[Federal Register Volume 76, Number 38 (Friday, February 25, 2011)]
[Proposed Rules]
[Pages 10736-10753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3946]
[[Page 10735]]
Vol. 76
Friday,
No. 38
February 25, 2011
Part III
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Part 441
Medicaid Program; Community First Choice Option; Proposed Rule
Federal Register / Vol. 76, No. 38 / Friday, February 25, 2011 /
Proposed Rules
[[Page 10736]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 441
[CMS-2337-P]
RIN 0938-AQ35
Medicaid Program; Community First Choice Option
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Proposed rule.
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SUMMARY: This proposed rule implements Section 2401 of the Affordable
Care Act (ACA) which establishes a new State option to provide home and
community-based attendant services and supports. These services and
supports may be offered through the Community First Choice State plan
option.
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, no later than 5 p.m. on April 26, 2011.
ADDRESSES: In commenting, please refer to file code CMS-2337-P. Because
of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one
of the ways listed):
1. Electronically. You may submit electronic comments on this
regulation to http://www.regulations.gov. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address only: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-2337-P, P.O. Box 8016,
Baltimore, MD 21244-8016.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address only: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-2337-P, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
4. By hand or courier. If you prefer, you may deliver (by hand or
courier) your written comments before the close of the comment period
to either of the following addresses:
a. For delivery in Washington, DC-- Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Room 445-G, Hubert
H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC
20201.
(Because access to the interior of the Hubert H. Humphrey Building
is not readily available to persons without Federal government
identification, commenters are encouraged to leave their comments in
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing
by stamping in and retaining an extra copy of the comments being
filed.)
b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, 7500 Security
Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address,
please call telephone number (410) 786-7195 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses indicated as appropriate for hand
or courier delivery may be delayed and received after the comment
period.
Submission of comments on paperwork requirements. You may submit
comments on this document's paperwork requirements by following the
instructions at the end of the ``Collection of Information
Requirements'' section in this document.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Carrie Smith, (410) 786-4485.
SUPPLEMENTARY INFORMATION: Submitting Comments: We welcome comments
from the public on all issues set forth in this rule to assist us in
fully considering issues and developing policies. You can assist us by
referencing the file code CMS-2337-P and the specific ``issue
identifier'' that precedes the section on which you choose to comment.
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following Web
site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that Web site to
view public comments.
Comments received timely will also be available for public
inspection as they are received, generally beginning approximately 3
weeks after publication of a document, at the headquarters of the
Centers for Medicare & Medicaid Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an appointment to view public comments,
phone 1-800-743-3951.
I. Background
A. Section 2401 of the Affordable Care Act
The Patient Protection and Affordable Care Act of 2010 (Pub. L.
111-148, enacted on March 23, 2010), as amended by the Health Care and
Education Reconciliation Act of 2010 (Pub. L. 111-152, enacted March
30, 2010) (collectively referred to as the Affordable Care Act)
established a new State plan option to provide home and community-based
attendant services and supports. Section 2401 of the Affordable Care
Act, entitled ``Community First Choice Option,'' adds a new section
1915(k) of the Social Security Act (the Act) that allows States, at
their option, to provide home and community-based attendant services
and supports under their State plan. This option, available October 1,
2011, allows States to receive a 6 percentage point increase in Federal
matching payments for expenditures related to this option.
Under section 1915(k)(1) of the Act, States can provide home and
community-based attendant services and supports for individuals who are
eligible for medical assistance under the State plan whose income does
not exceed 150 percent of the Federal Poverty Level or, if greater, the
income level applicable for an individual who has been determined to
require an institutional level of care to be eligible for nursing
facility services under the State plan and with respect to whom there
has been a determination that, but for the provision of such services,
the individuals would require the level of care provided in a hospital,
a nursing facility, an intermediate care facility for the mentally
retarded, or an institution for mental diseases, the cost of which
could be reimbursed under the State plan. The individual must choose to
receive such home and community-based attendant services and supports,
and the State must meet certain requirements set forth in section
1915(k)(1) of the Act. Section 1915(k)(1)(A) of the Act requires States
electing this option to make available home and community-based
attendant services and supports to eligible individuals, under a
person-centered
[[Page 10737]]
service plan agreed to in writing by the individual, or his or her
representative, that is based on a functional need assessment. This
assessment will determine if the individual requires assistance with
activities of daily living (ADLs), instrumental activities of daily
living (IADLs), or health-related tasks. The services and supports must
be provided by a qualified provider in a home or community setting
under an agency-provider model, or through other methods for the
provision of consumer controlled services and supports as referenced in
section 1915(k)(6)(C) of the Act. Section 1915(k)(1)(B) of the Act
requires that States make available additional services and supports
including the acquisition, maintenance, and enhancement of skills
necessary for the individual to accomplish ADLs, IADLs, and health-
related tasks, back-up systems or mechanisms to ensure continuity of
services and supports and voluntary training on how to select, manage,
and dismiss attendants.
Section 1915(k)(1)(C) of the Act prohibits States from providing
services and supports excluded from section 1915(k) of the Act,
including room and board costs for the individual, special education
and related services provided under the Individuals with Disabilities
Education Act (Pub. L. 101-476, enacted on October 30, 1990) (IDEA) and
vocational rehabilitation services provided under the Rehabilitation
Act of 1973 (Pub. L. 93-112, enacted on September 26, 1973), assistive
technology devices and services other than back-up systems or
mechanisms to ensure continuity of services and supports, medical
supplies and equipment, or home modifications. However, some, although
not all, of these services can be covered by Medicaid under other
authorities. Section 1915(k)(1)(D) of the Act sets forth services and
supports permissible under section 1915(k) of the Act that States can
provide, including expenditures for transition costs such as rent and
utility deposits, first month's rent and utilities, bedding, basic
kitchen supplies, and other necessities required for an individual to
make the transition from a nursing facility, institution for mental
diseases, or intermediate care facility for the mentally retarded to a
community-based home setting where the individual resides. States can
also provide for expenditures relating to a need identified in an
individual's person-centered plan of services that increase
independence or substitute for human assistance, to the extent that
expenditures would otherwise be made for the human assistance.
Section 1915(k)(2) of the Act provides that States offering this
option to eligible individuals during a fiscal year quarter occurring
on or after October 1, 2011 will be eligible for a 6 percentage point
increase in the Federal medical assistance percentage (FMAP) applicable
to the State for amounts expended to provide services under section
1915(k) of the Act (hereinafter referred to as ``section 1915(k)
services'').
Section 1915(k)(3)of the Act sets forth the requirements for a
State plan amendment. States must develop and have in place a process
to implement an amendment in collaboration with a Development and
Implementation Council established by the State that includes a
majority of members with disabilities, elderly individuals, and their
representatives. States must also provide consumer controlled home and
community-based attendant services and supports to individuals on a
statewide basis, in a manner that provides such services and supports
in the most integrated setting appropriate to the individual's needs,
without regard to the individual's age, type or nature of disability,
severity of disability, or the form of home and community-based
attendant services and supports the individual requires in order to
lead an independent life.
In addition, for expenditures during the first full fiscal year of
implementation, States must maintain or exceed the level of State
expenditures attributable to the preceding fiscal year for medical
assistance provided under sections 1905(a), 1915, or 1115 of the Act,
or otherwise provided to individuals with disabilities or elderly
individuals. States must also establish and maintain a quality
assurance system with respect to community-based attendant services and
supports that includes standards for agency-based and other delivery
models for training, appeals for denials and reconsideration procedures
of an individual plan, and other factors as determined by the
Secretary. The quality assurance system must incorporate feedback from
individuals and their representatives, disability organizations,
providers, families of disabled or elderly individuals, and members of
the community, and maximize consumer independence and control. The
quality assurance system must also monitor the health and well-being of
each individual who receives section 1915(k) services and supports,
including a process for the mandatory reporting, investigation, and
resolution of allegations of neglect, abuse, or exploitation in
connection with the provision of such services and supports. The State
must also provide information about the provisions of the quality
assurance required to each individual receiving such services.
States must collect and report information for the purposes of
approving the State plan amendment, providing Federal oversight, and
conducting an evaluation, including data regarding how the State
provides home and community-based attendant services and supports and
other home and community-based services, the cost of such services and
supports, and how the State provides individuals with disabilities who
otherwise qualify for institutional care under the State plan or under
a waiver the choice to receive home and community-based services in
lieu of institutional care.
Section 1915(k)(4) of the Act requires that States ensure,
regardless of the models used to provide attendant services and
supports, such services and supports are to be provided in accordance
with the requirements of the Fair Labor Standards Act of 1938 and
applicable Federal and State laws regarding the withholding and payment
of Federal and State income and payroll taxes; the provision of
unemployment and workers compensation insurance; maintenance of general
liability insurance; and occupational health and safety.
Section 1915(k)(5) of the Act sets forth the requirements that
States provide data to the Secretary for an evaluation and Report to
Congress on the provision of home and community-based attendant
services and supports. States must provide information for each fiscal
year for which attendant services and supports are provided, on the
number of individuals estimated to receive section 1915(k) services and
supports during the fiscal year; the number of individuals that
received such services and supports during the preceding fiscal year;
the specific number of individuals served by type of disability, age,
gender, education level, and employment status; and whether the
specific individuals have been previously served under any other home
and community-based services program under the State plan or under a
waiver.
B. Background of Home and Community-Based Attendant Services and
Supports
The Community First Choice Option continues to move Medicaid toward
expanding options to States and individuals for the provision of
community-based long-term care services. Consistent with the decision
of the United States Supreme Court in Olmstead v. L.C., 527 U.S. 581
(1999), this option will support States in their
[[Page 10738]]
mission to develop or enhance a comprehensive system of long-term care
services and supports in the community that provide beneficiary choice
and direction in the most integrated setting. Since the mid-1970s,
States have had the option to offer personal care services under their
Medicaid State plans. The option was originally provided at the
Secretary's discretion, had a medical orientation and could only be
provided in an individual's place of residence. Personal care services
were mainly offered to assist individuals in activities of daily
living, and, if incidental to the delivery of such services, could
include other forms of assistance (for example, housekeeping or
chores). In the 1980s, some States sought to broaden the scope of
personal care services to include community settings for the provision
of services to enable individuals to participate in normal life
activities.
Through the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-
66, enacted on August 10, 1993) (OBRA 93), the Congress formally
included personal care as a separate and specific optional service
under the Federal Medicaid statute and gave States explicit
authorization, under a new section 1905(a)(24) of the Act, to provide
such services outside the individual's residence. This was implemented
by final rule published in the September 11, 1997 Federal Register (62
FR 47896) that added a new section at Sec. 440.167 describing the
option for States to provide a wide range of personal assistance both
in an individual's residence and in the community. In 1999, we released
additional guidance to clarify that personal care services may include
ADLs and IADLs that all qualified relatives, with the exception of
``legally responsible relatives'', could be paid to provide personal
care services and that States were permitted to offer the option of
consumer-directed personal care services.
Additionally, the Omnibus Reconciliation Act of 1989 (Pub. L. 101-
239, enacted on December 19, 1989) (OBRA 89), revised the Early
Periodic Screening and Diagnosis and Treatment Benefit to include the
requirement that all section 1905(a) services are mandatory for
individuals under the age of 21 if determined to be medically necessary
in accordance with section 1905(r) of the Act.
