FamiliesUSA Health Action 2010 Conference January 29, 2010 Gene Coffey National Senior Citizens Law Center

Community First Choice Option of the Patient Protection and Affordable Care Act Section 2401 of PPACA Proposes to add a new paragraph (k) to 42 U.S.C. §1396n ((k) State Plan Option to Provide Home and Community-Based Attendant Services and Supports) Text of provision very similar to content of the Community Choice Act of 2009, S. 683 and H.R. 1670, introduced in 111 th Congress Community First Choice Option would provide states the financial incentive to make home and community-based care an unconditional option for individuals who meet their states standard of need for institutional-level services.

Current framework of Medicaids LTSS coverage Individual has needs equivalent to states clinical eligibility standard for Medicaid coverage of nursing facility services Advantage of choosing institutional services Financial eligibility screened against higher income standard (standard can be as high as 300% of Supplemental Security Income (SSI) federal benefit rate--$2,022 a month). If individuals income is greater than income limit, s/he must be permitted to qualify through a medically needy category or income trust Coverage for services guaranteed

Current framework of Medicaids LTSS coverage, continued What if the individual does not want to enter a nursing facility? Options: HCBS waiver program State limited in money it may spend on waiver program Because of state spending limit, enrollment may be capped State may apply 300% SSI income eligibility threshold, but may deny eligibility to individuals with incomes above waiver limit HCBS state plan benefit Benefit limited to individuals with incomes at or below 100% of the FPL. Individuals with higher incomes may only qualify through medically needy category (but not if their income is above 150% of the FPL) Benefit is optional for states States not limited in spending, but may cap enrollment and may choose not to offer benefit to individuals who meet clinical eligibility standard for institutional services Home health care services Mandatory Medicaid benefit, but only for individuals with incomes at or below 100% of the FPL. Individuals with higher incomes may only qualify through medically needy category Personal Care services Benefit is optional for states. For states that adopt it, coverage is limited to individuals who either have incomes below 100% of FPL and/or qualify through medically needy category

Change proposed by Community First Choice option States that choose to adopt the option will receive a 6 percentage point increase in their federal reimbursement rate for services provided under the option No time limit on duration of enhanced reimbursement rate States will be permitted to provide coverage for the benefit beginning October 1, 2010

Change proposed by Community First Choice option, continued Individuals who meet the states institutional level of care standard and are financially eligible for Medicaid will be able to choose community-based care over institutional care Eligible individuals must receive coverage for community-based attendant services that will assist the individual in accomplishing activities of daily living, instrumental activities of daily living, and health-related tasks that includes hands-on assistance, supervision, or cueing. Medicaid-enrolled institutionalized individuals may receive coverage for transition services under the benefit, such as rent and utilities deposits, first- months rent and utilities, bedding, basic kitchen supplies, and other necessities Service plan must be agreed to in writing by individual Individual has authority to hire and fire providers; family members may be included States may not cap enrollment, or limit coverage to select areas of the state, or target the benefit toward individuals with certain conditions. States are not restricted in the expenditures they may make for the benefit

Eligibility restrictions Benefit restricted to individuals whose incomes are below 150% of the FPL, or, if greater, the states income limit for coverage of institutional services (up to 300% of the SSI federal benefit rate)

Where can the services be received? Home and community-based attendant services are available under the Community-First Choice Option in a home or community setting which does not include a nursing facility, institution for mental diseases, or an intermediate care facility for the mentally retarded. Historically, anything but a hospital, nursing facility, ICF-MR, or institution for mental diseases has sufficed for a home or community-based location A states Medicaid HCBS waiver must provide that services are furnished only to recipients who are not inpatients of a hospital, nursing facility, or ICF-MR. 42 C.F.R. § (b)(1)(ii) Residence in the description of Medicaid home health services does not include a hospital, nursing facility, or [ICF-MR] C.F.R. §440.70(c) Medicaid personal care services are services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility, [ICF- MF], or institution for mental diseases C.F.R. § (a)

Most integrated setting States implementing the Community First Choice option must ensure that services are delivered in a manner that provides such services and supports in the most integrated setting appropriate to the individuals needs.... Money Follows the Person State not eligible for enhanced federal reimbursement if MFP participant transitions to residence of four or more unrelated individuals unless certain conditions are met HCBS State Plan Option While a simple definition of home and community-based would be any residence not a hospital, nursing facility or ICF-MR, this definition is insufficient to ensure that enrollees in this State plan benefit receive services in the type of setting intended. There are other public and private, large and small, residences whose character is equally institutional in nature. 73 Fed. Reg , (April 4, 2008) CMS Advanced notice of proposed rulemaking, which features proposal to develop standards for home and community-based characteristics. 74 Fed. Reg (June 22, 2009).

State requirements To offer home and community-based attendant services under the Community First Choice Option, a state must: Collaborate with a Development and Implementation Council established by the state, the majority of which must be persons with disabilities, elderly individuals, and their representatives Maintain during the first year in which the benefit is offered the same level of Medicaid spending for persons with disabilities or elderly individuals attributable during the previous fiscal year Establish a comprehensive quality assurance system with respect to community-based attendant services

Future Direction HHS must conduct evaluation of Community Choice Option Interim report must be submitted to Congress by December 31, 2013 Final report must be submitted to Congress by December 31, 2015

Gene Coffey National Senior Citizens Law Center 1444 Eye Street, NW, #1100 Washington, D.C (202)