Comment #3 on CMS proposed regs (CMS-2296-P): flexibility vs. right to appropriate care

ISSUE #3: Combining Target populations under one waiver may have unintended harmful consequences.

Currently, when a state applies for HCBS waivers, each waiver must be limited to “one of the following target groups or any subgroup thereof that the State may define”:

• Aged or disabled, or both. 
• Mentally retarded or developmentally disabled, or both. 
• Mentally ill.

Under the new proposal, CMS states, "We recognize that some States and stakeholders want additional flexibility to combine target groups in order to provide services based upon needs rather than diagnosis or condition, and for administrative relief from operating and managing multiple section 1915(c) waiver programs."

Individual eligibility for waiver services, as well as for other government-funded services, is based on a broad diagnosis, such as developmental disability or intellectual disability/mental retardation, but the specific services provided are based on individual need as described in an individual service plan. These proposals will not change that.

By breaking down the barriers between targeted groups, it is more likely that states and local governments will see this as an opportunity to mix groups of individuals together who are incompatible. These proposed regulations do not specifically address this problem.

What if a state decides to use its single population waiver funding to serve the most people it can at the expense of the most needy or most costly population? How does CMS propose to protect people who need relatively costly services to survive, let alone to continue living in community settings of their choice?

More flexibility to states to administer programs should not come at the expense of individual protections and the right to appropriate care.