Furthermore, before 1981, the Medicaid program provided limited
coverage for long-term care services in non-institutional, community-
based settings. Medicaid's eligibility criteria and other factors made
institutional care much more accessible than care in the community.
Medicaid home and community-based services (HCBS) were established
in 1981 as an alternative to care provided in Medicaid institutions, by
permitting States to waive certain Medicaid requirements upon approval
by the Secretary. Section 1915(c) of the Act was added to title XIX by
the Omnibus Budget Reconciliation Act of 1981 (Pub. L. 97-35, enacted
on August 13, 1981) (OBRA 81). Programs of HCBS under section 1915(c)
of the Act are known as ``waiver programs'', or simply ``waivers'' due
to the authority to waive certain Medicaid requirements.
Since 1981, the section 1915(c) HCBS waiver program has afforded
States considerable latitude in designing services to meet the needs of
people who would otherwise require institutional care. In 2010,
approximately 315 approved HCBS waivers under section 1915(c) of the
Act serve nearly 1 million elderly and disabled individuals in their
homes or alternative residential community settings. States have used
HCBS waiver programs to provide numerous services designed to foster
independence; assist eligible individuals in integrating into their
communities; and promote self-direction, personal choice, and control
over services and providers. The addition of section 1915(i) of the Act
in 2005 affords some of the same flexibility and service coverage
through the State plan without a waiver.
The section 1915(k) benefit does not diminish the State's ability
to provide any of the existing Medicaid home and community-based
services. States opting to offer the Community First Choice Option
under section 1915(k) of the Act can continue to provide the full array
of home and community-based services under section 1915(c) waivers,
section 1115 demonstration programs, mandatory State plan home health
benefits, and the State plan personal care services benefit. Community
First Choice provides States the option to offer a broad service
package that includes assistance with ADLs, IADLs, and health-related
tasks, while also incorporating transition costs and supports that
increase independence or substitute for human assistance.
Another important aspect to this background is the passage of the
Americans with Disabilities Act of 1990 (Pub. L. 101-336, enacted July
26, 1990) (ADA), and the Olmstead v. L.C., U.S. Supreme Court decision.
In particular, Title II of the ADA prohibits discrimination on the
basis of disability by State and local governments and requires these
entities to administer their services and programs, in the most
integrated setting appropriate to the needs of qualified individuals
with disabilities. In applying the most integrated setting mandate, the
U.S. Supreme Court ruled in Olmstead that unnecessary
institutionalization of individuals with disabilities constitute
discrimination under the ADA. Under Olmstead, States may not deny a
qualified individual with a disability a community placement when: (1)
Community placement is appropriate; (2) the community placement is not
opposed by the individual with a disability; and (3) the community
placement can be reasonably accommodated.
As self-direction is a key component to Community First Choice,
this service delivery model is another important aspect to the
background of this provision. Two national pilot projects demonstrated
the success of self-directed care. During the 1990's, the Robert Wood
Johnson Foundation funded these projects which evolved into Medicaid
funded programs under section 1915(c) of the Act and the ``Cash and
Counseling'' national section 1115 demonstration programs. Evaluations
were conducted in both of these national projects. Results in both
projects were similar--persons directing their personal care
experienced fewer unnecessary institutional placements, experienced
higher levels of satisfaction, had fewer unmet needs, experienced
higher continuity of care because of less worker turnover, and
maximized the efficient use of community services and supports. The
Deficit Reduction Act of 2005 (Pub. L. 109-171, enacted on February 8,
2006) (DRA), established section 1915(j) of the Act which provided a
State plan option for States to utilize this self-direction service
delivery model without needing the authority of a Section 1115
demonstration.
II. Provisions of the Proposed Regulations
In the following discussion, we refer to particular home and
community-based attendant services and supports offered under section
1915(k) of the Act as Community First Choice services and supports. We
refer to the ``Community First Choice Option'' when describing the
collective requirements of section 1915(k) of the Act for the State
plan option.
A. Eligibility (Sec. 441.510)
Section 1915(k)(1) of the Act requires that in order to receive
services under the Community First Choice Option, individuals must be
eligible for
[[Page 10739]]
Medicaid under an eligibility group covered by the State plan. This
section does not create a new eligibility group. Individuals who are
not eligible for Medicaid under a group covered under the State
Medicaid plan are not eligible for the State plan Community First
Choice Option, even if they otherwise meet the requirements for the
option. Individuals eligible under the State Medicaid plan whose income
does not exceed 150 percent of the Federal Poverty Level (FPL) are
eligible for the Community First Choice Option without requiring a
determination of institutional level of care. In determining whether
the 150 percent of the FPL requirement is met, the regular rules for
determining income eligibility for the individual's eligibility group
under the State plan apply, including any income disregards used by the
State for that group under section 1902(r)(2) of the Act.
Individuals eligible under the State Medicaid plan whose income is
greater than 150 percent of the FPL are eligible for the Community
First Choice Option if it has been determined such individuals need the
level of care required under the State Medicaid plan for coverage of
nursing facility services. The State must determine that but for the
provision of the home and community-based attendant services and
supports, the individual would require the level of care provided in a
hospital, a nursing facility, intermediate care facility for the
mentally retarded or an institution for mental diseases, the cost of
which would be reimbursed under the State plan. For example, section
1902(a)(10)(A)(ii)(XIII) of the Act defines an optional eligibility
group known as working disabled. The income standard for this group is
250 percent of the FPL. An individual in this eligibility group with
income that does not exceed 150 percent of the FPL would be eligible
for CFC services without a level of care determination. An individual
in the same eligibility group with income that exceeds 150 percent of
the FPL would need to have a level of care determination to be eligible
for CFC services. Additionally, individuals who are eligible for
Medicaid under the special home and community-based waiver eligibility
group defined at section 1902(a)(10)(A)(ii)(VI) of the Act, for
example, the special income level group for institutionalized
individuals, could be eligible to receive CFC services. These
individuals would have to receive at least 1 section 1915(c) home and
community-based waiver service per month. We propose to implement this
eligibility requirement at Sec. 441.510.
As the need for a level of care determination is directly related
to an individual's income level in section 1915(k)(1) of the Act, we
propose to require an annual verification of income for all individuals
receiving services under the section 1915(k) State plan option. We
propose to implement this requirement at Sec. 441.510.
B. Statewideness (Sec. 441.515)
Section 1915(k)(3)(B) of the Act requires that a State that chooses
to provide the Community First Choice Option do so for individuals on a
statewide basis, in a manner that provides such services and supports
in the most integrated setting appropriate to the individual's needs,
and without regard to the individual's age, type or nature of
disability, severity of disability, or the form of home and community-
based attendant services and supports that the individual requires in
order to lead an independent life. We propose at Sec. 441.515 to adopt
this statutory language as our definition.
C. Required Services (Sec. 441.520)
Section 1915(k)(1)(B) of the Act provides detailed requirements for
the services and supports included in the Community First Choice
Option. Therefore at Sec. 441.520, we propose the following services
must be available under the Community First Choice option:
Assistance with ADLs, IADLs, and health related tasks
through hands-on assistance, supervision or cueing.
The acquisition, maintenance and enhancement of skills
necessary for the individual to accomplish ADLs, IADLs, and health-
related tasks.
Back-up systems or mechanisms to ensure continuity of
services and supports.
Voluntary training on how to select, manage, and dismiss
attendants.
With regard to back up systems or mechanisms to ensure continuity
of services and supports, we propose at Sec. 441.505 that such devices
may include personal emergency response systems, pagers, or any other
appropriate mobile electronic device that may be used to ensure
continuity of services and supports.
The Community First Choice Option requires the utilization of a
person-centered planning process. A key component of the Community
First Choice option is to allow individuals to self direct the
provision of services and supports. Individuals must have the authority
to hire, fire, and train attendants to provide services tailored to the
individuals' needs. Therefore, we propose at Sec. 441.520(a)(6) to
require States to develop and provide a training program for
individuals (or representative) on how to select, manage and dismiss
attendants. Consistent with the philosophy of self-direction, this
training must be voluntary, and may not be a mandatory requirement for
the individual to receive services under this option.
Section 1915(k)(1)(D) of the Act provides that States may allow an
individual to purchase permissible services and supports. We propose to
implement this option at Sec. 441.520(b). At a minimum, permissible
services and supports include expenditures for transition costs such as
rent and utility deposits, first month's rent and utilities, bedding,
basic kitchen supplies, and other necessities required for an
individual to transition from a nursing facility, institution for
mental disease, or intermediate care facility for the mentally retarded
to a community-based home setting where the individual resides. We
believe that the primary focus of Community First Choice is to remove
barriers that prevent individuals from returning to the community or
remaining in the community, thus avoiding unnecessary or premature
institutionalization. Section 1915(k)(1)(D)(ii) of the Act permits
States to make expenditures available for individuals to acquire items
that increase independence or substitute for human assistance, to the
extent that the expenditures would otherwise be made for the human
assistance and are related to a need identified in an individual's
person-centered plan. Based on our experience with the Cash and
Counseling Demonstrations, and authorities under sections 1915(j) and
1915(c) of the Act, we know that many individuals do avail themselves
of and benefit from this option and use this flexibility to purchase
items that allow them greater independence, such as non-medical
transportation services, or that substitute for human assistance, such
as a microwave oven. We propose at Sec. 441.520(b)(2), when
individuals utilize this option that items purchased must relate to a
need identified in the service plan.
Based on our experience with Cash and Counseling, we found that
some States limited participants' purchases to a list of allowable
items for which no prior approval was necessary. Still, other States
required prior approval for all items, while others provided a list of
allowable items and required prior approval for other items not on the
list. Each permissible purchase was determined based on an identified
goal
[[Page 10740]]
in an individual's service plan. Each State developed procedures that
governed how participants could save an amount of their monthly budget
and how and at what intervals the State would recoup funds that were
not spent according to the purchase plan. The Community First Choice
Option differs from Cash and Counseling and the section 1915(j) State
plan Option in that an individual is not required to save an amount in
a budget to purchase items that increase independence or substitute for
human assistance. Therefore, in Community First Choice Option these
purchases are permissible for inclusion in the service plan and service
budget if applicable. CMS believes that permissible purchases will be a
particularly useful tool for States to promote community integration.
D. Excluded Services (Sec. 441.525)
In Sec. 441.525, consistent with the provisions of section 1915(k)
of the Act, we propose the following services are excluded from the
Community First Choice Option:
Room and board costs (except with respect to the
transition costs identified above).
Special education and related services provided under the
IDEA.
Vocational rehabilitation services provided under the
Rehabilitations Act of 1973.
Assistive technology devices and assistive technology
services other than those defined in Sec. 441.520(a)(5).
Medical supplies and equipment.
Home modifications.
The exclusion of room and board costs is consistent with section
1905(a) of the Act, which limits Medicaid coverage of room and board to
an inpatient setting only. The goal of the Community First Choice
option is to provide attendant and support services in the community,
as such, services provided in an inpatient setting are excluded from
coverage. While attendant services and supports may be provided in a
residential setting in the community, only the costs of the services
and supports, not the room and board costs of the residential setting,
will be covered.
The IDEA ensures every child with a disability has available a free
appropriate public education that includes special education and
related services. When services are identified in an Individualized
Education Program (IEP) or an Individualized Family Service Plan
(IFSP), Medicaid will only pay for services determined to be medically
necessary. Therefore, at Sec. 441.525, we propose that services
related to education only are excluded from this section.
