Medicaid Home and CommunityBased Settings Rule HCBS Modifications

Medicaid Home and Community-Based Settings Rule HCBS Modifications A Training for HCBS Waiver Providers

Presenter Dr. Lisa A. Mills, Ph. D Consultant to State of Maine since 2015 Lead Subject Matter Expert for Maine’s HCBS Settings Rule Transition to Compliance Initiative 2

• Understanding what “modifications” means in the context of the Medicaid Home and Community-Based Services ) Settings Rule Learning Objectives • Understanding the specific HCBS Settings Rule standards that can be modified • Understanding the circumstances under which a HCBS Settings Rule standard may be modified • Understanding how a modification may be implemented, including the roles of the Care Coordinator/Case Manager and HCBS provider • Understanding how the Care Coordinator/Case Manager is expected to document an HCBS modification as part of the Person-Centered Plan 3

• A federal regulation that defines standards for settings where Medicaid HCBS services are provided using federal funding. What is the HCBS Settings Rule? • The Rule is the result of a nearly 5 year rulemaking process during which over 2, 000 public comments were submitted during multiple public comment periods. • The final Rule was issued in March 2014. States have been given until March 2023 (9 years) to bring all existing HCBS settings into compliance with all of the standards in the Rule. 4

The HCBS Settings Rule Goals: Access Integration Maximize opportunities for participants to have full access to the benefits of community living Ensure participants can receive services in the most integrated setting Quality Ensure the quality of Home and Community-Based Services Rights Provide rights protections for participants For More Information www. Maine. gov/dhhs/oads/HCBS 5

What is an “HCBS Modification”? A plan for a specific individual to modify expectations associated with a certain HCBS setting standard • Plan for an individual – not for an entire household or setting • Must be for an assessed health and/or safety need • Must be justified by documenting the positive and less restrictive interventions that have been tried previously that did not work: • Were not effective to address the health and/or safety need • Tried in recent past, not distant past No “House Rules” or setting policies that are automatically applied to everyone, limiting one or more rights under HCBS Settings Rule 6

What is an “HCBS Modification”? (2) A plan for a specific individual to modify expectations associated with a certain HCBS setting standard • The modification to be implemented must be clearly described with assurance it will cause no harm to the person • The plan to modify the HCBS setting standard must be proportionate to assessed need • No more restrictive and limiting than is necessary to safeguard health and safety If I cannot have fruit juice within two hours of taking my medication, there should not be a modification plan that says I can never have fruit juice or my provider will decide all types of drinks I may have and when. 7

What is an “HCBS Modification”? (3) A plan for a specific individual to modify expectations associated with a certain HCBS Setting standard • The modification must be reduced and eliminated as soon as feasible • The plan must include methods for collecting and reviewing data on the effectiveness of the modification Modifications are not “Standing Orders” • The plan must include a defined schedule for regular review of the effectiveness of the modification 8

What is an “HCBS Modification”? (4) A plan for a specific individual to modify expectations associated with a certain HCBS Setting standard • The person (and/or legal guardian, if applicable) must give informed consent for the modification • Must ensure understanding of what is being consented to • Why the modification is being proposed • How the modification will be implemented • When and how often the modification will be reviewed • How person/legal guardian change/end the modification 9

HCBS Setting Standards That Can Be Modified Important: Not all HCBS setting standards can be modified 10

Freedom from restraint including restrictive measures Across All HCBS Settings: There is Only One HCBS Setting Standard that can be Modified IMPORTANT: This modification can only be implemented if the approved Waiver permits the use of restraint and/or restrictive measures Section 18: ONLY freedom from restrictive measures can be modified; freedom from restraint CANNOT Section 20: NEITHER freedom from restraint nor freedom from restrictive measures can be modified Sections 21/29: BOTH freedom from restraint and freedom from restrictive measures can be modified Compliance with 14 -197 CMR ch. 5 is required, including approved Safety Device Plan and/or Behavior Management Plan if applicable 11

In Any Type of Provider Owned or Controlled Settings: Modifications Are Permitted Only For These HCBS Setting Standards Freedom and support to control their schedules and activities. Freedom and support to ensure access to food at any time. Have visitors at any time, taking into account respect for others sharing the unit in residential settings. IMPORTANT: A modification to the expectation that the setting will be physically accessible to the person may NOT be implemented. 12

