81 FR 78760 - Medicaid Program; Request for Information (RFI): Federal Government Interventions To Ensure the Provision of Timely and Quality Home and Community Based Services

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services

Federal Register Volume 81, Issue 217 (November 9, 2016)

Page Range		78760-78771
FR Document		2016-27040

This request for information seeks information and data on additional reforms and policy options that we can consider to accelerate the provision of home and community-based services (HCBS) to Medicaid beneficiaries taking into account issues affecting beneficiary choice and control, program integrity, ratesetting, quality infrastructure, and the homecare workforce.

Federal Register, Volume 81 Issue 217 (Wednesday, November 9, 2016)

[Federal Register Volume 81, Number 217 (Wednesday, November 9, 2016)]
[Proposed Rules]
[Pages 78760-78771]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-27040]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 440

[CMS-2404-NC]
RIN 0938-ZB33

Medicaid Program; Request for Information (RFI): Federal
Government Interventions To Ensure the Provision of Timely and Quality
Home and Community Based Services

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Request for information.

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SUMMARY: This request for information seeks information and data on
additional reforms and policy options that we can consider to
accelerate the provision of home and community-based services (HCBS) to
Medicaid beneficiaries taking into account issues affecting beneficiary
choice and control, program integrity, ratesetting, quality
infrastructure, and the homecare workforce.

DATES: To be assured consideration, comments must be received at one of
the addresses provided below, no later than 5 p.m. on January 9, 2017.

ADDRESSES: In commenting, refer to file code CMS-2404-NC. 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-2404-NC, P.O. Box 8013,
Baltimore, MD 21244-8013.
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-2404-NC, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
4. By hand or courier. Alternatively, you may deliver (by hand or
courier) your written comments ONLY to 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,
call telephone number (410) 786-7195 in advance to schedule your
arrival with one of our staff members.
Comments erroneously mailed to the addresses indicated as
appropriate for hand or courier delivery may be delayed and received
after the comment period.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Melissa Harris, (410) 786-3397.
Jodie Anthony, (410) 786-5903.

SUPPLEMENTARY INFORMATION: 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.

[[Page 78761]]

I. Introduction

The Centers for Medicare & Medicaid Services (CMS) and states have
worked for decades to support increased availability and provision of
quality home and community-based services (HCBS) for Medicaid
beneficiaries. HCBS provide individuals who need assistance such as
personal care, respite care, and many other services the opportunity to
receive those services in their own homes or in the community versus
institutional settings. Over time, the provision of HCBS has increased
significantly, to the extent that Medicaid spending on HCBS now exceeds
spending on institutional services. Efforts by the Department of Health
and Human Services' (HHS') Office for Civil Rights (OCR) to enforce the
community integration mandate of the Americans with Disabilities Act
(ADA), the Supreme Court's interpretation of the ADA in Olmstead v.
L.C., 527 U.S. 581 (1999),\1\ the creation of additional HCBS statutory
options for states, and grant programs such as the Money Follows the
Person Rebalancing Demonstration, have been central factors driving
this progress. In addition, we have promulgated regulations to adopt
requirements for HCBS settings that incorporate community integration
principles,\2\ established a new quality oversight framework for HCBS
waivers, and promoted quality measurement and other innovations related
to HCBS through new initiatives such as the Testing Experience and
Functional Tools (TEFT) grant and the Balancing Incentive Program.
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\1\ https://www.ada.gov/olmstead/olmstead_about.htm.
\2\ The State Plan and Home and Community-Based Services, 5-Year
Period for Waivers, etc. final rule (79 FR 2947) can be found at:
https://www.federalregister.gov/documents/2014/01/16/2014-00487/medicaid-program-state-plan-home-and-community-based-services-5-year-period-for-waivers-provider.
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Through this RFI, we seek input from the public on ways that CMS
can, through its statutory authority, accelerate this progress. We also
seek input into how best to ensure high quality HCBS that promote the
health and well-being of beneficiaries, enhance policies that ensure
the integrity of such services and protect beneficiaries from harm, and
address workforce challenges particular to this set of services, such
as wages, training and retention. This is a request for information
only. Respondents are encouraged to provide complete but concise
responses to the questions outlined in section II. of this RFI. Please
note that a response to every question is not required. This RFI is
issued solely for information and planning purposes; it does not
constitute a Request for Proposal, application, proposal abstract, or
quotation. This RFI does not commit the Government to contract for any
supplies or services or make a grant award. Further, we are not seeking
proposals through this RFI and will not accept unsolicited proposals.
Responders are advised that the U.S. Government will not pay for any
information or administrative costs incurred in response to this RFI;
all costs associated with responding to this RFI will be solely at the
interested party's expense. Not responding to this RFI does not
preclude participation in any future procurement, if conducted. It is
the responsibility of the potential responders to monitor this RFI
announcement for additional information pertaining to this request.
Please note that we will not respond to questions about the policy
issues raised in this RFI. We may or may not choose to contact
individual responders. Such communications would only serve to further
clarify written responses. Contractor support personnel may be used to
review RFI responses. Responses to this notice are not offers and
cannot be accepted by the Government to form a binding contract or
issue a grant. Information obtained as a result of this RFI may be used
by the Government for program planning on a non-attribution basis.
Respondents should not include any information that might be considered
proprietary or confidential. This RFI should not be construed as a
commitment or authorization to incur cost for which reimbursement would
be required or sought. All submissions become Government property and
will not be returned.
To assist the public, the RFI provides background on the history
and current status of HCBS, the dynamics that affect the provision of
HCBS, and actions we have taken to implement HCBS in the context of
expanded Medicaid authority and increased public demand. In addition,
it solicits input on the following general topic areas, described in
more detail later in this RFI, to inform the agency's future decision-
making on actions to be taken within its statutory authority:
What are the additional reforms that CMS can take to
accelerate the progress of access to HCBS and achieve an appropriate
balance of HCBS and institutional services in the Medicaid long-term
services and supports (LTSS) system to meet the needs and preferences
of beneficiaries?
What actions can CMS take, independently or in partnership
with states and stakeholders, to ensure quality of HCBS including
beneficiary health and safety?
What program integrity safeguards should states have in
place to ensure beneficiary safety and reduce fraud, waste and abuse in
HCBS?
What are specific steps CMS could take to strengthen the
HCBS home care workforce, including establishing requirements,
standards or procedures to ensure rates paid to home care providers are
sufficient to attract enough providers to meet service needs of
beneficiaries and that wages supported by those rates are sufficient to
attract enough qualified home care workers.

II. Background

A. Historical Advances

From the beginning of the Medicaid program in 1965, states were
required to provide medically necessary, nursing facility care for most
eligible individuals 21 or older.\3\ Coverage for what is now
considered HCBS was generally not included. Personal care services
became an option for states to cover under their state Medicaid plans
in 1975. In 1981, the Social Security Act (the Act) was amended to
provide authority under section 1915(c) of the Act for the Secretary to
waive certain provisions of the Medicaid statute to allow states to
provide HCBS to eligible individuals who would otherwise require
institutional services. Medicaid HCBS authority was expanded in 2005
and 2010, with the addition of an optional state plan HCBS benefit
under section 1915(i) of the Act and the optional home and community-
based attendant services and supports under section 1915(k) of the Act.
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\3\ Wenzlow, Audra, Steve Eiken and Kate Sredl. 2016. Improving
the Balance: The Evolution of Medicaid Expenditures for Long-Term
Services and Supports (LTSS), FY 1981-2014. Retrieved from https://www.medicaid.gov/medicaid/ltss/downloads/evolution-ltss-expenditures.pdf.
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Using these authorities, states, in partnership with the federal
government, have developed a broad range of HCBS to provide
alternatives to institutionalization for eligible Medicaid
beneficiaries. Consistent with the preferences of many beneficiaries of
where they would like to receive their care, the evolution of HCBS
provision has been driven by federal statutory and policy changes,
court decisions, and state initiatives as described later in this RFI.
HCBS are a critical component of the Medicaid program, and are part
of a larger framework of progress toward community integration of older
adults and persons with disabilities that spans

[[Page 78762]]

