1. 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
President
Daphne K. Saneholtz
Senior Advisor

2. 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 

3. Technical Assistance for NYSACRA
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

4. REMINDER: Still can complete the survey or finish it!
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.)

5. Survey 1st Profile: Categories of Services
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.
Some are very heavily waiver funded,
Some a mixture
Some-little waiver funding, if at all.

6. RESIDENTIAL- HOUSING SERVICES: Which residential or housing services does your agency provide?

7. CARE COORDINATION: Do you provide Medicaid service coordination or PCSS?

13. 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 community- based – 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

14. 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

15. 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.

16. Final Regulation on HCBS Services HCBS Settings Requirements – General
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);

17. 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.

18. Additional Requirements for Provider Owned or Controlled Settings
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;
These are the additional requirements for settings with provider owned or controlled housing.

19. 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.

20. 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

21. How often does your agency use a person centered planning methodology
How often does your agency use a person centered planning methodology? Answered: 48 Skipped: 22

22. Person-Centered Planning
Person-Centered Planning: Rule requires “person centered- planning” 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:
Includes people chosen by the individual;
Provides necessary information and support to ensure the individual directs the process to the maximum extent possible;
Is timely and occurs at times and locations of convenience to the individual;
Reflects cultural considerations of the individual;
Includes strategies for solving conflict or disagreement within the process;

23. Person-Centered Planning (cont’d)
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.
*Exception: Except when the State demonstrates that the only willing and qualified entity to provide case management and/or develop person centered service plans in a geographic area also provides HCBS. In these cases, the State must devise conflict of interest protections including separation of entity and provider functions within provider entities, which must be approved by CMS. Individuals must be provided with a clear and accessible alternative dispute resolution process.

24. 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.
Written Person-Centered Service Plan Requirements:
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;

25. Person-Centered Service Plan (cont’d)
Reflects clinical and support needs;
Includes goals and desired outcomes;
Reflects providers of services/supports, including unpaid supports provided voluntarily in lieu of waiver or state plan HCBS;
Reflects risk factors and measures in place to minimize risk;
Be understandable to the individual/written in plain language;
Identify individual/entity responsible for monitoring plan;
Informed consent of individual in writing and signed by all individuals and providers responsible for implementation;
Distributed to the individual and others involved in plan;
(More)

26. 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.

27. What the Regulations Mean
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.

28. Remember…
HCBS settings – ARE home- and community-based; regs related to HCBS settings DO apply.
Institutions – (e.g., nursing facilities, intermediate care facilities, hospitals); are NOT home- and community- based; regs related to HCBS settings do NOT apply.
Settings presumed NOT to be home- and community- based – 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.
May impact Ohio’s ability to use HCBS waiver funds to provide institutional respite, nonmedical transportation, and some adult day services. For example, rule specifically excludes ICFs as an HCBS setting, but in the CMS comments, Institutional Respite is specifically allowed. CMS has specifically said they will issue subregulatory guidance on the application of these new requirements.

29. RESIDENTIAL- HOUSING SERVICES: Which residential or housing services does your agency provide?

30. 44 answered this question
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

31. Please indicate the TOTAL number of beds/homes that your agency has in each of the following categories. Answered: 53 Skipped: 17
BEDS HOMES
ICF/IDD
IRA Supervised (full time supervision)
IRA Supportive (periodic support)
Community Residences
Family Care (host home)
965
3171
656 37 40 51
659
184 4 24
TOTAL 4,

32. 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.

33. 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.

34. “READINESS”

36. Does your agency use CQL POMS administered by certified CQL interviewers? Answered: 48 Skipped: 22

37. How often does your agency use a person centered planning methodology
How often does your agency use a person centered planning methodology? Answered: 48 Skipped: 22

38. Does your agency use certified CQL interviewers for personal outcome measures & person centered planning? Answered: 49 Skipped: 21

40. Is your agency's executive leadership conducting a planning process for how to address the CMS HCBS regulations? Answered: 44 Skipped: 25

41. Other Readiness Activities
Does your agency have a plan for self assessment, to gather data regarding the regulations or needed improvements?
YES 27% SOMEWHAT 59% NO 14%
Does your agency have a written plan for staff communication and staff training on the regulations?
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?
NO 95%
Has your agency identified steps you will take to engage individuals, family members and others in improvements that may be needed?
NO 75%

42. 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

43. 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

44. 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?

45. 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?

46. 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?

47. 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

48. Regulatory Implications
Requirements may impact:
Rules and potentially statute
Licensure and certification rules
HCBS payment rules
Compliance rules
Care planning/ISP
Associated regulatory process, inc. who does what?
Case management/service coordination
Waiver requirements 

49. Final Regulations – Timelines
Additional guidance will be forthcoming from CMS, but this is the sequence of events.
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.
OPWDD Comprehensive Waiver renewal (set to expire 9/30/14) triggered this process in NY; renewal request included transition plan for CMS’ review.
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.

50. 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.

51. What is Included?
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.
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.

52. 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

53. 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.

54. 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.

55. Source: OPWDD Comprehensive Waiver Renewal
NY’s Transition Plan
Source: OPWDD Comprehensive Waiver Renewal

56. NY’s Transition Plan (cont’d)
Source: OPWDD Comprehensive Waiver Renewal

57. 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
waivers

58. 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.

59. 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 Assessment- develop, conduct, analyze, all of (TN too)
Many mentioned tools NCI, POMS, IE

60. Is there anything that NYSACRA can do to assist your agency with these HCBS related changes?
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.

61. About Vorys Health Care Advisors
Vorys Health Care Advisors, LLC helps health care providers, business decision makers and professional associations to achieve their objectives in a constantly changing governmental and business health care environment and to assist them in making well informed, strategic and tactical decisions tailored to their individual goals, needs and aspirations.
Contact Information
Maureen Corcoran, MSN, MBA
Daphne K. Saneholtz, JD
Vorys Health Care Advisors
52 E.Gay St Columbus OH 61