HCBS Settings Rule Getting Prepared October 2016 District

HCBS Settings Rule Getting Prepared October 2016 District Meetings

Why did CMS Revise the Rules? Reiterate Focus Support • Institutions, such as nursing homes, cannot be funded as HCBS Settings • Enhance person-centered experience; require they have same degree of access as their non-Medicaid funded neighbors • Inclusion and integration of people in the community.

Who is Impacted by the New Rules? • All resident and non-residential settings funded through Medicaid as part of HCBS: Adult Day Services Group Homes Assisted Living/HWS Including Memory Care Employment Services The HCBS Settings Rule DOES NOT apply to independent living providers or providers who only serve private pay residents or clients in their settings.

General Federal Requirements • Be integrated and facilitate full access to greater community • Optimize autonomy and independence in making life choices • Be chosen by individual from among options • Provide option to choose a private unit • Ensure right to privacy, dignity, respect and freedom from coercion or restraint • Facilitate choice of services and who provides them • Provide opportunity to seek competitive employment

Additional Requirements: Residential Provider-Owned Settings • Lease or legally enforceable agreement to protect from eviction; • Privacy in unit including entrances lockable by individual; • Choice of roommates; • Freedom to furnish or decorate the unit. • Control of schedule and activities. • Access to food at any time; • Visitors of their choosing at any time; • Physical accessibility for the individual. If requirements are not met, provider must document reasons in person-centered plan. Leading. Age Minnesota has recommended DHS consider a reasonability factor in some of these requirements.

Minnesota Transition Plan • State transition plan in stage 2 of 5 -step approval process with CMS. • Plan must include minimal federal requirements; but states have flexibility in how they apply more stringent standards. • Plan includes how state will update policies, rules, law to confirm to new rules; assess compliance; remedy compliance issues; timeline and responses to public comment period.

4 Areas of Concern Settings Presumed to be Institutional in Nature Heightened Scrutiny Process New Construction Guidelines Ability to Serve Medicaid Beneficiaries

Institutional in Nature Publicly or Privately Owned Facilities that Provide Inpatient Treatment Settings on the Ground of or Adjacent to a Public Institution Settings that have effect of isolating Medicaid-funded Individuals from Broader Community example Housing with Services in wing of a nursing home; Adult Day program within same building as hospital or nursing home. Housing with Services or Adult Day program attached to or next door to publicly-owned hospital or nursing home. Settings designed for people with disabilities or for people with a certain type of disability.

Heightened Scrutiny Process • Facilities presumed to be “institutional in nature” will need to show their setting does not have characteristics of an institution and has qualities of HCBS setting. • Process not yet developed by DHS. • DHS will make initial determination; CMS makes final determination • If CMS does not approve, providers will no longer be eligible to receive HCBS funding.

Preliminary Assessment DHS has conducted a preliminary Heightened Scrutiny assessment to determine: • Assisted Living providers within a public or private nursing home or hospital. • Assisted Living providers adjacent to a public institution. • Adult Day providers serving older adults within a public or private nursing home or hospital. • Adult Day provider is adjacent to a public institution. DHS will review results, and use information to inform the Heightened Scrutiny criteria and process.

New Construction • Applies to settings presumed to be institutional in nature. • Does not apply to stand alone assisted living or adult day programs. • Compliance can’t be determined on plans or physical descriptions.

New Construction • Settings must be operational and occupied by individuals as they need to experience the setting before State can make determination to its HCBS qualities. • There is nothing in the final rule prohibiting growth and new construction of HCBS communities presumed to have institution qualities. However, states would be encouraged to prohibit a provider from new construction within a nursing home setting.

Ability To Serve • New rules may limit ability of assisted living and memory care providers to serve Medicaid beneficiaries, especially in rural Minnesota. • New rules could force Medicaid HCBS into more expensive and more restrictive care settings. • If provider does not comply with new rule, they will not be certified as a Medicaid HCBS provider but can continue to serve private pay individuals.

DHS Timeline 2016 • Determines standards, criteria and expectations. • Establishes compliance process. • Completes provider attestation. • Holds public comment period. • Submits revised plan. 2017 • Proposes changes to state law and federal waiver plans to reach alignment. • Develops tools/resources and provides technical assistance. 2018 -2020 • Determines which settings will be submitted to CMS for heightened scrutiny. (2018) • Establishes process to verify compliance. (2018) • Verifies compliance of all settings (20182020)

What You Should Do ASSESS ENGAGE PREPARE • Measure your setting against the new requirements to see if you are in compliance or will need to undergo Heightened Scrutiny. • Participate in the public comment period(s) for the State Transition Plan to help shape the heightened scrutiny and compliance process. • Read Advantage for ongoing updates. • Use resources provided by DHS (when available) to show compliance, get in compliance or prepare for heightened scrutiny.

Resources • Leading. Age Minnesota Web Site – Provider Resources – HCBS Settings Rule • CMS Toolkit: What You Should Know, Settings Presumed to be Institutional & Heightened Scrutiny Process • Links to DHS HCBS Settings Rule information • Additional information will be added, including tools and resources to prepare for and verify compliance

For More Information… Bobbie Guidry Vice President of Housing and Community Services 651. 603. 3508 bguidry@leadingagemn. org