efforts across the federal government. Through a combination of state
plan personal care services and home health services, and waivers in
Medicaid, over 3.2 million beneficiaries received HCBS in calendar year
(CY) 2012 \4\ including individuals who are elderly and individuals
with a developmental disability, physical disability, traumatic brain
injury, or behavioral health condition. This is a growth of almost 1
million individuals since 2002. In 2012, a total of 764,487 people
received home health state plan services (in the 50 states and the
District of Columbia (DC)); 944,507 received personal care state plan
services (in the 32 states offering the benefit at that time); and
almost 1.5 million were served through section 1915(c) waivers (in 47
states and DC). Likewise, HCBS expenditures have grown from less than
10 percent of approximately $13 billion in federal and state
expenditures in fiscal year (FY) 1986 for all Medicaid LTSS, including
nursing home expenditures,\5\ to more than 25 percent of Medicaid LTSS
expenditures by the late 1990s. By FY 2014, 53 percent of the $152
billion spent nationally on Medicaid LTSS was for HCBS.
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\4\ http://kff.org/medicaid/report/medicaid-home-and-community-based-services-programs-2012-data-update/.
\5\ Wenzlow, Audra, Steve Eiken and Kate Sredl. 2016. Improving
the Balance: The Evolution of Medicaid Expenditures for Long-Term
Services and Supports (LTSS), FYs 1981-2014. Retrieved from https://www.medicaid.gov/medicaid/ltss/downloads/evolution-ltss-expenditures.pdf.
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As noted previously, coverage of HCBS was included in statutory
waiver authority in 1981 under section 1915(c) of the Act to permit
states to provide an alternative to care provided in institutions. The
Secretary may waive certain Medicaid requirements and permit states to
offer HCBS to meet the needs of people who would otherwise require
institutional care. States have used HCBS waiver programs to provide
numerous services designed to support beneficiaries in their homes and
communities consistent with their person-centered plans of care. As a
result of receiving waiver services, many beneficiaries have been able
to achieve greater independence and community integration and have been
able to exercise self-direction, personal choice, and control over
services and providers.
Considerable flexibility exists for states when proposing 1915(c)
HCBS waivers. They can seek approval to offer services in only defined
geographic areas of the state, ``cap'' enrollment of beneficiaries at a
certain number, and maintain waiting lists. Further, services can be
targeted based on the populations the state makes eligible for the
waiver, such as individuals with a developmental disability,
individuals who are elderly, or individuals with a physical disability
or traumatic brain injury. HCBS waiver services specifically authorized
under the statute include case management (that is, supports and
service coordination), homemaker, home health aide, personal care,
adult day health services, habilitation (both day and residential), and
respite care. States can also propose ``other'' types of services that
the Secretary may approve, including services that can assist in
diverting or transitioning individuals from institutional settings into
their homes and community. The statute requires that average estimated
per capita expenditures for services provided under the waiver cannot
exceed the average amount that would have been spent on waiver
enrollees in institutions, absent the waiver.
HCBS waiver authority has been pivotal in assisting beneficiaries
to achieve community living goals. The passage of the ADA of 1990 and
the Supreme Court's interpretation of the ADA in Olmstead v. L.C., 527
U.S. 581 (1999) resulted in increased provision of Medicaid HCBS, as
states sought to comply with those authorities. The ADA clarified that
the ``Nation's proper goals regarding individuals with disabilities are
to assure equality of opportunity, full participation, independent
living, and economic self-sufficiency for such individuals.'' In
Olmstead, the Supreme Court held that Title II of the ADA prohibits the
unjustified segregation of individuals with disabilities, and public
entities are required to provide community-based services to persons
with disabilities when--(1) such services are appropriate; (2) the
affected persons do not oppose community-based treatment; and (3)
community-based services can be reasonably accommodated, taking into
account the resources available to the entity and the needs of others
who are receiving disability services from the entity. These
obligations apply to states and, while the Medicaid program is not the
sole avenue for a state to comply with these mandates, Medicaid
provides states broad opportunities to obtain federal funding to
support the offering of services and supports in home and community-
based settings, within programmatic requirements.
Significant progress in the realm of HCBS also occurred through the
Deficit Reduction Act of 2005, (Pub. L. 109-171) with the creation of
two new state plan options under the new section 1915(i) and (j) of the
Act, as well as the Money Follows the Person Rebalancing Demonstration
\6\ Grant (MFP). Section 1915(i) of the Act provides states the ability
to furnish HCBS to individuals who require less than an institutional
level of care (LOC) and who would otherwise not be eligible for HCBS
under section 1915(c) waivers; section 1915(i) of the Act also allows
states to provide state plan HCBS to those who are eligible for section
1915(c) waivers, under the eligibility group defined at section
1902(a)(10)(A)(ii)(XXII) of the Act. Section 1915(j) of the Act built
upon the successes of the Cash & Counseling Demonstration and
Evaluation that began in the late 1990s, allowing states to offer
participants the ability to self-direct either state plan personal care
services or state selected section 1915(c) waiver services without
needing the authority of a section 1115 demonstration project. With the
history and strength of the Real Choice Systems Change \7\ grants as a
foundation, which provided states with resources for administrative,
program, financial, and regulatory infrastructure to increase community
service provision, MFP assisted states in their efforts to reduce
reliance on institutional care while developing community-based long-
term care opportunities for individuals transitioning from
institutional settings to homes in the community. With the passage of
the Affordable Care Act of 2010, section 1915(k) of the Act (Community
First Choice) was added,\8\ offering increased federal matching funds
for the provision of statewide home and community-based attendant
services and supports. Services can be provided through an agency or a
self-directed model. The Affordable Care Act also extended MFP,\9\
enhanced the 1915(i) state plan option,\10\ and established the
Balancing Incentive Program,\11\ which provided financial incentives in
the form of enhanced federal reimbursement to States to increase access
to non-institutional LTSS.\12\
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\6\ Section 6071 of the Social Security Act can be accessed at
https://www.ssa.gov/OP_Home/comp2/F1090171.html.
\7\ https://www.medicaid.gov/medicaid/ltss/real-choice/index.html.
\8\ http://www.medicaid.gov/Federal-Policy-Guidance/downloads/2-28-11-Recent-Developments-In-Medicaid.pdf.
\9\ http://www.medicaid.gov/Federal-Policy-Guidance/downloads/2-28-11-Recent-Developments-In-Medicaid.pdf.
\10\ http://www.medicaid.gov/Federal-Policy-Guidance/downloads/SMD10015.pdf.
\11\ http://www.cms.gov/smdl/downloads/11-010.pdf.
\12\ It is important to note that the Money Follows the Person
and the Balancing Incentive Program initiatives are time-limited,
and require Congressional action to continue their authorization.
Specifically, Federal funding under the Balancing Incentive Program
ended September 30, 2015, and MFP expired on September 30, 2016
(unused portions of state grant awards made in 2016 are available to
the state until 2020).

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B. Present Status of HCBS

The shift in funding to HCBS accounting for a majority of LTSS
spending represents an important achievement, with a doubling of the
percentage of LTSS provided in the community since 2000. However this
statistic masks significant differences in spending by population. HCBS
spending for individuals with intellectual and/or developmental
disabilities represented approximately three-quarters of Medicaid LTSS
spending in 2014. This far surpasses the HCBS spending percentage for
older adults, individuals with physical disabilities, and individuals
with serious mental illness/serious emotional disturbances, which is
only 41percent of total LTSS spending.\13\ Thus, there is still work to
be done by all levels of government and stakeholders to ensure that all
Medicaid beneficiaries who wish to remain in their homes and
communities have the services, workforce and supports to enable them to
do so.
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\13\ https://www.medicaid.gov/medicaid/ltss/downloads/ltss-expenditures-2014.pdf.
_____________________________________-

Additional information on LTSS, including program information and
expenditure reports, is available at www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and-supports/long-term-services-and-supports.html. A comprehensive state-by-state
analysis of utilization patterns and cost for community versus
institutional long-term care is available at http://www.longtermscorecard.org. This latter analysis by several
collaborating organizations uses data from CMS as well as many other
sources to quantify the unique long-term care service patterns in each
state.
In recognition of the shift to community-based care and based on
the experience and understanding of the challenges in overseeing such
programs, in the January 16, 2014 Federal Register (79 FR 2947), we
issued final regulations for the 1915(c) HCBS waiver authority, as well
as the 1915(i) HCBS and the 1915(k) Community First Choice state plan
authorities, to ensure that services provided under these HCBS
regulatory authorities are truly home and community-based. The State
Plan Home and Community-Based Services, 5-Year Period for Waivers, etc.
final rule (79 FR 2947) (hereinafter referred to as the HCBS final
rule) represented the culmination of over 5 years' worth of stakeholder
input and addressed the key challenges associated with the provision of
HCBS. While statutory authority for coverage of HCBS required services
to be provided in a ``home and community-based setting'', there was no
definition of what that phrase meant. This lack of a definition
resulted in HCBS Medicaid funding for services in some settings that
bore similarities to institutions (for instance, in terms of regimented
schedules or isolation from the larger community or both). The
regulations sought to change that by outlining the criteria for
residential and non-residential home and community-based settings.
The principle of community integration, and the requirement that
coverage of HCBS be based on person-centered service plans that outline
how individuals wish to exercise choices, are at the heart of the home
and community-based settings criteria. Given the scope of the changes
mandated by the rule, we provided states with a transition period
(through March 2019) to bring existing programs into compliance with
the HCBS setting requirements. During this transition period, states
are working with providers, managed care entities, advocacy
organizations, beneficiaries and family members, and other stakeholders
to complete assessments of existing HCBS provision and to determine how
to implement needed revisions to ensure adherence with regulatory
requirements.
In July 2014, we also established the Medicaid Innovation
Accelerator Program (IAP) which seeks to improve the care and health
for Medicaid beneficiaries and reduce costs by supporting states'
ongoing payment and delivery system reforms through targeted technical
support. Promoting Community Integration through Long-term Services and
Supports is one of four program areas of focus for IAP. It is
supporting a number of states with planning and implementing strategies
for incentivizing quality and outcomes in HCBS and with developing
Medicaid and housing-related services and partnerships. As part of this
work, state Medicaid agencies and Federal and state housing partners
are building on the collaborative work of the CMS and the U.S.
Department of Housing and Urban Development (HUD) as part of the Obama
Administration's Year of Community Living Initiative (established in
June 2009 to mark the 10th anniversary of the Olmstead decision).
We are also actively engaged in efforts to improve the quality of
care provided to individuals receiving HCBS. In addition to the ongoing
monitoring of quality requirements embedded in the various HCBS
authorities and programs and the quality work being done through IAP,
we have developed an experience of care survey, developed under the
Testing Experience and Functional Tools (TEFT) grant, which has been
awarded the Consumer Assessment of Healthcare Providers and Systems
(CAHPS) trademark. The CAHPS HCBS Survey is now available \14\ to
states to elicit feedback on beneficiaries' experience with the
services they receive in Medicaid HCBS programs. Results will be used
to assess and further improve program quality.
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\14\ https://www.medicaid.gov/medicaid/quality-of-care/performance-measurement/cahps-hcbs-survey/index.html.
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Our quality efforts are guided by the CMS Quality Strategy,\15\
which seeks to provide better care, achieve healthier people and
communities, and ensure smarter spending for care. The CMS Quality
Strategy was built on the foundation of the CMS Strategy \16\ and the
HHS National Quality Strategy (NQS),\17\which was established as part
of the Affordable Care Act to serve as a catalyst and compass for a
nationwide focus on quality improvement efforts and approach to
measuring quality, including in HCBS.
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\15\ https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/QualityInitiativesGenInfo/CMS-Quality-Strategy.html.
\16\ https://www.cms.gov/about-cms/agency-information/cms-strategy/.
\17\ http://www.ahrq.gov/workingforquality/.
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We believe that these strategies and efforts underway across CMS to
achieve strategy goals will drive change as called for by the
Commission on Long-Term Care and highlighted in the recent National
Quality Forum (NQF) report released in September 2016, entitled Quality
in Home and Community-Based Services to Support Community Living:
Addressing Gaps in Performance Measurement.\18\ The NQF report was
developed by a multi-stakeholder committee to recommend and prioritize
opportunities to address gaps in HCBS quality measurement. The report
represents 2 years of work by NQF, the Committee, and an HHS Federal
team, and contains its final set of recommendations for how to advance
quality measurement in HCBS through the development, testing, and

[[Page 78764]]

endorsement of HCBS quality measures at par with those used across the
healthcare system.
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\18\ PNQF Project Page--http://www.qualityforum.org/Publications/2016/09/Quality_in_Home_and_Community-Based_Services_to_Support_Community_Living__Addressing_Gaps_in_Performance_Measurement.aspx.
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For more information on quality and performance measures, as well
as many relevant past and present public-private efforts pertaining to
HCBS quality, please see Appendix A of this RFI.
Finally, in support of achieving additional progress toward
broadening access to HCBS, the President's FYs 2016 \19\ and 2017 \20\
budgets have included proposals to strengthen HCBS provision, such as
expanding eligibility for the Community First Choice Option and the
1915(i) state plan services options. These and other proposals are
summarized in Appendix B of this RFI. A particularly notable proposal,
is the ``Pilot Long-Term Care State Plan Option'', which would create a
comprehensive long-term care state plan option for up to five states.
Participating states would be authorized to provide equal access to
home and community-based care and nursing facility care and the
Secretary would have the discretion to make these pilots permanent at
the end of 8 years.
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\19\ http://www.hhs.gov/about/budget/budget-in-brief/cms/medicaid/index.html.
\20\ http://www.hhs.gov/about/budget/fy2017/budget-in-brief/cms/medicaid/index.html.
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This brief background cannot capture all of the important
developments that have shaped the current long-term care landscape.
Critical contributions from persons with disabilities, advocates,
providers, and states in partnership with these CMS efforts have
created opportunities that may not be reflected.

