The OAC has identified educating the public, legislators, members

By Monica Bailey,2014-06-28 11:02
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The OAC has identified educating the public, legislators, members ...

    Olmstead Advisory Committee

    1915(i) HCBS State Plan Option Issue Brief

1. What is the issue?

    Through the efforts of the Diversion and Assessment/Transition Work Groups, the Olmstead Advisory Committee (OAC) developed twelve

    recommendations for Secretary Belshé’s consideration, including

    establishing home and community-based services (HCBS) as part of the State Medicaid Plan (pursuant to the 2005 federal Deficit Reduction Act).

    The Deficit Reduction Act established a new section 1915(i) that allows states to provide HCBS through a State Plan Amendment to individuals who are eligible for medical assistance under the State Medicaid Plan and whose income does not exceed 150% of the federal poverty level

    (approximately $15,315 for a single person household).

    States may cover all the services listed in 1915(c) under the new 1915(i) option: case management, homemaker, home health aide, personal care, adult day health care, habilitation, respite care, and, for the chronically mentally ill, day treatment, psychosocial rehabilitation, and clinic services.

    The 1915(i) option eliminates the need for states to make repeated requests for time-limited waivers. The federal Centers for Medicare and

    Medicaid Services (CMS) has indicated that there can only be one 1915(i) SPA per state.

    The OAC recommended the inclusion of HCBS within the State Plan rather than a waiver. Department of Health Care Services (DHCS) staff are investigating the benefits and liabilities to this recommendation. Concurrently the federal government is working on draft regulations regarding the 1915(i) option. Significant implementation issues include comparability, services, and targeting. DHCS will continue to work with CMS and others to better understand and analyze these issues, as discussed below, and solicit input from the OAC and others to inform the development of Administration policy.

    Iowa is the first state to receive federal approval for a 1915(i) SPA. It will provide HCBS case management and habilitation services at home or in day treatment programs, serving up to 3,700 people in year one and 4,500 people by year five.

    2. What is the relationship to Olmstead and what is the goal(s)?

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A 1915(i) SPA could improve access to HCBS for persons at-risk of

    institutionalization, thereby helping divert individuals from institutionalization

    and allowing them to remain at home and in the community. For instance,

    case management similar to that which is provided under the Medi-Cal

    Multipurpose Senior Services Program, or MSSP (for people 65 years old

    and older) is a service that several OAC members contend should be

    extended to the under-65 year old population. These case management

    services help people arrange services they need to remain at home and

    avoid institutionalization. Current programs offering case management

    such as MSSP and Linkages operate with long waiting lists.

3. What are barriers to keep in mind?

While the 1915(i) option offers the possibility of expanded access to HCBS

    and lessening of administrative burdens due to use of a SPA (as opposed

    to a waiver) barriers related to structuring and implementing the 1915(i)

    SPA are very real. CMS has indicated there can only be one 1915(i) SPA

    per state, but that states have flexibility in services in a SPA. Federal

    regulations for the 1915(i) option are not yet published, but are anticipated

    soon. Several questions/issues need resolution from CMS, including, but

    not limited to the following. (Below each issue are questions about which

    the Department would like input from the OAC.)

? One SPA and Flexibility: It is unclear how California can provide

    several different programs, such as mental health, adult day health

    care, case management, and supported employment services for

    Medi-Cal clients under one 1915(i) SPA. CMS announced that each

    state can only secure one 1915(i) SPA. CMS indicates they will

    provide states with some flexibility in including multiple services in the


    What are the service gaps in existing HCBS waiver and HCBS State

    Plan services? How can the 1915(i) SPA help fill those service gaps

    effectively, without additional administrative burdens at the state, local

    government, and service provider levels?

    Minimum Level of Need: Unlike 1915(c) waivers, 1915(i) services

    cannot be tied to a beneficiary’s need for institutional level of care.

    States are required to establish “needs based” criteria less stringent

    than the institutional level of care standard. Staff at DHCS are

    exploring how this would impact people in current waivers and who

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    receive other services, and whether this would require a restructuring of many components of the Medi-Cal program.

    What are the benefits and drawbacks to using the In-Home Supportive Services standards and criteria as California’s threshold for 1915(i)

    HCBS? If the IHSS program becomes our 1915(i) threshold, how do we coordinate Homemaker and Personal Care Services between

    1915(i) and IHSS? What are the pros and cons of relying on IHSS to be the primary program source for Homemaker and PCS, while

    reserving 1915(i) for other HCBS not covered under IHSS?

    ? Income Limitations: 1915(i) services are limited to individuals who

    are eligible for medical assistance under the State Medicaid Plan and whose income does not exceed 150% of the federal poverty level (approximately $15,315 for a single person household). The State will have to carefully examine the income levels of persons currently receiving HCBS under waivers or the State Plan to determine how many of them would be eligible for 1915(i) services. CMS has not yet provided clarity to DHCS on whether the 150% federal poverty level income standard is based on “gross” or “net” income.