The Rehabilitation Act of 1973 provides for direct services to
people with disabilities which help them to become qualified for
employment. Vocational services are those that teach specific skills
required by an individual to perform tasks associated with performing a
job. Therefore, at Sec. 441.525, we propose the general prohibition
established by section 1915(k) of the Act excluding vocational
rehabilitation services provided under the Rehabilitation Act of 1973.
We also propose at Sec. 441.525 that Community First Choice would
not include services furnished through another benefit or section under
the Act. Per section 1915(k)(1)(C) of that Act, we propose at Sec.
441.525 the exclusion of the following services: Assistive technology
(other than what is described in Sec. 441.520(a)(5); Medical supplies
and equipment; and home modifications.
The statute specifically excludes assistive technology devices and
assistive technology services (other than back-up systems or
mechanisms), medical equipment and home modifications. However, the
statute does not define such items and furthermore, the statute
provides that the excluded services and supports are ``subject to
subparagraph (D)'' which defines permissible services and supports to
include expenditures relating to a need identified in an individual's
person-centered plan of services that increase independence or
substitute for human assistance. In general, the terms ``assistive
technology devices'' and ``assistive technology services'' may be
broadly interpreted to include items and services necessary for an
individual to make the transition from an institution to a community-
based setting, or that increase independence or substitute for human
assistance. In addition, some medical equipment and environmental
adaptations may make the provision of human assistance feasible when it
would not otherwise be provided. These types of items could be covered
under sections 1915(k)(1)(D)(i) and (ii) of the Act. For example,
eating and cooking utensils can be fitted with oversized handles for
easier gripping. These ``assistive devices'' can enable an individual
with limited hand function to continue to prepare meals for himself or
herself. Further examples would include items such as bedside controls
for lights and other appliances to increase the ability of mobility
impaired individuals to control the lighting, temperature or other
conditions of their home without getting out of bed. Wheelchair lifts
and stair-climbs can provide an individual with full access and
mobility throughout a multi-level home. Other self-direction programs
have permitted the inclusion of certain items that could be broadly
defined as assistive technology, medical equipment, and home
modifications. To ensure that items or services that could be covered
under sections 1915(k)(1)(D)(i) or (ii) of the Act are not excluded, we
interpret the provision to prohibit service plans from identifying
assistive technology or services, medical equipment or home
modifications as the only needed service in an individual's plan of
services or supports. Therefore, we are proposing that in Community
First Choice some items or services that could be classified as
assistive technology devices or services, medical equipment or home
modifications may be covered, but only when based on a specific need in
the person-centered service plan, when used in conjunction with other
home and community-based attendant services. We invite comment on this
proposal. We further propose to allow States to determine at what point
the amount of funds to purchase such devices and adaptations places
them in the statutorily excluded categories. We also invite comments on
this proposal.
E. Setting (Sec. 441.530)
Section 1915(k)(1)(A)(ii) of the Act provides that a home and
community-based setting does not include a nursing facility,
institution for mental diseases, or an intermediate care facility for
the mentally retarded. We propose at Sec. 441.530 to adopt this
statutory language in our regulations.
In the June 22, 2009 Federal Register (74 FR 29453), we published
the Home and Community-Based Services (HCBS) Waivers Advance Notice of
Proposed Rulemaking (ANPRM) to seek public input on strategies to
define home and community with regard to waivers under section 1915(c)
of the Act. We recognize the important role that Medicaid plays in
States' efforts to ensure compliance with the ADA and the Olmstead v.
L.C., 527 U.S. 581 (1999) U.S. Supreme Court decision. In the Olmstead
decision, the Court affirmed a State's obligation to serve individuals
in the most integrated setting appropriate to their needs. The Court
held that the unjustified institutional isolation of people with
disabilities is a form of unlawful discrimination under the ADA. We
seek to assist States' objective to meet these ADA and Olmstead
obligations. However, a State's Olmstead obligations under the ADA and
section 504 of the
[[Page 10741]]
Rehabilitation Act are not defined by, or limited to, the scope or
requirements of the Medicaid program and nothing in this regulation
should be construed as limiting a State's obligation to comply with the
integration requirements under the ADA or section 504 of the
Rehabilitation Act.
Notwithstanding our continuing efforts to gain stakeholder input on
the nature of HCBS settings, we are proposing to clarify that certain
settings are clearly outside of what would be considered home and
community-based because they are not integrated into the community.
Section 1915(k)(1)(A)(ii) of the Act provides that services must be
provided in a home or community setting, which excludes nursing
facilities, institutions for mental diseases, and intermediate care
facilities for the mentally retarded. However, there may be instances
in which individuals reside in alternative or subsidiary residential
settings on the grounds of or located adjacent to such institutional
facilities, which are not licensed as institutions for the purpose of
Medicaid reimbursement or under State licensing rules. We are proposing
to clarify that home and community settings may not include a building
that is also a publicly or privately operated facility which provide
inpatient institutional treatment or custodial care; or in a building
on the grounds of, or immediately adjacent to, a public institution or
disability-specific housing complex, designed expressly around an
individual's diagnosis that is geographically segregated from the
larger community, as determined by the Secretary. To maintain
consistency across the Medicaid program, we anticipate adopting this
same clarification for services provided under section 1915(c) of the
Act and other authorities permitting coverage of home and community-
based services under Medicaid.
F. Assessment of Need (Sec. 441.535)
Section 1915(k)(1)(A)(i) of the Act requires that States conduct an
assessment of individuals' functional need on which to base the person-
centered service plan. We propose to implement this requirement at
Sec. 441.535. An assessment of an individual's needs, strengths, and
preferences is crucial because it forms the basis for the
identification of the needed services and supports that will be
authorized in the individual's subsequent person-centered service plan.
The assessment should include a determination of whether there are any
persons available to support the individual, including family members.
These persons may be able to provide unpaid personal assistance, or
fulfill the more formal roles such as acting in the capacity of a paid
provider of attendant services or as an individual's representative. We
propose to require in Sec. 441.535 that the assessment include a face-
to-face meeting with the individual (``individual'' meaning in this
context, if applicable, the individual and the individual's authorized
representative when appropriate).
For consistency among Medicaid program benefits and in keeping with
our decisions for implementation of the Self-directed Personal
Assistance Services State plan Option under section 1915(j) of the Act,
we do not prescribe the assessment tool to be used by States, but we
expect that the assessment will include a standardized set of data
elements, key system functionality, and workflow that will be
sufficiently comprehensive to support the determination that an
individual would require attendant care services and supports under the
Community First Choice State Option and the development of the
individual's subsequent service plan and budget. We propose at Sec.
441.535(a), as in section 1915(j) of the Act, that the assessment
include information about an individual's health condition, personal
goals and preferences for the provision of services, identified
functional limitations, age, school participation status, employment,
household, and other factors that are relevant to the authorization and
provision of services, and support the finding for need of home and
community-based attendant services and supports and development of the
service plan and budget. We are currently working to determine
universal core elements to include in a standard assessment for
consistency across programs. As these elements are identified, it is
expected States will incorporate these elements in the assessment of
need to be used for Community First Choice. We invite comments on the
elements that should be included in this list.
Finally, in Sec. 441.535(c), we propose to require that the
assessment of need is conducted at least every 12 months and as needed
when the individual's needs and circumstances change significantly, or
as requested by an individual or their representative, in order to
revise the service plan.
G. Service Plan (Sec. 441.540)
Section 1915(k)(1)(A)(i) of the Act require a person-centered
approach to establishing a service plan, based on an assessment of
need, developed in collaboration with an individual (``individual''
meaning in this context, if applicable, the individual and the
individual's authorized representative) choosing to receive home and
community-based attendant services and supports under the Community
First Choice State Option. In Sec. 441.540, we propose to require that
based on the assessment of need specified in Sec. 441.535, the State
must develop (or approve, if the Plan is developed by others) a written
service plan, in collaboration with the individual (including, for
purposes of this paragraph, the individual and the individual's
authorized representative if applicable). The service plan must be
created using a person-centered and directed planning process.
For clarification and consistency among programs, our expectation
regarding person-centered services and supports is that the plan
reflects what is important to the individual and important for his or
her health and welfare. The person-centered approach is a process,
directed by the individual with long-term support needs, or by another
person important in the life of the individual who the individual has
freely chosen to direct this process, intended to identify the
strengths, capacities, preferences, needs, and desired outcomes of the
individual. The person-centered process includes the opportunity for
the individual to choose others to serve as important contributors to
the planning process.
These participants in the person-centered planning process enable
and assist the individual to identify and access a personalized mix of
paid and non-paid services. This process and the resulting service plan
will assist the individual in achieving personally defined outcomes in
the most integrated community setting in a manner that reflects what is
both important for the individual to meet identified support needs and
what is important to the individual to ensure delivery of services in a
manner that reflects personal preferences and choices and assures
health and welfare. The individual identifies planning goals to achieve
these personal outcomes in collaboration with those that the individual
has identified. The identified personally-defined outcomes, preferred
methods for achieving them and the training supports, therapies,
treatments, and other services the individual needs to achieve those
outcomes become part of the written services and support plan, also
known as plan of care.
Based on our experience with States' self-direction waivers and
demonstrations, we are aware that States have historically implemented
[[Page 10742]]
the person-centered planning process differently. Based on the above
clarification of person-centered planning and to promote consistency
among programs, we propose to require, at Sec. 441.540(a), a person-
centered planning process. We propose that the person-centered planning
process would:
Include people chosen by the individual;
Provide necessary support to ensure that the individual
has a meaningful role in directing the process;
Occur at times and locations of convenience to the
individual;
Reflect cultural considerations of the individual;
Include strategies for solving conflict or disagreement
within the process, including clear guidelines for the management of
conflict of interest concerns among planning participants;
Include opportunities for periodic and ongoing plan
updates as needed or requested by the individual; and
Offer choices to the individual regarding the services and
supports they receive and from whom.
We propose at Sec. 441.540(b) that the plan resulting from this
process must reflect the services that are important for the individual
to meet individual services and support needs as assessed through a
person-centered functional assessment, as well as what is important to
the person with regard to preferences for the delivery of such
supports. Commensurate with the level of need of the individual, the
plan must reflect the individual's strengths and preferences, as well
as clinical and support needs (for example, as identified through a
person-centered functional assessment). The plan should include
individually identified goals, which may include goals and preferences
related to relationships, community participation, employment, income
and savings, health care and wellness, education, and others.
The plan should reflect the services and supports (paid and unpaid)
that will assist the individual to achieve identified goals and who
provides them. The plan should reflect risk factors and measures in
place to minimize them including back-up strategies when needed. The
plan should be signed by all individuals and providers responsible for
its implementation, should be understandable to the individual
receiving services and the individuals important in supporting him or
her, and should include a timeline for review. The plan should identify
the individual or entity responsible for monitoring the plan and should
be distributed to everyone involved (including the participant) in the
plan. The plan should also be directly integrated into self-direction
where individual budgets are used and should prevent the provision of
unnecessary or inappropriate care. We invite comment on the person-
centered process and planning elements of this proposed rule.
We would also propose at Sec. 441.540(c) a minimum list of
policies and procedures associated with service plan development that
must be completed and included by the State. We believe these are
necessary to ensure the proper administration and development of the
service plan. Policies and procedures should ensure that the
responsibilities for assessment of need and service plan development
are identified, the planning process is timely, the participant's needs
are assessed and services meet the needs. When determining the
timeframe in which the planning process should occur, we expect States
to establish guidelines that support a timeframe that responds to the
needs of the individual, thus allowing access to needed services as
quickly as possible. Additionally, the State must ensure the conflict
of interest standards for assessment of need and service plan
development apply to all individuals and entities, public or private.