C. Key Factors That Affect the Provision of HCBS

Despite the many creative and effective HCBS programs developed by
states and the shift in Medicaid payments toward such services, several
factors present unique challenges to states seeking to expand access to
HCBS. These include the following:
State budgets play a critical role in shaping the HCBS
landscape within a state. States may face fiscal constraints as they
make decisions about the optional services to offer, along with any
limitations on how services are offered and to whom to provide them.
Economic downturns can negatively impact a state's ability to offer a
robust array of optional services, including HCBS, precisely when more
individuals are enrolling in the program. In order to stay within
appropriated state budgets, HCBS authorized under 1915(c) waivers may
have enrollment caps and geographic boundaries. This provides budgetary
certainty but can lead to significant variations within and across
states in terms of the benefits offered, the number of individuals
served, and waiting lists for those services. It also means that if a
state is not able to add funding to its HCBS waivers, increases in
programmatic expenses are frequently accompanied by offsetting
reductions in other areas of the waiver or other Medicaid program
expenditures.
Provider availability is key to ensuring that individuals
have access to needed Medicaid services. Availability can be impacted
by several factors including the ability to attract a sufficient mix of
providers in urban and rural areas of a state and how rates of
reimbursement effect provider willingness to accept Medicaid
beneficiaries. We issued the Access to Medicaid Covered Services final
rule on November 2, 2015 (80 FR 67575).\21\ In implementing these
regulations, we are engaged in activities to assist states in
determining that fee-for-service (FFS) payment rates are sufficient to
attract enough providers to ensure that Medicaid beneficiaries have
access to covered Medicaid services to address their needs. The
November 2015 final rule requires states to complete access monitoring
review plans (AMRPs) for specified services, including home health
services. In addition, it requires states submitting state plan
amendments that would reduce payment rates to providers or restructure
provider payments if the change could result in diminished access, to
provide to us an analysis of the expected impact of the reduction on
provider participation. The requirement to provide such an analysis
applies to all state plan services, including the 1915(i) HCBS state
plan option and the 1915(k) Community First Choice state plan option,
but does not apply to 1915(c) HCBS waivers. In conjunction with the
November 2015 final rule, we released a request for information to
solicit comments on additional approaches the agency and states should
consider to ensure better compliance with Medicaid access requirements.
This included comments on the potential development of standardized
core measures of access, access measures for long-term care and home
and community based services, national access to care thresholds, and
resolution processes that beneficiaries could use in facing challenges
in accessing essential health care services. We note that we received
comments confirming that access to HCBS should be measured differently
than access to primary and acute care services, and we continue to
analyze the comments to determine potential paths forward.
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\21\ https://www.federalregister.gov/documents/2015/11/02/2015-27697/medicaid-program-methods-for-assuring-access-to-covered-medicaid-services.
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The presence of managed care arrangements in a state's
Medicaid program can also impact how beneficiaries receive services.
Through contracts with managed care organizations, states determine the
array of Medicaid services to be provided under a managed care delivery
system. Over the past decade, managed care has been used with
increasing frequency in the delivery of Medicaid-funded LTSS, including
HCBS. Almost 390,000 beneficiaries received LTSS in a managed care
delivery system in 2012, and today an even larger number of
beneficiaries are receiving LTSS through managed care.
As managed care organizations administer and coordinate contracted
benefits, they are continually balancing the parallel goals of
containing costs and facilitating the provision of needed services,
which can impact the delivery of service on a daily basis. Under
Medicaid regulations, plans can implement utilization criteria that
influence service provision, such as prior authorization requirements
or requiring the use of a particular drug or therapy before access to a
more expensive treatment is authorized. However, the use of managed
care should not negatively impact a beneficiary's access to covered
services, as managed care plans must offer all services they are under
contract to provide. In addition, services available under a managed
care delivery system should be no less in amount, duration and scope as
the services provided under a FFS payment system. Through managed care
authorities, plans can also provide additional services not otherwise
available in that state, either as a value-added service that the plan
chooses to provide, or by offering a service in lieu of a covered
service under the state plan if it is medically appropriate and cost
effective (although use of the ``in lieu of'' authority does not
relieve a state or managed care organization (MCO) from providing
access to all state plan services).
Given the unique characteristics of LTSS, protections such as
provider continuity and beneficiary education, were incorporated into
the May 6, 2016 managed care final rule (81 FR 27498). Specific
protections include requiring that a state establish a beneficiary
support system that accounts for the unique needs of individuals
receiving LTSS, person-centered planning processes to ensure medical
and non-

[[Page 78765]]

medical needs are met and that individuals have the quality of life and
level of independence they desire, and standards to evaluate the
adequacy of network and availability of services for all MLTSS
programs.
Recent CMS and other federal agency policy changes are
shaping program implementation. The HCBS, Access to Medicaid Covered
Services, and Medicaid Managed Care rules established new policies for
states and managed care organizations that will have significant impact
on states and HCBS providers. For example, the settings provisions in
the 2014 HCBS final rule require states to develop and submit statewide
transition plans detailing how the state will operate its HCBS waivers
or state plan benefits and including all elements approved by the
Secretary. Guidance as to the elements required in the transition
plan,\22\ indicates that among these elements are in-depth assessments
and development of resulting remediation plans to ensure compliance
with the regulation's community integration requirements by the end of
the transition period.
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\22\ https://www.medicaid.gov/medicaid/ltss/downloads/statewide-transition-plan-toolkit.pdf.
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Recently, the Department of Labor (DOL) issued two rules, one that
took effect in October 2015 extending minimum wage and overtime
protections to most home care workers, and the other taking effect in
December 2016, which updated the salary threshold below which white
collar salaried workers, including managers, are entitled to overtime
pay when they work more than 40 hours in a week. Both of these rules
are implementing necessary reforms, and both will require time, effort,
and financial resources to ensure compliance.
From the beginning, the DOL has emphasized the importance of
implementation in a manner that protects both workers and consumers.
States have a number of options for coming into compliance with these
regulations. For example, in response to the Home Care final rule (78
FR 60453), some states are planning to increase funding for home care
programs such that workers receive overtime compensation for hours
worked over 40 in a work week. Others are planning to limit overtime
work but create exceptions processes so that certain consumers are
permitted to receive care from a single home care worker in excess of
the general cap on worker hours.
Actions taken by states to implement these regulations have real
implications for beneficiaries and service providers. Some states
anticipate challenges in being able to secure funding to accommodate
overtime payments incurred in the delivery of HCBS by providers in
response to the two DOL regulations, and are taking actions such as
implementing caps on the number of hours worked by home care workers to
avoid incurring overtime expenses. These caps can necessitate
beneficiaries who require a significant number of hours of service
needing to find additional workers. Many stakeholders, such as labor
organizations and beneficiary advocates have expressed concerns that
hard caps and low wages are likely to hamper recruitment and retention
efforts to secure a consistent workforce.
We issued guidance \23\ on the availability of Medicaid
reimbursement for costs associated with complying with these two DOL
rules. As of the drafting of this RFI, only a handful of states have
submitted filings to CMS to embed overtime costs in the rate
methodology of applicable services. In late 2014, the Department of
Justice (DOJ) and the HHS OCR issued joint guidance \24\ stressing that
to remain compliant with Olmstead, ``states need to consider reasonable
modifications to policies capping overtime and travel time for home
care workers, including exceptions to these caps when individuals with
disabilities otherwise would be placed at serious risk of
institutionalization.'' We remain available to provide technical
assistance on this issue.
---------------------------------------------------------------------------

\23\ https://www.medicaid.gov/federal-policy-guidance/downloads/CIB-01-08-16.pdf.
\24\ Vanita Gupta and Jocelyn Samuels, Joint Dear Colleague
Letter on Companionship Rule Implementation, US Department of
Justice, Civil Rights Division and U.S. Department of Health and
Human Services, Office for Civil Rights, December 2014 http://acl.gov/NewsRoom/NewsInfo/docs/2014-FLSA-Dear-Colleague-ltr.pdf.
---------------------------------------------------------------------------

Workforce stability is impacted by many of the
considerations discussed previously, and is a key factor in sustaining
the growth of HCBS. States are grappling with providing a sufficient
homecare workforce to meet the growing demand for LTSS. This is a
particular challenge in states working to shift their long-term care
service delivery systems toward HCBS and away from institutional
care.\25\ LTSS are by their nature extremely labor intensive and direct
service workers--a paid workforce of about 3 million nationwide in
2009--constitute the main input into these services and supports. This
workforce has been demonstrating signs of workforce instability,
including high turnover and vacancy rates for some time. As demand for
HCBS assistance grows, so too will the need for an engaged and
dedicated workforce.\26\ According to the Bureau of Labor
Statistics,\27\ personal care aides and home health aides are the
occupations with the first and third largest projected job growth from
2014 through 2024 (BLS projects demand for an additional 806,500 jobs
in these occupations). Further, employers with job openings in these
occupations will be competing for workers with employers who have job
openings in other occupations that have similar education and training
requirements, e.g., cashiers and retail salespersons. BLS projects
demand for an additional 1.2 million jobs from 2014 through 2024 in
these sectors. To attract engaged and dedicated workers to fill home
care jobs will require wages that are competitive with what potential
home care workers would receive in these and other alternative
occupations.
---------------------------------------------------------------------------

\25\ Edelstein, Steven, and Dorie Seavey, February 2009. ``The
Need for Monitoring the Long-TermCare Direct Service Workforce and
Recommendations for Data Collection''. Retrieved from: https://www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and-supports/workforce/workforce-initiative.html.
\26\ Edelstein, Steven, and Dorie Seavey, February 2009. ``The
Need for Monitoring the Long-TermCare Direct Service Workforce and
Recommendations for Data Collection''. Retrieved from: https://www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and-supports/workforce/workforce-initiative.html.
\27\ http://www.bls.gov/ooh/most-new-jobs.htm.
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CMS created the National Direct Service Workforce (DSW) Resource
Center in 2005 to respond to the shortage of workers who provide direct
care and personal assistance to individuals who need LTSS. These
workers include direct support professionals, personal care attendants,
personal assistance providers, home care aides, home health aides, and
others (described collectively in the remainder of this document as the
home care workforce). The DSW Resource Center created a number of
important resources designed to assist states in developing home care
workforce capacity, as well as to improve recruitment and retention
efforts associated with the home care workforce. These resources
included an inventory and analysis of the various core competency sets
used across and within LTSS sectors.
While the DSW Resource Center concluded in December 2014, important
resources funded through this initiative are available at http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Supports/Workforce/Workforce-Initiative.html. Included in
these resources is a toolkit that was

[[Page 78766]]

developed in 2013 to discuss strategies to address workforce
challenges, which contains a chapter dedicated to the unique
characteristics of self-directed programs that are prevalent in the
provision of HCBS. Self-directed programs place decision-making
authority in the hands of the beneficiary or their representative, and
can vary according to structure and scope. Across the various Medicaid
authorities, almost every state offers beneficiaries the option to
receive HCBS through some type of self-directed model. Understanding
the parameters of self-directed programs operating in a state, such as
the ability to hire family members and friends and the ability to set
wages for home care workers, is key to understanding implications these
models have on the ability to maintain an engaged and dedicated
homecare workforce of sufficient size. As discussed later in this RFI,
enhancing the stability of this workforce also involves ensuring that
reimbursement rates support wages that are sufficient to attract enough
qualified workers.

