Michigan updates on implementation of the Home and Community-Based Services rule

Under the federal 2014 Home and Community-Based Services [or Settings] rule, states must submit transition plans to the federal Centers for Medicare and Medicaid Services (CMS) describing how they will implement federal policies on community integration. Part of that process is to determine whether settings using HCBS funding are in compliance with the federal rule. Michigan will use surveys to make this determination.

Home and Community-Based Services are often referred to as Medicaid Waiver services, because they allow the state to waive some Medicaid requirements in order to use funding in non-traditional ways to serve different populations of people with disabilities.

For people with disabilities who live in their own or their family’s home and receive residential supports funded by HCBS, their residences are presumed to be in compliance with the rule and they will not be part of the residential survey. For people not living in their own or their family’s home, the state will survey every provider of HCBS services and the people who receive HCBS services to evaluate whether the setting complies with the rule.

Michigan’s Habilitation Supports Waiver (HSW) is a Medicaid Waiver that provides services to people with developmental disabilities. The state has other Medicaid Waivers for different categories of the disabled population and people using these waivers will also be surveyed. HSW surveys will be conducted by the Developmental Disabilities Institute (DDI) at Wayne State University in Detroit.

The surveys for providers and participants in the HSW are available for review on-line, but the actual surveys will be conducted by the DDI after notifying providers who will then notify HCBS participants of when the survey will take place. DDI will cover 50% of providers and participants before October 1st, 2016 and 50% after October 1st, 2016.

If you are a guardian or family member of a person who receives HCBS and the person will need your assistance in answering survey questions, the best course of action is to tell the providers of services that you want to be informed of when the survey will be conducted and that you want to participate. If you have a family member with cognitive disabilities, it would also be a good idea to review the survey questions. I found that for my sons many of the questions were not aimed at people with such severe disabilities and that certain answers could be misconstrued as indicating that their services do not comply with the federal rule. Exceptions can be made to parts of the rule for health and safety reasons, but these must be included in the person’s Individual Plan of Services (ISP). Keep that in mind for your next Person-Centered Planning meeting.

For more information on the survey process:

Frequently Asked Questions
 
Surveys of providers and HSW beneficiaries with general information from DDI including surveys in Word document format

Participant surveys

Residential provider Survey

Non-residential provider survey Non-residential services include HCBS-funded programs such as employment, skill-building, prevocational, and day programs. 

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Michigan’s revised State Transition Plan for HCBS

Michigan revised its State Transition Plan for HCBS for public comment in December 2015. The state then revised the plan further and responded to comments. The Revised STP was sent to CMS on March 15, 2016 for approval.

The first part of this document includes comments on the plan with responses from the Michigan Department of Health and Human Services. The rest of the document is the latest revision to the STP.

Here is more Information on the federal HCBS Rule and State Transition Plans.

This is the Michigan Website on HCBS Transition.

Michigan: Update on Home and Community-Based Services Transition Project

This is from Phil Kurdunowicz at the Michigan HCBS Program Transition Project. Every state has a transition plan to implement the 2014 Home and Community-Based Services rule from the Centers for Medicare and Medicaid Services (CMS). This update concerns surveys that will assess individual settings for "HCBS chacteristics". For people with DD covered by the Habilitation Supports Waiver, surveys of all HCBS-funded programs will begin this month, May 2016. People with DD living in their own or their family's home will be assumed to be compliant with the HCBS rule and will not be part of the survey unless they also attend a program funded by the HSW waiver. 

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Dear stakeholders,

The Michigan Department of Health and Human Services provides Home and Community-Based Services to individuals in the Medicaid program. These services help Michigan citizens with disabilities or other health issues to live at home or in the community. The Department offers many of these services through “waivers,” which were approved by the Centers for Medicare and Medicaid Services.

The Centers for Medicare and Medicaid Services released a new rule in 2014 for home and community-based services waivers. The Department has since developed a statewide transition plan to bring its waiver programs into compliance with the new rule.

As part of the transition process, the Department must determine whether settings under these waivers have “home and community-based” characteristics. For this purpose, the Department has developing a set of “survey tools” to assess individual settings for home and community-based characteristics.

The Department has published the final versions of the survey tools for the Habilitation Supports Waiver to the project website. Survey tools that have been finalized by the Department can be found on the Department’s website at www.michigan.gov/mdhhs >> Health Care Coverage >> Home and Community-Based Services Program Transition.

