On August 15th, CMS had an hour long open door forum on the HCBS setting rule. The provided some clarification relevant for implementation of the rule.
• Three-Year Extension: The May 2017 informational bulletin extending the transition period to 2022 provided a 3-year extension to come into compliance and did not change any other aspects of the rule. CMS is pleased that states are continuing to work on the statewide transition plan without slowing down, as CMS intends the extra time to be used for settings to come into compliance – not for planning and evaluation. CMS reminded listeners that the extension does not apply to other components of the 2014 rule, which are already in effect.
• Heightened Scrutiny: CMS confirmed it is in the middle of reviewing the heightened scrutiny review process to find inefficiencies. It seems they will issue additional guidance, but it is too early to talk about when or specifically what will be addressed. They emphasized that for each setting being reviewed, the determination is “setting-specific based on the life experiences of the beneficiaries in that setting.” CMS will review based on the information presented and does not have a pre-determined decision.
• Concerns with 2016 Planned Construction Guidance: NCAL asked how CMS plans to address concerns from the planned construction guidance.
CMS explained/clarified a couple of points:
First, this guidance only applies to settings that are presumed institutional under the three stated criteria. New settings that are not isolating, co-located, or adjacent to a public (i.e., state/county owned) institution should not be caught up by this guidance.
Second, for these new planned settings that are presumed institutional, it is not feasible for CMS to review and make a determination before individuals are living there and receiving services because a heightened scrutiny review evaluates the beneficiary life experience and setting integration. That review and determination cannot be done from blueprints or drawn up plans. NCAL has no reason to believe they will issue new or clarifying guidance on this issue.
They suggested that perhaps AL settings can initially be occupied by residents that are not Medicaid before the review is completed. However, they acknowledge this isn’t always possible.
Third, CMS is aware of NCAL’s concerns and is willing to have a conversation with the state/developers/financiers/providers to discuss specific circumstances. However there is a significant caveat: generally, as with any setting presumed to be institutional and thus subject to heightened scrutiny, the state really needs to support the setting as an appropriate HCBS setting. Therefore, CMS’ hands are somewhat tied if the state does not support further discussions with CMS to determine options for a specific planned construction. It is the state’s determination whether a setting that is presumed institutional can overcome the presumption and be an appropriate HCBS setting. The “gold standard” for these discussions with CMS would include the state so that everyone hears the same thing. If the state will not engage in those discussions with CMS about planned construction for a specific setting, the providers/developers can request a meeting with CMS. CMS staff would not make any guarantees that they will take a meeting, but there is an option to request those meetings. NCAL urges caution at using this option to go “above the head” of your state Medicaid/Aging Director, but understand that sometimes this is the only option remaining. If you have a specific situation that might warrant a conversation with CMS, please contact Zach Cattell at zcattell@ihca.org.