D. The Role of Medicaid in Helping States Comply With ADA and Olmstead
Requirements

On May 20, 2010, we issued a State Medicaid Director (SMD) letter
to provide information on new tools to support community integration,
as well as to remind states of existing tools articulated in past
``Olmstead'' letters that remain strong resources in states' efforts to
support community living as a choice for Medicaid HCBS beneficiaries.
With the issuance of this 2010 letter, we reaffirmed our commitment to
the policies identified in previous Olmstead guidance. We also
expressed an interest in working with states to continue building upon
earlier innovations and encouraged states to identify new strategies to
improve community living opportunities. However, while Medicaid
provides a powerful tool to states in fulfilling ADA and Olmstead
responsibilities, the program cannot serve as a state's sole compliance
strategy. The following are several reasons why this is the case:
Separate roles for CMS, DOJ, OCR--CMS
collaborates regularly with federal partners including the HHS OCR and
DOJ. The three agencies discuss developments occurring in states to
ensure awareness and to determine if there are cross-agency
implications, but each agency has different areas of oversight
responsibility. CMS implements Title XIX of the Act, working daily in
partnership with states to operate the Medicaid program under the
parameters of Title XIX that dictate CMS governance. DOJ implements and
enforces certain provisions of the ADA. Its enforcement activities can
include filing litigation against public entities not abiding by
responsibilities under the ADA, including the statute's integration
mandate, as interpreted by Olmstead. HHS OCR enforces non-
discrimination laws that apply to health care or human services
providers, including Title II of the ADA, section 504 of the
Rehabilitation Act of 1973, and section 1557 of the Affordable Care
Act, and laws related to health information privacy. Together, the
three agencies form a strong partnership in ensuring the provision of
quality healthcare, but each has a separate scope of influence.
Provision of Institutional Services--The statute (Title
XIX of the Act) requires the provision of medically necessary services
in institutions such as hospitals and nursing facilities for most
eligible beneficiaries. At state option, intermediate care facilities
for individuals with intellectual disabilities (ICFs/IID) may be
covered. However, mandatory provision of some institutional services
and optional provision of most HCBS does not facilitate states' efforts
to provide Medicaid services in a manner more consistent with ADA or
Olmstead as the statute results in states having to devote budget
resources to institutional options and having less flexibility to
reallocate resources to home and community-based alternatives. While
many states are working hard to operate their Medicaid programs in ways
that further community integration, further progress is needed. For
example, states have made less progress in reducing use of Medicaid-
funded long-term stays in nursing facilities.
CMS review of state reimbursement methodology--Some
stakeholders have encouraged CMS to ensure that sufficient wages are
available for home care workers to avoid shortages. We have also been
encouraged by stakeholders to view state ratesetting methodologies
through an Olmstead lens, under which HCBS rates would need to be
sufficient to avoid unnecessary institutionalization. Their specific
suggestions have included approving only methodologies that guarantee
home care workers a salary that is above the prevailing minimum wage
for their locality, that is higher than wages paid to similarly-
qualified workers in nursing facilities, and that takes into account
wages paid in occupations that compete for workers with similar levels
of education, training, and experience.
Historically, we have reviewed states' proposed waiver and state
plan reimbursement methodologies to determine compliance with
regulatory requirements and with the statutory requirement found in
section 1902(a)(30)(A) that payments be ``consistent with efficiency,
economy, and quality of care and sufficient to enlist enough providers
so that care and services are available under the plan at least to the
extent that such care and services are available to the general
population in the geographic area.'' Based on provisions of the 2015
Access to Medicaid Covered Services final regulation, this review now
includes a review of the state's determination that any proposed
payment reductions for state plan services, including HCBS provided
through the state plan, will still result in sufficient beneficiary
access to providers. Our review also includes the state's analysis of
any concerns expressed over the proposed reduction from affected
stakeholders. However, we have not interpreted the statute and
regulations to support an analysis of payment methodologies down to the
level of wages paid to individual home care workers. For example, while
we review how a state proposes to reimburse a provider agency for the
provision of personal care services, this review does not extend to
analyzing how the provider agency compensates home care workers and
whether that rate is sufficient to cover wage costs. It also does not
include a review of whether compensation of home care workers is
sufficient to attract needed workers, a key component of which would be
a review of how home care worker wages compare to the wages paid to
workers in occupations that compete for workers with similar levels of
education and training.

III. Provisions of the Request for Information

To assist us in determining how to advance access to HCBS for
beneficiaries in both FFS and managed care and how to enhance the
quality and integrity of HCBS provision under existing authorities, we
are soliciting public input on the following general topics:

A. What are the additional reforms that CMS can take to accelerate the
progress of access to HCBS and achieve an appropriate balance of HCBS
and institutional services in the Medicaid LTSS system to meet the
needs and preferences of beneficiaries?

Although HCBS expenditures account for a majority of total spending
for LTSS in Medicaid, we are interested in making additional progress
in rebalancing the Medicaid long-term care

[[Page 78767]]

system. Statutory changes such as the ones proposed in the President's
FYs 2016 and 2017 budgets would most likely provide the fastest and
most meaningful acceleration of progress (see Appendix B). However, we
are soliciting input on actions within our authority to promote access
to Medicaid HCBS. These include suggestions for improved benefit
design, payment and financing reforms, and stakeholder engagement. In
addition, we are open to proposals with respect to all existing
Medicaid authorities, both state plan and waiver.
Section 1115 demonstrations give states broad authority to
implement reforms in their Medicaid program, such as by waiving
specific provisions of the Social Security Act, or by allowing states
to cover services and/or populations not typically covered by Medicaid.
In the context of HCBS delivery, an 1115 demonstration could provide
interested states with the authority to offer a more streamlined
continuum of LTSS, similar to the Pilot Comprehensive Long-Term Care
State Plan Option legislative proposal referenced in Appendix B. We
seek input on the state interest and feasibility of such an approach,
along with the following comments and questions:
We are interested in receiving comments on the following
potential interpretation of current law. The term ``nursing facility''
is defined in section 1919(a) of the Act. Under this definition, a
nursing facility must be primarily engaged in providing skilled care
and rehabilitation to residents with medical necessity for those
services. In contrast, nursing facilities provide health-related care
and services, that is, those services that are not skilled nursing or
rehabilitation services, ``to individuals who . . . require care and
services . . . which can be made available to them only through
institutional facilities''. In other words, the statutory nursing
facility service definition could provide a basis for states to offer
the mandatory nursing facility benefit only to individuals eligible for
nursing facility coverage whose assessed need cannot be met by HCBS. If
the individual's needs can be met by HCBS, Medicaid reimbursement would
not be available for health-related care and services provided in a
nursing facility in those circumstances. Because this concept
intersects with other requirements such as institutional eligibility
rules and the choice of institution as an option for section 1915(c)
waiver participants, the idea may best be implemented under the
flexibility of a section 1115(a) of the Act demonstration authority.
Are there particular flexibilities around Medicaid
requirements for LTSS that states would be interested in using 1115
authority to support? How could 1115 authority be structured to
streamline the provision of LTSS across authorities, while adhering to
budget neutrality requirements?
What types of eligibility flexibility and controls,
including level of care and utilization, could be used to encourage
access to HCBS?
What types of benefit redesign (such as a package of
benefits) would improve the provision of LTSS?
What resource needs, including differences between urban
and rural areas, and variations in providing services to different HCBS
populations, would need to be taken into account to ensure access to
HCBS?

B. What actions can CMS take, independently, or in partnership with
states and stakeholders, to ensure quality of HCBS and beneficiary
health and safety?

As the number of beneficiaries receiving Medicaid HCBS has
increased, so has the need to ensure that federal and state quality
efforts are maintained and strengthened to ensure the provision of
services in ways that improve health outcomes of beneficiaries. Toward
that end, we made extensive revisions to the quality oversight
structure of the 1915(c) HCBS waiver program, which culminated in
guidance released in 2014.\28\ At the heart of this framework is the
reporting on state-developed performance measures designed to reflect
the operations of the waiver across important domains that CMS defined
such as beneficiary health and welfare, financial accountability, and
service provision and delivery.
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\28\ https://www.medicaid.gov/medicaid-chip-program-information/by-topics/waivers/downloads/3-cmcs-quality-memo-narrative.pdf.
---------------------------------------------------------------------------

As states increasingly turn to managed care to deliver LTSS
including nursing home and HCBS to older adults and people with
disabilities enrolled in Medicaid, we have sought additional approaches
to quality and beneficiary protections, while also allowing state
flexibility in program design and administration. As one example, the
Medicaid managed care final rule specifically incorporated ``managed''
long-term services and supports, referred to as MLTSS, elements into
several areas of CMS' quality measurement and improvement framework.
States must have mechanisms for the identification of enrollees who
need LTSS or enrollees with special health care needs, and managed care
plans must have mechanisms to assess the quality and appropriateness of
care furnished to beneficiaries enrolled in managed care and receiving
LTSS, including an assessment of care between care settings and a
comparison of services and supports received with those set forth in
the enrolled beneficiary's treatment or service plan. Managed care
plans must also participate in efforts by the state to prevent, detect,
and remediate critical incidents that adversely impact enrollee health
and welfare, and the state must identify standard performance measures,
including performance measures relating to quality of life,
rebalancing, and community integration activities for those
beneficiaries receiving LTSS.
As we solicit ideas for the expansion and promotion of HCBS, it is
critical that the infrastructure surrounding service provision be
sufficiently robust to ensure that beneficiaries receive needed,
quality services, while also ensuring the health and safety of those
beneficiaries. Currently, there is an absence of a formal federal
oversight framework for the provision of HCBS such as what exists for
services provided in institutions such as nursing facilities and
hospitals. Instead, CMS and the states partner to ensure the collection
of data is sufficient to both articulate the experience of individuals
receiving HCBS and to inform the actions to be taken when necessary to
improve that experience. Therefore, we are soliciting feedback on the
following:
What is the appropriate role for CMS versus the states in
ensuring quality of care for Medicaid beneficiaries receiving HCBS? How
could CMS and states best monitor quality and beneficiary safety? What
actions should CMS take when HCBS are not being delivered according to
federal requirements? What evidence would be required to determine when
CMS takes these actions?
Should there be an oversight structure with conditions of
participation in HCBS similar to that of institutions and home health
agencies, in which state surveyors report survey findings directly to
CMS?
What can CMS do to support standardized performance
measures for HCBS, including in Medicaid waivers and state plans?
What other quality measurement activities could CMS
undertake to strengthen the provision of HCBS across any Medicaid
authority? What data, reporting and system resources would be necessary
to support those activities?

