CMS-2249-P2 : CMS proposes new rule for HCBS Waivers

Here we go again! The Centers for Medicare and Medicaid Services (CMS), the federal agency that regulates Medicaid waivers for Home and Community Based Services (HCBS), is trying again to define "community" and place limitations on how HCBS funds may be spent. [The Michigan HCBS waiver for people with developmental disabilities is called the Habilitation Supports Waiver (HSW)]. This has been tried several times before, (see theddnewsblog.blogspot.com comments between April 27 - May 26, 2011 for the last attempt) The response from the public, much of it negative, was overwhelming. Public reaction has slowed down attempts by CMS to limit services and settings that may be funded by HCBS waivers.

Below is an email sent on May 23, 2012 from CMS explaining the rule. Although the rule specifically applies to a "Medicaid-funded delivery of services through 1915(i) and the Community First Choice (CFC) option", the email states that, "CMS has indicated that it intends to apply these rules regarding settings to all Medicaid HCBS programs, including Medicaid 1915(c) HCBS Waivers, so that it has the potential for impact beyond the scope of the 1915(i) and CFC rules."

I have not yet read the proposed rule, but there seem to be new twists and, as always, confusion. When the proposal was first publicized, it incorrectly stated that comments were due on June 4th, 2012. Comments are now due by July 2, 2012. They can be submitted on-line at Regulations.gov or in writing to:

 Centers for Medicare & Medicaid Services, Department of Health and Human Services       
 Attention: CMS-2249-P2
 P.O. Box 8016
 Baltimore, MD 21244-8016

In any case, include the reference to the proposed rule: CMS-2249-P2

It is important that as many people respond to this as possible. Good luck in making sense of it. CMS warns that the document with the proposed rule is very long, but there are links to refer you to the most relevant parts. I will be commenting on this later.

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Date: Tue, 22 May 2012 16:00:24 -0400
From: Lauren.Solkowski@HHS.GOV
Subject: Centers for Medicare and Medicaid Services Propose Rules on Home and Community-Based Services
To: DHHSOFFICEONDISABILITY@LIST.NIH.GOV

Centers for Medicare and Medicaid Services Propose Rules on Home and Community-Based Services

Wednesday, May 23, 2012

The Centers for Medicare and Medicaid Services (CMS) recently announced proposed rules implementing State plan home and community-based services under Section 1915(i) of the Social Security Act. The proposed regulations are available online. This is a proposed rule which means that it is open for comments until July 2, 2012 (the Federal Register notice which contains the rules, incorrectly lists the due date for comments as June 4, 2012). Once the comments are reviewed CMS will likely issue a final regulation which means that this is the only chance to influence this important regulation.

These rules outline how the 1915(i) programs must be operated in states that choose to implement them. In addition, these rules describe the type of residential settings that will be considered appropriate for Medicaid-funded delivery of services through 1915(i) plans and the Community First Choice (CFC) option. CMS has indicated that it intends to apply these rules regarding settings to all Medicaid HCBS programs, including Medicaid 1915(c) HCBS Waivers, so that it has the potential for impact beyond the scope of the 1915(i) and CFC rules.

CMS has stated that they are very interested in hearing from the people who will be impacted most by these regulations – older adults and people with disabilities who use Medicaid-funded services and supports in the community. ACL has put together the following tips to help older adults, people with disabilities, their families, and other consumer advocates navigate the rulemaking process and make their voices heard. More information about the rulemaking process can also be found online.

CMS is inviting public comments on proposed language to establish the qualities for home and community-based settings.  CMS is specifically looking for feedback regarding several areas as outlined below:

• The rule attempts to ensure that Medicaid Home and Community-based Services (HCBS) do not fund services in residential settings that restrict basic freedoms, except when there are health and safety concerns (see section 441.530(a)(vi)). Any restrictions of basic rights must be documented in the person centered plan. 
• CMS is inviting comments on the qualities essential for home and community-based services, including in residential settings, as proposed in this rule, and whether additional or different characteristics should be included. (See section 441.530) 
• Person-centered planning is the mechanism for ensuring that basic freedoms are preserved such as the ability to come and go as one wishes, retains basic rights to privacy, etc. The proposed requirements for person-centered planning are in section 441.665. 
• This rule may allow providers to require a person to receive a particular service as a condition for residing in a setting owned or controlled by the provider (see paragraph 77 FR 26379 of the Preamble). 
• The rule describes the requirements for states that wish to provide an option for self-direction (see section 441.674).

The Federal Register posting for this proposal is very long, and contains pages of discussion by CMS regarding the previous public comments they received and an explanation of the changes that they are proposing. The actual proposed rule language is included at the end of the document, which you can view here.
Stakeholders may submit comments via Regulations.gov or in writing to CMS at the following address:
    Centers for Medicare & Medicaid Services, Department of Health and Human Services       
    Attention: CMS-2249-P2
    P.O. Box 8016
    Baltimore, MD 21244-8016