CMS Rule Changes – 2296-F and 2249-F

 May 16, 2014
Posted by M&LAdmin4

Friday, May 16th 2014

A few weeks ago, the staff of M&L published a blog about the Coalition for Community Choice (CCC). We first spoke about the advocacy work that this incredible organization does to ensure that individuals with disabilities have access to community living in all forms of residential settings; as well, we officially announced our pledge to support this organization by becoming one of 40 organizations to sign a letter of support to the director of CMS.

The blog also discussed the CCC’s Voices Uniting announcement, in which the organization referenced a rule change proposal from the Centers for Medicare & Medicaid Services (CMS). As we wrote in the blog, this rule change suggested defining exactly what settings people with disabilities could use for their Home and Community-Based Service waivers. Note: To read this blog in full, please click here.

Since that post, EP magazine has published an article written by the CCC’s Desiree Kameka and Tamie Hopp that explains this rule change in more detail (April, 2014 – EP MAGAZINE/eparent.com). As M&L Special Needs Planning, LLC is a member of the CCC, we decided to follow suit and revisit this topic. So, please join us as we take a more comprehensive look at this CMS rule change, and provide you with a detailed explanation of how it may potentially affect your family with special needs.

What exactly is this rule change all about?

The rule change, which was implemented January 10th, 2014, affects CMS 2249-F and CMS 2296-F. According to an information sheet published on the Federal Register website, the new rule “amends the Medicaid regulations to describe state plan section 1915(i) home and community-based services (HCBS) under the Social Security Act (the Act) amended by the Affordable Care Act. This rule offers states new flexibilities in providing necessary and appropriate services to elderly and disabled populations. This rule describes Medicaid coverage of the optional state plan benefit to furnish home and community based-services and draw federal matching funds.”

The CCC’s explanation is perhaps a little more clear: “The new rule defines what CMS considers to be characteristics of community living and vocational opportunities for people with intellectual and developmental disabilities (I/DD) and person centered planning requirements for the purposes of receiving funding via Medicaid’s 1915© HCBS waiver program, 1915(i) HCBS State Plan Option and 1915 (k) Community First Choice.”

In other words, the new rule change provides a definition and states exactly what sorts of living settings are considered “communities” – this definition now allows for parameters to exist that can be called upon when considering an individual or organization’s request for funding.

What is the CMS’ definition of “community living?”

According to the information packages released by the CMS, the addition of the definition or parameters of community living will “create a more out-come oriented definition of home and community based settings, rather than one based solely on setting’s location, geography, or physical characteristics.” In order to clear up any confusion which surrounds the rule change, and to help ease the implementation of the new rule, the CMS provided a “fact sheet” which explains, in detail, the new “regulatory requirements for home and community based settings.”

This document, which is quite lengthy, provides information as to what is considered a home and community based setting, what is not considered home nor community based, and information on settings that are presumed to have the Qualities of an Institution. If you would like to read this document in full, please click here. For a brief summary for each category, please read on.

Considered Home and Community Based:

  • The setting is integrated into and supports full access of individuals receiving Medicaid HCBS to the greater community; this includes access to vocational opportunities, community life, the ability to control personal resources and receive services in community to the same extent of an individual not receiving HCBS
  • Selected by individual from options including non-disability specific settings and has an option for private unit in residential setting.
  • Ensures individuals right’s of privacy, dignity, respect, and freedom from coercion and restraint; facilitates individuals choice regarding services and supports, and who provides them
  • Meets the additional conditions as outlined by the CMS in regards to provider-owned or controlled residential settings. (Click here to read these conditions).

Not Considered Home and Community Based:

For both 1915(c) and 1915(i), the settings not considered home and community based are as follows:

  • A nursing facility
  • An institution for mental illness
  • An intermediate care facility for individuals with intellectual disabilities
  • A Hospital
  • Any other locations that have qualities of an institutional setting

Settings that are Presumed to have the Qualities of an Institution:

For both 1915(c) and 1915(i), the settings that are presumed to have the qualities of an institution are as follows:

  • Any setting located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment’
  • Any setting that is located on the grounds of, or immediately adjacent to, a public institution
  • Any setting that has the effect of isolating individuals

How can this definition affect my family with special needs?

Opinion on how this new final rule will affect individuals with special needs is, to put it mildly, mixed. As we wrote in the first blog we published on this topic, the changes incited an outpouring of criticism from special needs organizations, advocates and individuals with disabilities when it was first introduced. The criticism was prompted by the fact that the new definition prevented individuals with disabilities from choosing his or her own definition, and therefore restricts housing choice.

The CCC’s stance, as Desiree Kameka and Tamie Hopp reiterated in the article published in EP magazine, is that this new rule could threaten services that individuals with disabilities currently receive. To quote the article: “HCBS-funded supports may not be received in a setting that does not meet the new HCBS ‘community criteria’, Some existing and emerging innovative housing, vocational and day program options such as agricultural and planned/intentional communities for people with ID and ASD, may be in jeopardy simply due to their size and/or location, without any regard for the quality of person-centered programming or an individual’s desire to live/work in that setting.”

Requests for more information and questions regarding the new rule change and how it can affect your family with special needs can be directed to the following email: HCBS@cms.hhs.gov.

Resources to Learn More

There are many, many resources that have been put in place by the CMS to help individuals and organizations understand the new rule, and to aid states as they begin to implement the final rule. Check out some of the following websites for more information:

CMS Informational Bulletin
Rule Change Press Release – CMS
Home and Community Based Services Fact Sheet
Medicaid Guidance to Home and Community Based Services
Regulatory Requirements for Home and Community Based Services

Would you like more information?

Here at M&L Special Needs Planning, LLC we understand that changes such as this rule change can sometimes drastically impact any financial plans that a family may have in place. If you would like to talk to a financial expert about how this rule can affect your family, or to create a financial plan that will secure a stable and happy future for your family with special needs, please do not hesitate to contact us! We have years of experience (personal and professional) with financial and life planning for individuals and families with special needs.  You may also wish to check out our Services webpage, or our workshop series for more information on how we can help you plan your financial future.

Thanks so much for dropping by today! See you next week.

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