Department of Labor Offers Additional Interpretation on the Application of Employment Law on Consumer Directed Services

Last week the Department of Labor (DOL) provided additional interpretation on how the home care rules apply to consumer directed services funded by Medicaid. States and provider organizations had raised concerns about how the Fair Labor Standards Act (FLSA) requirements about who is an employer apply to these services. The interpretation will require each public or private agency that administers or participates in a consumer-directed, Medicaid-funded home care program to evaluate whether it is an employer under the FLSA. The interpretation provides several examples of how FLSA requirements apply to different situations. Guidance and additional information about the rule can be found on the DOL website.

New Resource on the Medicaid Home and Community Based Services (HCBS) Final Rule

Today, the National Association of Councils on Developmental Disabilities, the National Disability Rights Network, and the Association of University Centers on Disabilities announced a new resource for advocates to follow implementation of the HCBS final rule.  The rule set forth new requirements for several Medicaid authorities under which states may provide home and community-based long term services and supports.  The website will have both state and federal resources to help track what states are doing to comply with the rule and educate advocates about the important provisions.

Technical Assistance to Help States Comply With New Home and Community-Based Setting Rules

The Centers for Medicare and Medicaid Services (CMS) reposted technical assistance documents for states to assist them in complying with the new home and community-based setting rules.   Documents originally posted on the CMS website were taken down and the original links are no longer active.  A new set of documents was posted on March 20 and stakeholders may want to review them for any changes.

Home and Community-Based Setting

The Centers for Medicare and Medicaid Services (CMS) released its long-awaited final rule that defines home and community-based setting.  The definition pertains to home and community-based settings across all Medicaid home and community-based services (HCBS) authorities: section 1915(k) Community First Choice, section 1915(i) State plan HCBS, and section 1915(c) HCBS Waivers.  Until the final rule is published in the Federal Register on January 16, a pre-publication version is available.  The rule will become effective March 17, 2014.  CMS has developed a website to provide information about the new rule, including an informational bulletin, a summary of key provisions in the new HCBS definition, fact sheets, questions and answers, and other related resources. CMS will be holding a series of informational webinars over the next several weeks. The dates for these webinars can be found on the website.

For currently approved 1915(c) waivers and 1915(i) state plans, states will need to evaluate the settings currently in their 1915(c) waivers and 1915(i) state plan programs and, if there are settings that do not meet the final regulation’s home and community-based settings requirements, work with CMS to develop a plan to bring their program into compliance. The public will have an opportunity to provide input on states’ transition plans. States will have up to one year to bring their HCBS settings into compliance.

Federal Medicaid matching funds for states

The Balancing Incentive Payment Program was created by the Affordable Care Act. Under the program, states can receive increased federal Medicaid matching funds to rebalance their long term services and supports budgets. The program has $3 billion to award to states that choose to participate in the program. Thus far, $800,000 has been awarded to New Hampshire, Maryland, Georgia, Mississippi, Missouri, Iowa, Texas, and Indiana. States are eligible for a 2% increase in their federal medical assistance percentage (FMAP) if they currently spend less that 50% of their long term services and supports budget on home and community based services (HCBS) and a 5% increase if they spend 25% or less on HCBS. The funds are available through 2015.

Disability Rights Education and Defense Fund Survey

The Disability Rights Education and Defense Fund (DREDF) and the Center for Personal Assistance Services, Institute for Health and Aging, University of California, San Francisco are conducting a survey to identify the types of tools and information you require to advocate effectively as states move to managed healthcare, long-term services and supports (LTSS) and home and community-based services (HCBS) for people with disabilities and seniors.

To learn more about the survey and who should participate visit the DREDF website.

Proposed Rules Issued Regarding Home and Community Based State Plan Option

CMS also announced the proposed State Plan Home and Community-Based Services (HCBS) rule which includes the revised definition of “home and community” setting. The State Plan HCBS proposed rule gives states guidance about how to amend their state Medicaid plans to make home and community-based services available without having to design waivers. State plan home and community-based services will be available to individuals with significant needs who will not have to meet institutional level of care. If a state chooses the option, services must be available to anyone who meets eligibility standards; waiting lists are not permitted.