In Residential Provider Owned or Controlled Settings: Modifications Are Permitted Only For These Additional HCBS Setting Standards A choice in determining with whom to share the living unit (and bedroom, if applicable) Lockable entrance door(s) to living unit (and bedroom doors if sharing with other unrelated persons) With only the individual and appropriate staff shall have keys/codes for door(s). Ability to furnish and decorate their living unit and/or bedroom as desired, consistent with the terms of the lease or residency agreement. 13

Which Settings Are Provider Owned or Controlled? Setting Type Section 18 Waiver Section 20 Waiver Section 21/29 Waiver Work Ordered Day Club House Community Support Facility Work Support-Group Work Support-Individual Community Support (if no time spent in facility) Residential: Provider Owned or Controlled Group Home Provider-Owned Residence Provider-Leased Residence Shared Living-Unrelated Provider Family-Centered Home Residential: Not Provider Owned or Controlled Member(s) own home Relative owns home Member/relative rents from third party (not provider) Shared Living-Related Caregiver Non-Residential: Provider Owned or Controlled Non-Residential: Not Provider Owned or Controlled Department of Health and Human Services 14

A Modification Must Be for a Health and/or Safety Reason Not for Provider or Staff Convenience or Resource Constraints POOC = Provider Owned or Controlled RES POOC = Residential Provider Owned or Controlled ALL SETTINGS: Freedom from restraint (Mods allowed for Section 21/29 only), including restrictive measures (Mods allowed for Section 18/21/29 only) POOC: Freedom and support to control their schedules and activities. POOC: Freedom and support to ensure access to food at any time. POOC: Have visitors at any time, taking into account respect for others sharing the unit. RES POOC: A choice in determining with whom to share the living unit (and bedroom, if applicable) RES POOC: Lockable entrance door(s) to living unit (and bedroom doors if sharing with other unrelated persons) With only the individual and appropriate staff shall have keys/codes for door(s). RES POOC: Ability to furnish and decorate their living unit and/or bedroom as desired, consistent with the terms of the lease or residency agreement. 15

Freedom and Support to Ensure Access to Food (and drink) at Any Time in Provider Owned or Controlled Non. Residential Settings: Basing Expectations on What is Typical in Typical Community Settings Some Community Places May Limit Food/Drink in Certain Areas of the Setting These Community Places Typically Have Areas of the Setting Where Food/Drink is Permitted -The Area Permitting Food/Drink is Always Available -People Are Able to Leave the Setting to Get Food/Drink When They Want To 16

A Modification to an HCBS Setting Standard for an Individual Must be Documented in the Person-Centered Plan From February 1, 2021 All Modifications Must Be Documented in the Next Annual PCP 17

Step #1 for Every Waiver If none, the Modification cannot be implemented. What Category of HCBS Modification is Being Considered By the PCP Team? What is the Specific Modification that is Needed? Why is the Specific Modification Needed? What Else Has Been Tried But Has Not Worked? What is the health and/or safety reason(s) for the Modification? How do we know these health and/or safety needs exist for the person? What are the positive and less restrictive interventions that have already been tried but were unsuccessful? 18

Process for Documenting Modification Varies by Waiver • Section 18 • How modification is documented will depend on whether the reason for the modification is dangerous/maladaptive behavior • Section 20 • One method for documenting the modification • Section 21/29 • How modification is documented will depend on whether the reason for the modification is challenging behavior A Decision Tree is Available for Each Waiver 19

