Impact of CMS Final Rule on Home & Community-Based Services Yonda Snyder, Division of Aging June 23, 2015

History of the Rule Final rule was announced in January, 2014, with an effective date of March 17, 2014 CMS’ stated intent in promulgating this rule was to maximize opportunities for people to have access to the benefits of community living, including receiving services in the most integrated setting and to ensure that Medicaid funding and policy support needed strategies for states in their efforts to meet their obligations under the ADA and the Supreme Court decision in Olmstead v. L.C., 527 U.S. 581 (1999).

Rule Contents Gives states some new flexibilities in waiver design; Establishes requirements around Home & Community Based settings Defines requirements around person- centered planning; Outlines transition planning requirements for states to bring their existing waiver programs into compliance.

Implementation Some rule components are immediately effective, most notably requirements around person-centered planning. For settings not in compliance with new HCBS standards, states have until March 2019 to bring their waiver programs into compliance.

What is “Home and Community-Based”? The rule emphasizes personal autonomy, choice, and community integration. The focus is on the nature of people’s experiences to determine if services are home or community-based, rather than focusing on discrete items such as location, geography, or physical characteristics.

CMS Guidance CMS has Issued guidance on assessing residential and non-residential settings emphasizing: – Consumer’s rights of choice, privacy, self- determination and community integration – Participant access to information and resources – Participant’s rights to person-centered services Settings presumed not compliant are subject to “heightened scrutiny”.

Settings Presumed Institutional Settings in the same building of a NF; Settings adjacent to a public institution; Settings that isolate – being next a NF does not necessarily isolate CCRC’s are not generally presumed to be institutional by CMS.

Requirements for ALL HCB Settings The setting is integrated in and supports full access to the greater community; The setting is selected by the individual from among setting options; Each individual has a right to privacy, is treated with dignity and respect, and is free from coercion and restraint; Provides individuals independence in making life choices; The individual is given choice regarding services and who provides them.

What Does This Mean?! The individual has a lease or other legally enforceable agreement providing similar protections; Each individual must have privacy in their living unit including lockable doors; The individual has the option of a private room; Individuals sharing a living unit must have choice of roommates; Individuals must be allowed to furnish or decorate their own sleeping and living areas; The individual controls his/her own schedule including access to food at any time; The individual can have visitors at any time; and The setting is physically accessible.

Transition Planning States are required to submit transition plans for each waiver program at the time of renewal or amendment; Statewide transition plans were required to CMS within 120 days of submission of first waiver-specific plan or March 17, 2015, whichever was earliest.

Indiana’s Transition Plans CIH Waiver renewal was due in August of 2014, so our first waiver-specific plan was submitted in August of last year. The Statewide Transition Plan was submitted to CMS on December 13, We will need to submit an amendment to the A&D waiver this year, so will be required to submit a transition plan specifically for this waiver at that time. Engaged PCG to provide technical assistance and project management

Division of Aging Approach Completed an initial assessment of our AL and AFC settings. Conducted public notice and “listening sessions” throughout the state – with limited consumer response. Comments were incorporated in the transition plan submitted in December. We have examined our rule and waiver language closely and are working with ISDH to determine the extent to which state rules/regulations conflict with the CMS Rule.

Initial Assessment Results State Level - Waiver service definitions and 455 IAC 2 (the Aging Rule) lack the specificity of the HCBS Rule and will require modifications.

Provider Level Results Individual control of schedules; (AFC 25%; AL 17%) Visitation at any time (AFC 25%; AL 30%) Right to come and go at any time (AFC 17%; AL 5%) Integrated Settings and Access to the Community Choice of Roommates, or if to Have One (17% AFC; AL 13%) The Use of a Legally Enforceable Lease Agreement (AFC >33%; AL >10%) Secured Memory Care Units (24% AL)

Secured Memory Units Individuals with dementia preserve the same rights to privacy, choice and autonomy. Secured memory units de facto do not meet the HCBS standards. Case managers and AL communities will need to collaborate closely to determine what will work best for a person with dementia. Current research is identifying means other than locked doors to help mitigate the risk of wandering and elopement.

Other transition plan activities Develop standards for each requirement (2015 – 2016) – Consumer, Advocate and Stakeholder Participation Develop tools to assess standards at the individual & provider level ( ) – Site visits reviews – 90 Day review reports – Person-Centered Compliance Review Formalize standards in waivers, administrative code and policies ( ) Remediate deficiencies using corrective action plans ( ) – Terminate providers unable to comply (2018) Deploy on-going monitoring tools (2017 – 2018)

Public Input CMS is examining closely the extent to which states subject their plans to public comment. Required to submit the results of all assessments, plan components and any changes made. Requirement to do this by multiple means, accessible to a variety of populations.

What About Non-Waiver Services? According to CMS representatives, all of the federal agencies who administer or oversee states’ LTSS are in agreement about these standards and their enforcement. We will be examining the extent to which services provided under other funding sources (CHOICE, OAA Title III, SSBG) meet the requirements of this rule.

Implementation & Monitoring Primary tool will be 90-day review. Currently re-vamping this in order to make it more usable for this purpose. Random person-centered reviews National Core Indicators – AD survey Probable comprehensive resident experience survey.

What Else is Happening Here? Medicaid Rebalancing – Supports individuals’ desires to NOT be in a nursing facility – Less expensive to provide care and services for people outside of institutional settings Waiver program design Assisted Living workgroup

Additional Information Indiana’s HCBS Final Rule Website: CMS HCBS Website: Program-Information/By-Topics/Long-Term-Services-and- Supports/Home-and-Community-Based-Services/Home-and- Community-Based-Services.htmlhttp:// Program-Information/By-Topics/Long-Term-Services-and- Supports/Home-and-Community-Based-Services/Home-and- Community-Based-Services.html