COMMUNITY FIRST CHOICE David Ivers, J.D.

1. COMMUNITY FIRST CHOICE David Ivers, J.D. September 5, 2012 For the 4th Annual Long Term Care Policy Summit

2. David Ivers • Mitchell Blackstock Ivers & Sneddon • 1010 W. Third St. • Little Rock, AR 72201 • 501 519-2072 • divers@mitchellblackstock.com • These materials are for instructional purposes only, and are not to be relied on for legal advice. Legal counsel should always be consulted for specific problems or questions.

3. CFC – At a Glance • Offers states additional flexibility to finance home and community-based services (HCBS) attendant services and supports. • Provides 6% enhanced federal match (permanent). • State plan, not waiver, so services must be provided statewide, to all who qualify (entitlement). • Services must be provided without discrimination based on age, type or severity of disability, or form of services required. • State must spend as much or more on HCBS as in prior year. • Requires Development and Implementation Council with majority elderly and people with disabilities and representatives.

4. CFC and Advocates • Culture of protection has grown up around “waiver” services. • No state plan equivalent (before CFC) and waiting lists are often long. • States can use Development & Implementation Council to help with transition.

5. CFC and Providers • Providers still trying to understand CFC. • Providers not used to this much change. • Providers feel there must be a “catch.” • States need to share data with providers and encourage realistic proposals. • Providers must work together -- CFC does not work unless providers cross traditional silos.

6. CFC Challenges & Opportunities • CFC most affordable for those states that offer fairly extensive personal assistance through state plan personal care or 1915(c) waivers • Offers potential for state and providers to gain efficiencies through standardization, reduced administrative hassles • Promotes greater integration of programs, funding, and state administration

7. CFC in Arkansas • In Arkansas, preliminary figures show the state could serve existing beneficiaries and those on developmental disabilities waiver wait list with enhanced match. • DD typically has greater per person ave costs and wait list, so may have most to gain. • Other groups want greater variety of services, increased flexibility, and simply better reimbursement.

8. CFC Advantages • CFC likely to bring about • increased flexibility (rules have to accommodate all populations), • fewer admin hassles (if state integrates admin functions), • perhaps greater variety of services but with caps, • better integration of services across populations (esp. helpful for elderly DD or MI; DD with MI; and so on).

9. CFC Final Rule • Published May 7, 2012 at 77 Federal Register 26828, effective July 6, 2012. • Considerable flexibility for states • All individuals must meet inst. LOC – reversed position in proposed rule – more complex analysis now

10. Design Decisions • For those who do not meet inst. LOC, state must decide-- • Do not provide them services • Offer same services without 6% • Offer more limited package

11. Required CFC Services • (1) Assistance with activities of daily living (ADLs), instrumental activities of daily living (IADLs), and health-related tasks through hands-on assistance, supervision, and/or cueing. • (2) Acquisition, maintenance, and enhancement of skills necessary for the individual to accomplish ADLs, IADLs, and health-related tasks. • (3) Backup systems or mechanisms (electronic devices) to ensure continuity of services and • supports. • (4) Voluntary training on how to select, manage and dismiss attendants.

12. Permissible CFC Services • (1) Expenditures for transition costs from institutions to HCBS settings. • (2) Expenditures relating to a need identified in an individual’s person-centered service plan that increases an individual’s independence or substitutes for human assistance, to the extent that expenditures would otherwise be made for the human assistance.

13. CFC and Cost Containment • Universal assessments, depending on how state assigns payments to each tier • State can limit amount, duration, and scope if non-discriminatory • Such limits may be key to containing costs if universal assessment does not

14. CFC Service Models • Agency-provider model • Self-directed model • Other, if approved by CMS

15. CFC Eligibility Issues • If income greater than 150% FPL, must be in eligibility category that includes nursing facility services • Catch-22: How to maintain eligibility for individuals with income above 150% FPL if state eliminates waiver? • Maintain waivers with one service (Maryland example)

16. CFC and Eligibility Levels • Basic Medicaid income limit is very low in Ark (about 75% FPL):  $8,376/yr or $698/mo • Medicaid expansion 133% of FPL would be  $14,856/yr or $1,238/mo • 150% FPL for analysis under CFCO would be $16,755/yr or $1396/mo (not signif. factor in Ark) • Waiver levels are 3 x SSI:  $25,128/yr or $2,094/mo

17. CFC’s Inherent Tension • “States may not differentiate the benefit package; however, services must be provided to individuals based on their needs.” (Final Rule)

18. What Qualifies as a HCBS “Setting”? • CFC services must be provided in a HCBS setting. • CMS plans to issue new proposed rule on “setting.” • A particular point of disagreement is likely to be CMS’ indication that it believes that there should be a “rebuttable presumption” that a “disability-specific housing complex” is not a home and community-based setting.

19. CFC Provider Concerns • Licensure/Competition • Desire to maintain specialized services • Giving up segregated funding across populations • Limits on amount, duration, and scope

20. CFC Budgetary Analysis • Create flowchart: • Does service qualify as CFC? • Yes – continue • No -- exclude • Is the service currently offered to all populations? If no, could it be? • Yes – continue • No -- exclude • Do additional populations have to be added? If yes – cost. • Is it a State Plan or waiver service now? • If State Plan, what % of beneficiaries meet ILOC? (6% FMAP gain or “savings” for those) • If waiver, everyone currently served means 6% savings • If waiver, anyone on waiting list means additional cost. • “Woodwork” due to entitlement, enhanced services? If yes – cost.

21. Practical CFC Considerations • Must crosswalk old state plan and waiver programs into CFC • Requires comparing each state plan and waiver program with services that could qualify as CFC and then regrouping chosen ones under CFC • Must identify “gaps” – populations/ages not served currently

22. CFC -- Mentally Ill • Many if not most in MI population unlikely to meet ILOC • 1915(i) offers more promise

23. CFC + BIP • States permitted to stack CFC + BIP • CFC can be used to build BIP work plan • Universal assessment a key feature of both CFC and BIP