[[Page 78768]]

What other quality measurement activities should CMS
require or do to support states and other stakeholders to strengthen
the provision of quality HCBS across any Medicaid authorities?

C. What program integrity safeguards should states have in place to
ensure beneficiary safety and reduce fraud, waste, and abuse in HCBS?

Program integrity expectations apply to providers of HCBS as they
do to all other Medicaid services and providers. Program integrity
results in Medicaid paying the right provider for furnishing the right
services to the right beneficiary at the right price. Without strong
program integrity safeguards, HCBS funds are at risk of being misspent,
beneficiaries in need of HCBS are at risk of receiving substandard
quality of care that may result in beneficiary harm, and
institutionalization may be used in situations where it would otherwise
be unnecessary.
Personal care services (PCS), are a critical component of HCBS, and
there is evidence of program integrity vulnerabilities in their
provision. The Office of Inspector General (OIG) recently issued an
Investigative Advisory \29\ that identifies PCS fraud issues
encountered during the course of OIG investigations that have resulted
in misspent funds (such as through timecard falsifications), and
examples of beneficiary abuse and services furnished by unqualified
providers. We have not required states to adopt a standardized set of
minimum qualifications for PCS attendants. Currently, some states
require PCS attendants to enroll in Medicaid as providers, including
undergoing a criminal background check, and assign each attendant a
unique provider number. However, many states do not have such
procedures in place, and we have not issued minimum Federal
qualifications for PCS attendants. OIG has strongly encouraged CMS to
undertake actions establishing minimum federal qualifications and
screening standards for PCS attendants, including background checks;
and require states to enroll or register all PCS attendants and assign
them unique numbers for purposes of tracking claims.
---------------------------------------------------------------------------

\29\ https://oig.hhs.gov/reports-and-publications/portfolio/ia-mpcs2016.pdf.
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Given the nature of these services, focusing on activities of daily
living (ADLs) such as eating, bathing, toileting, and transferring, and
instrumental activities of daily living (IADLs) such as money
management and meal preparation, community-based provider
qualifications have tended to be less formal than care more focused on
skilled nursing or licensed therapies. Many states have adopted
personal care provider qualifications such as minimum age requirements,
possession of a valid driver's license, and completion of training
required by the state and specific training required by the
beneficiary.
When evaluating how best to ensure the provision of quality person-
centered services by a sufficient pool of qualified providers, we are
weighing competing stakeholder viewpoints. As an example, standardized
worker training requirements may be supported by entities focused on
home care worker engagement and program integrity safeguards, but are
generally not supported by disability rights organizations and self-
advocates, who favor more flexible programs that base training
requirements on individual beneficiary circumstances. We believe that
ensuring both interests are included as part of the overall delivery of
HCBS is important to successful delivery of high quality HCBS to
Medicaid beneficiaries.
We are particularly interested in the operational feasibility for
states of these recommendations and the implications for beneficiary
choice and control. We also seek input into the feasibility and
implications in each of two different service delivery models: Agency-
directed PCS (including ``agency with choice'' models in which the
provider agency and the beneficiary are co-employers of the PCS
attendant) and self-directed PCS. HCBS have a long history of utilizing
consumer-directed/self-directed models of service delivery, a
facilitation of beneficiary choice and control that CMS supports. These
include models through which a range of services and supports are
planned, budgeted, and directly controlled by an individual (with the
help of representatives, if desired) based on the individual's needs
and preferences that maximize independence and the ability to live in
the setting of the individual's choice. Even in more traditional models
of HCBS delivery, in which agencies are utilized, there has been
movement over time to incorporate beneficiary expectations of
participating in training and determining the qualifications of workers
that are most relevant to individual needs and preferences.
The use of minimum qualifications and screening and enrollment
requirements may create administrative implications, increase costs and
impact beneficiary choice and control. On the other hand, a lack of
adequate program integrity safeguards could pose risk to both Medicaid
beneficiaries and successful stewardship of Federal and state funds.
The successful delivery of PCS to Medicaid beneficiaries must ensure
that both individual needs and preferences are met and that the program
has adequate safeguards in place. To better ensure the successful
delivery of PCS, we are soliciting feedback on the following:
What are the benefits and consequences of implementing
standard federal requirements for personal care workers in agency-
directed and/or self-directed models of care?
What would standardized qualifications look like in terms
of the following:
++ Educational requirements
++ Minimum age requirements
++ Screening requirements
Should standardization include the expectation that
certain circumstances require more than the standard, or different
standards?
What role could state-administered home care worker
registries play in facilitating access to HCBS? What issues should be
addressed in the creation of home care worker registries?
What issues should be considered in requiring criminal
background checks? In the states that are utilizing fingerprinting and
background checks already, what lessons can be learned from
implementation and experience with these approaches?
What role can home care worker organizations play in
providing training to support implementation of federal qualification
standards? What regulatory or policy provisions would either support,
or inadvertently disadvantage, home care worker organizations?
Should states be required to enroll or register all PCS
attendants and assign them unique numbers for purposes of tracking
claims?
What is the feasibility for state Medicaid programs of
including home care worker identity on claims submitted for Medicaid
reimbursement?
What other program integrity safeguards should be put in
place, either as an alternative to, or in addition to, the controls
recommended by OIG, for agency-directed PCS? For self-directed PCS?
Are the program integrity safeguards that are appropriate
for agency-directed personal care services also appropriate for self-
directed personal care services?
How can program integrity safeguards be developed and
implemented to support key HCBS programmatic objectives such as choice
and self-direction?

[[Page 78769]]

D. What specific steps could CMS take to strengthen the HCBS home care
workforce?

To determine the specific steps that we could take to strengthen
the HCBS home care workforce, we are soliciting feedback on the
implications of establishing requirements, standards or procedures to
ensure rates paid to providers are sufficient to attract enough
providers to meet service needs of beneficiaries and that wages
supported by those rates are sufficient to attract enough qualified
home care workers.
As indicated previously, and as described in the Informational
Bulletin dated August 3, 2016,\30\ there are several factors that can
impact the availability of a sufficient pool of home care workers
necessary to provide HCBS relied upon by beneficiaries to remain in the
community. Moreover, these access and availability challenges are
likely to increase as the population ages and more and more people seek
to remain in their homes and communities. Some stakeholders have
approached us to intervene and use our approval authority of rate
methodologies as a mechanism to strengthen the provider infrastructure
and ensure beneficiary access to services. This may include using the
rate approval process to address the competitiveness of worker wages,
encourage entry of new providers, support enhanced workforce training
and professional development, or improved administrative/IT
infrastructure of providers. With respect to wages, for example, some
stakeholders have suggested that CMS only approve state reimbursement
methodologies for provider rates that will result in sufficient wages
for employees to attract and retain a high quality workforce and that
relate to the broader labor market within the state to ensure that wage
rates are competitive with other industries that employ workers with
similar levels of education and experience. As noted previously,
historically, our review of ratesetting methodologies has not
encompassed this level of specificity. How agencies compensate
employees or contractors has been outside of the CMS review. We are
soliciting comment on whether we should play a larger role in ensuring
the sufficiency of rates at both provider agency and individual worker
levels, taking into account that the federal role is to ensure an
effective program, not to directly regulate business matters (that is,
states operate the Medicaid programs). Specifically, we are interested
in feedback on the following:
---------------------------------------------------------------------------

\30\ https://www.medicaid.gov/federal-policy-guidance/downloads/cib080316.pdf.
---------------------------------------------------------------------------

What if any actions could CMS take to better ensure
adequate beneficiary access to safe HCBS services provided by qualified
individuals, across both urban and rural locations and across disparate
populations?
What are positive and negative consequences of such
actions, including the implications under the Fair Labor Standards Act
and state wage and hour laws, if state ratesetting approaches result in
specified wages at an individual worker level?
Should CMS expand its ratesetting approval authority to
support provider infrastructure and the HCBS workforce?
What effect would an increase in payment rates
necessitated by a CMS rate review process that focuses on home care
worker wages have on funded slots or services, particularly given
budget limitations and cost neutrality requirements inherent in many
Medicaid authorities?
How could CMS determine whether an increase in home care
worker wages results in an increase in the quality of services provided
and an increase in the size of the workforce such that it will be more
likely to meet future industry needs?
What sources of information, including data from the DOL,
would be most useful to CMS in making sure that reimbursement rates
appropriately take into consideration wages and benefits for home care
workers? How would CMS best use these sources?
What role could state-administered home care worker
registries play in facilitating access to HCBS? What issues should be
addressed in the creation of home care worker registries?
What other actions could CMS consider to strengthen the
home care workforce such as assessing training needs, developing career
ladders, etc.?

IV. Collection of Information Requirements

This request for information constitutes a general solicitation of
public comments as discussed in the implementing regulations of the
Paperwork Reduction Act at 5 CFR 1320.3(h)(4). Therefore, this request
for information does not impose information collection requirements,
that is: Reporting, recordkeeping or third-party disclosure
requirements. Consequently, there is no need for review by the Office
of Management and Budget under the authority of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).

V. 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.

Dated: November 2, 2016.
Andrew M. Slavitt,
Acting Administrator, Centers for Medicare & Medicaid Services.