These standards at a minimum must ensure that the individuals and
entities conducting the assessment of need and developing the service
plan are not related by blood or marriage to the individual or to any
paid caregiver of the individual, financially responsible for the
individual, empowered to make financial or health-related decisions on
behalf of the individual, and would not benefit financially from the
provision of assessed needs and services.
Section 1915(k)(1)(A)(i) of the Act requires that the service plan
be agreed to in writing by the individual or, as appropriate, the
individual's representative. We propose at Sec. 441.540(d) to require
that the service plan must be finalized and agreed to in writing by the
individual or, as appropriate, the individual's representative and that
a copy of the plan must be provided to the individual.
Finally, in Sec. 441.540(e), we propose to require that the
service plan be reviewed and revised upon reassessment of need at least
every 12 months, when the individual's circumstances or needs change
significantly and at the individual's request.
H. Service Models (Sec. 441.545)
Section 1915(k)(1)(A)(iii) of the Act requires that the Community
First Choice Option be provided under an agency-provider model or other
model. Section 1915(k)(6)(C)(ii) of the Act defines other models to
mean methods, other than the agency-provider model, for the provision
of consumer controlled services and supports. The statute provides that
such models may include vouchers, direct cash payments, or use of a
fiscal agent to assist in obtaining services.
We propose at Sec. 441.545 that a State may choose one or more of
the service delivery models defined in the statute. In Sec. 441.545(a)
and (b), we have categorized these models into two main groups, the
Agency Model and the Self-directed Model with Service Budget. We have
elected the use of the term self-directed rather than consumer
controlled to be consistent with terminology in other regulatory
provisions that offer this type of service delivery model including
sections 1915(i) and 1915(j) of the Act. In Sec. 441.545(a), we
propose to reflect the statutory definition of the agency model as a
service delivery method in which services and supports are provided by
entities through a contract.
Based on our experience with self-directed programs, we are aware
that States may choose to allow individuals to self-direct services
under a traditional agency model or an ``agency with choice'' model,
which utilizes a co-employment relationship between the individual and
an agency. Under the traditional agency model, the individual retains
hiring and firing authority of personal care attendants. The ``agency
with choice'' utilizes a co-employment relationship between the
individual and the agency. We interpret the definition of ``agency-
provider model'' in section 1915(k)(6)(C)(i) of the Act to include such
delivery options as allowable under Community First Choice as the
agency model.
In Sec. 441.545(b)(1), (b)(2) and (b)(3), we propose to further
define the categories within the Self-directed Model with Service
Budget to include the models specified in the statute including
financial management entity, direct cash, and vouchers. We have elected
to use the term financial management entity rather than fiscal agent to
be consistent with other regulatory provisions that offer this type of
service delivery model.
In Sec. 441.545(b)(1), we propose to require that the financial
management entity perform specific functions that include, but are not
limited to, the following: Collect and process timesheets of the
individual's workers; process payroll, withholding, filing and payment
of applicable Federal, State
[[Page 10743]]
and local employment related taxes and insurance; maintain a separate
account for each individual's budget; track and report disbursements
and balances of individual's funds; process and pay invoices for
services in the service plan; and provide to the individual periodic
reports of expenditures and the status of the approved service budget.
We propose to adopt these functions to be consistent with section
1915(j) of the Act in which a self-directed service delivery model is
also defined. We propose in Sec. 441.545(b)(1)(vii) that States may
perform the functions of a financial management entity internally or
use a vendor organization that has the capabilities to perform the
required task in accordance with the applicable IRS requirements.
Again, we propose this provision to be consistent with flexibility
offered in section 1915(j) of the Act.
We propose in Sec. 441.545(b)(2) that the State have the option of
disbursing cash prospectively to individuals self-directing their
Community First Choice Option. This Direct Cash option is specified in
section 1915(k)(6)(C)(ii) of the Act. To be consistent with the option
under section 1915(j) of the Act, which also allows for the direct
payment of cash, we further propose that if a State elects this option,
it must meet the following requirements: Ensure compliance with all
applicable requirements of the Internal Revenue Service, including but
not limited to, retaining required forms and payment of FICA, FUTA and
State unemployment taxes; permit individuals, or their representatives
as applicable, using the cash option to choose to use the financial
management entity for some or all of the functions; make available a
financial management entity to an individual who has demonstrated,
after additional counseling, information, training, or assistance that
the individual cannot effectively manage the cash option described in
this section. If the cash option is the only model offered by the State
for Community First Choice, then the State may require an individual to
utilize the financial management entity services under the cash option,
but must provide the conditions under which this would be enforced
after additional counseling, information, training or assistance are
unsuccessful.
In Sec. 441.545(b)(3), we propose that the State also have the
option of issuing vouchers as a self-directed service delivery model.
We propose that if the State elects this option that it must ensure
compliance with all applicable requirements of the Internal Revenue
Service.
I. Additional Service Plan Requirements for Self-Directed Model With
Service Budget (Sec. 441.550)
Section 1915(k)(1)(A)(i) of the Act requires that the Community
First Choice Option be provided through a person-centered plan of
services and supports that is based on an assessment of functional
need. While the general requirements of the service plan are proposed
in Sec. 441.550, to clarify our expectations for a service plan when
the State elects the option of a Self-Directed Service Model with
Service Budget and to be consistent with the self-directed service
delivery model under section 1915(j) of the Act, we propose that the
service plan convey authority to the individual to perform, at a
minimum, specific tasks. In Sec. 441.550, we propose these tasks
include the ability to recruit, hire (including specifying worker
qualifications), fire, supervise, and manage workers in the provision
of Community First Choice Option services and supports. We propose that
the expectations for managing workers include determining worker
duties, scheduling workers, training workers in assigned tasks, and
evaluating workers' performance. In addition, we propose that the
service plan describe the ability of the individual to determine the
amount paid for a service, support, or item, as well as the ability to
review and approve provider invoices. It is the approval of the service
plan that authorizes the individual to undertake these activities as
part of the self-directed service delivery model. The service plan must
encompass both the general decision-making authority that an individual
has and outline the individualized services and supports to address the
individual's needs, abilities, preferences and choices. In our
experience with self-directed programs these components of the service
plan have been critical elements in the implementation of successful
programs. Therefore, we propose to adopt the same elements in this
provision of self-directed services.
J. Support System (Sec. 441.555)
Based on our experience with self-direction programs, we are aware
that the support system provided by the State is a critical element of
the service delivery model. Therefore, to maintain consistency and to
reflect our policy relating to self-direction, in Sec. 441.555 we
propose the requirement that the State have in place a support system.
While we do not prescribe the way States are to design their support
system, in order to allow flexibility, based on our experience, we
include in the proposed regulation a minimum list of activities for
which individuals may need information, counseling, training, or
assistance, but States may offer additional activities. Generally, the
activities requiring support include participant rights information and
how the self-directed model of service delivery operates.
K. Service Budget Requirements (Sec. 441.560)
While section 1915(k) of the Act does not specifically address the
requirement for an individual to have authority over a budget, in Sec.
441.560 we have proposed specific service budget requirements based on
experience with the section 1915(j) self-directed service delivery
model which utilizes the options of financial management entities and
direct cash payments. The requirements of section 1915(j) of the Act
were supported by the experience of section 1115 demonstrations and
proven to be successful models for implementation of a self-directed
service model with a service budget. The service budget amount is the
cap on the amount of funds available to an individual with which to
purchase self-directed Community First Choice Option services and
supports. Therefore, in Sec. 441.560(a), we require that a service
budget be developed and approved by the State and include specific
items such as the specific dollar amount, how the individual is
informed of the amount, and the procedures for how the individual may
adjust the budget.
In Sec. 441.560(b), we propose that the budget methodology set
forth by the State meet certain criteria such as being objective and
evidence based, be applied consistently to individuals in the program,
and be included in the State plan. In addition, we propose the budget
methodology include calculations of the expected costs of Community
First Choice Option services and supports if those services and
supports were not self-directed. We recognize in Sec. 441.560(b)(5)
that States may place monetary or budgetary limits on self-directed
Community First Choice Option services. Therefore, if a State does so,
we would require that the State have a process in place that describes
the limits and the basis for the limits, and any adjustments that will
be allowed and the basis for the adjustments, such as an individual's
health and welfare.
Additionally, we propose to require certain beneficiary safeguards
in light of these possible limitations. First, we propose that States
have procedures to adjust a budget when a reassessment indicates a
change in a participant's
[[Page 10744]]
medical condition, functional status, or living situation to ensure
that the budget amount is appropriate to the individual's current
needs. Second, we propose that States have a method of notifying
participants of the amount of any limit that applies to an individual's
Community First Choice Option services and supports. Finally, we
propose that the budget not restrict access to other medically
necessary care and services furnished under the State plan and approved
by the State but not included in the budget. Based on our experience in
other self-directed programs like those specified in section 1915(j) of
the Act, these components of the budget and the budget methodology are
critical elements of a successful program. We invite comments on this
approach.
L. Provider Qualifications (Sec. 441.565)
Section 1915(k)(1)(A)(iv)(III) of the Act requires that Community
First Choice State Option services and supports be provided by
individuals, including family members, who are qualified to provide
such services. We reflect these requirements in the proposed regulation
at Sec. 441.565. We propose in Sec. 441.565(a) to require that States
provide assurance that necessary safeguards have been taken to protect
the health and welfare of the enrollees in the Community First Choice
State Option by provision of adequate standards for all types of
providers of attendant services and supports under the option. States
must define qualifications for providers of attendant services and
supports under the agency model.
Self-direction is an integral component of the Community First
Choice State Option. This is reflected in Sec. 441.565(b) through (d).
To ensure that individuals maintain the ability to participate in and
control the provision of Community First Choice Option attendant
services and supports, we propose in Sec. 441.565(b) that individuals
can choose any qualified provider, including family members, to provide
such services. In Sec. 441.565(c), we propose that individuals retain
the right to train their workers in the specific areas of attendant
services and supports needed by the individual and to perform the
needed assistance in a manner that comports with participants' personal
preferences, as well as their needs, which we believe is an important
component of self-direction based on our experience with the self-
direction waiver and demonstration programs. In this way, workers
benefit from clear instructions about how to effectively and
appropriately deliver the attendant services, and any potential
dissatisfaction with the way services are being delivered can be
averted. We further propose, at Sec. 441.565(d), that individuals
retain the right to establish additional staff qualifications based on
their needs and preferences. Again, we believe that the individual is
in the best position to set forth the particular staff qualifications
needed to meet the particular preferences of the individual. For
example, if the individual communicates best using American Sign
Language (ASL), the individual may require the worker to be able to
communicate using ASL.
M. State Assurances (Sec. 441.570)
Section 1915(k)(3)(C) of the Act requires that, for the first full
fiscal year in which the State plan amendment is implemented, the State
must maintain or exceed the level of expenditures for services provided
under sections 1905(a), section 1915, or section 1115 of the Act, or
otherwise, to individuals with disabilities or elderly individuals
attributable to the preceding fiscal year. We interpret this
requirement to mean that, for the first 12 months the State chooses to
offer this option in the State plan, the State's share of Medicaid
expenditures for individuals with disabilities or elderly individuals
must remain at the same level or be greater than expenditures from the
previous year. We also interpret this requirement to be limited to
personal care attendant services. We propose to implement this
requirement at Sec. 441.570. States will need to identify the existing
programs for individuals with disabilities and elderly individuals and
the related expenditures to be monitored for this requirement and
calculation. We will provide future guidance on the format of this
reporting requirement.