The Department will start the statewide assessment process for the Habilitation Supports Waiver [for people with DD] in May 2016. The Department will work with the Developmental Disabilities Institute of Wayne State University to conduct these surveys.

If you would like to learn more about the survey process, please visit the following website: http://ddi.wayne.edu/hcbs.php

If you have questions about the survey process, please send an email to hcbs@wayne.edu.

If you have questions about the Home and Community-Based Services rule or the Statewide Transition Plan, please send an email to HCBSTransition@michigan.gov.

Thank you for your continued support for Michigan’s home and community-based waiver programs.

Best regards,

The HCBS Program Transition Team
 
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Frequently Asked Questions regarding the survey process

New York forums on the impact on DD of transition to more integrated settings

From longislandexchange.com, for Immediate Release: April 11, 2016:

"[N.Y] Assembly Minority Protects Rights Of Individuals With Developmental Disabilities"
 
Assembly Minority Task Force on Protecting the Rights of People with Developmental Disabilities to hold series of statewide forums

(Long Island, NY) The impact of the U.S. Supreme Court decision Olmstead v. L.C. continues to generate concerns from family members, caregivers, community organizations and individuals with developmental disabilities throughout the transition process into more integrated work settings. As a result, the Assembly Minority Task Force on Protecting the Rights of People with Developmental Disabilities has been created to evaluate the effectiveness of current transition plans for those in sheltered workshops, developmental centers, and community homes and to ensure that the input and desires of people with developmental disabilities are being considered.

The task force will be hosting regional forums across the state in an effort to better address the current transition plans and other important issues facing individuals with developmental disabilities and their families. This forum, the fourth in a series of statewide events, will take place on Wednesday, April 20 from Noon to 2 p.m. at the Medford Fire Department, 171 Oregon Ave., Medford.

“As legislators, it is our job to gather information, assess it and propose meaningful solutions to issues affecting our community. This task force will provide us the opportunity to hear about concerns directly from those with developmental disabilities, their families and local organizations,” said Assemblyman Dean Murray (R,C,I-East Patchogue). “I look forward to an open discussion that will ultimately provide us insight to make meaningful reforms and improve the quality of life for those with developmental disabilities.”

“A concerted, statewide effort to improve services for those with developmental disabilities is the only way to make certain every New Yorker is fairly represented,” said Assemblyman Clifford W. Crouch (R-Bainbridge), task force chairman. “No New Yorker should be marginalized, and it is our job to make sure that never happens. Together, we will address the concerns of those with developmental disabilities and aggressively tackle those concerns head-on.”

Representatives from non-profit organizations and facilities, community leaders and mental health experts have been invited to attend and provide testimony. The task force is also encouraging individuals with disabilities and their families to share their firsthand experiences as a result of the Olmstead Decision.

For more information on the task force, please contact the Assembly Minority Office of Public Affairs at 518-455-5073.

To submit comments, send an email to: minpaff@assembly.state.ny.us

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What better time than now, whether you live in New York or elsewhere, to get the lowdown on Olmstead, the 1999 U.S. Supreme Court decision interpreting the Americans with Disabilities Act? 

The Olmstead decision has been routinely misinterpreted and distorted by many advocacy organizations, government agencies, and the media, as a mandate for "community only" placement for people with disabilities.  At its core, it is a thoughtful decision which balances individual need, choice, and state resources, while prohibiting "unjustified isolation" on the basis of disability.

Read more:

Olmstead, brought to you by the U.S. Supreme Court 

Olmstead Misinterpreted

The Americans with Disabilities Act

What does the ADA "integration mandate" really mean?

Comments on Michigan State Transition Plan : Part II

Here is Part I of my comments to the Michigan Department of Health and Human Services on the revised State Transition Plan on Home and Community-Based Services. 

For more information with links to relevant documents, see the notice from the MI DHHS.

Here is helpful information from the Coalition for Community Choice: Guidance for States Implementing the 2014 Home and Community-Based Services Rule
 
My general recommendation is that the State interpret the federal Home and Community-Based Services (HCBS) rule in a way that respects the individual differences and preferences of the people receiving waiver services.

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Michigan’s Revised STP for Home and Community-based Services (HCBS)

Michigan submitted a Transition Plan to CMS, who sent it back to the State with requests for changes. CMS wanted the State to correct what appear to be technical problems with ensuring consistency among all of the state Medicaid Waivers, to clarify procedures the state would follow in implementing the plan, and to fill in parts of the plan that seemed vague or were missing some steps needed for completion.  The revisions seem to take care of most of the demands from CMS.

