CMS recently published two rules — one proposed and one final — related to HCBS policy.  Continue reading for summaries of the rules.

  • First, a May 3, 2012 proposed state plan HCBS rule would implement statutory provisions included in the ACA and the Deficit Reduction Act. Specifically, the Proposed Rule would permit states to receive federal financial participation (FFP) for the provision of HCBS to Medicaid recipients who do not require an institutional level of care, and who, therefore, would not be eligible for HCBS under states’ waiver programs. Further, the proposed rule would implement Section 2601 of the ACA, authorizing CMS to approve HCBS waivers for dual-eligibles for an initial period of up to five years. The proposed rule also would include an additional exception to the reassignment prohibition to allow direct Medicaid payments on behalf of certain practitioners to a third party for benefits such as health insurance. Finally, the proposed rule defines an HCBS setting, which CMS would use in the context of HCBS waivers, the Community First Choice (CFC) Option program (discussed below), and state plan HCBS. CMS will accept comments on the proposed rule until July 2, 2012.
  • Second, CMS published its final Community First Choice Option rule on May 7, following a February 25, 2011 proposed rule on the topic. The final CFC rule implements Section 2401 of the ACA, which established a new option for states to provide home and community-based attendant services and supports and allowed for an increased federal medical assistance percentage (FMAP) of six percentage points to pay for such services and supports. Under the CFC Option rule, states must offer HCBS statewide and must at least maintain or exceed the prior year’s HCBS expenditures. Participating states must cover certain home and community-based attendant services and supports to assist Medicaid recipients to accomplish activities of daily living, instrumental activities of daily living, and health-related tasks. States may also cover costs related to an individual’s transition from an institution to the community, such as the first month of rent and utilities. Under the CFC Option, a person-centered service plan is developed for each enrollee under a delivery model proposed by the state and approved by CMS. In the final CFC rule, CMS clarifies that to qualify for CFC option services, an individual must require an institutional level of care, regardless of income. Finally, CMS declined to finalize the definition of HCBS “setting” in the final CFC rule, allowing stakeholders to comment further on the modified definition set forth in the proposed state plan HCBS rule noted above. However, CMS indicated that it will rely on the setting provisions set forth in the final rule, and expects states to do the same, as states implement CFC options. The rule is effective July 6, 2012.