Section 1915(k)(4) of the Act requires States that elect this
option to comply with certain laws in the provision of the Community
First Choice Option regardless of which service delivery model the
State elects. Specifically, the statute requires that services and
supports are provided in accordance with the Fair Labor Standards Act
of 1938 and applicable Federal and State laws regarding withholding and
payment of Federal and State income and payroll taxes; provision of
unemployment and workers compensations insurance; maintenance of
general liability insurance; and occupational health and safety. We
propose to include these assurances as specified in the statute at
Sec. 441.570(b).
N. Development and Implementation Council (Sec. 441.575)
Under this State plan option, the statute requires a State to
consult and collaborate with a Development and Implementation Council
during the development and implementation of a State plan amendment
under this subsection. Section 1915(k)(3)(A) of the Act requires that
the council include a majority of members with disabilities, elderly
individuals, and their representatives. We recognize that stakeholder
input is an important piece of the Medicaid program and agree that this
council will provide additional opportunities for stakeholder
collaboration. We propose to set forth this requirement as defined by
the statute at Sec. 441.575. We invite comment on how States can
achieve robust stakeholder input including transparency in the
selection process and the activities of the council.
O. Data Collection (Sec. 441.580)
Section 1915(k)(5)(B) of the Act requires that States provide CMS
with information regarding the provision of home and community-based
attendant services and supports under the Community First Choice Option
for each fiscal year for which such services and supports are provided.
The statute requires States to provide data including the number of
individuals who are estimated to receive Community First Choice Option
services and supports during the fiscal year, the number of individuals
that have received such services and supports during the preceding
fiscal year, the specific number of individuals served by type of
disability, age, gender, education level and employment status, and
whether the specific individuals have been previously served under any
other home and community-based services program under the State plan or
under a waiver. We propose to adopt these requirements as detailed in
the statute at Sec. 441.580. We will provide future guidance on the
format of this reporting requirement. Section 1915(k)(3)(E) of the Act
requires States to collect and report information for the purposes of
approving the State plan amendment, providing Federal oversight and
conducting an evaluation of the provision of the Community First Choice
State Option. The data collected through this requirement and the
quality assurance system will help determine how States are currently
providing home and community-based services, the cost of those
services, and whether States are currently offering individuals with
disabilities who otherwise qualify for institutional care
[[Page 10745]]
under Medicaid the choice to instead receive home and community-based
services, as required by the U.S. Supreme Court in Olmstead v. L.C.
(1999). We will provide future guidance on the format of this reporting
requirement.
P. Quality Assurance System (Sec. 441.585)
We propose in Sec. 441.585 the requirements for the comprehensive
continuous quality assurance system that the State must establish and
maintain as set forth in section 1915(k)(3)(D) of the Act. The system
must employ measures for program performance and quality of care,
standards for delivery models, mechanisms for discovery and
remediation, and quality improvements proportionate to the benefit and
number of individuals served. The system must also include a quality
improvement strategy that reflects the nature and scope of the benefit
the State will provide. The statute also requires stakeholder input and
feedback to be incorporated in the quality assurance system and for
information regarding quality assurance to be provided to each
individual receiving Community First Choice State Option services. We
propose to adopt these requirements in Sec. 441.585(a)(4) and Sec.
441.585(b). We will review the State's description of the quality
assurance system and improvement plan when we review the State's
Medicaid plan amendment electing the Community First Choice State
Option.
In Sec. 441.585(a)(1), we propose to require States to have
program performance measures, appropriate to the scope of the benefit,
designed to assess the State's overall system for providing home and
community-based attendant services and supports.
In Sec. 441.585(a)(2), we propose to require States to have
quality of care measures that may be used to measure individual
outcomes associated with the receipt of community-based attendant
services and supports, such as function indicators and measures of
individual satisfaction. These measures must be made available to CMS
upon request and must include a process for the mandatory reporting,
investigation, and resolution of allegations of neglect, abuse, or
exploitation in connections with provision of Community First Choice
services as well as quality indicators approved or prescribed by the
Secretary.
In Sec. 441.585(a)(3), we propose to require States to have
standards for agency-based and other delivery models for training,
appeals for denials and reconsideration procedures on an individual
service plan.
Q. Increased Federal Financial Participation (Sec. 441.590)
Unlike similar programs such as those specified under sections
1915(c) and 1915(j) of the Act, section 1915(k) of the Act does not
allow States to choose only specific categories or types of home and
community-based attendant services and supports to be included in the
overall service benefit. Recognizing the section 1915(k) option is a
more robust service package, section 1915(k)(2) of the Act requires
States to receive an increased FMAP of 6 percent for the provision of
services under the Community First Choice Option effective October 1,
2011, or later under an approved State plan amendment. We propose to
implement this requirement at Sec. 441.590.
III. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995, we are required to
provide 60-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection
burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
We are soliciting public comment on each of these issues for the
following sections of this document that contain information collection
requirements (ICRs):
A. ICRs Regarding Assessment of Need (Sec. 441.535)
Proposed Sec. 441.535 would require States to conduct face-to-face
assessments of the individual's needs, strengths and preferences.
Specifically, the face-to-face assessments may use one or more
processes and techniques to obtain information about an individual,
including but not limited to the information listed in proposed Sec.
441.535(a)(1) through (8). In addition to the initial face-to-face
assessment, proposed Sec. 441.535 would require States to conduct
face-to-face assessments at least every 12 months as needed. The burden
associated with this requirement would be the time required for a State
to conduct a face-to-face assessment. We estimate that all States that
elect this option will comply with this requirement. We further
estimate that it will take each State 1 hour to perform a face-to-face
assessment; however, we know that the number of assessments will vary
according to the number of participants in each State under this State
plan option. Because we cannot accurately quantify the number of
assessments per State, we are soliciting public comment pertaining to
the per State volume and will reevaluate this issue and the associated
burden estimate in the final rule stage of rulemaking.
B. ICRs Regarding Service Plan (Sec. 441.540)
As stated in proposed Sec. 441.540(a), the State must develop a
person-centered planning process resulting in a service plan, based on
the assessment of need, in collaboration with the individual and the
individual's authorized representative, if applicable. Proposed Sec.
441.540(b) lists the minimum components of a person-centered service
plan, while proposed Sec. 441.540(c) lists the requirements of a
service plan. Proposed Sec. 441.540(d) would require that a service
plan must be agreed to in writing by the individual or the individual's
representative, if applicable. In addition, States must provide a copy
of the plan to the individual.
The burden associated with the aforementioned requirements is the
time and effort necessary for a State to both develop and finalize a
written service plan for each individual. We estimate that it will take
each State an average of 2 hours to develop and finalize a service
plan. Because we cannot accurately quantify the number of service plans
per State, we are soliciting public comment pertaining to the per State
volume and will reevaluate this issue and the associated burden
estimate in the final rule stage of rulemaking.
In addition to the burden associated with developing and finalizing
service plans, proposed Sec. 441.540 also imposes a disclosure
requirement. As part of the finalization process, States are required
to give each individual a copy of the service plan. We estimate that it
will take each State 30 minutes to produce and disseminate a copy of a
finalized report to an individual. The total estimated burden
associated with this disclosure requirement will vary
[[Page 10746]]
according to the number of participants in each State under this State
plan option. Because we cannot accurately quantify the number of plan
copies each State will need to distribute to the individuals in the
State plan option, we are soliciting public comment pertaining to the
number of plan copies distributed per State and will reevaluate this
issue and the associated burden estimate in the final rule stage of
rulemaking.
Proposed Sec. 441.540(e) would require States to review each
service plan at least every 12 months. We estimate that it will take
each State 1 hour to annually review and revise (upon reassessment of
need or at the individual's request) a single written service plan. The
total estimated burden associated with this requirement will vary
according to the number of participants in each State under this State
plan option. Because we cannot accurately quantify the number of plans
each State will need to review annually, we are soliciting public
comment pertaining to the number of plans each State must review
annually and will reevaluate this issue and the associated burden
estimate in the final rule stage of rulemaking.
C. ICRs Regarding Service Models (Sec. 441.545)
Proposed Sec. 441.545 would require State to choose one or more
service delivery models by which to provide self-directed home and
community-based attendant services and supports. Specifically, a State
may choose one or more of the models discussed in proposed Sec.
441.545(a) through (b). While we acknowledge that the service models
discussed in proposed Sec. 441.545(a) through (b) contain information
collection requirements, it is difficult for us to accurately quantify
both the number of States that will avail themselves of these models
and the time associated with the information collection requirements
contained therein. As a result, because we are unable to estimate both
the total number of participating States and the burden associated with
these requirements, we are soliciting public comment pertaining to this
burden and will reevaluate this issue in the final rule stage of
rulemaking.
D. ICRs Regarding Support System (Sec. 441.555)
As stated in proposed Sec. 441.555, for the self-directed model
with a service budget, States must provide or arrange for the provision
of a support system. Proposed Sec. 441.555(a) would require a support
system to appropriately assess and counsel an individual or the
individual's representative, if applicable, before enrollment. Proposed
Sec. 441.555(b) would require that the support system to provide
appropriate information, counseling, training and assistance to ensure
that an individual is able to manage the services and budgets. In
addition, proposed Sec. 441.555(b) would require that the information
be communicated to the individual in a manner and language
understandable by the individual.
The burden associated with proposed Sec. 441.555 would be the time
and effort necessary for the State or the provider of the support
system to meet the aforementioned disclosure requirements. We estimate
that it will take each State 2 hours to provide or arrange for the
provision of a support system that meets the necessary requirements.
However, we cannot estimate the frequency with which a State will
provide or arrange for the provision of support systems, as it will
vary by State depending on the number of participants that are assessed
to need this service. Because we cannot accurately quantify the
frequency with which a State will provide or arrange for the provision
of support systems, we are soliciting public comments on this issue and
will reevaluate the associated burden estimate in the final rule stage
of rulemaking.
E. ICRs Regarding Service Budget Requirements (Sec. 441.560)
Proposed Sec. 441.560(a) would require, for the self-directed
model with a service budget, that a service budget be developed and
approved by the State based on the assessment of need and service plan.
The budget must include all of the information listed in Sec.
441.560(a) through (b). The burden associated with this requirement is
the time and effort put forth by the State to develop a service budget.
We estimate that it will take each State 3 hours to develop a service
budget; however, the total number of budgets each State must prepare
will depend on the number of individual's utilizing the self-directed
model in each State. Because we are unable to estimate the total number
of service budgets each State would be required to develop, we are
soliciting public comments pertaining to this issue and will reevaluate
the burden estimate in the final rule stage of rulemaking.
Proposed Sec. 441.560(c) would require States to have procedures
in place that will provide safeguards to individuals when the budgeted
services amount is insufficient to meet the individual's needs. The
burden associated with this requirement is the time and effort it would
take for a State to develop and maintain its procedures. We estimate
that will take each State 16 hours to develop these procedures.