Larger questions remain, however, in how the state will interpret the federal HCBS rule:

1. Possible use of the HCBS rule by the state and local Community Mental Health agencies to coerce people with disabilities and their families to accept inadequate settings that they would otherwise reject for the purpose of lowering costs for the funding agency
According to the rule, the State may ultimately remove an individual from a Medicaid waiver program, if a setting has been found non-compliant with the subjective criteria that define “community-based”, and the person with a disability disagrees and wishes to continue receiving services in that setting. This sets up a situation where the state could coerce individuals and their families to accept inadequate and less costly services and living situations that the families and individuals would otherwise reject. In most cases, the only alternative for them will be to go without help and the funding to pay for care and other services.

2. Lack of appeals procedures for people with disabilities to challenge compliance decisions for specific settings; determination of compliance for a particular setting does not require those assessing a setting to consider the Person-Centered Plan (PCP) for each individual affected by a compliance determination in addition to other factors.

In the State Transition Plan, the determination of compliance with the settings rule does not preclude the use of information from individual PCPs, but it also does not require consideration of PCPs in determining compliance. The PCP is the best source of information to understand the appropriateness of the setting for the individuals with disabilities affected. In the transition plan there is no appeal available to an individual who disagrees with a decision that a particular setting or service does not comply with the HCBS rule.

The only appeal mentioned in the transition plan comes after the setting has already been determined to be non-compliant with the HCBS rule and the individual can only appeal removal from a waiver program.  It is possible — even likely — that organizations and individuals hired to make assessments regarding group settings and other supervised care will reach conclusions with which people with disabilities do not agree. The State Transition Plan appears to have no way for individuals to challenge the findings of assessments for compliance.

3. Opinions of third-party “stakeholders” could override the right of people with disabilities to services and settings that that they need and prefer as expressed in the PCP and Individual Plan of Service (IPOS).

A second and related problem is that the federal HCBS rule encourages “stakeholders” to participate in assessments of individual settings. These stakeholders are not necessarily personally affected by the HCBS rule, but they are urged to identify settings that they believe to comply or not comply with the rule. Many advocacy organizations, which are considered stakeholders in this process, are ideologically opposed to housing or service settings where more than 3 or 4 people with disabilities choose to receive services or live together. Not everyone agrees with this ideology nor has it been proven to work for everyone with a disability. These settings usually serve people with complex and severe disabilities who require more care and supervision for their survival and enjoyment of life.

People who receive waiver services and their families could very well be outnumbered by "stakeholders" who are not personally affected by the assessment of a setting, but whose primary concern is in promoting an agenda that furthers their ideology. At what point could the opinions of such "stakeholders" deny an individual’s right to make choices and participate in determining the services and settings that he or she needs and prefers?

4. Monitoring for compliance with subjective criteria for “full integration into the community” could be coercive and intrusive, pressuring people with disabilities and their families to accept services that they would otherwise reject.

Depending on the state’s interpretation of the HCBS rule, it is possible that the monitoring to ensure “full integration into the community” could become intrusive. The assessment of settings depends on subjective criteria for how integrated the setting is in the community and how often and to what extent the person with a disability spends time in proximity to people without disabilities. Monitoring what people do and who they associate with is not only intrusive, but the subjective criteria to decide that a setting lacks full integration into the community could become an easy excuse to remove individuals from waiver programs as a cost-savings measure.

5. The survey tools used to assess settings are not always relevant for people who have severe physical, intellectual, or behavioral disabilities.

The Participant Survey for Residential Settings includes questions about accessibility where the answers may reflect more on the degree of disability of the person than on the qualities of the setting that is being evaluated.  For people like my sons, for instance, the survey asks,

•    Do you have full access to the home’s spaces?
•    Can you choose to come and go from your home when you want?
•    Can you move inside and outside your home when you want?

The answer to these questions for my sons is “no”, but that would be the case no matter where they lived. With their severe physical and intellectual disabilities, even if they could choose to do so, they are prevented from having full access to their environment. There should be some recognition that many disabilities really do make life harder for people and that affects their access to everything that the rest of us take for granted. The setting may make it easier to compensate for that, but it can’t change the reality of the situation.