HCBS Modifications Include Any of the Following: • Use of restrictive measures • Restriction on access to food at any time • Restriction on having visitors at any time • Restriction on freedom to control and choose daily schedule and activities • Restrictions on having key or other way to independently open locked doors in residential setting at any time • Restriction on choice of housemate if sharing living unit and/or roommate if sharing bedroom in residential setting • Restriction on choice to share bedroom in residential setting • Restriction on freedom to furnish and decorate living unit and bedroom in residential setting Section 18 PROCESS STEP #2 Section 18 Enrollee is Own Guardian OR Legal Guardian Appointed Does Justification of Need for HCBS Modification Include Dangerous or Maladaptive Behavior? YES NO Does Person (and/or Guardian) Consent to Behavioral Intervention (Positive Behavior Supports, Mildly Intrusive or Moderately Intrusive) to Implement HCBS Modification? Legal Guardian’s written consent is sufficient but person’s consent through voluntary compliance is still expected. Does Person (and/or Guardian) Consent to HCBS Modification? YES NO Use Appropriate Type of Behavioral Intervention to Incorporate HCBS Modification into PCP and Allow Provider(s) to Implement the Modification HCBS Modification Cannot be Included in PCP and Cannot be Implemented by Provider(s) HCBS Modification Can be Included in PCP and Can be Implemented by Providers(s) HCBS Modification Cannot be Included in PCP and Cannot be Implemented by Provider(s)

Section 18 PROCESS STEP #3 Document Modification in PCP Dangerous/Maladaptive Behavior IS Part of Justification for Modification Dangerous/Maladaptive Behavior IS NOT part of Justification for Modification Based on Outcome of Process Step #2, Incorporate Behavior Plan for Appropriate Category of Behavioral Intervention (Positive Behavior Supports, Mildly Intrusive, Moderately Intrusive) by Reference into PCP and Attach to PCP Based on Outcome of Process Step #2, if Modification Can Be Included in PCP, Complete PCP HCBS Modification Addendum and Attach to PCP Behavior Plan must include a plan that: (1) identifies the ongoing process for evaluating the effectiveness of the modification; and (2) identifies timeframes ensuring the modification must be periodically reviewed and reevaluated. Behavior Plan must include steps being taken to remove or reduce modification as soon as feasible. Behavior Plan must include documentation of informed consent. Addendum must include a plan that: (1) identifies the ongoing process for evaluating the effectiveness of the modification; and (2) identifies timeframes ensuring the modification must be periodically reviewed and reevaluated. Addendum must include steps being taken to remove or reduce modification as soon as feasible. Addendum must include documentation of informed consent. 21

• Documentation of HCBS Modification due to dangerous/maladaptive behavior is incorporated into the Behavior Plan • Refer to the Office of Aging and Disability Services’ Brain Injury Waiver Behavior Plan Review form (updated Jan, 2020) Section 18: Documenting an HCBS Modification • Additional elements necessary for implementing an HCBS Modification have been incorporated into this form 22

• Section 18: Documenting an HCBS Modification for Dangerous or Maladaptive Behavior in the Behavior Plan 23

Section 18: • Documenting an HCBS Modification for Health and/or Safety Reason Other Than Dangerous or Maladaptive Behavior Care Coordinator will work with the provider(s) that will implement the modification to complete an Addendum to the PCP • This will be a fillable form. Until EVERGREEN is implemented, this form will be kept in the paper file of the person; but always treated as part of the PCP. 24

Section 20 PROCESS STEP #2 HCBS Modifications in Any Type of Provider Owned or Controlled Settings Include Any of the Following: • Restriction on access to food at any time • Restriction on having visitors at any time • Restriction on freedom to control and choose daily schedule and activities HCBS Modifications in Residential Provider Owned or Controlled Settings Include Any of the Following: • Restrictions on having key or other way to independently open locked doors at any time • Restriction on choice of housemate if sharing living unit and/or roommate if sharing bedroom • Restriction on choice to share bedroom • Restriction on freedom to furnish and decorate living unit and bedroom Section 20 Enrollee Person is Own Guardian Legal Guardian Does the Person Consent to the HCBS Modification? Does the Legal Guardian Consent to the HCBS Modification? YES NO HCBS Modification Can be Included in PCP and Can be Implemented by Provider(s) HCBS Modification Cannot be Included in PCP and Cannot be Implemented by Provider(s) 25

Section 20 PROCESS STEP #3 Document Modification in PCP: Based on Outcome of Process Step #2, if Modification Can Be Included in PCP, Complete PCP HCBS Modification Addendum for Section 20 and Attach to PCP Addendum must include a plan that: (1) identifies the ongoing process for evaluating the effectiveness of the modification; and (2) identifies timeframes ensuring the modification must be periodically reviewed and reevaluated. Addendum must include steps being taken to remove or reduce modification as soon as feasible. Addendum must include evidence of informed consent is documented. 26

