HCBS Characteristics Transition Plans: CMS Releases Additional Guidance to States

Regulation | January 22, 2017 | by Peter Notarstefano

On September 5, the Centers for Medicare and Medicaid Services (CMS) released additional information to assist states in preparing to submit their Statewide Transition Plans in conjunction with the new Medicaid regulations for residential and non-residential home and community-based settings. Assisted living, adult day services, and other home and community-based service providers should review the additional information on the HCBS Characteristics Transition plan.

On September 5, 2014, the Centers for Medicare and Medicaid Services (CMS) released additional information to assist states in preparing to submit their Statewide Transition Plans in conjunction with the new Medicaid regulations for residential and non-residential home and community-based settings. 

To determine whether state transition actions are needed for compliance, CMS expects that states must first determine their current level of compliance with the settings requirements and provide a written description to CMS. 

Included in the written description should be the state’s assessment of the extent to which its standards, rules, regulations, or other requirements comply with the federal HCBS settings requirements and the description of the state’s oversight process to ensure continuous compliance. 

The state may also assess individual settings/types of settings to further document their compliance.

Upon conducting its compliance assessment, a state may determine that existing state standards meet the federal settings requirement, the state’s oversight process is adequate to ensure compliance, and, therefore, any settings currently approved under the state’s standards meet the federal settings requirement. 

In situations where the state standards do not coincide with the federal standards, it is possible that specific settings are still in compliance with the federal requirements. In this case, a state may choose to assess individual sites to determine which are/are not in compliance with the standard.

Settings Presumed to have Qualities of an Institution

  • Any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment.
  • Any setting that is located in a building on the grounds of, or immediately adjacent to, a public institution.
  • Any other setting that has the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS

 

The state needs to provide the best estimate of the number of settings that: 

 

  1. Fully comply with the federal requirements.
  2. Do not meet the federal requirements and will require modifications.
  3. Cannot meet the federal requirements and require removal  from the program and/or the relocation of individuals.
  4. Are presumptively non-home and community-based but for which the state will provide justification/evidence to show that those settings do not have the characteristics of an institution and do have the qualities of home and community-based settings (to be evaluated by CMS through the heightened scrutiny process).

 

 

Heightened Scrutiny

If the state decides to submit evidence to CMS for the application of  the heightened scrutiny process for settings that are presumed not to be home and community-based, the Statewide Transition Plan should include evidence sufficient to demonstrate the setting does not have the characteristics of an institution and does meet the home and community-based setting requirements. 

 

Evidence of a site visit by the state, or an entity engaged by the state, will facilitate the heightened scrutiny process. CMS will consider input from the state, information collected during the public input process, and information provided by other stakeholders as part of the heightened scrutiny process. 

CMS may also conduct individual site visits as well. 

Remedial actions to have the transition plan approved by CMS might include: 

  •  At the state level, possibly new  requirements promulgated in statute, licensing standards or provider qualifications, revised service definitions and standards, revised training requirements or programs, plans to relocate individuals to settings that are compliant with the regulations, and a description of the state’s oversight and monitoring processes.
  • At the provider level, possibly changes to the facility or program operation to assure that the Medicaid beneficiary has greater control over critical activities like access to meals, engagement with friends and family, choice of roommate, and access to activities of his/her choosing in the larger community, including the opportunity to seek and maintain competitive employment.

States have 1 year to complete their transition plans, and up to 5 years to implement their transition plan after it has been approved by CMS.

The toolkit includes:

The additional guidance on non-residential setting (including adult day services) as well as all the 1115 waiver HCBS Characteristics have still not been released by CMS. 

However, the transition plan development guidance will also apply to the non-residential HCBS providers.

Prior to filing with CMS, a state must seek input from the public on the state’s proposed Statewide Transition Plan, providing no less than a 30 -day period for that input. CMS encourages states to seek input from a wide range of stakeholders representing consumers, providers, advocates, families, and other related stakeholders.  

CMS requires states to post the Statewide Transition Plans on their website in an easily accessible manner and include a website address for comments. 

At least 1 additional option for public input, such as public forums, is required. 

It is important that state associations and LeadingAge members review the additional information on the HCBS Characteristics Transition plan and understand the process that your state medicaid directors, departments of disabilities and state office on aging will use to begin to work on their transition plan.