    California has the option to exclude medically needy persons from eligibility for 1915(i) HCBS. Would exercising this option be an effective way of complying with the 150% FPL limitation? Would it arbitrarily exclude many people under 150%? Would it not capture other eligibles who have incomes exceeding 150%? What are some of the other possibilities that we might want to consider? If California excludes medically needy persons from 1915(i) eligibility, how should California provide HCBS to them to keep them in their homes and communities?

    ? Unnecessary and Inappropriate Care: Once eligibility is established

    for HCBS, the State must identify, based upon the individual needs assessments, necessary HCBS to be furnished to individuals and prevent the provision of unnecessary and inappropriate care. The state is seeking clarification on whether assessment criteria and utilization controls will be required, and if so, the types of criteria and controls that will be needed.

    What are the appropriate kinds of utilization control processes to apply to the different types of 1915(i) HCBS? Who should make HCBS utilization control decisions? What are the benefits and drawbacks to continuing our existing policies and procedures for controlling service

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utilization through caps on the cost of HCBS? What are the options

    for having utilization control processes interface/mesh with functional

    criteria specific to the different types of HCBS?

    ? Targeting services: Due to Medicaid comparability requirements, the 1915(i) SPA services must be available to everyone eligible for HCBS.

    Therefore, states cannot target HCBS services by population

    characteristics (e.g., age, medical condition, etc.). However, CMS

    indicates states may establish functional criteria specific to an

    individual service. It is unclear how the functional criteria will be

    applied to address comparability and how much flexibility states have

    in how they can focus specific services to populations with the

    greatest need.

Do functional criteria currently exist for determining an individual’s

    need for the various types of HCBS allowed under 1915(i)? What

    functional criteria need to be revised or developed? What processes

    should the state use to develop/revise/adopt functional criteria for

    HCBS services?

    ? Converting Existing HCBS Recipients to 1915(i) Services: CMS

    will not permit states to convert participants receiving HCBS services

    under waivers or the State Plan en masse to the HCBS provided

    under 1915(i). If a state establishes “caps” on the number of persons eligible to be served through 1915(i) services the slots in the 1915(i)

    option must be available to all HCBS eligible persons on a “first-come,

    first served” basis. CMS will not let states give preference to existing populations as part of establishing the initial limits on the number of

    persons served under 1915(i). Even though states must allow

    enrollment in 1915(i) on a “first-come, first served” basis, CMS advised

    that careful planning for transitioning existing HCBS recipients to

    1915(i) is possible.

What are your thoughts on how the State should structure the intake

    process for 1915(i) services to assure equal access to existing and

    new eligibles? What are options to manage the enrollment process if

    a large number of currently unserved persons appear eligible for

    HCBS? Should we create waiting lists for potential enrollees or accept

    applications only during open enrollment periods?

Should California convert persons currently receiving IHSS Plus 1115

    Waiver services or Adult Day Health Care services to 1915(i) services?

    Should we develop a conversion schedule to coincide with the annual

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    reassessment of existing participants? Should we set periodic

    enrollment caps to help manage the conversion process? What are

    practical options for interfacing conversion processes with new


4. What is currently underway related to this area?

DHCS continues to research options and opportunities with the 1915(i)

    SPA through discussions with stakeholders and CMS. As the discussions

    proceed, the Department will keep CHHSA and the OAC informed about

    areas that have been clarified and newly emerging issues.

5. What is the OAC deliverable/how can the OAC’s time best be used

    to advance the goals?

The OAC will participate in a comprehensive discussion at the December

    14 OAC meeting about the fundamentals of the 1915(i) option, the

    questions and issues that remain with the new 1915(i) opportunity, the

    tradeoffs that this option may require, and potential options for structuring a

    1915(i) SPA in California. The OAC could be updated and engaged on the

    1915(i) SPA decision making in California, as appropriate.

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Basic Elements for a 1915(i) State Plan Option Compared to

    1915(c) Waivers

    Duration There is no set or limited time period for a 1915(i) State Plan Amendment, nor does it need to be renewed or re-reviewed by the Centers

    for Medicare and Medicaid Services (CMS). Waivers are approved for a

    specific time period (3 or 5 years), and need to be renewed (and re-

    reviewed) when this period is over.

    Level of Care Requirement Unlike 1915(c) waivers, there is no “institutional level of care” requirement under 1915(i). States must

    establish needs-based criteria, but needs-based criteria for participants

    must be less stringent than for institutional-level care. Under the DRA,

    states have the authority to modify their needs-based criteria for eligibility

    without prior approval from CMS if enrollment exceeds projected capacity.

    In this case, the state must notify the public and CMS of the change at least

    60 days before it occurs.

    Required Services States have discretion over what are required services, although they can only choose from a limited list of services

    authorized by Section 1915(c)(4)(B) of the Social Security Act. Under 1915

    (i) states may not cover “other” services authorized under 1915(c)(4)(B).

    Under HCBS waivers, states can request approval to provide other

    services that participants may need to avoid being placed in a medical

    facility (such as non-medical transportation, special communication

    services, minor home modifications, and adult day care).

    Eligibility Restrictions Under the DRA, income of HCBS participants can not exceed 150% FPL. Under HCBS waivers, states can waive

    income limits and eligibility criteria.