Recommendation 1: To protect against potential abuses of the federal HCBS rule, the individual’s Person-Centered Plan and the resulting plan of service should be used as part of the assessment of settings for compliance with the rule:

According to Questions and Answers from CMS on the Final Rule:

Q 13. What is person-centered planning and why is it important?

A: Person-centered planning is a process whereby the needs and preferences of the individual receiving services are described by that person, in collaboration with family, friends and other care team members, to develop a plan of care [the PCP] that provides that individuals receive the covered services they need in a manner they prefer. The expectations set forth in this final rule emphasize that individuals are most knowledgeable about their services needs and the optimal manner in which services are delivered. These requirements apply across the 1915(c) and 1915(i) programs and are consistent with the final person-centered planning requirements for 1915(k). [emphasis added]
The Person-centered planning process is the only process that assures that the disabled person has a right to participate in determining his or her needs and preferences. The PCP and the resulting service plan are the only documents that must include the needs and preferences of the individual, the services that will be provided, and any modifications to the HCBS rule to protect the health and safety of the person. The PCP and service plan are the only written statements that the individual may challenge through appeals procedures if he or she does not agree with the results. The PCP process is also the only process available that assures participation by a representative of the individual, either chosen by the person or appointed by a court in the case of guardianship.  In short, the PCP should be given primary consideration in determining compliance with the HCBS settings rule along with other information.

By requiring consideration of the PCP and the service plan in the assessment process for compliance of settings and services with the HCBS rule, it is far less likely that the HCBS rule could be used as a means to coerce individuals and their families into accepting services and settings that they would otherwise reject.

The opinions of third-party advocates and others commenting on the compliance process would be put into perspective and could not effectively overrule the PCP and service plan for the individuals affected. The PCP should be central to determining the qualities of a setting for the individuals served as it is one of the central principles behind the HCBS rule: that individuals and the people they choose to help them are “…the most knowledgeable about their services needs and the optimal manner in which services are delivered.“

Recommendation 2: Appeals procedures for individuals to challenge compliance decisions and assessment results should be included in the state policies and the State Transition Plan.

Recommendation 3: Reevaluate the assessment tools to make sure they are evaluating the qualities of the setting and its appropriateness for the individuals involved and not assessing the severity of the disability. 
 
Additional Comments with Questions and Recommendations on the Michigan STP
 
Page 3: “Assessment Results: As individual settings are assessed for compliance under each waiver program, MDHHS will post the aggregated results for each waiver on the project website and also incorporate the results into the STP.”

Make assessment of individual settings readily available for review separate from the postings of aggregated results.

Page 16 for the MI Choice Waiver : “Compile, analyze, and review assessment data and report findings to stakeholders” (the same recommendation applies to the assessment results for the HSW waiver on page 19.)

What is the process to dispute results that might be influenced by the viewpoints of reviewers for any data collection that is subjective in nature?

Page 22, row 23: “MDHHS will develop and adopt revised policies, procedures, standards, and contracts to address ongoing compliance and monitoring.”
When will stakeholders be advised and have an opportunity to comment on any proposed revisions to policies, procedures, standards and contracts, and any proposed legislation, administrative rules and contracting procedures prior to their advancement?

Page 29, row 32.3: “if after initial assessment of any settings are found to be not in compliance…participants will be given the option to either transition to a new setting within their service area or disenroll from the waiver program.”

What happens to the waiver participant if no appropriate compliant setting is available in the timeframe? Could the participant be forced into a compliant setting that is inappropriate to the participant’s needs and desires? Who decides that? How is this documented in the person-centered plan?

Comments on MI State Transition Plan for HCBS : Part I

Comments on Michigan's revised State Transition Plan for Home and Community-Based Service (HCBS) are due on 1/22/2016. 

For more information, including links to relevant documents, see the notice from the MI Department of Health and Human Services. 

Here is helpful information from the Coalition for Community Choice: Guidance for States Implementing the 2014 Home and Community-Based Services Rule

This is the first part of my comments submitted to the Michigan DHHS:

I have two adult sons with profound intellectual and developmental disabilities who receive services funded by Michigan’s Habilitation Supports Waiver for people with developmental disabilities. They live in a group home with four other people with similar disabilities. They attend an activity program run by a non-profit organization for people with moderate to severe disabilities, which is paid for privately and not with HCBS Waiver funds.