Appendix A

Quality Measurement

Performance measures are used across the healthcare delivery
system and across payers to improve outcomes, experience of care,
population health, and health care affordability through
improvement, with the goal of improving processes and outcomes. In
clinical and behavioral health care, measurement has been associated
with improvements in providers' use of evidence-based strategies and
health outcomes. However, there is no national quality measure set
for HCBS.
Quality measures are tools that help evaluate or quantify
healthcare processes, outcomes, individual perceptions/experiences,
and organizational structure and/or systems that are associated with
the ability to provide high-quality health care and/or that relate
to one or more quality goals for health care. These goals include:
Effective, safe, efficient, person-centered, equitable, and timely
care. CMS uses quality measures in its quality improvement, public
reporting, and pay-for-reporting programs for specific healthcare
providers.

Other Quality Initiatives

CMS is working on developing quality measures and
maintenance programs serving individuals who are enrolled in both
Medicare and Medicaid, as well as individuals only enrolled in
Medicaid who use HCBS as part of the work in the IAP. The objectives
of this project are to identify and prioritize measures and measure
concepts, develop and refine measure specifications for priority
measures, conduct field testing to evaluate measure importance,
feasibility, usability, and scientific validity and reliability,
submit validated, reliable measures to the National Quality Forum
(NQF) for endorsement, and assist CMS with an implementation
strategy. Eight measures in development apply to beneficiaries
enrolled in managed long-term services and supports programs, and
one measure, for community integration is specific to HCBS.
CMS has developed a standardized system for developing
and maintaining the quality measures used in its various
accountability initiatives and programs. Known as the Measures
Management System (MMS), measure developers (or contractors) should
follow this core set of business

[[Page 78770]]

processes and decision criteria when developing, implementing, and
maintaining quality measures. Best practices for these processes are
documented in the manual, Blueprint for the CMS Measures Management
System (the Blueprint).\31\ CMS uses the standardized processes
documented in the Blueprint to ensure that the resulting measures
form a coherent, transparent system for evaluating quality of care
delivered to its beneficiaries.
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\31\ Additional information on the Blueprint is available at:
https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/MMS/MMS-Blueprint.html.
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The National Quality Forum's (NQF) Measures Application
Partnership (MAP) is a multi-stakeholder public/private partnership
that guides HHS on the selection of performance measures for Federal
health programs. Its Dual Eligible Beneficiaries Workgroup has
identified opportunities for improvement in measurement areas
including quality of life, screening and assessment, structural
measures, mental health and substance use, and care coordination.
The MAP Workgroup noted significant gaps in the availability of
measures for HCBS, and in a final report to HHS identified potential
measures worthy of attention.\32\ To cite potential HCBS measures,
the MAP Workgroup reviewed ``Environmental Scan of Measures for
Medicaid Title XIX Home and Community-Based Services'' (2010),
``Raising Expectations: A State Scorecard on LTSS for Older Adults,
People with Disabilities, and Family Caregivers'' (2011), and the
National Balancing Indicator Project (2010).
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\32\ National Quality Forum. Measures Application Partnership.
Measuring Healthcare Quality for the Dual Eligible Beneficiary
Population. June 2012. Available at: http://www.qualityforum.org/News_And_Resources/Press_Releases/2012/Measure_Applications_Partnership_Submits_Recommendations_for_Dual_Eligible_Beneficiaries_to_HHS.aspx.
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HCBS are a focus of HHS's Multiple Chronic Conditions
Strategic Framework.\33\
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\33\ U.S. Department of Health and Human Services. Multiple
Chronic Conditions: A Strategic Framework. Available at: http://www.hhs.gov/ash/initiatives/mcc/mcc_framework.pdf.
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The National Alzheimer's Plan recommends the
development of dementia quality measures across care settings.\34\
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\34\ Department of Health and Human Services. National Plan to
Address Alzheimer's Disease: 2013 Update. Available at: http://aspe.hhs.gov/daltcp/napa/natlplan.pdf.
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Section 6086(b) of Deficit Reduction Act of 2005,
``Quality of Care Measures,'' directed HHS's Agency for Health Care
Research and Quality (AHRQ) to develop measures of program
performance, client functioning, and client satisfaction with HCBS
under Medicaid; assess the quality of Medicaid HCBS outcomes and
those of the overall system, and disseminate information on best
practices.\35\
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\35\ Agency for Health Care Quality. Project methodology
available at: http://www.ahrq.gov/professionals/systems/long-term-care/resources/hcbs/methods/index.html. Environmental scan at:
http://www.ahrq.gov/professionals/systems/long-term-care/resources/hcbs/hcbsreport/index.html and http://www.ahrq.gov/professionals/systems/long-term-care/resources/hcbs/hcbsreport/index.html.
Measures meeting a numeric threshold are at: http://www.ahrq.gov/professionals/systems/long-term-care/resources/hcbs/hcbsreport/hcbsapv1b.html, http://www.ahrq.gov/professionals/systems/long-term-care/resources/hcbs/hcbsreport/hcbsapv2b.html, and http://www.ahrq.gov/professionals/systems/long-term-care/resources/hcbs/hcbsreport/hcbsapv3ab.html#tabav3b. Details of individual measures
are available at: http://www.ahrq.gov/professionals/systems/long-term-care/resources/hcbs/hcbsreport/hcbsapiii.html.
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CMS sponsored development of a HCBS taxonomy \36\ to
provide a common language for describing and categorizing HCBS
across Medicaid programs.
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\36\ Peebles V, Bohl A. The HCBS Taxonomy: A New Language for
Classifying HCBS. August, 2013. Available at: https://www.cms.gov/mmrr/Briefs/B2014/MMRR2014_004_03_b01.html.
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CMS's Money Follows the Person demonstration program
developed a quality of life survey (QoL) for persons transitioning
from institutional to community settings which provided valuable
insight into the use of an experience of care survey. Through the
CMS Testing Experience and Functional Tools (TEFT) demonstration
grant, the HCBS Experience of Care Survey was tested and recently
received the CAHPS[supreg] trademark, and was recommended for
endorsement by NQF's Person and Family Centered Care Committee.
CMS's TEFT initiative is working on a HCBS Functional
Assessment Standardized Items (FASI), based on the HCBS CARE tool,
and development of standards for electronic and personal health
records, or ``eLTss Plan.'' \37\
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\37\ Centers for Medicare & Medicaid Services. Available at:
http://www.medicaid.gov/AffordableCareAct/Downloads/TEFT-FOA-7-13.pdf.
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The Improving Medicare Post-Acute Care Transformation
(IMPACT) Act requires reporting of quality measures in Skilled
Nursing Facilities, Home Health, and across other settings and
requires standardized assessment data, data on quality measures,
interoperability, and person-centered care.
The Medicare Access and CHIP Reauthorization Act
(MACRA) includes a quality assessment and improvement strategy for
Medicare managed care, and the Merit-Based Incentive Payment System
(MIPS) offers financial incentives for eligible professionals to
provide care that advances the goals of a healthier system.
The Affordable Care Act included a requirement for CMS
to establish voluntary care sets for adult and child quality
measures.
HHS's Administration for Community Living's National
Institute on Disability, Independent Living, and Rehabilitation
Research (NIDILRR) is presently implementing a Rehabilitation
Research and Training Center grant to develop, test, and gain NQF
approval for HCBS quality measures.
Under certain Medicaid statutory authorities states
must develop and integrate a continuous quality assurance,
monitoring, and improvement strategy for HCBS programs.\38\ CMS's
final rule on HCBS and related guidance, CMS 2249-F, provides
further insight regarding appropriate characteristics of HCBS
settings.\39\
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\38\ Centers for Medicare & Medicaid Services. Available at:
http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/Home-and-Community-Based-1915-c-Waivers.html.
\39\ Government Printing Office. Federal Register Vol. 79, No.
11. January 16, 2014. Available at: http://www.thefederalregister.org/fdsys/pkg/FR-2014-01-16/pdf/2014-00487.pdf.
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The Government Accountability Office has issued a
series of reviews of HCBS provided through the Medicaid program
since 1982, the year after HCBS were first added to Medicaid as an
optional benefit, and many address quality issues.\40\ The HHS
Office of the Inspector General has also made HCBS program integrity
a focus of its efforts, with particular attention to personal care
services.\41\
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\40\ Government Accountability Office. Available at: http://www.gao.gov/search?q=medicaid+home+and+community+based+services.
\41\ HHS Office of the Inspector General. National Home and
Community Based Services Conference. September, 2013. http://nasuad.org/documentation/HCBS_2013/Presentations/9.11%204.00-5.15%20Washington.pdf.
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There are synergies in HCBS quality in CMS's State
Innovation Models Initiative in the states that have received Model
Testing Awards,\42\ in the Agency's Community-Based Care Transitions
program, the Independence at Home model, and the Accountable Health
Communities model.\43\
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\42\ Centers for Medicare & Medicaid Services. Available at:
http://innovation.cms.gov/initiatives/State-Innovations-Model-Testing/index.html.
\43\ Centers for Medicare & Medicaid Services. Available at:
http://innovation.cms.gov/initiatives/CCTP/.
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Appendix B: Summary of Administration's President Budget Proposals To
Advance the Provision of HCBS

1. Pilot Comprehensive Long-Term Care State Plan Option

This 8-year pilot program would create a comprehensive long-term
care state plan option for up to 5 states. Participating states
would be authorized to provide equal access to home and community-
based care and nursing facility care. The Secretary would have the
discretion to make these pilots permanent at the end of the 8 years.
This proposal works to end the institutional bias in long-term care
and simplify state administration.

2. Expand Eligibility Under the Community First Choice Option

This proposal provides states with the option to offer
categorical Medicaid eligibility to individuals who would be
eligible under the state plan if they were in a nursing facility and
who meet the coverage requirements for, and will receive, 1915(k)
services (``Community First Choice'' services). Under the current
statutory framework, states have the option to extend full Medicaid
coverage to individuals who are generally not otherwise eligible for
Medicaid but who meet the coverage criteria for a 1915(c) waiver or
1915(i) benefit available under the state Medicaid program. A
similar option does not exist for the 1915(k) benefit. This proposal
provides an eligibility pathway into Medicaid for individuals
otherwise eligible for the 1915(k)

[[Page 78771]]

benefit and provides states with additional tools to manage their
long-term care home and community-based service delivery systems.

3. Expand Eligibility for the 1915(i) Home and Community-Based Services
State Plan Option

This proposal increases states' flexibility in expanding access
to home and community-based services under section 1915(i) of the
Social Security Act. Currently, an individual who meets the coverage
and targeting criteria for a 1915(i) benefit available under his or
her state's Medicaid program but whose income is above 150% of the
federal poverty level (FPL) may only qualify for Medicaid if the
individual also meets the coverage and targeting criteria for a
1915(c) waiver approved as part of the state's Medicaid program.
This proposal removes this limitation, which we anticipate will
reduce the administrative burden on states and increase access to
home and community-based services for the elderly and individuals
with disabilities.