Individual Evaluations, Individualized Needs Assessments, and

    Individual Care Plans Both 1915(i) and 1915(c) waivers require states to conduct an evaluation to determine individual eligibility, conduct

    individualized needs assessments, and establish a written individualized

    care plan for HCBS recipients. The DRA specifies that the written

    individualized care plans must be developed in consultation with the

    individual, the individual’s physician, and other health care support

    professionals, and if appropriate, the individual’s family. These plans must

    be reviewed annually, and as needed based on the individual’s


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    Presumptive Eligibility Under 1915(i) states may elect to provide a period of presumptive eligibility for up to 60 days. Payment must be limited

    to medical assistance associated with the independent, individualized

    evaluation and assessment. There is no option for presumptive eligibility

    under 1915(c) waivers.

    Comparability Under 1915(i), states can limit the number of participants, and can create waiting lists, but cannot waive comparability. This means

    that, unlike HCSB waivers, states cannot target 1915(i) HCBS services by

    population characteristics (e.g., age, medical condition, disease entity, etc.).

Statewideness Statewideness can be waived under both 1915(i) and

    1915(c) waivers.

Cost Neutrality 1915(i) does not require the provision of HCBS to be

    cost neutral. However, the SPA must describe the method used for

    calculating the budget and define processes for making adjustments and

    for evaluating expenditures. HCBS waivers must be cost-neutral,

    compared to the costs of institutional services for which the participant


    Self-directed Service Option1915(i) allows states to provide the option for self-directed services. Self-direction is not required for basic 1915(c)

    waivers, but is an option that states may elect. Self-direction is a

    requirement for the Independence Plus 1115 waiver.

Limit HCSB to Certain Geographical Areas and/or to a Specific

    Number of Persons ServedStates have the options to limit HCSB to specific geographic areas and/or limit the number of individuals served

    during each year or according to a schedule. However, states are not

    allowed to cap the number of persons using specific types of HCBS, but

    may cap total enrollment in the program.

There is also the option to exclude medically needy individuals from

    receiving HCBS. This could help limit the program’s initial financial

    exposure for HCBS.

Payment for HCBS Furnished by Legally Responsible Individuals,

    Other Relatives, and Legal Guardians States have the option for

    paying legally responsible individuals, other relatives, and legal guardians

    for providing HCBS under certain circumstances. First, these persons have

    to be qualified to furnish services. Additionally the state must have

    strategies for the ongoing monitoring of the provision of services and

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controls to ensure payment is made only for services rendered. And, in the

    case of legally responsible individuals furnishing personal care of similar

    services, the state must have “policies to determine and ensure that the

    services are extraordinary…(and) in the best interest of the participant….”

Except for the IHSS Plus 1115 waiver, the California Department of Health

    Care Services does not pay legally responsible relatives for providing care,

    although we do pay for some services provided by other relatives or legal

    guardians, if they are qualified.

Basic Requirements for Covering Any Program with Services under

    1915(i) There are several requirements states must meet to cover any

    program under 1915(i). The most important are:

    1. Selecting the services to be offered to 1915(i) participants and

    establishing any “functional criteria” specific to services included in

    the benefit package.

    2. Developing utilization controls appropriate to specific services.

    3. Establishing the eligibility threshold for qualifying for services. This

    threshold must be less than the institutional level of care threshold

    used by the state in 1915(c) waivers or State Plan services. For

    example, California may elect the IHSS assessment criteria as the

    threshold for receiving services. This would allow any otherwise

    eligible person meeting this threshold to qualify for 1915 (i) HCBS.

    Alternatively, California may select a threshold based upon a

    person’s need for total assistance with two ADLs. This threshold

    would preclude some persons currently receiving IHSS services

    from qualifying for 1915(i) HCBS.

    4. Establishing caps on the number of participants that can be served

    or limiting the geographical areas in which 1915(i) HCBS are

    available. Enrollment caps can be set on a scheduled basis, as

    provided for in the state’s 1915(i) SPA. Within these caps or

    geographical restrictions, 1915(i) HCBS must be available to all

    qualified participants.

    5. Assuring that potentially eligible persons meet the income

    limitations imposed by 1915(i). The limit of 150% of the FPL must

    be applied to each person receiving 1915(i) HCBS. Many persons

    currently receiving HCBS waiver services or HCBS State Plan

    services have Shares of Cost they must satisfy on a monthly basis.

    Depending on the amount of their SOCs, they may be “income

    ineligible” for 1915(i) HCBS.

    6. Conducting independent individualized needs assessments, and

    establishing written individualized care plans for 1915(i) HCBS

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recipients. The DRA specifies that the written individualized care

    plans must be developed in consultation with the individual, the

    individual’s physician, and other health care support professionals,

    and if appropriate, the individual’s family. Involving the

    participant’s physician in the care planning process may be a

    requirement that existing programs do not engage in on a routine


    7. Accepting participants on a “first-come, first served” basis, up to the enrollment caps established by the state. The state may

    establish waiting lists at its option, but must work the waiting lists

    on a “first-come, first served” basis as new 1915(i) slots become


    8. Reassessing each participant’s need for HCBS on an annual basis.

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