ACA Now

Implementation Status

2010

CMS issued a SMD letter on August 6, 2010 regarding the new HCBS options under this provision, which according to CMS, took effect on October 1, 2010 (as opposed to April 1, 2010 as one might presume based on the statutory reading).  CMS published a proposed rule in May 2012 that addressed this provision as well as the 5-year authorization requirement for certain waivers and demonstrations at section 2601 of the ACA.  The rule has yet to be finalized, but per the OMB, is “targeted” for final action in May 2013.  See also the June 2012 GAO report that explored HCBS options under Medicaid, including those denoted in this provision of the law.  For more details on the status of this provision, refer to CMS’ homepage for this topic.

2013

On Nov. 4, 2013, a final rule entitled, “Home and Community-Based State Plan Services Program, Waivers, and Provider Payment Reassignments (CMS-2249-F)” was transmitted to the OMB for its review, signifying the last procedural “stop” prior to the rule’s promulgation.   According to the regulatory agenda, “this final rule amends the Medicaid regulations to define and describe State plan home and community-based services (HCBS) under the [ACA]. This rule offers States flexibilities in providing necessary and appropriate services to elderly and disabled populations.”

2014

On Jan. 10, 2014, CMS issued a final rule detailing states’ option to cover HCBS under Medicaid and use Federal matching funds, including expanded flexibilities and a transition period for states to align with specified requirements, among other provisions. A fact sheet is available here and a press release here. A CMS-prepared document providing an overview of the rule, along with other related resources, is available here. Webinars on the content of the rule were held on January 23 and 30; see here for details.

On March 12, CMS issued a memorandum outlining modifications to quality measures and reporting under section 1915(c) Medicaid HCBS waivers; see also here. On March 20, CMS today issued an informational bulletin announcing the availability of a Home and Community-based (HCB) Settings Toolkit (available here under “Settings Requirements Compliance Toolkit”) intended to assist states and stakeholders in developing HCBS 1915(c) waivers and 1915(i) SPA or renewal applications.

On April 8, CMS released issued FAQs (available here) intended to clarify ongoing questions pertaining to 1915(i) State Plan Home and Community-Based Services, 5-Year Period for Waivers, Provider Payment Reassignment, Setting Requirements for Community First Choice, and 1915(c) HCBS Waivers pursuant to recent regulations. Among other things, CMS reiterated that it “will provide additional guidance to address the implications of the regulation for non-residential settings.” The agency further noted that it intends to release additional guidance relative to transition planning, public input requirements, person-centered planning, and changes to the 1915(c) Waiver Technical Guide. On April 18, CMS posted updated information pertaining to the Medicaid HCBS “transition toolkit” (available here under “Settings Requirements Compliance Toolkit”). Also, as part of a fuller Medicaid community-based long term services and supports (LTSS) update, CMS convened updated information pertaining to the recent award of Demonstration Grants for Testing Experience and Functional Assessment Tools (TEFT) in nine states, namely – Arizona; Colorado; Connecticut; Georgia; Kentucky; Louisiana; Maryland; Minnesota; and New Hampshire; details here. CMS also relayed recently-announced Money Follows the Person (MFP) Tribal Initiative grantees in five states, namely – Minnesota; North Dakota; Oklahoma; Washington; and Wisconsin; details here.

On May 19, CMS announced the availability of the 2012 Medicaid Expenditures for Long-Term Services and Supports Report (see here). Among other things, the report addresses various new Medicaid state plan authorities (Section 1915(i), Section 1915(j), Community First Choice, and Health Homes). On a related note, CMS, along with ACL and VHA, also announced a FOA for No Wrong Door (NWD) planning grants to states (with the exception of the 8 states currently receiving Part A ADRC grants) to enhance individuals’ access to LTSS. Applications are due by July 15. Finally, on a related note, CMS announced the availability of new resources on chronic conditions among Medicare beneficiaries.

On July 3, CMS issued an informational bulletin delineating the implications of recent regulatory changes effectuated by the DOL regarding domestic service employment with Medicaid self-direction program requirements. As noted by CMS in the bulletin, these regulatory changes – which allow states to account for the cost of overtime and/or worker travel time – “have implications for Medicaid home and community-based programs.”

On Sept. 5, CMS released a toolkit for states’ preparation of a HCBS Statewide Transition Plan. It is part of a broader set of resources on the agency’s HCBS final rule available on the CMS website here. The new toolkit update provides information to states to help them submit Statewide Transition Plans to comply with new Medicaid regulations for residential and non-residential home and community-based settings. Specifically, the toolkit explains statewide transition plans required for states operating a section 1915(c) waiver or a section 1915(i) state plan benefit for home and community-based Medicaid services.

