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Key State Policy Choices About Medicaid Home and Community-Based Services

Issue Brief
  1. For additional background, see Kaiser Family Foundation, Streamlining Medicaid Home and Community-Based Services: Key Policy Questions (March 2016), https://www.kff.org/medicaid/issue-brief/streamlining-medicaid-home-and-community-based-services-key-policy-questions/; Kaiser Family Foundation, Medicaid Long-Term Services and Supports: An Overview of Funding Authorities (Sept. 2013), https://www.kff.org/medicaid/fact-sheet/medicaid-long-term-services-and-supports-an-overview-of-funding-authorities/.

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  2. The remaining seven states did not specify home health provider training requirements.

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  3. The average includes 34 states that reported a per visit agency reimbursement rate and three states that reported a per hour agency reimbursement rate.

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  4. The average includes 15 states that reported per visit direct payment or mandated rates for registered nurses and eight states that reported per hour rates for registered nurses.

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  5. The average includes 22 states that reported per visit direct payment or mandated rates for home health aides and 10 states that reported per hour rates.

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  6. Three states (DE, KS, and NM) have CMS approval to offer personal care state plan services but deliver those services through Section 1115 capitated managed care waivers. These states did not separately report personal care state plan enrollment and spending and did not complete the policy survey.

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  7. The state that does not cover assistance with household activities (Idaho) instead provides cueing or monitoring and tasks delegated by a nurse.

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  8. CO newly began reporting coverage of personal care services in 2017; its benefit is limited to children up to age 21 under EPSDT.

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  9. KS reported that it allowed self-direction in 2016, but did not respond to the personal care policy survey for 2017.

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  10. Twenty-five states reported agency reimbursement rates.

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  11. Eleven states reported direct payment or mandated provider reimbursement rates.

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  12. CFC services includes hands-on assistance, supervision or cueing and services for the acquisition, maintenance, and enhancement of skills necessary for individuals to accomplish self-care, household activity, and health-related tasks. Health-related tasks are those that can be delegated by a licensed health care professional to be performed by an attendant.

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  13. Backup systems include electronic devices to ensure continuity of services as well as individuals identified by the beneficiary.

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  14. Transition costs may include rent and utility deposits, first month’s rent and utilities, bedding, basic kitchen supplies, and other required necessities.

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  15. These services may be covered to the extent that expenditures otherwise would be made for human assistance.

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  16. Two states (CA and NY) did not respond to this question.

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  17. NY did not respond to the CFC portion of the survey. Data supplemented from NY State Plan Amendment #13-0035, approved by CMS Oct. 23, 2015, https://www.medicaid.gov/State-resource-center/Medicaid-State-Plan-Amendments/Downloads/NY/NY-13-0035.pdf.

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  18. Texas only applies this rule to individuals enrolled in its Section 1915 (c) waivers; this rule does not apply to individuals who are eligible for Medicaid under the expanded financial eligibility rules (217-group) in Texas’s Section 1115 HCBS waiver.

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  19. This option specifically applies to the 217 HCBS waiver group, individuals for whom the state has opted to expand the minimum Medicaid HCBS financial eligibility limit under the “special income rule” (up to a federal maximum of 300% SSI), who would be eligible under the Medicaid state plan if institutionalized, meet an institutional level of care, and would be institutionalized if not receiving waiver services. These individuals must be receiving at least one waiver service per month to qualify for CFC services.

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  20. 42 C.F.R. § 441.510 (a), (b).

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  21. 42 C.F.R. § 441.510 (d).

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  22. Two states (ID and IN) offer more than one Section 1915 (c) benefit. These states target the same general population (people with I/DD in ID, and people with mental illness in IN) but offer different benefit packages based on age.

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  23. Indiana and Ohio offer Section 1915 (i) services targeted to multiple populations with mental illness (differentiated by age) and use Section 1915 (i) as an independent pathway to Medicaid eligibility for one of these populations.

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  24. Kansas is excluded from this list because it has joint Section 1115/1915 (c) HCBS waivers.

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  25. Some of these waivers include both populations, while others target one of the two populations.

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  26. In addition, while it does not have eligibility criteria specific to people with TBI, distinct from the criteria for adults with physical disabilities, the benefit package in NJ’s Section 1115 waiver includes services targeted to people with TBI.

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  27. States also may cover children with significant disabilities under the Katie Beckett/TEFRA state plan option.