• Section 20: Care Coordinator will work with the provider(s) that will implement the modification to complete an Addendum to the PCP Documenting an HCBS Modification for Health and/or Safety Reason • This will be a fillable form. Until EVERGREEN is implemented, this form will be kept in the paper file of the person; but always treated as part of the PCP. 27

HCBS Modifications Include Any of the Following: • Use of restraints • Use of restrictive measures • Restriction on access to food at any time • Restriction on having visitors at any time • Restriction on freedom to control and choose daily schedule and activities • Restrictions on having key or other way to independently open locked doors in residential setting at any time • Restriction on choice of housemate if sharing living unit and/or roommate if sharing bedroom in residential setting • Restriction on choice to share bedroom in residential setting • Restriction on freedom to furnish and decorate living unit and bedroom in residential setting Sections 21 -29 PROCESS STEP #2 Section 21 or 29 Enrollee Person is Own Guardian Legal Guardian

HCBS Modifications Include Any of the Following: • Use of restraints • Use of restrictive measures • Restriction on access to food at any time • Restriction on having visitors at any time • Restriction on freedom to control and choose daily schedule and activities • Restrictions on having key or other way to independently open locked doors in residential setting at any time • Restriction on choice of housemate if sharing living unit and/or roommate if sharing bedroom in residential setting • Restriction on choice to share bedroom in residential setting • Restriction on freedom to furnish and decorate living unit and bedroom in residential setting Sections 21 -29 PROCESS STEP #3 No Legal Guardian Appointed Person is Own Guardian Does Justification of Need for HCBS Modification Include Challenging Behavior? YES NO Does Person Consent to HCBS Modification? YES NO Use Positive Support Plan to Incorporate HCBS Modification into PCP Neither Behavior Management Plan nor HCBS Modification Can be Included in PCP and Implemented by Provider(s) HCBS Modification Can be Included in PCP and Can be Implemented by Providers(s) HCBS Modification Cannot be Included in PCP and Cannot be Implemented by Provider(s) IMPORTANT: Implementing an HCBC Modification does not eliminate obligation to use Safety Device Plan if required under 14 -197 CMR ch. 5

HCBS Modifications Include Any of the Following: • Use of restraints • Use of restrictive measures • Restriction on access to food at any time • Restriction on having visitors at any time • Restriction on freedom to control and choose daily schedule and activities • Restrictions on having key or other way to independently open locked doors in residential setting at any time • Restriction on choice of housemate if sharing living unit and/or roommate if sharing bedroom in residential setting • Restriction on choice to share bedroom in residential setting • Restriction on freedom to furnish and decorate living unit and bedroom in residential setting Sections 21 -29 PROCESS STEP #3: Legal Guardian Appointed Person Has Legal Guardian Does Justification of Need for HCBS Modification Include Challenging Behavior? YES NO Does Person Consent to HCBS Modification? Does Legal Guardian Consent to HCBS Modification? YES Use Positive Support Plan to Incorporate HCBS Modification into PCP NO YES NO Does Legal Guardian Consent to HCBS Modification? HCBS Modification Can be Included in PCP and Can be Implemented by Provider(s) HCBS Modification Cannot be Included in PCP and Cannot be Implemented by Provider(s) YES NO Use Behavior Management Plan to Incorporate HCBS Modification into PCP HCBS Modification Cannot be Included in PCP and Cannot be Implemented by Provider(s) IMPORTANT: Implementing an HCBC Modification does not eliminate obligation to use Safety Device Plan if required under 14 -197 CMR ch. 5