4. Allow Full Medicaid Benefits for Individuals in a Home and
Community-Based Services State Plan Option

This proposal provides states with the option to offer a larger
package of Medicaid services to medically needy individuals who
access home and community-based services through the state plan
option under section 1915(i) of the Social Security Act. Currently,
individuals who qualify as medically needy based on the unique
financial deeming rules many states use in providing 1915(i)
coverage may only receive 1915(i) services, instead of the other
services available to medically needy individuals under the state's
plan. This option will provide states with more opportunities to
support the comprehensive health care needs of medically needy
individuals who are eligible for 1915(i) services.

5. Provide Home and Community-Based Waiver Services to Children
Eligible for Psychiatric Residential Treatment Facilities

This proposal provides states with additional tools to manage
children's mental health care service delivery systems by expanding
the non-institutional options available to these Medicaid
beneficiaries. By adding psychiatric residential treatment
facilities to the list of qualified inpatient facilities in 1915(c),
this proposal provides access to home and community-based waiver
services for children and youth in Medicaid who are currently
receiving services in these settings and/or meet this institutional
level of care. Without this change to provisions in the Social
Security Act, children and youth who meet this institutional level
of care do not have the choice to receive home and community-based
waiver services and can only receive Medicaid-covered services for
the type of care they need in an institutional setting where
residents are eligible for Medicaid. This proposal builds upon
findings from the 5 year Community Alternatives to Psychiatric
Residential Treatment Facilities Demonstration Grant Program
authorized in the Deficit Reduction Act of 2005 that showed improved
overall outcomes in mental health and social support for
participants with average cost savings of $36,500 to $40,000 per
year per participant.

[FR Doc. 2016-27040 Filed 11-4-16; 4:15 pm]
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Federal Register / Vol. 81, No. 217 / Wednesday, November 9, 2016 / Proposed Rules 78763

B. Present Status of HCBS referred to as the HCBS final rule) We are also actively engaged in efforts
The shift in funding to HCBS represented the culmination of over 5 to improve the quality of care provided
accounting for a majority of LTSS years’ worth of stakeholder input and to individuals receiving HCBS. In
spending represents an important addressed the key challenges associated addition to the ongoing monitoring of
achievement, with a doubling of the with the provision of HCBS. While quality requirements embedded in the
percentage of LTSS provided in the statutory authority for coverage of HCBS various HCBS authorities and programs
community since 2000. However this required services to be provided in a and the quality work being done
statistic masks significant differences in ‘‘home and community-based setting’’, through IAP, we have developed an
spending by population. HCBS there was no definition of what that experience of care survey, developed
spending for individuals with phrase meant. This lack of a definition under the Testing Experience and
intellectual and/or developmental resulted in HCBS Medicaid funding for Functional Tools (TEFT) grant, which
disabilities represented approximately services in some settings that bore has been awarded the Consumer
three-quarters of Medicaid LTSS similarities to institutions (for instance, Assessment of Healthcare Providers and
spending in 2014. This far surpasses the in terms of regimented schedules or Systems (CAHPS) trademark. The
HCBS spending percentage for older isolation from the larger community or CAHPS HCBS Survey is now
adults, individuals with physical both). The regulations sought to change available 14 to states to elicit feedback on
disabilities, and individuals with that by outlining the criteria for beneficiaries’ experience with the
serious mental illness/serious emotional residential and non-residential home services they receive in Medicaid HCBS
disturbances, which is only 41percent of and community-based settings. programs. Results will be used to assess
total LTSS spending.13 Thus, there is The principle of community and further improve program quality.
still work to be done by all levels of integration, and the requirement that Our quality efforts are guided by the
government and stakeholders to ensure coverage of HCBS be based on person- CMS Quality Strategy,15 which seeks to
that all Medicaid beneficiaries who centered service plans that outline how provide better care, achieve healthier
wish to remain in their homes and individuals wish to exercise choices, are people and communities, and ensure
communities have the services, at the heart of the home and smarter spending for care. The CMS
workforce and supports to enable them community-based settings criteria. Quality Strategy was built on the
to do so. Given the scope of the changes foundation of the CMS Strategy 16 and
Additional information on LTSS, mandated by the rule, we provided the HHS National Quality Strategy
including program information and states with a transition period (through (NQS),17which was established as part
expenditure reports, is available at March 2019) to bring existing programs of the Affordable Care Act to serve as a
www.medicaid.gov/medicaid-chip- into compliance with the HCBS setting catalyst and compass for a nationwide
program-information/by-topics/long- requirements. During this transition focus on quality improvement efforts
term-services-and-supports/long-term- period, states are working with and approach to measuring quality,
services-and-supports.html. A providers, managed care entities, including in HCBS.
comprehensive state-by-state analysis of advocacy organizations, beneficiaries We believe that these strategies and
utilization patterns and cost for and family members, and other efforts underway across CMS to achieve
community versus institutional long- stakeholders to complete assessments of strategy goals will drive change as
term care is available at http:// existing HCBS provision and to called for by the Commission on Long-
www.longtermscorecard.org. This latter determine how to implement needed Term Care and highlighted in the recent
analysis by several collaborating revisions to ensure adherence with National Quality Forum (NQF) report
organizations uses data from CMS as regulatory requirements. released in September 2016, entitled
well as many other sources to quantify Quality in Home and Community-Based
In July 2014, we also established the
the unique long-term care service Services to Support Community Living:
Medicaid Innovation Accelerator
patterns in each state. Addressing Gaps in Performance
Program (IAP) which seeks to improve
In recognition of the shift to Measurement.18 The NQF report was
the care and health for Medicaid
community-based care and based on the developed by a multi-stakeholder
beneficiaries and reduce costs by
experience and understanding of the committee to recommend and prioritize
supporting states’ ongoing payment and
challenges in overseeing such programs, opportunities to address gaps in HCBS
delivery system reforms through
in the January 16, 2014 Federal Register quality measurement. The report
targeted technical support. Promoting
(79 FR 2947), we issued final represents 2 years of work by NQF, the
Community Integration through Long-
regulations for the 1915(c) HCBS waiver Committee, and an HHS Federal team,
term Services and Supports is one of
authority, as well as the 1915(i) HCBS and contains its final set of
four program areas of focus for IAP. It
and the 1915(k) Community First recommendations for how to advance
is supporting a number of states with
Choice state plan authorities, to ensure quality measurement in HCBS through
planning and implementing strategies
that services provided under these the development, testing, and
for incentivizing quality and outcomes
HCBS regulatory authorities are truly in HCBS and with developing Medicaid 14 https://www.medicaid.gov/medicaid/quality-of-
home and community-based. The State and housing-related services and care/performance-measurement/cahps-hcbs-survey/
Plan Home and Community-Based partnerships. As part of this work, state index.html.
Services, 5-Year Period for Waivers, etc. Medicaid agencies and Federal and state 15 https://www.cms.gov/Medicare/Quality-
final rule (79 FR 2947) (hereinafter housing partners are building on the Initiatives-Patient-Assessment-Instruments/Quality
jstallworth on DSK7TPTVN1PROD with PROPOSALS

InitiativesGenInfo/CMS-Quality-Strategy.html.
collaborative work of the CMS and the 16 https://www.cms.gov/about-cms/agency-
initiatives are time-limited, and require
Congressional action to continue their U.S. Department of Housing and Urban information/cms-strategy/.
authorization. Specifically, Federal funding under Development (HUD) as part of the 17 http://www.ahrq.gov/workingforquality/.

the Balancing Incentive Program ended September Obama Administration’s Year of 18 PNQF Project Page—http://
30, 2015, and MFP expired on September 30, 2016 Community Living Initiative www.qualityforum.org/Publications/2016/09/
(unused portions of state grant awards made in Quality_in_Home_and_Community-Based_
2016 are available to the state until 2020). (established in June 2009 to mark the Services_to_Support_Community_
13 https://www.medicaid.gov/medicaid/ltss/ 10th anniversary of the Olmstead Living__Addressing_Gaps_in_Performance_
downloads/ltss-expenditures-2014.pdf. decision). Measurement.aspx.

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medical needs are met and that Some states anticipate challenges in main input into these services and
individuals have the quality of life and being able to secure funding to supports. This workforce has been
level of independence they desire, and accommodate overtime payments demonstrating signs of workforce
standards to evaluate the adequacy of incurred in the delivery of HCBS by instability, including high turnover and
network and availability of services for providers in response to the two DOL vacancy rates for some time. As demand
all MLTSS programs. regulations, and are taking actions such for HCBS assistance grows, so too will
• Recent CMS and other federal as implementing caps on the number of the need for an engaged and dedicated
agency policy changes are shaping hours worked by home care workers to workforce.26 According to the Bureau of
program implementation. The HCBS, avoid incurring overtime expenses. Labor Statistics,27 personal care aides
Access to Medicaid Covered Services, These caps can necessitate beneficiaries and home health aides are the
and Medicaid Managed Care rules who require a significant number of occupations with the first and third
established new policies for states and hours of service needing to find largest projected job growth from 2014
managed care organizations that will additional workers. Many stakeholders, through 2024 (BLS projects demand for
have significant impact on states and such as labor organizations and an additional 806,500 jobs in these
HCBS providers. For example, the beneficiary advocates have expressed occupations). Further, employers with
settings provisions in the 2014 HCBS concerns that hard caps and low wages job openings in these occupations will
final rule require states to develop and are likely to hamper recruitment and be competing for workers with
submit statewide transition plans retention efforts to secure a consistent employers who have job openings in
detailing how the state will operate its workforce. other occupations that have similar
HCBS waivers or state plan benefits and We issued guidance 23 on the education and training requirements,
including all elements approved by the availability of Medicaid reimbursement e.g., cashiers and retail salespersons.
Secretary. Guidance as to the elements for costs associated with complying BLS projects demand for an additional
required in the transition plan,22 with these two DOL rules. As of the 1.2 million jobs from 2014 through 2024
indicates that among these elements are drafting of this RFI, only a handful of in these sectors. To attract engaged and
in-depth assessments and development states have submitted filings to CMS to dedicated workers to fill home care jobs
of resulting remediation plans to ensure embed overtime costs in the rate will require wages that are competitive
compliance with the regulation’s methodology of applicable services. In with what potential home care workers
community integration requirements by late 2014, the Department of Justice would receive in these and other
the end of the transition period. (DOJ) and the HHS OCR issued joint alternative occupations.
Recently, the Department of Labor guidance 24 stressing that to remain CMS created the National Direct
(DOL) issued two rules, one that took compliant with Olmstead, ‘‘states need Service Workforce (DSW) Resource
effect in October 2015 extending to consider reasonable modifications to Center in 2005 to respond to the
minimum wage and overtime policies capping overtime and travel shortage of workers who provide direct
protections to most home care workers, time for home care workers, including care and personal assistance to
and the other taking effect in December exceptions to these caps when individuals who need LTSS. These
2016, which updated the salary individuals with disabilities otherwise workers include direct support
threshold below which white collar would be placed at serious risk of professionals, personal care attendants,
salaried workers, including managers, institutionalization.’’ We remain personal assistance providers, home
are entitled to overtime pay when they available to provide technical assistance care aides, home health aides, and
work more than 40 hours in a week. on this issue. others (described collectively in the
Both of these rules are implementing • Workforce stability is impacted by remainder of this document as the home
necessary reforms, and both will require many of the considerations discussed care workforce). The DSW Resource
time, effort, and financial resources to previously, and is a key factor in Center created a number of important
ensure compliance. sustaining the growth of HCBS. States resources designed to assist states in
From the beginning, the DOL has are grappling with providing a sufficient developing home care workforce
emphasized the importance of homecare workforce to meet the capacity, as well as to improve
implementation in a manner that growing demand for LTSS. This is a recruitment and retention efforts
protects both workers and consumers. particular challenge in states working to associated with the home care
States have a number of options for shift their long-term care service workforce. These resources included an
coming into compliance with these delivery systems toward HCBS and inventory and analysis of the various
regulations. For example, in response to away from institutional care.25 LTSS are core competency sets used across and
the Home Care final rule (78 FR 60453), by their nature extremely labor within LTSS sectors.
some states are planning to increase intensive and direct service workers—a While the DSW Resource Center
funding for home care programs such paid workforce of about 3 million concluded in December 2014, important
that workers receive overtime nationwide in 2009—constitute the resources funded through this initiative
compensation for hours worked over 40 are available at http://
23 https://www.medicaid.gov/federal-policy-
in a work week. Others are planning to www.medicaid.gov/Medicaid-CHIP-
guidance/downloads/CIB-01-08-16.pdf.
limit overtime work but create 24 Vanita Gupta and Jocelyn Samuels, Joint Dear Program-Information/By-Topics/Long-
exceptions processes so that certain Colleague Letter on Companionship Rule Term-Services-and-Supports/Workforce/
consumers are permitted to receive care Implementation, US Department of Justice, Civil Workforce-Initiative.html. Included in
jstallworth on DSK7TPTVN1PROD with PROPOSALS