Similarly, we estimate that all States that elect this State plan
option will comply with this requirement. We believe this requirement
imposes a one-time burden; therefore, we have not assigned any future
burden to this requirement. We cannot estimate the total annual burden
associated with this requirement because it will vary by State. Because
we cannot quantify the aforementioned burden, we are soliciting public
comments pertaining to this issue and will reevaluate the burden
estimate in the final rule stage of rulemaking.
Proposed Sec. 441.560(d) would require a State to have a method of
notifying individuals of the amount of any limit that applies to an
individual's Community First Choice Option services and supports. The
burden associated with this requirement is the time and effort it would
take for each State to develop and distribute a notice to each
individual. We estimate that all States that elect this option must
comply with this notification requirement. We further estimate it would
take each State 15 minutes to develop and distribute a single notice.
The total number of notices each State must distribute will vary
depending on the number of individual's utilizing the self-directed
model in each State. Therefore, we are unable to estimate the burden
associated with this requirement. We are soliciting public comments
pertaining to this issue and will reevaluate the burden estimate in the
final rule stage of rulemaking.
F. ICRs Regarding Provider Qualifications (Sec. 441.565)
Proposed Sec. 441.565 would require States to provide assurances
that necessary safeguards have been taken to protect the health and
welfare of enrollees in the Community First Choice State Option. In
addition, the States must define in writing the adequate qualifications
for providers in the agency model of Community First Choice services
and supports. The burden associated with the aforementioned
requirements is the time and effort necessary to develop system
safeguards that include written adequacy qualifications for providers.
We estimate that it will take each State 16 hours to comply with this
requirement; however, the total estimated annual burden associated with
these requirements will vary by State. We are unable to estimate the
total number of written assurances that will be required; therefore, we
are
[[Page 10747]]
seeking public comment pertaining to this issue and will reevaluate the
burden estimate in the final rule stage of rulemaking.
G. ICRs Regarding Data Collection (Sec. 441.580)
Proposed Sec. 441.580 would require a State to provide information
regarding the provision of home and community-based attendant services
and supports under the Community First Choice Option for each fiscal
year for which such services are provided. Specifically, States must
submit the information contained in proposed Sec. 441.580(a) through
(f). We estimate that it will take each State 24 hours to submit the
required information. We also estimate that all States that elect this
State plan option must comply with this requirement. The total
estimated annual burden associated with this requirement is 24 hours at
a cost of $576 per State for the initial year.
H. ICRs Regarding Quality Assurance System (Sec. 441.585)
Proposed Sec. 441.585 would require each State to establish and
maintain a comprehensive, continuous quality assurance system, detailed
in the State plan amendment, that includes a quality improvement
strategy and employs measures for program performance and quality of
care, standards for delivery models, mechanisms for discovery and
remediation, and quality improvements proportionate to the benefit and
number of individuals served. Specifically, the quality assurance
system must include but not be limited to the components listed in
proposed Sec. 441.585(a) through (c). The burden associated with this
requirement is the time and effort necessary for a State to develop and
maintain a quality assurance system. We estimate that it will take 100
hours for each State to comply with the initial requirement to develop
a quality assurance system. The total estimated annual burden
associated with developing a quality assurance system is 100 hours per
State, at a cost of $2,400. Similarly, we estimate that each State will
incur an annual burden of 16 hours to review and maintain its quality
assurance system. The total estimated annual burden associated with
reviewing a quality assurance system is 16 hours at a cost of $384 for
each participating State.
If you comment on these information collection and recordkeeping
requirements, please do either of the following:
1. Submit your comments electronically as specified in the
ADDRESSES section of this proposed rule; or
2. Submit your comments to the Office of Information and Regulatory
Affairs, Office of Management and Budget,
Attention: CMS Desk Officer, [CMS-2337-P].
Fax: (202) 395-6974; or
E-mail: [email protected].
IV. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, when we proceed with a subsequent document, we will respond to the
comments in the preamble to that document.
V. Regulatory Impact Analysis
A. Statement of Need
This proposed rule implements section 2401 of the Affordable Care
Act of 2010, as amended by the Health Care and Education Reconciliation
Act of 2010. The Secretary is to establish a new State plan option to
provide home and community-based attendant services and supports at a 6
percentage point increase in Federal matching payments for expenditures
related to the provision of services under this option. Section 2401 of
the Affordable Care Act, entitled ``Community First Choice Option,''
adds a new section 1915(k) of the Act that allows States, at their
option, to provide home and community-based attendant services and
supports under their State plan beginning October 1, 2011.
B. Overall Impact
We have examined the impacts of this rule as required by Executive
Order 12866 on Regulatory Planning and Review (September 30, 1993),
Executive Order 13563 on Improving Regulation and Regulatory Review
(February 2, 2011), the Regulatory Flexibility Act (RFA) (September 19,
1980, Pub. L. 96-354), section 1102(b) of the Social Security Act,
section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4), Executive Order 13132 on Federalism (August 4, 1999), and the
Congressional Review Act (5 U.S.C. 804(2)).
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). A regulatory impact
analysis (RIA) must be prepared for major rules with economically
significant effects ($100 million or more in any 1 year). The proposed
rule is estimated to have an economic impact of approximately
$1,585,000,000 in the fiscal year beginning on October 1, 2011.
Therefore, we estimate that this rulemaking is economically significant
as measured by the $100 million threshold, and hence also a major rule
under the Congressional Review Act. Accordingly, we have prepared an
RIA below that to the best of our ability presents the costs and
benefits of the rulemaking.
The RFA requires agencies to analyze options for regulatory relief
of small entities if a rule has a significant impact on a substantial
number of small entities. For purposes of the RFA, small entities
include small businesses, nonprofit organizations, and small
governmental jurisdictions. Most hospitals and most other health care
providers and suppliers are small entities, either by being nonprofit
organizations or by meeting the SBA definition of a small business and
having revenues of less than $7 million to $34.5 million in any 1 year.
(For details, see the Small Business Administration's Table of Size
Standards at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=2465b064ba6965cc1fbd2eae60854b11&rgn=div8&view=text&node=13:1.0.1.1.16.1.266.9&idno=13.) Individuals and States are not included
in the definition of a small entity. We are not preparing an analysis
for the RFA because we have determined, and the Secretary certifies,
that this proposed rule would not have a significant impact on a
substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a significant impact on
the operations of a substantial number of small rural hospitals. This
analysis must conform to the provisions of section 603 of the RFA. For
purposes of section 1102(b) of the Act, we define a small rural
hospital as a hospital that is located outside of a metropolitan
statistical area and has fewer than 100 beds. We are not preparing an
analysis for section 1102(b) of the Act because the Secretary has
determined that this proposed rule will not have a significant impact
on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also
requires that agencies assess
[[Page 10748]]
anticipated costs and benefits before issuing any rule whose mandates
require spending in any 1 year of $100 million in 1995 dollars, updated
annually for inflation. In 2011, that threshold is approximately $136
million. Because this rule does not mandate State participation in
section 1915(k) of the Act, there is no obligation for the State to
make any change to their Medicaid program. As a result, there is no
mandate for the State. Therefore, we estimate this rule will not
mandate expenditures in the threshold amount of $136 million in any 1
year.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. As stated above, this proposed rule would not have a
substantial effect on State and local governments.
C. Anticipated Effects
1. Overview
This proposed rule provides States with additional flexibility to
finance home and community based services by establishing a new
Community First Choice Option at an increased Federal financial
participation for attendant services and supports. Because of this
enhanced flexibility, and the fact that a majority of States may
already provide attendant services and supports through optional
medical assistance services in its Medicaid State plan, HCBS waiver
programs or both, we anticipate that each State will likely compare and
decide which vehicle provides greater benefits and stability to their
overall Medicaid program. As such, at this time it is very difficult to
accurately predict how many States will choose to adopt the Community
First Choice (CFC) Option, and how a State's election to exercise this
option will influence other parts of its Medicaid program. However, for
purposes of this RIA, we assume a gradual growth in the number of
States adopting this option, so that, by FY 2015, 25 percent of
eligible persons who would want this coverage would reside in States
that offer it.
2. Effects on Medicaid Recipients
We anticipate that a large number of Medicaid recipients will be
affected. We believe the optional expansion of settings where attendant
care services and supports may be furnished at the increased Federal
Medical Assistance Percentage (FMAP) will likely have significant
positive effects on Medicaid recipients, particularly on their demand
for these services. We anticipate that the provisions of the proposed
rule will likely increase State and local accessibility to services
that augment the quality of life for individuals through a person-
centered plan of service and various quality assurances, all at a
potentially lower per capita cost relative to alternative care-
settings.
3. Effects on Other Providers
We anticipate that this proposed rule will increase the demand for
attendant care services and supports. We believe this effect will be
beneficial to providers, particularly providers of attendant care
services and supports. Additionally, if the increase in demand for such
services is sufficient, the number of providers of such services may
increase.
4. Effects on the Medicaid Program Expenditures
Table 1 provides estimates of the anticipated Medicaid program
expenditures associated with furnishing attendant care services and
supports. The estimates were made using various assumptions about
increases in service utilization and costs, as well as assumptions
about the induced utilization that may result from the CFC option. We
have taken into account the varying costs for those who have a need for
an institutional level of care as opposed to those who do not. We have
allowed for possible State incentives due to the increased FMAP rate,
as well as for the possibility of savings due to beneficiaries being
diverted from nursing facility use. Given these assumptions and based
on prior program experience, our estimate is shown in Table 1. We
estimate the following costs to the Medicaid program:
Table 1--Attendant Care Services and Supports Medicaid Cost Estimates
[In millions] \1\
----------------------------------------------------------------------------------------------------------------
Services FY 2011 FY 2012 FY 2013 FY 2014 FY2015
----------------------------------------------------------------------------------------------------------------
Federal Share................... N/A $1,075 $1,475 $2,425 $3,420
State Share..................... N/A 510 615 1,085 1,540
-------------------------------------------------------------------------------
Total....................... N/A 1,585 2,090 3,510 4,960
----------------------------------------------------------------------------------------------------------------
\1\ Figures are rounded to the nearest $1 million and assume increased State participation per fiscal year.
5. Effects on States
Varying State definitions of personal care services and rules
concerning who may furnish them make it difficult to estimate
accurately the potential increases in expenditures for States that
choose to adopt the CFC option under section 1915(k) of the Act.
Therefore, in light of the provisions of this proposed rule, we welcome
comments about the number of States that are likely to participate in
the CFC program.
D. Alternatives Considered
Section 2401 of the Affordable Care Act is the legislation that we
are required to implement. Therefore we considered no other
alternatives.
E. Accounting Statement
As required by OMB Circular A-4 (available at: http://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf), we have prepared an accounting statement showing the
classification of expenditures associated with the provisions of this
rule and discussed earlier in the RIA. This statement, to the best of
our ability, captures the anticipated distributional effects of section
1915(k) services offered by qualified providers in the Medicaid
program.
[[Page 10749]]
Table 2--Accounting Statement: Classification of Estimated Expenditure From FY 2011 to FY 2015
[In millions]
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
CATEGORY
----------------------------------------------------------------------------------------------------------------
BENEFITS Qualitative: Provision of the CFC option will increase State and local
accessibility to services that increase the quality of life for
individuals through a person-centered plan of service and various quality
assurances, and reduce the financial strain on States and Medicaid
participants.
----------------------------------------------------------------------------------------------------------------
COSTS Administrative costs included in the Paperwork Reduction Act section of
the preamble.