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  28. Some states apply different policies to agency-employed vs. independent providers.

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  29. Some states apply different policies to agency-employed vs. independent providers.

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  30. Some states apply different policies to agency-employed vs. independent providers.

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  31. A major way that states control waiver enrollment, and therefore costs, are enrollment caps, which may result in waiting lists; these policies are discussed in Kaiser Family Foundation, Key Questions About Medicaid Home and Community-Based Services Waiver Waiting Lists (April 2019), https://www.kff.org/medicaid/issue-brief/key-questions-about-medicaid-home-and-community-based-servcies-waiver-waiting-lists. .

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  32. These utilization controls are state policies, separate from the federal cost neutrality requirement for HCBS waivers. Under federal law, the state’s estimated average per capita expenditures for home and community-based waiver services must not exceed the state’s reasonable estimate of the cost of average per capita expenditures that would have been incurred without waiver services. 42 U.S.C. § 1396n (c)(2)(D). In addition, under long-standing federal policy, all Section 1115 waivers also are subject to federal budget neutrality, which requires that federal costs under the waiver cannot exceed estimated costs without the waiver.

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  33. Kaiser Family Foundation, CMS’s Final Rule on Medicaid Managed Care: A Summary of Major Provisions (June 2016), https://www.kff.org/medicaid/issue-brief/cmss-final-rule-on-medicaid-managed-care-a-summary-of-major-provisions/.

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  34. Twelve states (Colorado, Indiana, Kansas, Maine, Minnesota, Mississippi, Nevada, New Jersey, Ohio, Oregon, Pennsylvania, and Tennessee) participated in the NCI-AD survey data in 2016-2017. Measures related to quality of life include: proportion of people who are able to participate in preferred activities outside of home when and with whom they want; proportion of people who are involved in making decisions about their everyday lives (where they live, what they do during the day, staff that supports them, with whom they spend time); proportion of people who are able to see or talk to friends and families when they want; proportion of people who are not lonely; proportion of people who are satisfied with where they live; proportion of people who are satisfied with what they do during the day; proportion of people who are satisfied with staff who work with them; proportion of people who feel in control of their lives. Nat’l Assoc. of State United for Aging and Disabilities and Human Servs. Research Institute, National Core Indicators – Aging and Disability Adult Consumer Survey 2016-2017 National Results, https://nci-ad.org/upload/reports/NCI-AD_2016-2017_National_Report_FINAL.pdf.

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  35. Examples of community integration measures include how often in the last three months you could get together with family who live nearby when you wanted to; how often in the last three months you could get together with friends who live nearby when you wanted to; how often in the last three months you could do things in the community that you like; did you need more help than you get from personal assistance or behavioral health staff to do things in your community in the last three months; did you take party in deciding what you do with your time each day in the last three months; did you take part in deciding when you do things each day (get up, eat, go to bed) in the last three months. Medicaid.gov, CAHPS Home and Community-Based Services Survey (accessed Jan. 22, 2019), https://www.medicaid.gov/medicaid/quality-of-care/performance-measurement/cahps-hcbs-survey/index.html.

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  36. Kaiser Family Foundation, CMS’s Final Rule on Medicaid Managed Care: A Summary of Major Provisions (June 2016), https://www.kff.org/medicaid/issue-brief/cmss-final-rule-on-medicaid-managed-care-a-summary-of-major-provisions/.

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  37. Kaiser Family Foundation, CMS’s Final Rule on Medicaid Managed Care: A Summary of Major Provisions (June 2016), https://www.kff.org/medicaid/issue-brief/cmss-final-rule-on-medicaid-managed-care-a-summary-of-major-provisions/. The revised regulations build on and incorporate elements from CMS’s May 2013 best practices for MLTSS waivers. CMS, Guidance to States Using 1115 Demonstrations or 1915(b) Waivers for Managed Long-Term Services and Supports Programs (May 2013), http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Delivery-Systems/Downloads/1115-and-1915b-MLTSS-guidance.pdf.

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  38. For a summary of the proposed changes, see Kaiser Family Foundation, CMS’s 2018 Proposed Medicaid Managed Care Rule: A Summary of Major Provisions (Jan. 2019), https://www.kff.org/medicaid/issue-brief/cmss-2018-proposed-medicaid-managed-care-rule-a-summary-of-major-provisions/.

