Impact of CMS Final Rule on Adult Family Care, Adult Day

Services, and Structured Family Caregiving

Steve Bordenkecher, Division of AgingJune 23, 2015

History of the Rule

• Final rule was announced by CMS 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 states to meet their obligations under the ADA and the Supreme Court decision in Olmstead v. L.C., 527 U.S. 581 (1999).

Rule Contents

• 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

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

• The Statewide Transition Plan was submitted to CMS on December 13, 2014.

• 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.

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 have identified some needed changes

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.

• Most “settings-based” provider sites will require some remediation.

• Instances of concern in all requirements

Adult Family Care

AFC HCBS Compliance

Access to Visitors

Freedom to access community

Privacy

Person-Centeredness/Freedom to Choose

Integrated Settings

Access to Food

Lease

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

AFC HCBS Compliance

Adult Family Care

• 12 Respondents

• 2 Did not identify any concerns

• 83% identified some area of concern

• Most identified issues include lack of leases, person-centeredness and access to food

Adult Day Service

Access to Visitors

Freedom to access community

Privacy

Person-Centeredness

Accessibility

Integrated Settings

Access to Food

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Adult Day Service "Final Rule" Compliance

Adult Day Service

• Of 32 self-assessments, 3 did not indicate a need for changes.

• 91% of ADS providers identified at least one deficit.

We Can’t Leave out Structured Family Care….• SFC is “presumed compliant” as it is offered

in the home of the consumer.• DA will not be reviewing SFC sites outside of

the usual consumer reviews.• DA will rely extensively on 90 Day Review

data to assess SFC participants• SFC cannot be offered in a setting which

denies consumer choice, access to food, access to visitors and other requirements of the HCBS rule

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 (2016-2017)– Site visits reviews– 90 Day review reports– Person-Centered Compliance Review

• Formalize standards in waivers, administrative code and policies (2016-2018)

• Remediate deficiencies using corrective action plans (2017-2018)– 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.

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.

Additional Information

• Indiana’s HCBS Final Rule Website: http://www.in.gov/fssa/4917.htm

• CMS HCBS Website: http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Supports/Home-and-Community-Based-Services/Home-and-Community-Based-Services.html