Shaping policy  Sharing solutions  S trengthening communities

1. Shaping policy  Sharing solutions  Strengthening communities

2. The CMS HCBS Rule: Updatesand Developments Presenter: Katherine Berland, Esq., Director of Public Policy American Network of Community Options and Resources VNPP Fall Conference October 15, 2015

3. ANCOR is…A national nonprofit trade association advocating and supporting • Over 1,000 private providers of services and supports to • Over 600,000 people with disabilities and their families • And employing a workforce of over 500,000 direct support professionals(DSPs) and other staff • Membership benefits include robust government relations representation at federal level and access to exclusive ANCOR content, as well as exclusive discounts on technology and I/DD products through the ANCOR marketplace.

4. Major Provisions • Released 1/10/2014, effective date of 3/17/2014. • Defines and describes HCB settings under section 1915(c) waivers and section 1915(i)/1915(k) state plan options. • Sets forth requirements for person-centered planning process and person-centered service plan. • Lays out transition timeframe and requirements.

5. Settings Requirements • All HCBS settings must: • Be integrated in the community • Be selected by the individual among setting options • Respect privacy rights • Ensure coercion and restraint are not used • Optimize independence and autonomy • If provider-controlled, residential settings also: • Written lease or residency agreement • Additional privacy requirements (door locks, roommates, decorating) • Individual control of schedules, access to food, and visitors • Must be physically accessible • Modification only with specific assessed need justified in person-centered plan

6. Non-Residential/Day Settings • The same criteria for residential HCBS settings apply • Guidance out of CMS focuses on outcomes and the nature and quality of individuals’ experiences • Individuals must have opportunities to seek competitive, integrated employment • Must have options available that are non disability-specific • HCBS funding for non-residential and other day programs is available • ONLY to individuals that reside in settings that are compliant with • the rule’s residential requirements • States have until 2019 to fully transition all HCBS settings

7. Exclusions/Higher Scrutiny Settings always excluded from HCBS • Nursing facilities • Institutions for mental diseases, intermediate care facilities for individuals with intellectual disabilities (ICF/IID) • Hospitals providing long-term care services • Any other location that has the qualities of an institution, as determined by the Secretary Note – CMS expressly declined to categorically exclude congregate settings from the definition of HCBS, though they must meet the criteria set forth in the rule. Settings that will receive higher scrutiny • Share a building with an inpatient facility • Share space with, or are next to, a public institution • Any other setting that has the effect of isolating individuals receiving Medicaid HCBS from the broader community This presumption is rebuttable, and the Secretary may, upon applying heightened scrutiny, determine that such settings are HCB settings.

8. Guidance • All guidance released to date is available at www.medicaid.gov/hcbs • Heightened scrutiny: • Sets forth standard for evidence presented, must be adequate • Clarifies isolating characteristics • Encourages site visits • Clarifies that all participants in a setting must have experience that meets standard of rule • State flexibility: • Introduces a tiered standard for settings, allowing states to “close the front door” to new settings that do not meet higher standard

9. CMS’ Expectations • The rule is a floor not a ceiling – states may set standards exceeding minimum requirements of the rule • Large, congregate, and/or potentially isolating settings will be a “heavy lift” to meet heightened scrutiny • CMS has expressed frustration that many states are still in the evaluation phase rather than the implementation phase for this rule • CMS expects states to make significant progress and complete transitioning by 2019

10. CMS’ Expectations: A Note About Intentional Communities • Q) What is an “intentional community?” • It is a planned residential communitydesigned from the start to have a high degree of social cohesion and teamwork. In the developmental disabilities field, it often takes the form of disability-specific self-contained communities. • Q) What has CMS said about intentional communities? • In guidance, CMS specifically addressed farmsteads, gated communities, and residential schools as settings that will tend to isolate. • When asked about intentional communities currently in development, CMS said that they cannot be evaluated for compliance until they are operational. • However, CMS has also said clearly that an individual’s choosing a setting that has institutional characteristics will not make it qualify for HCBS.

11. States that have submitted statewide transition plans • 48 states and D.C. have submitted plans • Not yet submitted: • AZ • VT

12. States with approved statewide transition plans

13. States with CMIA Letters 36 states have received Clarifications and/or Modifications needed for Initial Approval letters. Those that have not: • AZ • CA • IN • LA • MD • MA • MN • NH • NJ • NM • RI • SD • UT • VT • WI

14. What is CMS looking for? • Is there enough information to inform the public? • Has the public input process been transparent and generated adequate public input? • Is it a “plan to plan”? What are the next steps? • How were/will assessments be carried out and validated? Are provider self surveys validated? • Has the state evaluated state law AND compared settings’ compliance with it? • What is the process for heightened scrutiny? • How will compliance be monitored on an ongoing basis?

15. Virginia’s CMIA Letter • Points addressed in VA’s CMIA Letter: • Public comment (no overall summary) • Assessments (systemic and site-specific) • Monitoring of settings • Remedial Actions (too general, lacks specific timeframes) • Heightened scrutiny (does not include process to identify settings) • Relocation of beneficiaries (no estimate of # of people impacted, no timeframe) • Additional assessments/DOJ settlement impact

16. What happens next? • CMS expects to have CMIA letters out to all states that have submitted Statewide Transition Plans soon • A new round of public input will be required for most changes needed • There is no expected date for initial approvals • CMS has not definitively said it would grant additional time for states beyond 2019, transition is still expected by the original date given in the rule

17. Questions?

18. Contact Information: Katherine Berland, Esq. Director of Public Policy kberland@ancor.org (703) 535-7850 ext. 104 Additional Resources: CMS HCBS Site: http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Supports/Home-and-Community-Based-Services/Home-and-Community-Based-Services.html Virginia DMAS HCBS: http://www.dmas.virginia.gov/Content_pgs/hcbs.aspx HCBS Advocacy: http://hcbsadvocacy.org