My older son has lived in his group home for more than 18 years. Although the quality of care has varied, the problems we have encountered are not inherent to the group home structure. They are more often related to poor pay for the staff with, at times, high staff turnover, a lack of incentives to retain competent and committed direct service workers, and other external pressures associated with funding that affects the Community Mental Health system as a whole.

I have seen many improvements in the group home over the last ten years. The home is managed well and the staff does a good job of taking care of people with complex medical needs who are also non-verbal and severely intellectually disabled. My sons have transportation available to them to get to their activity program and all medical appointments and other activities that my husband and I, as their legal guardians, would like them to participate in. The group home does not impose a rigid schedule on residents for the convenience of staff. Staff members, however, follow a flexible schedule to provide daily care for our sons for such things as bathing, other personal care, medications, and feeding, including tube-feeding for my older son. 

Most important to my husband and me is the extent to which the group home and staff are supervised and monitored. Supervision and monitoring does not usually occur to the same extent in unlicensed settings that some would consider more integrated into the community. A setting such as an apartment in subsidized housing would impose extra burdens on our sons by removing them from a safe and accepting environment appropriate to their needs and reduce their opportunities for meaningful interactions with other people. It is doubtful that such a move would save money, as both of my sons would still require the same services, but would also need a one-to-one staff ratio 24/7 just to ensure their safety and to provide basic care.

My sons are well taken care of and happy with their current circumstances. We see them several times a week and monitor their care to make sure they are getting what they need.

My sons are part of a community of family, friends, and caregivers who accept them for who they are and who are respectful of their needs. In instances where my sons have not been treated well or caregivers were found to be less than competent, my husband and I, as their guardians, have always taken all measures available to us to correct problems quickly and to assure that their rights are respected.

My general recommendation is that the State interpret the federal Home and Community-Based Services (HCBS) rule in a way that respects the individual differences and preferences of the people receiving waiver services.

Will the state implement the rule with enough flexibility to avoid imposing changes on disabled people and their families that are unwanted or conflict with the safety, welfare, and medical needs of the individual? To what degree will people with disabilities and their families continue to be the primary decision makers as described in the federal Development Disabilities Assistance and Bill of Rights Act:  “individuals with developmental disabilities and their families are the primary decisionmakers regarding the services and supports such individuals and their families receive, including regarding choosing where the individuals live from available options, and play decisionmaking roles in policies and programs that affect the lives of such individuals and their families.” [from The DD Act, policy #3]?

Michigan releases revised HCBS Transition Plan for public comment

This is a Press Release from the Michigan Department of Health and Human Services. Public comments on the revised Transition Plan will be accepted through January 22, 2016. The revised plan will be submitted to the Centers for Medicare and Medicaid Services by February 29, 2016.

FOR IMMEDIATE RELEASE: December 16, 2015
CONTACT: Jennifer Eisner, (517) 241-2112

MDHHS releases revised Statewide Transition Plan for Home and Community-Based Services

LANSING, Mich. – The Michigan Department of Health and Human Services provides home and Community-Based Services to individuals in the Medicaid program. These services help Michigan citizens with disabilities or other health issues to live at home or in the community. Michigan offers many of these services through waivers, which were approved by the Centers for Medicare & Medicaid Services (CMS).

CMS recently released a new rule for Home and Community-Based Services waivers to promote enhanced quality of services and personal protections. MDHHS has five 1915(c) waivers that are impacted by the final rule:

• Children’s Waiver Program
• Habilitation Supports Waiver
• MI Choice WaiverMI 
• Health Link HCBS Waiver Program 
• Waiver for Children with Serious Emotional Disturbances

MDHHS developed a Statewide Transition Plan to outline the implementation process for this rule. The Department recently revised its Statewide Transition Plan based on feedback from the Centers for Medicare and Medicaid Services. The revised Statewide Transition Plan can be found on the MDHHS Home and Community-Based Services Program Transition page. 

Any comments regarding the proposed Statewide Transition Plan covered by this public notice, or request for a written copy, may be submitted in writing to HCBSTransition@michigan.gov or by mail to:
 
Attention:  Medicaid Policy
Program Policy Division,
Bureau of Medicaid Policy and Actuarial Services
Michigan Department of Health and Human Services
P.O. Box 30479
Lansing, Michigan 48909-7979
 
The revised Statewide Transition Plan is a draft and will be updated as needed until Feb. 29, 2015, when the plan will be submitted to CMS for approval. MDHHS will accept public comments until Jan. 22, 2016.