Transcript www.nysacra.org

HCBS Settings Regulations:
Interpretation, Implementation, and Technical Assistance
High Performance Transformation: Leading and Succeeding
NYSACRA’s 12 Annual Leadership Conference
December 4-5
Saratoga Springs, NY
Maureen M. Corcoran
Daphne K. Saneholtz
President
Senior Advisor
1
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
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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
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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.
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•
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Some are very heavily waiver funded,
Some a mixture
Some-little waiver funding, if at all.
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 communitybased – 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
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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 Provider
Owned or Controlled Settings
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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 Provider
Owned 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
How often does your agency use a person centered
planning methodology?
Answered: 48 Skipped: 22
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Person-Centered Planning
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Person-Centered Planning: Rule requires “person centeredplanning” 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:
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Includes people chosen by the individual;
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Provides necessary information and support to ensure the
individual directs the process to the maximum extent possible;
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Is timely and occurs at times and locations of convenience to
the individual;
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Reflects cultural considerations of the individual;
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Includes strategies for solving conflict or disagreement within
the process;
Person-Centered Planning (cont’d)
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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.
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Written Person-Centered Service Plan Requirements:
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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)
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Reflects clinical and support needs;
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Includes goals and desired outcomes;
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Reflects providers of services/supports, including unpaid
supports provided voluntarily in lieu of waiver or state plan
HCBS;
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Reflects risk factors and measures in place to minimize risk;
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Be understandable to the individual/written in plain language;
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Identify individual/entity responsible for monitoring plan;
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Informed consent of individual in writing and signed by all
individuals and providers responsible for implementation;
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Distributed to the individual and others involved in plan;
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(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
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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 communitybased; regs related to HCBS settings do NOT apply.
3. Settings presumed NOT to be home- and communitybased – 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.
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
BEDS
ICF/IDD
IRA Supervised (full time
supervision)
965
3171
IRA Supportive (periodic support) 656
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Community Residences
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Family Care (host home)
HOMES
51
659
184
4
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TOTAL 4,869 922
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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.
“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
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Does your agency have a plan for self assessment, to gather
data regarding the regulations or needed improvements?
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NO 14%
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?
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SOMEWHAT 59%
Does your agency have a written plan for staff communication
and staff training on the regulations?
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YES 27%
NO 95%
Has your agency identified steps you will take to engage
individuals, family members and others in improvements that
may be needed?
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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
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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?
Subregulatory Guidance Promised
• 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
Regulatory Implications
• Requirements may impact:
– Rules and potentially statute
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Licensure and certification rules
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HCBS payment rules
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Compliance rules
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Care planning/ISP
– Associated regulatory process, inc. who does what?
– Case management/service coordination
– Waiver requirements
Final Regulations – Timelines
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Additional guidance will be forthcoming from CMS, but this is the
sequence of events.
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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.
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OPWDD Comprehensive Waiver renewal (set to expire 9/30/14)
triggered this process in NY; renewal request included transition
plan for CMS’ review.
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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?
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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.
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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.
NY’s Transition Plan
Source: OPWDD Comprehensive Waiver Renewal
NY’s Transition Plan (cont’d)
Source: OPWDD Comprehensive Waiver Renewal
TRANSITION PLANS
Examples 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 Assessmentdevelop, conduct, analyze, all of 2015. (TN too)
– Many mentioned tools NCI, POMS, IE
Is there anything that NYSACRA can do to assist your
agency with these HCBS related changes?
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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.
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About
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Vorys Health Care Advisors, LLC helps health care providers, business decision makers
and professional associations to achieve their objectives in a constantly changing
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making well informed, strategic and tactical decisions tailored to their individual
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Contact Information
Maureen Corcoran, MSN, MBA
[email protected]
Daphne K. Saneholtz, JD
[email protected]
Vorys Health Care Advisors
52 E.Gay St Columbus OH
614-464-5461
www.VorysHCAdvisors.com