LeadingAge & State Partners Meet With CMS on Limits to Medicaid AL & ADC

Regulation | January 22, 2017 | by Peter Notarstefano

LeadingAge staff, along with staff from LeadingAge Minnesota, New York and Nebraska and the Adult Day Health Care (ADHC) Council had a conference call meeting with the Directors of the Disabled and Elderly Health Programs Group at CMS  to discuss the HCBS Settings Rule FAQ for new construction, and specifically  CMS encouraging states to limit the growth of  Adult Day and Assisted Living co-located in or on the grounds of a nursing home.

LeadingAge staff, along with staff from LeadingAge Minnesota, New York and Nebraska and the Adult Day Health Care (ADHC) Council had a conference call meeting with the Directors of the Disabled and Elderly Health Programs Group at CMS  to discuss the HCBS Settings Rule FAQ for new construction, and specifically CMS encouraging states to limit the growth of  Adult Day and Assisted Living co-located in or on the grounds of  a nursing home.

On our call, we clarified that we understand  the FAQs on new construction were to clarify that a determination of whether the new construction is home and community-based cannot be made until there are residents living or participating in activities in that setting.  However, our concern is that in the guidance from CMS is strongly encouraging  states to limit the growth of Adult Day and Assisted Living co-located in or on the grounds of  a nursing home.

Summary of the Meeting

  • The officials from CMS said they encourage  states to make their own decisions as to how they see HCBS rolling out in their states. However, at a minimum, each state must meet the federal requirements set forth under the rule.  We shared our experience that many state officials are still not sure on how to address Adult Day programs and Assisted Living co-located in a nursing home. CMS feels all/most states have an understanding of what is expected of them and how to implement the rule. LeadingAge pointed out that only one state has received final approval of their transition plan, and two states only received initial approval. The small number of approved state transition plans could indicate there are unanswered questions that states need answered by CMS in order to move forward with their transition plans.  
  • The officials at CMS stated that the language for new development and co-location was intentional to encourage growth of settings that don’t look like institutions and are integrated into the community.  The goal is that any new provider is operationally compliant, but they want people to think about growth in terms of settings that don’t look like what we are seeing today-meaning not located on the grounds of a Nursing Home or other institution. On the call we noted that there is no evidence based research to suggest that those individuals living in HCBS settings attached to a nursing home have the experience of an institution nor does co-location deter resident/participant  choice – rather many seniors want to live on the same campus as a nursing home to have access to a continuity of care or in situations where spouses require differing levels of care. We attempted to convince CMS that the delivery of person centered care and community integration should be a stronger litmus test for compliance with the HCBS settings rule rather than location.  LeadingAge Minnesota gave the example that according to a survey done by AARP, Minnesota ranks number 1 in Long Term Services and support as it relates to quality and choice of provider, and  Minnesota has 130 providers that are co-located with a nursing home. This infers that location of services does not dictate choice nor does it determine quality. Many states also gave examples of how co-location would negatively impact our senior population. LeadingAge Minnesota staff noted that if a private paying individual choose to live in a newly constructed setting that was co-located with a nursing home, and thus potentially ineligible for Medicaid waiver funding, if the individual spent down all of their resources they may be required to move to a new location – a location not of their choosing.
  • In our discussion, CMS said, just because ALs or ADS are co-located, does not mean they do not meet the HCBS standards, but they are taken through the Heightened Scrutiny Process. Each state has to look at their existing  providers to determine if they meet the HCBS characteristics that are person driven and community integrated.  That is the bigger question that needs to be looked at. We all want  to ensure that there are a variety of choices for our elders.  
  • CMS said that they want to make sure that providers don’t just convert  the beds and space in a Skilled Nursing Facility  to Assisted Living  or  Adult Day Services and nothing changes in the way it operates.  The regulations were created to prevent this type of institutional setting to be covered under Medicaid waivers. Thus settings that are co-located MIGHT have a higher probability of being an institution.  This is not to say they do not meet the HCBS characteristics, but that there are extra eyes looking at these locations to make sure that they meet the HCBS criteria through the heightened scrutiny process. This concern could be why CMS included in the 1/10/2014 CMS guidance on how states can demonstrate if  a building on the grounds of or adjacent to a public institution has HCBS characteristics,  and that states should determine if the Assisted Living and Adult Day Center that is co-located is operationally interrelated , administrative or financial interconnected to the nursing facility. We strongly articulated to CMS that caregivers and elders needing home and community based services, care more about the scope and quality of the services, not the location of the services. 
     
  • CCRCs, which they consider multi levels of care, IL, AL, SNF and ADS on the same grounds are exempt from the rule and heightened scrutiny because CMS believes that Life Plan Communities are integrated settings, as they include independent living. 
  • We shared with CMS our concerns that if states go beyond the rule and limit or prohibit the use of co-located adult day programs and assisted living in or on the grounds of a nursing home,  there could be unintended consequence that will result in LESS Medicaid HCBS options  for elders.  We are especially concerned about co-located providers in rural and frontier areas.  The officials at CMS stated that states will have to build capacity to increase HCBS options in these areas. We explained to CMS that states do not have the funds, nor the infrastructure to open freestanding Assisted Living, Adult Day and other home and community based services, and that if Medicaid waiver reimbursement remains low then providers will continue to be reluctant to invest in freestanding assisted living and adult day programs. 

We will continue to obtain clarification from CMS on how they define “any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment”. LeadingAge and state affiliates will share with CMS and Congressional officials all negative consequences that result from implementing state policies that go beyond the HCBS settings regulation.