Proposed federal regulations on Home and Community Based Services: Is it more flexibility or fewer services?

The Centers for Medicare and Medicaid Services (CMS) has proposed regulations that will affect how Habilitation Supports Waivers (HSW), as they are called in Michigan, will be administered and what they will fund. Even if you have never heard of the CMS, the actions of this federal agency can have a significant effect on services available to your disabled family member and how they are provided.

The Habilitation Supports Waiver now funds a variety of services, including Community Living Supports, vocational and skill-building programs, day programs, services in unlicensed supported living settings, and services in group homes. But this could change.

Here are some of the things these proposed regulations would do: 

• They would allow the states to apply for waivers covering a combination of groups, rather than targeting specific groups in each waiver, such as people with mental illness, or people with developmental disabilities and mental retardation, or people who are disabled and aging.  
• They would disallow certain settings, because CMS has decided they are not "integrated in the community". A setting is not integrated in the community if it is "located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment or custodial care; in a building on the grounds of, or immediately adjacent to, a public institution; or a housing complex designed expressly around an individual's diagnosis." or "has qualities of an institutional setting", as determined by the Secretary of the U.S. Department of Health and Human Services. 
• The proposed regulations also add requirements for person-centered planning that seem not to recognize the limited abilities of some individuals to direct their own person-centered planning process. Also, the person-centered plan would reflect services and supports to assist the individual, both paid and unpaid, and be signed by all individuals responsible for its implementation.

Unanswered Questions:

• Are there safeguards to prevent people with incompatible behaviors and disabilities from being placed together?
• Are families who provide so-called "natural supports" now subject to regulation by CMS?
• Is there any role for guardians and families, other than as unpaid service providers?
• Is it "increased flexibility for states" or fewer choices for people with developmental disabilities?
• Could these regulations take services away from your family member?

Comments on the proposed regulations may be submitted to CMS through June 14, 2011.

Here is a link to the proposed regulations.