On April 4, 2008, CMS published proposed regulation in the federal register to implement Section 6086 of the DRA, “Expanded Access to Home and Community-Based Services for the Elderly and Disabled”. The National Council is in the process of analyzing the regulations and will have model comments available to members to use in crafting their own submission.

Section 6086(a) of the DRA adds a new Section 1915(i), or the State Plan Home and Community Based Services Benefit, which is modeled on the Home and Community Based Services Waiver 1915 (c) program, but differs in several respects.

Section 1915(i) provides states with the ability to offer a variety of home and community-based services to individuals with disabilities, including: 

• Case management

• Homemaker/home health aide

• Personal care

• Adult day health

• Habilitation

• Respite care

• For individuals with chronic mental illness:

• Day treatment or other partial hospitalization services

• Psychosocial rehabilitation services

• Clinic services

Similar to the 1915 (c) waiver program, provisions under 1915(i) allow states to set limits on the total number of enrollees in the benefit and allows states to establish waiting lists.

Additionally, while HCBS are not available to individuals residing in institutions, Section 1915(i) allows states to provide case management services during the transition to community living. (pg. 55)

Unlike the waiver program, beneficiaries do not have to meet an institutional level of care in order to be eligible for this program, nor does the state have to show cost neutrality in the operation of the program.  HCBS waivers have been used for years for individuals with intellectual disabilities and has transformed that system from being solely state funded to being primarily financed through Medicaid. Because of the Institution of Mental Disease exclusion in Medicaid, the combination of the institutional level of need criteria with the cost neutrality provision made HCBS waivers unavailable to the vast majority of individuals with mental illness and substance use disorders or children with emotional and behavioral disturbances.

The 1915(i) or state plan HCBS benefit differs from the waiver in important ways as well:

• Limited to individuals with income at or below 150% of FPL ($15,600 annually)

• Does not include "other services" a category which has often been used by states to provide a variety of flexible, wrap-around benefits.

• Does not waive state comparability requirements like the waiver does - in theory states cannot limit by region or target to certain population. However, states may establish needs-based criteria that applicants must meet to receive services.
   

Specific Provisions

Section 441.559

States must develop needs-based criteria for the State plan HCBS benefit which include state-defined risk factors affecting eligibility, and may develop criteria for each service as well. Through an individual evaluation, the State must ensure that individuals have a need for at least one State plan HCBS.

• If a State experiences excess enrollment above State projections, the State may adjust the needs-based criteria and service criteria without prior approval from the Secretary. The State must provide 60 day notice to the Secretary, public, and enrollee. Because the adjustment will likely result in a limitation on number of enrollees or services provided, the adjusted criteria would not apply to individuals already enrolled in State plan HCBS benefit for at least 12 months from inception of services.

• Notice to the Secretary must be given in the form of a SPA.

Section 441.562

Potential beneficiaries of State plan HCBS must undergo: 1) an independent evaluation based on needs-based criteria; 2) an independent assessment to determine service needs. 

• The independent evaluation, designed by the State, must assess an individual’s support needs and strengths and may take into consideration the need for significant assistance to perform Activities of Daily Living (ADLs).

• The evaluator/agent may use whatever means appropriate to secure a valid appraisal of the individual’s current needs. State evaluation procedures that rely solely on diagnosis or review of medical records will not meet these requirements.

• Once individuals have been determined to meet the eligibility criteria based on an independent evaluation, the State must provide an independent assessment to determine all the information necessary to develop a plan of care. The assessment must, through at least one face-to-face meeting, find that the individual meets the needs-based and medical necessity criteria for at least one State plan HCBS. This helps to prevent the situation in which an individual being eligible for the State plan HCBS benefit but not able to receive any of the services it offers.

• States must create minimum qualifications for individuals and agencies who conduct the independent evaluation, assessment of need, and develop the plan of care. At a minimum, these qualifications include conflict of interest standards, training in assessment of individuals who need home and community-based services and supports, and an ongoing knowledge of best practices. To avoid a conflict of interest, assessment and plan of care development should not be conducted by a provider of services prescribed. However, there are certain circumstances in which a single provider may function as both the agent (who conducts the assessment and develops the plan of care) and a provider of services. In this case, the State should provide provisions assuring separation of functions.

• Individuals who receive the State plan HCBS benefit must be reevaluated at a frequency defined by the State, but no less than every 12 months, to determine whether the individuals still meet eligibility requirements.

Section 441.565

Based on the independent assessment, the State develops a plan of care through a person-centered planning process. 

• The plan of care must be developed jointly with the individual (or representative) and prepared after consultation with appropriate persons (defined by State).

• The plan of care must identify specific State plan HCBS to be provided to the individual and any support needs arising from the individual’s disability. It should be reviewed at least every 12 months, and as needed when the individual’s circumstances or needs change significantly.

Section 441.574

States may offer individuals the opportunity to self-direct their State plan HCBS, as long as it is included in the plan of care and takes into consideration supports needed to facilitate self-direction. 

• If the individual chooses to self-direct, the plan of care must include the method through which the individual will plan, direct, or control services; the role of family or others, and risk management techniques.

• Self-directed individuals have both employer and budget authority, if identified in the plan of care. While budget authority grants control of expenditures, it does not include performing transactions or conveying cash to the self-directed individual or representative.

Section 441.577

States must provide CMS with an annual report outlining projected number of individuals to be enrolled in the next year and the actual number of unduplicated individuals that were enrolled in the past year. Changes to the State plan HCBS enrollment must be approved by the Secretary in the form of a SPA. 

• States may elect to set a limit on the number of individuals enrolled in the State plan HCBS benefit and may also establish a waiting list.

• States will be required to formally establish a schedule and procedure for reevaluation and revision of the waiting list policy.

FFP is available for evaluation and assessment prior to an individual’s determination of eligibility for and receipt of State plan HCBS. 

• If the individual is found to not be eligible for the State plan HCBS benefit, the State may claim the evaluation and assessment as administration.

• However, FFP would not be available for this presumptive period in which services were received.

States must establish and maintain a quality improvement strategy for its State plan HCBS benefit which reflects the nature and scope of the benefit the State provides. 

• States should include indicators for program performance and quality of care as approved and prescribed by the Secretary which may be used to assess individual outcomes-such as client function indicators and measures of client satisfaction.

• States should include program performance measures designed to assess the State’s overall system for providing HCBS.

Please contact Mohini Venkatesh at 202.684.7457, ext. 230 or MohiniV@thenationalcouncil.org for more information.