CMS’s proposed definition of home and community setting lists qualities that settings should have, such as:

“The setting is integrated in, and facilitates the individual’s 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, like individuals without disabilities. . . “

The proposed rule lists specific facilities that would not be considered home and community-based settings, such as intermediate care facilities for individuals with intellectual and developmental disabilities.

CMS will rely on the proposed setting definition as it reviews new 1915(k) CFC options and will expect states to comply with the setting requirements. If there are changes to the definition when the rule is finalized, CMS will give states a transition period, at a minimum of one year, to make any needed changes.

The Arc will review the revised definition of home and community setting and make comments if necessary. It is anticipated that the proposed rule will appear in the Federal Register on May 3. The comment period will close 30 days later.

Department of Justice reaches agreement with Virginia

The Department of Justice (DOJ) reached a settlement agreement with the Commonwealth of Virginia that will avoid costly litigation. Under terms of the settlement, Virginia will cease operations at four of its five training centers for people with intellectual and developmental disabilities (I/DD) by 2021 and will assist individuals receiving home and community-based waiver services to live in the most integrated setting consistent with their informed choice and needs. The state will facilitate individuals living in their own homes, leased apartments, or families’ homes by creating a dedicated housing service coordinator position and creating an $800,000 fund to provide and administer rental assistance to individuals who receive HCBS waiver services. Under terms of the agreement, no individuals may be placed in a nursing facility or any setting with five or more individuals unless the placement is consistent with the individual’s needs and informed choice.

The state must create 4,170 new waiver slots for people currently residing in any of the state’s five Training Centers (currently about 1,000 individuals), people with intellectual disabilities who are on the state’s “urgent” waiting list for waiver services, people with ID who are under 22 and live in facilities other than the training centers, people with DD who are on the state’s waiting list for waiver services and for people with DD who are under 22 and live in facilities other than the training centers. The state also will create an individual and family support program for 1,000 individuals with I/DD most at risk of institutional placement.

Virginia must set up an independent case management system to ensure that individual support plans (ISP) that are person-centered are developed, to assist individuals in accessing needed services, and to monitor implementation of the ISPs. Statewide crisis services, including mobile crisis teams, must be in place to prevent the removal of an individual from his or her home. Virginia must establish an “Employment First” policy (supported employment in integrated work settings where they are paid minimum or competitive wages is the first and priority service option for individuals) and provide integrated day opportunities, including supported employment, to the greatest extent practicable. The state must provide data and set targets to increase the number of individuals who enroll in supported employment and who are employed in integrated work settings for at least 12 months.

Detailed plans for helping individuals transition from institutional settings to community settings and establishing a quality and risk management system are outlined in the agreement. An independent reviewer will oversee the settlement agreement for the court which retains jurisdiction.

To view The Arc’s statement in response to this agreement visit our blog.

CMS Releases Information Bulletin Regarding Prevocational Services under the Home and Community Based Services Waiver

The Centers for Medicare and Medicaid Services (CMS) released an Informational Bulletin regarding Updates to the Section 1915(c) Waiver Instructions and Technical Guide regarding employment and employment related services. Specifically, the Bulletin provides updates to several sections of the current Waiver Technical Guide Version 3.5, which was released in January of 2008, in advance of a future release of Technical Guide Version 3.6. Major changes include highlighting the importance of competitive work, acknowledging best and promising practices, clarifying that Ticket to Work Outcome and Milestone payments do not conflict with payment of Medicaid services, splitting supported employment into two definitions, adding a new service definition for career planning, emphasizing person centered planning, clarifying that volunteer and other unpaid activities are appropriately described in prevocational services as opposed to supported employment, and clarifying the time-limited nature of pre-vocational services (without giving specific limits).

HHS Secretary promotes ACA provisions at briefing

The Kaiser Family Foundation convened a panel of health care and insurance experts to discuss the many opportunities for long-term services and supports and home and community-based service programs (HCBS) in the health reform law.  The panel specifically highlighted the expanded eligibility for Medicaid and for the Money Follows the Person program for individuals transitioning from institutions to the community, as well as the Community Living Assistance Services and Supports (CLASS) program.  Department of Health and Human Services (HHS) Secretary Kathleen Sebelius also address the group regarding CLASS and stated, “As more Americans come to depend on long-term services and supports, that’s a freedom we should fight to protect”.  See the briefing resources, including reports, presentation slides, and the archived webcast at