----------------------------------------------------------------------------------------------------------------
TRANSFERS PRIMARY ESTIMATE
----------------------------------------------------------------------------------------------------------------
Federal Annualized Monetized 3 percent Discount Rate 7 percent Discount Rate
($millions/year) $1,630.6 $1,568.6
----------------------------------------------------------------------------------------------------------------
From Whom to Whom? Federal Government to Qualified Providers.
----------------------------------------------------------------------------------------------------------------
State Annualized Monetized
($millions/year) $728.4 $700.8
----------------------------------------------------------------------------------------------------------------
From Whom to Whom? State Governments to Qualified Providers.
----------------------------------------------------------------------------------------------------------------
In accordance with the provisions of Executive Order 12866, this
regulation was reviewed by the Office of Management and Budget.
List of Subjects in 42 CFR Part 441
Aged, Family planning, Grant programs--health, Infants and
children, Medicaid, Penalties, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services proposes to amend 42 CFR Chapter IV as set forth
below:
PART 441--SERVICES: REQUIREMENTS AND LIMITS APPLICABLE TO SPECIFIC
SERVICES
1. The authority citation for part 441 continues to read as
follows:
Authority: Sec 1102 of the Social Security Act (42 U.S.C 1302).
2. Part 441 is amended by adding subpart K to read as follows:
Subpart K--Home and Community-based Attendant Services and Supports
State Plan Option (Community First Choice)
Sec.
441.500 Basis and scope.
441.505 Definitions.
441.510 Eligibility.
441.515 Statewideness.
441.520 Required services.
441.525 Excluded services.
441.530 Setting.
441.535 Assessment of need.
441.540 Person-centered service plan.
441.545 Service models.
441.550 Service plan requirements for self-directed model with
service budget.
441.555 Support system.
441.560 Service budget requirements.
441.565 Provider qualifications.
441.570 State assurances.
441.575 Development and Implementation Council.
441.580 Data collection.
441.585 Quality assurance system.
441.590 Increased Federal financial participation.
Subpart K--Home and Community-based Attendant Services and Supports
State Plan Option (Community First Choice)
Sec. 441.500 Basis and Scope.
(a) Basis. This subpart implements section 1915(k) of the Act
concerning the Community First Choice Option to provide home and
community-based attendant services and supports through a State plan.
(b) Scope. The Community First Choice Option is designed to make
available home and community-based attendant services and supports to
eligible individuals, as needed, to assist in accomplishing activities
of daily living (ADLs), instrumental activities of daily living
(IADLs), and health-related tasks through hands-on assistance,
supervision, or cueing.
Sec. 441.505 Definitions.
As used in this subpart:
Activities of daily living (ADLs) means basic personal everyday
activities including, but not limited to, tasks such as eating,
toileting, grooming, dressing, bathing, and transferring.
Agency-provider model means, with respect to the provision of home
and community-based attendant services and supports, a method of
providing self-directed services and supports under which entities
contract for the provision of these services and supports.
Backup systems and supports means electronic devices used to ensure
continuity of services and supports. These items may include pagers,
personal emergency response systems, and other mobile communication
devices. Persons identified by an individual can also be included as
backup supports.
Health-related tasks means specific tasks related to the needs of
an individual, which can be delegated or assigned by licensed health-
care professionals under State law to be performed by an attendant.
Individual's representative means a parent, family member,
guardian, advocate, or other authorized representative of the
individual.
Instrumental activities of daily living (IADLs) means activities
related to living independently in the community, including but is not
limited to, meal planning and preparation, managing finances, shopping
for food, clothing, and other essential items, performing essential
household chores, communicating by phone or other media, and traveling
around and participating in the community.
Other models means methods, other than an agency-provider model,
for the provision of self-directed services and supports. These models
may include the provision of vouchers, direct cash payments, or use of
a fiscal agent to assist in obtaining services.
Self-directed means a consumer controlled method of selecting and
providing services and supports that allow the individual, or where
appropriate, the individual's representative, maximum control of the
home and community-based attendant
[[Page 10750]]
services and supports, regardless of who acts as the employer of
record.
Sec. 441.510 Eligibility.
To receive Community First Choice services under this section, an
individual must meet the following requirements:
(a) Be eligible for medical assistance under the State plan.
(b) Have an income that meets one of the following thresholds as
determined annually:
(1) Is equal to or less than 150 percent of the Federal poverty
level (FPL).
(2) Is greater than 150 percent of the FPL, and is eligible for
nursing facility services under the State plan and for whom it has been
determined that in the absence of home and community-bases attendant
services and supports, the individual would otherwise require a
Medicaid covered level of care furnished in a hospital, a nursing
facility, an intermediate care facility for the mentally retarded or an
institution for mental diseases.
(3) Qualifies for Medicaid assistance under the special home and
community-based waiver eligibility group defined at section
1902(a)(10)(A)(ii)(VI) of the Act, and is receiving at least one home
and community-based waiver service per month.
(c) In determining whether the 150 percent of the FPL requirement
is met, States must apply the same income disregards in accordance with
section 1902(r)(2) of the Act as they do under their Medicaid State
plan.
Sec. 441.515 Statewideness.
States must provide the Community First Choice Option to
individuals:
(a) On a Statewide basis.
(b) In a manner that provides such services and supports in the
most integrated setting appropriate to the individual's needs, and
without regard to the individual's age, type or nature of disability,
severity of disability, or the form of home and community-based
attendant services.
(c) In a manner that provides the supports that the individual
requires in order to lead an independent life.
Sec. 441.520 Required services.
(a) If a State elects to provide the Community First Choice Option,
the State must provide all of the following services:
(1) Assistance with ADLs, IADLs, and health-related tasks through
hands-on assistance, supervision, or cueing.
(2) Acquisition, maintenance, and enhancement of skills necessary
for the individual to accomplish ADLs, IADLs, and health related tasks.
(3) Back-up systems or mechanisms to ensure continuity of services
and supports, as defined in Sec. 441.505 of this subpart.
(4) Voluntary training on how to select, manage, and dismiss
attendants.
(b) The State may provide permissible services and supports which
include the following:
(1) Expenditures for transition costs such as rent and utility
deposits, first month's rent and utilities, bedding, basic kitchen
supplies, and other necessities required for an individual to
transition from a nursing facility, institution for mental diseases, or
intermediate care facility for the mentally retarded to a community-
based home setting where the individual resides.
(2) Expenditures relating to a need identified in an individual's
person-centered plan of services that increase a participant's
independence or substitute for human assistance, to the extent that
expenditures would otherwise be made for the human assistance.
(3) The services and supports that are purchased must be linked to
an assessed need or goal established in the individual's person-
centered service plan.
Sec. 441.525 Excluded services.
The Community First Choice Option may not include the following:
(a) Room and board costs for the individual, except for allowable
transition services described in Sec. 441.520(b)(1) of this subpart.
(b) Special education and related services provided under the
Individuals with Disabilities Education Act that are related to
education only, and vocational rehabilitation services provided under
the Rehabilitation Act of 1973.
(c) Assistive devices and assistive technology services other than
those defined in Sec. 441.520(a)(5) of this subpart or those that are
based on a specific need identified in the service plan when used in
conjunction with other home and community-based attendant services.
(d) Medical supplies and equipment.
(e) Home modifications.
Sec. 441.530 Setting.
States must make available attendant services and supports in a
home or community setting, which do not include the following:
(a) A nursing facility.
(b) An institution for mental diseases.
(c) An intermediate care facility for the mentally retarded.
(d) Any settings located in a building that is also a publicly or
privately operated facility that provides inpatient institutional
treatment or custodial care.
(e) A building on the grounds of or immediately adjacent to, a
public institution or disability-specific housing complex, designed
expressly around an individual's diagnosis that is geographically
segregated from the larger community, as determined by the Secretary.
Sec. 441.535 Assessment of need.
States must conduct a face-to-face assessment of the individual's
needs, strengths, and preferences in accordance with the following:
(a) States may use one or more processes and techniques to obtain
information about an individual including the following:
(1) Health condition.
(2) Personal goals and preferences for the provision of services.
(3) Functional limitations.
(4) Age.
(5) School.
(6) Employment.
(7) Household.
(8) Other factors that are relevant to the need for and
authorization and provision of services.
(b) Assessment information supports the determination that an
individual requires the Community First Choice Option and also supports
the development of the person-centered service plan and, if applicable,
service budget.
(c) The assessment of need must be conducted at least every 12
months, as needed when the individual's support needs or circumstances
change significantly necessitating revisions to the service plan, or at
the request of the individual, or the individual's representative, as
applicable.
Sec. 441.540 Person-centered service plan.
(a) Person-centered planning process. The person-centered planning
process must include the following criteria:
(1) Includes people chosen by the individual.
(2) Provides necessary support to ensure that the individual has a
meaningful role in directing the process.
(3) Occurs at times and locations of convenience to the individual.
(4) Reflects cultural considerations of the individual.
(5) Includes strategies for solving conflict or disagreement within
the process, including clear conflict-of-interest guidelines for all
planning participants.
(6) Offers choices to the individual regarding the services and
supports they receive and from whom.
[[Page 10751]]
(7) Includes a method for the individual to request updates to the
plan.
(b) The person-centered plan. The person-centered plan must reflect
the services that are important for the individual to meet individual
services and support needs as assessed through a person-centered
functional assessment, as well as what is important to the person with
regard to preferences for the delivery of such supports. Commensurate
with the level of need of the individual, the plan must include the
following criteria:
(1) Reflect the individual's strengths and preferences.
(2) Reflect clinical and support needs as identified through a
person-centered functional assessment.
(3) Include individually identified goals, which may include, as
desired by the individual, items related to relationships, community
participation, employment, income and savings, health care and
wellness, education, and others.
(4) Reflect the services and supports (paid and unpaid) that will
assist the individual to achieve identified goals and the providers of
those services and supports.
(5) Reflect risk factors and measures in place to minimize them,
including back-up strategies when needed.
(6) Be signed by all individuals and providers responsible for its
implementation.
(7) Be understandable to the individual receiving services and the
individuals important in supporting him or her.
(8) Include a timeline for review.
(9) Identify the individual and/or entity responsible for
monitoring the plan.
(10) Be distributed to everyone involved (including the
participant) in the plan.
(11) Be directly integrated into self-direction where individual
budgets are used.
(12) Prevent the provision of unnecessary or inappropriate care.
(c) Requirements of the plan. All of the State's applicable
policies and procedures associated with the person-centered service
plan development must be carried out and must include, but are not
limited to, the following policies and procedures:
(1) Ensure the responsibilities for assessment of need and service
plan development are identified.
(2) Ensure the planning process is timely.
(3) Ensure the individual's needs are assessed and the services and
supports meet the individual's needs.
(4) Establish conflict of interest standards for assessment of need
and the service plan development process that apply to all individuals
and entities, public or private. At a minimum, these standards must
ensure that the individuals or entities involved in the person-centered
assessment of need and service plan development process are not:
(i) Related by blood or marriage to the individual, or to any paid
caregiver of the individual.
(ii) Financially responsible for the individual.
(iii) Empowered to make financial or health-related decisions on
behalf of the individual.
(iv) Individuals who would benefit financially from the provision
of assessed needs and services.
(d) Finalizing the person-centered service plan. The service plan
must be finalized and agreed to in writing by the individual or, as
appropriate, the individual's representative and a copy of the plan
must be provided to the individual.