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  39. The informational bulletin indicates that the “use of enforcement discretion will be applied based on state-specific facts and circumstances and focused on states’ specific needs.” CMS Informational Bulletin, Medicaid Managed Care Regulations with July 1, 2017 Compliance Dates (June 30, 2017), https://www.medicaid.gov/federal-policy-guidance/downloads/cib063017.pdf.

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  40. Id.

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  41. The November 2018 proposed rule would change the general network adequacy requirement for time and distance standards for certain provider types as well as the specific requirement for time and distance standards for LTSS providers to whom enrollees must travel. Kaiser Family Foundation, CMS’s 2018 Proposed Medicaid Managed Care Rule: A Summary of Major Provisions (Jan. 2019), https://www.kff.org/medicaid/issue-brief/cmss-2018-proposed-medicaid-managed-care-rule-a-summary-of-major-provisions/.

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  42. Along with personalized choice counseling, the beneficiary support system must include assistance to beneficiaries with understanding managed care and assistance for enrollees who use or wish to use LTSS. Kaiser Family Foundation, CMS’s Final Rule on Medicaid Managed Care: A Summary of Major Provisions (June 2016), https://www.kff.org/medicaid/issue-brief/cmss-final-rule-on-medicaid-managed-care-a-summary-of-major-provisions/.

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  43. Id.

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  44. Kaiser Family Foundation, CMS’s Final Rule on Medicaid Managed Care: A Summary of Major Provisions (June 2016), https://www.kff.org/medicaid/issue-brief/cmss-final-rule-on-medicaid-managed-care-a-summary-of-major-provisions/.

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  45. 42 C.F.R. § 441.301 (c)(4)-(6). In addition to Section 1915 (c) waiver HCBS, the settings rule also applies to Section 1915 (i) and Community First Choice services. CMS also has indicated that it will include the setting rule requirements in the special terms and conditions of Section 1115 waivers that include HCBS. CMS, Questions and Answers – 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) Home and Community-Based Services Waivers – CMS 2249-F and 2296-F, https://www.medicaid.gov/medicaid/hcbs/downloads/final-q-and-a.pdf.

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  46. CMCS Informational Bulletin, Extension of Transition Period for Compliance with Home and Community-Based Settings Criteria (May 9, 2017), https://www.medicaid.gov/federal-policy-guidance/downloads/cib050917.pdf.

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  47. Medicaid.gov, Statewide Transition Plans (accessed March 27, 2019), https://www.medicaid.gov/medicaid/hcbs/transition-plan/index.html.

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  48. These states are AL, AZ, CA, CT, GA, HI, IN, IA, LA, MD, MI, MS, MO, MT, NE, NH, NM, NC, NY, OH, PA, RI, SC, SD, UT, VT, VA, WV, and WI. The nine remaining states are in “clarifications and/or modifications required for initial approval status” (CO, FL, IL, KS, MA, ME, NJ, NV, TX). Id.

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  49. CMS recently released guidance on the heightened scrutiny process. CMS, SMD #19-001, Home and Community-Based Settings Regulation – Heightened Scrutiny (March 22, 2019), https://www.medicaid.gov/federal-policy-guidance/downloads/smd19001.pdf.

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  50. U.S. Dep’t of Labor, Home Care, Minimum Wage and Overtime Pay for Direct Care Workers (accessed Jan. 22, 2019), https://www.dol.gov/whd/homecare/; 29 C.F.R. § § 552.3, 552.6, 552.101, 552.102, 552.106, 552.109, 552.110.

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  51. Specifically, CMS anticipated that “many states will determine that, for purposes of the FLSA, home care workers in self-direction programs have joint third party employer(s) [such as the state or another entity] in addition to being employed by the beneficiary,” requiring the state or other entity to comply with minimum wage and overtime requirements. CMS Informational Bulletin, Self-Direction Program Options for Medicaid Payments in the Implementation of the Fair Labor Standards Act Regulation Changes (July 3, 2014), https://www.medicaid.gov/Federal-Policy-Guidance/Downloads/CIB-07-03-2014.pdf.

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  52. Applies to individual providers (IPs) of respite care. If IPs provided more than 40 hours of services per week in January 2016, they may continue to work these overtime hours up to 65 hours per week; if IPs worked 40 hours or less per week during January 2016, they are restricted to 40 hours per week.

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