Sections 21 -29 PROCESS STEP #4 IMPORTANT: Implementing an HCBC Modification does not eliminate obligation to use Safety Device Plan if required under 14 -197 CMR ch. 5 Document Modification in PCP Challenging Behavior IS Part of Justification for Modification Challenging Behavior IS NOT part of Justification for Modification Based on Outcome of Process Step #3, Incorporate Positive Support Plan or Behavior Management Plan by Reference into PCP and Attach to PCP Based on Outcome of Process Step #3, if Modification Can Be Included in PCP, Complete PCP HCBS Modification Addendum and Attach to PCP PSP or BMP must include a plan that: (1) identifies the ongoing process for evaluating the effectiveness of the modification; and (2) identifies timeframes ensuring the modification must be periodically reviewed and reevaluated. PSP or BMP must include steps being taken to remove or reduce modification as soon as feasible. PSP or BMP must include evidence of informed consent is documented. Addendum must include a plan that: (1) identifies the ongoing process for evaluating the effectiveness of the modification; and (2) identifies timeframes ensuring the modification must be periodically reviewed and reevaluated. Addendum must include steps being taken to remove or reduce modification as soon as feasible. Addendum must include evidence of informed consent is documented.

Section 21/29: Documenting an HCBS Modification Necessary because of Challenging Behavior • Documentation of HCBS Modification due to challenging behavior is incorporated into the Plan(s) otherwise required under 14 -197 CMR ch. 5. • The following plan templates have been updated to include elements necessary for HCBS Modification(s) • • Positive Support Plan In-Home Stabilization Plan Behavior Management Plan Safety Device Plan • Note: the Safety Device Approval Form has been incorporated into the Safety Device Plan 32

• Section 21/29: Documenting an HCBS Modification for Health and/or Safety Reason Other Than Challenging Behavior Case Manager will work with the provider(s) that will implement the modification to complete an Addendum to the PCP • This will be a fillable form. Until EVERGREEN is implemented, this form will be kept in the paper file of the person; always treated as part of the PCP. but 33

The HCBS Rights Modification Plan Addendum 34

The HCBS Rights Modification Plan Addendum (2) 35

The HCBS Rights Modification Plan Addendum (3) 36

The HCBS Rights Modification Plan Addendum (4) 37

The HCBS Rights Modification Plan Addendum (5) 38

The HCBS Rights Modification Plan Addendum (6) 39

The HCBS Rights Modification Plan Addendum (7) 40

The HCBS Rights Modification Plan Addendum (7) Last Step: CC/CM must send copy of signed Addendum to provider that completed Part C. 41

The HCBS Rights Modification Plan Addendum (8) When EVERGREEN goes live: • The contents of this Addendum will be built into EVERGREEN system • The HCBS Modification information will be integrated directly into the Person-Centered Plan • Providers implementing a modification will be able to access EVERGREEN and enter their information (Part C of Addendum) • Multiple Addendums will not be required: The provider for each setting where the modification will be implemented will go into EVERGREEN and 42 enter their information

Where are the HCBS Rights Modification Plan Addendums and Decision Trees Housed Online? o For BI (S. 18) • The HCBS Rights Modification Addendum for S. 18, Decision Tree, and Updated Brain Injury Waiver Behavior Plan Review Form is posted under “Providers” tab: https: //www. maine. gov/dhhs/oads/providers/adults-with-brain-injury o For ORC (S. 20) The HCBS Rights Modification Addendum for S. 20 and Decision Tree is posted under “Providers” tab: https: //www. maine. gov/dhhs/oads/providers/adults-with-cerebral-palsy-seizure-disorder-other o For Adults with I/DD and Autism (S. 21/29): Updated Behavior Regulation forms for adults with ID/Autism is posted here: https: //www. maine. gov/dhhs/oads/providers/adults-with-intellectual-disability-and-autism/behavioral-regulation The HCBS Rights Modification Addendum for S. 21/29 and Decision Tree is posted on the Forms and Protocols page under “Person Centered Planning Forms”: https: //www. maine. gov/dhhs/oads/providers/adults-with-intellectualdisability-and-autism We will post all three of the PCP HCBS Rights Modification Addendums (S. 18, S. 20, S. 21/29) to the OADS HCBS Training and Resources tab under CM resources here: https: //www. maine. gov/dhhs/oads/about-us/initiatives/hcbs/training-and-resources 43

Implementation From 2/1/21 Behavior Plans or Similar Plans for Sections 18, 21/29 • In situations where approval expires before the next update of the Person-Centered Plan will occur: • If appropriate, CC/CM or provider can request extension to a date by which the Person. Centered Plan will be updated. 44

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Questions After This Presentation? Send questions to: HCBS. DHHS@maine. gov 46