(e) Reviewing the person-centered service plan. The service plan
must be reviewed, and revised upon reassessment of need, at least every
12 months, when the individual's circumstances or needs change
significantly, and at the request of the individual or the individual's
representative, as applicable.
Sec. 441.545 Service models.
A State may choose one or more of the following as the service
delivery model to provide self-directed home and community-based
attendant services and supports:
(a) Agency model. (1) The agency model is a delivery method in
which the services and supports are provided by entities under a
contract.
(2) Under the agency model for the Community First Choice option,
individuals maintain the ability to hire and fire the providers of
their choice for the services identified in their person-centered
service plan.
(b) Self-directed model with service budget. A self-directed model
with a service budget is one in which the individual has both a service
plan and service budget based on the person-centered assessment of
need.
(1) Financial management entity. States must make available
financial management services to all individuals with a service budget.
The financial management entity performs functions including, but not
limited to, the following services:
(i) Collect and process timesheets of the individual's workers.
(ii) Process payroll, withholding, filing, and payment of
applicable Federal, State and local employment related taxes and
insurance.
(iii) Maintain a separate account for each individual's budget.
(iv) Track and report disbursements and balances of each
individual's funds.
(v) Process and pay invoices for services in the service plan.
(vi) Provide individual periodic reports of expenditures and the
status of the approved service budget.
(vii) States may perform the functions of a financial management
entity internally or use a vendor organization that has the
capabilities to perform the required tasks in accordance with
applicable IRS requirements.
(2) Direct cash. States may disburse cash prospectively to
individuals self-directing their Community First Choice Option services
and supports and must meet the following requirements:
(i) Ensure compliance with all applicable requirements of the
Internal Revenue Service, including but not limited to, retaining
required forms and payment of FICA, FUTA and State unemployment taxes.
(ii) Permit individuals, or their representatives as applicable,
using the cash option to choose to use the financial management entity
for some or all of the functions described in paragraph (b)(1)(ii) of
this section.
(iii) Make available a financial management entity to an individual
who has demonstrated, after additional counseling, information,
training, or assistance that the individual cannot effectively manage
the cash option described in this section.
(iv) If the cash option is the only model offered by the State for
Community First Choice, the State may require an individual to use the
financial management entity services under the cash option, but must
provide the individual with the conditions under which this option
would be enforced.
(3) Vouchers. (i) States have the option to issue vouchers to
individuals who self-direct their Community First Choice Option
services and supports.
(ii) States that choose to offer the vouchers must ensure
compliance with all applicable requirements of the Internal Revenue
Service.
Sec. 441.550 Service plan requirements for self-directed model with
service budget.
An approved self-directed service plan conveys authority to the
individual to perform, at a minimum, the following tasks:
(a) Recruit and hire workers to provide self-directed services,
including specifying worker qualifications.
[[Page 10752]]
(b) Fire workers.
(c) Supervise workers in the provision of Community First Choice
Option services and supports.
(d) Manage workers in the provision of Community First Choice
Option services and supports, which includes the following functions:
(1) Determining worker duties.
(2) Scheduling workers.
(3) Training workers in assigned tasks.
(4) Evaluating workers performance.
(e) Determining the amount paid for a service, support, or item.
(f) Reviewing and approving provider invoices.
Sec. 441.555 Support system.
For the self-directed model with a service budget, States must
provide, or arrange for the provision of, a support system that meets
all of the following conditions:
(a) Appropriately assesses and counsels an individual, or the
individual's representative, if applicable, before enrollment.
(b) Provides appropriate information, counseling, training, and
assistance to ensure that an individual is able to manage the services
and budgets.
(1) This information must be communicated to the individual in a
manner and language understandable by the individual.
(2) The support activities must include at least the following:
(i) Person-centered planning and how it is applied.
(ii) Range and scope of individual choices and options.
(iii) Process for changing the person-centered service plan and
service budget.
(iv) Grievance process.
(v) Risks and responsibilities of self-direction.
(vi) The ability to freely choose from available home and
community-based attendant providers.
(vii) Individual rights.
(viii) Reassessment and review schedules.
(ix) Defining goals, needs, and preferences.
(x) Identifying and accessing services, supports, and resources.
(xi) Development of risk management agreements.
(xii) Development of a personalized backup plan.
(xiii) Recognizing and reporting critical events.
(xiv) Information about an advocate or advocacy systems available
in the State and how an individual, or individual's representative, if
applicable, can access the advocate or advocacy systems.
Sec. 441.560 Service budget requirements.
(a) For the self-directed model with a service budget, a service
budget must be developed and approved by the State based on the
assessment of need and service plan and must include all of the
following requirements:
(1) The specific dollar amount an individual may use for Community
First Choice Option services and supports.
(2) The procedures for informing an individual of the amount of the
service budget before the service plan is finalized.
(3) The procedures for how an individual may adjust the budget
including the following:
(i) The procedure for an individual to freely change the budget.
(ii) The circumstances, if any, that may require prior approval by
the State before a budget adjustment is made.
(4) The circumstances, if any, that may require a change in the
service plan.
(5) The procedures that govern the determination of transition
costs and expenditures, relating to a need in the service plan, that
increase independence or substitute for human assistance to the extent
that expenditures would otherwise be made for human assistance.
(6) The procedures for an individual to request a fair hearing
under Sec. 441.300 of this part if an individual's request for a
budget adjustment is denied or the amount of the budget is reduced.
(b) The budget methodology set forth by the State to determine an
individual's service budget amount must meet all of the following
criteria:
(1) The State's method of determining the budget allocation is
objective and evidence based utilizing valid, reliable cost data.
(2) Be applied consistently to individuals.
(3) Be included in the State plan.
(4) Includes a calculation of the expected cost of Community First
Choice Option services and supports, if those services and supports are
not self-directed.
(5) The State has a process in place that describes the following:
(i) Any limits it places on Community First Choice Option services
and supports, and the basis for the limits.
(ii) Any adjustments that are allowed and the basis for the
adjustments.
(c) The State must have procedures in place that will provide
safeguards to individuals when the budgeted service amount is
insufficient to meet the individual's needs.
(d) The State must have a method of notifying individuals of the
amount of any limit that applies to an individual's Community First
Choice Option services and supports.
(e) The budget may not restrict access to other medically necessary
care and services furnished under the State plan and approved by the
State but which are not included in the budget.
(f) The State must have a procedure to adjust a budget when a
reassessment indicates a change in an individual's medical condition,
functional status, or living situation.
Sec. 441.565 Provider qualifications.
(a) The State must provide assurances that necessary safeguards
have been taken to protect the health and welfare of enrollees in the
Community First Choice State Option, and must define in writing
adequate qualifications for providers in the agency model of Community
First Choice services and supports.
(b) An individual has the option to permit family members, or any
other individuals, to provide Community First Choice attendant services
and supports identified in the service plan provided they meet the
qualifications to provide the services and supports.
(c) An individual retains the right to train workers in the
specific areas of attendant care needed by the individual and to
perform the needed assistance in a manner that comports with the
individual's personal, cultural, or religious preferences.
(d) An individual retains the right to establish additional staff
qualifications based on the individual's needs and preferences.
Sec. 441.570 State assurances.
A State must assure the following requirements are met:
(a) For the first full fiscal year in which the State Plan
amendment is implemented, a State must maintain, or exceed, the level
of expenditures for services provided under sections 1115, 1905(a), and
1915, of the Act, or otherwise to individuals with disabilities or
elderly individuals attributable to the preceding fiscal year.
(b) All applicable provisions of the Fair Labor Standards Act of
1938.
(c) All applicable provisions of Federal and State laws regarding
the following:
(1) Withholding and payment of Federal and State income and payroll
taxes.
(2) The provision of unemployment and workers compensation
insurance.
(3) Maintenance of general liability insurance.
(4) Occupational health and safety.
[[Page 10753]]
Sec. 441.575 Development and Implementation Council.
(a) States must establish a Development and Implementation Council
primarily comprised primarily of individuals with disabilities, elderly
individuals, and their representatives.
(b) States must consult and collaborate with the Council when
developing and implementing a State plan amendment to provide home and
community-based attendant services and supports.
Sec. 441.580 Data collection.
A State must provide the following information regarding the
provision of home and community-based attendant services and supports
under the Community First Choice Option for each fiscal year for which
the services and supports are provided:
(a) The number of individuals who are estimated to receive the
Community First Choice under this State plan option during the fiscal
year.
(b) The number of individuals that received the services and
supports during the preceding fiscal year.
(c) The number of individuals served broken down by type of
disability, age, gender, education level, and employment status.
(d) The specific number of individuals who have been previously
served under sections 1115, 1915(c) and (i) of the Act, or the personal
care State plan option.
(e) Data regarding how the State provides the Community First
Choice State option and other home and community-based services.
(f) The cost of providing Community First Choice State option and
other home and community-based services and supports.
(g) Data regarding how the State provides individuals with
disabilities who otherwise qualify for institutional care under the
State plan or under a waiver the choice to receive home and community-
based services in lieu of institutional care.
Sec. 441.585 Quality assurance system.
States must establish and maintain a comprehensive, continuous
quality assurance system, detailed in the State plan amendment, that
includes a quality improvement strategy and employs measures for
program performance and quality of care, standards for delivery models,
mechanisms for discovery and remediation, and quality improvements
proportionate to the benefit and number of individuals served.
(a) Details of the quality assurance system. Details of the quality
assurance system must include the following:
(1) Program performance measures. The States' quality assurance
system must be designed to measure and provide evidence of program
performance related to the following:
(i) Health and welfare.
(ii) Provider qualifications.
(iii) Choice of institution or community.
(iv) Choice of services, supports and providers.
(v) Cost of services and supports.
(2) Quality of care measures. The State's quality assurance system
must be designed to measure individual outcomes associated with the
receipt of community-based attendant services and supports,
particularly with respect to the health and welfare of recipients of
this service. These measures must be made available to CMS upon request
and must include a process for the mandatory reporting, investigation,
and resolution of allegations of neglect, abuse, or exploitation in
connection with the provision of community based attendant services and
supports, as well as quality indicators approved or prescribed by the
Secretary.
(3) Standards for delivery models. The States' quality assurance
system must include standards for agency-based and other delivery
models for training, appeals for denials and reconsideration procedures
on an individual service plan.
(4) Choice and control. The quality assurance system will employ
methods that maximize consumer independence and control and will
provide information about the provisions of quality improvement and
assurance to each individual receiving such services and supports.
(b) Stakeholder feedback. The State must elicit and incorporate
feedback from key stakeholders to improve the quality of the community-
based attendant services and supports benefit.
(c) Collection and evaluation. The State must collect and report on
monitoring, remediation, and quality improvements related to
information defined in the State's quality improvement strategy.
Sec. 441.590 Increased Federal financial participation.
Beginning October 1, 2011, the FMAP applicable to the State will be
increased by 6 percentage points, for the provision of the Community
First Choice Option home and community-based attendant services, under
an approved State plan amendment.
Authority: (Catalog of Federal Domestic Assistance Program No.
93.778, Medical Assistance Program)
Dated: December 1, 2010.
Donald M. Berwick,
Administrator, Centers for Medicare & Medicaid Services.
Approved: January 31, 2011.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.
[FR Doc. 2011-3946 Filed 2-22-11; 8:45 am]
BILLING CODE 4120-01-P