to be in full and

partial compliance across existing waivers.• Proposed obtaining additional information through random site surveys of

the 1115 Waiver, non-residential settings (day programs) and settings

outside of an individual’s or family member’s home where enrollees live

and/or receive HCBS.• Planned to identify and present evidence to the Health and Human

Services Secretary, verifying that settings requiring heightened scrutiny

analysis are allowable HCBS settings, beginning in 2016 through January

1, 2018.

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CMS Response: Prove It!“More Process:”

• Revise STP – ensure broad public comment.

• Crosswalk specific NYS regulations, practices, guidance, manuals, etc. to CMS regulation.

• Update chart of settings indicating specifically how many are in each of five buckets: 1) compliant; 2) needs modifications; 3) cannot comply; 4) institutional and 5) presumed institutional.

• Describe assessment process used to determine the above.

• Develop a separate chart of settings (with addresses) that are presumed institutional that the state will present evidence to CMS to review through heightened scrutiny. Give CMS more than the 14 month timeframe we presented in STP to complete these reviews.

• Describe how compliance will be obtained in settings that don’t meet the requirements and how ongoing compliance will be assured.

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Challenges: “Heightened Scrutiny”• Settings that are Presumed Institutional, and therefore not appropriate for HCBS, include:

• Settings in or on the grounds of a public or private facility that provides inpatient treatment;• Settings adjacent to a public facility that provides inpatient treatment;• Any setting that serves to isolate individuals from the broader community

• States must identify these settings by specific location (address) in a chart.• States must determine if they are going to continue to provide HCBS in these settings.• If so, they must submit evidence packages including a summary of the public comments received and their

disposition to CMS to determine whether the setting has all the qualities and characteristics of an appropriate HCBS setting and none of an institutional setting.

• If CMS does not determine that the setting is appropriate for HCBS, the state must transition anyone receiving Medicaid-funded HCBS into a compliant setting before March 17, 2019 or cover the federal share lost due to non-compliance.

• If a state doesn’t submit evidence to CMS and receive a determination that the setting is HCBS, then it is institutional by default.

• We know that every ADHC will have to be submitted for heightened scrutiny after we gather appropriate evidence and stakeholder feedback.

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New York Activities

• The state is developing a provider self-assessment for settings outside individual’s homes or family member’s homes. Self-assessments anticipate stakeholder input and will be validated by state and/or contracted staff.

• Interagency workgroup continues to meet to address deliverables.

• New York welcomes stakeholder input as we continue to revise the STP.

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Impact• Of course community based settings should provide individuals with the same

kind of independence and integration in community life that we all expect; in New York State, by and large, they do. Where they don’t it can be effectively addressed without a systemic, process driven “check the box” exercise.

• Resources are being diverted that should be placed into paying for services and supports, ensuring sufficient affordable and accessible housing to provide community living for anyone who wants it, and developing technologies that will help people remain at home and in their communities as they age or otherwise require services to meet their functional needs.

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Other NYSCAL Issues• Moving ALP into managed care and MLTC.

Link to STP and CMS Response Letter

• http://www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and-supports/home-and-community-based-services/statewide-transition-plans.html

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QUESTIONS?

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Mark Kissinger email: Mark.Kissinger@health.ny.gov

For more information as revisions evolve:

https://www.health.ny.gov/health_care/medicaid/redesign/home_community_based_settings.htm