2015

On Mar. 10, CMS issued updates to its current Medicaid HCBS toolkit guidance available to states pursuant to the HCBS requirements outlined in CMS’ Jan. 2014 rulemaking. Specifically, as part of this updated guidance installment, CMS announced additional changes to the HCBS Basic Element Review Tool for Statewide Transition Plans (i.e., “Version 1.0”) and the HCBS Content Review Tool for Statewide Transition Plans (the latter of which is embedded, beginning on p. 7, of the former document here). More information is available here. Also, in late Mar., CMS updated its website here to provide a compilation of approved Statewide Transition Plans pursuant to the above-referenced Jan. 2014 HCBS final regulation and supplemental guidance issued by the agency toward that end in the fall of 2014

On a related note, on July 15, CMS released a report highlighting Medicaid expenditures on Long-Term Services and Supports (LTSS) in FY 2013. As CMS notes, the report marks a milestone for Medicaid because FY 2013 “marked the first year in which home and community-based services (HCBS) were a majority of long-term services and supports expenditures.” A July 31 webinar was convened to discuss the report’s findings (details here and here).

In December, CMS posted on its Medicaid HCBS landing page a link to various HCBS training documents prepared by CMS. The webinars focused on topics such as HCBS requirements, the Heightened Scrutiny Process, Fiscal Integrity with a focus on Personal Care Services, and Conflict of Interest. 

2016

In mid-April, CMS released new FAQs on implementation activities related to the Medicaid HCBS final regulation. The FAQ provides guidance on two topics: (1) how CMS will review requests for planned construction of presumed institutional settings, and (2) person-centered service planning provisions and modifications to HCBS settings criteria.

On Sept. 29, CMS issued a final rule delineating major reforms to Medicare and Medicaid conditions of participation (CoPs) impacting long-term care (LTC) facilities. In particular, the rule stipulates new prohibitions on the use of pre-dispute binding arbitration agreements as a condition of admission to the facility, among other reforms. The rule addresses these provisions of the ACA.

On a related note, on Dec. 13, CMS issued an informational bulletin addressing issues pertaining to ensuring program integrity in Medicaid personal care services, a form of HCBS. Also on a related note, on Dec. 15, 2016, CMS released FAQs concerning Medicaid Beneficiaries in Home and Community-Based Settings who exhibit unsafe wandering or exit-seeking behavior.

2017 

On a related note, in early May, CMS issued an informational bulletin notifying states that it will extend the transition period after which states must demonstrate compliance with the HCBS settings criteria outlined in the 2014 HCBS final rule. Previously set to end on March 17, 2019, five years after the effective date of the rule, CMS says the transition period will be extended an additional three years until March 17, 2022.

2018

On June 29, CMS released several informational bulletins and guidance for states in recent days pertaining to implementation of certain provisions of the 21^st Century Cures Act, and Medicaid-funded HCBS.

On July 11, CMS issued a proposed rule that would reverse an Obama-era regulation allowing states to make Medicaid payments to third parties on behalf of an individual provider for benefits such as health insurance, skills training, and other benefits customary for employees. Specifically, the proposal would remove text which was finalized in the “Provider Payment Reassignment, and Home and Community-Based Setting Requirements for Community First Choice and Home and Community-Based Services (HCBS) Waivers” final rule published on January 16, 2014. The provision allowed states to divert payments to fund such benefits for “a class of practitioners for which the Medicaid program is the primary source of service revenue, such as home health care providers.” Comments on the rule were due Aug. 10.

2019

On a related note, on Apr. 3, Congress passed H.R. 1839, the Medicaid Services Investment and Accountability Act, to extend protection against spousal impoverishment for Medicaid recipients of HCBS against spousal impoverishment through Sept. 30, 2019 (as opposed to Mar. 31, 2019 pursuant to prior Medicaid “Extenders” legislation (P.L. 116-3). See our prior summary for more information.

On a related note, in August, President Trump signed into law a package of Medicaid extenders incorporated in the Sustaining Excellence in Medicaid Act of 2019 (H.R. 3253). Highlights of legislative package includes an extension of the protection allowing states to disregard a Medicaid recipient’s spousal income and assets when determining eligibility for HCBS from Sept. 30, 2019 to Dec. 31, 2019.  Our summary of the legislative package is available here.

In September, MACPAC convened a session today to discuss implementation of CMS’ HCBS rule and how states have progressed to comply with the rule. Our summary is available here.