from a single home care worker in Rights Division and U.S. Department of Health and these resources is a toolkit that was
Human Services, Office for Civil Rights, December
excess of the general cap on worker 2014 http://acl.gov/NewsRoom/NewsInfo/docs/
hours. 2014-FLSA-Dear-Colleague-ltr.pdf. 26 Edelstein, Steven, and Dorie Seavey, February

Actions taken by states to implement 25 Edelstein, Steven, and Dorie Seavey, February 2009. ‘‘The Need for Monitoring the Long-TermCare
2009. ‘‘The Need for Monitoring the Long-TermCare Direct Service Workforce and Recommendations for
these regulations have real implications Data Collection’’. Retrieved from: https://
Direct Service Workforce and Recommendations for
for beneficiaries and service providers. Data Collection’’. Retrieved from: https:// www.medicaid.gov/medicaid-chip-program-
www.medicaid.gov/medicaid-chip-program- information/by-topics/long-term-services-and-
22 https://www.medicaid.gov/medicaid/ltss/ information/by-topics/long-term-services-and- supports/workforce/workforce-initiative.html.
downloads/statewide-transition-plan-toolkit.pdf. supports/workforce/workforce-initiative.html. 27 http://www.bls.gov/ooh/most-new-jobs.htm.

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78766 Federal Register / Vol. 81, No. 217 / Wednesday, November 9, 2016 / Proposed Rules

developed in 2013 to discuss strategies CMS governance. DOJ implements and reimbursement methodologies to
to address workforce challenges, which enforces certain provisions of the ADA. determine compliance with regulatory
contains a chapter dedicated to the Its enforcement activities can include requirements and with the statutory
unique characteristics of self-directed filing litigation against public entities requirement found in section
programs that are prevalent in the not abiding by responsibilities under the 1902(a)(30)(A) that payments be
provision of HCBS. Self-directed ADA, including the statute’s integration ‘‘consistent with efficiency, economy,
programs place decision-making mandate, as interpreted by Olmstead. and quality of care and sufficient to
authority in the hands of the beneficiary HHS OCR enforces non-discrimination enlist enough providers so that care and
or their representative, and can vary laws that apply to health care or human services are available under the plan at
according to structure and scope. Across services providers, including Title II of least to the extent that such care and
the various Medicaid authorities, almost the ADA, section 504 of the services are available to the general
every state offers beneficiaries the Rehabilitation Act of 1973, and section population in the geographic area.’’
option to receive HCBS through some 1557 of the Affordable Care Act, and Based on provisions of the 2015 Access
type of self-directed model. laws related to health information to Medicaid Covered Services final
Understanding the parameters of self- privacy. Together, the three agencies regulation, this review now includes a
directed programs operating in a state, form a strong partnership in ensuring review of the state’s determination that
such as the ability to hire family the provision of quality healthcare, but any proposed payment reductions for
members and friends and the ability to each has a separate scope of influence. state plan services, including HCBS
set wages for home care workers, is key • Provision of Institutional Services— provided through the state plan, will
to understanding implications these The statute (Title XIX of the Act) still result in sufficient beneficiary
models have on the ability to maintain requires the provision of medically access to providers. Our review also
an engaged and dedicated homecare necessary services in institutions such includes the state’s analysis of any
workforce of sufficient size. As as hospitals and nursing facilities for concerns expressed over the proposed
discussed later in this RFI, enhancing most eligible beneficiaries. At state reduction from affected stakeholders.
the stability of this workforce also option, intermediate care facilities for However, we have not interpreted the
involves ensuring that reimbursement individuals with intellectual disabilities statute and regulations to support an
rates support wages that are sufficient to (ICFs/IID) may be covered. However, analysis of payment methodologies
attract enough qualified workers. mandatory provision of some down to the level of wages paid to
institutional services and optional individual home care workers. For
D. The Role of Medicaid in Helping provision of most HCBS does not example, while we review how a state
States Comply With ADA and Olmstead facilitate states’ efforts to provide proposes to reimburse a provider agency
Requirements Medicaid services in a manner more for the provision of personal care
On May 20, 2010, we issued a State consistent with ADA or Olmstead as the services, this review does not extend to
Medicaid Director (SMD) letter to statute results in states having to devote analyzing how the provider agency
provide information on new tools to budget resources to institutional options compensates home care workers and
support community integration, as well and having less flexibility to reallocate whether that rate is sufficient to cover
as to remind states of existing tools resources to home and community- wage costs. It also does not include a
articulated in past ‘‘Olmstead’’ letters based alternatives. While many states review of whether compensation of
that remain strong resources in states’ are working hard to operate their home care workers is sufficient to attract
efforts to support community living as Medicaid programs in ways that further needed workers, a key component of
a choice for Medicaid HCBS community integration, further progress which would be a review of how home
beneficiaries. With the issuance of this is needed. For example, states have care worker wages compare to the wages
2010 letter, we reaffirmed our made less progress in reducing use of paid to workers in occupations that
commitment to the policies identified in Medicaid-funded long-term stays in compete for workers with similar levels
previous Olmstead guidance. We also nursing facilities. of education and training.
expressed an interest in working with • CMS review of state reimbursement
states to continue building upon earlier methodology—Some stakeholders have III. Provisions of the Request for
innovations and encouraged states to encouraged CMS to ensure that Information
identify new strategies to improve sufficient wages are available for home To assist us in determining how to
community living opportunities. care workers to avoid shortages. We advance access to HCBS for
However, while Medicaid provides a have also been encouraged by beneficiaries in both FFS and managed
powerful tool to states in fulfilling ADA stakeholders to view state ratesetting care and how to enhance the quality and
and Olmstead responsibilities, the methodologies through an Olmstead integrity of HCBS provision under
program cannot serve as a state’s sole lens, under which HCBS rates would existing authorities, we are soliciting
compliance strategy. The following are need to be sufficient to avoid public input on the following general
several reasons why this is the case: unnecessary institutionalization. Their topics:
• Separate roles for CMS, DOJ, OCR— specific suggestions have included
CMS collaborates regularly with federal approving only methodologies that A. What are the additional reforms that
partners including the HHS OCR and guarantee home care workers a salary CMS can take to accelerate the progress
DOJ. The three agencies discuss that is above the prevailing minimum of access to HCBS and achieve an
developments occurring in states to wage for their locality, that is higher appropriate balance of HCBS and
jstallworth on DSK7TPTVN1PROD with PROPOSALS

ensure awareness and to determine if than wages paid to similarly-qualified institutional services in the Medicaid
there are cross-agency implications, but workers in nursing facilities, and that LTSS system to meet the needs and
each agency has different areas of takes into account wages paid in preferences of beneficiaries?
oversight responsibility. CMS occupations that compete for workers Although HCBS expenditures account
implements Title XIX of the Act, with similar levels of education, for a majority of total spending for LTSS
working daily in partnership with states training, and experience. in Medicaid, we are interested in
to operate the Medicaid program under Historically, we have reviewed states’ making additional progress in
the parameters of Title XIX that dictate proposed waiver and state plan rebalancing the Medicaid long-term care

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78768 Federal Register / Vol. 81, No. 217 / Wednesday, November 9, 2016 / Proposed Rules

• What other quality measurement formal than care more focused on successful stewardship of Federal and
activities should CMS require or do to skilled nursing or licensed therapies. state funds. The successful delivery of
support states and other stakeholders to Many states have adopted personal care PCS to Medicaid beneficiaries must
strengthen the provision of quality provider qualifications such as ensure that both individual needs and
HCBS across any Medicaid authorities? minimum age requirements, possession preferences are met and that the
of a valid driver’s license, and program has adequate safeguards in
C. What program integrity safeguards
completion of training required by the place. To better ensure the successful
should states have in place to ensure
state and specific training required by delivery of PCS, we are soliciting
beneficiary safety and reduce fraud,
the beneficiary. feedback on the following:
waste, and abuse in HCBS? When evaluating how best to ensure • What are the benefits and
Program integrity expectations apply the provision of quality person-centered consequences of implementing standard
to providers of HCBS as they do to all services by a sufficient pool of qualified federal requirements for personal care
other Medicaid services and providers. providers, we are weighing competing workers in agency-directed and/or self-
Program integrity results in Medicaid stakeholder viewpoints. As an example, directed models of care?
paying the right provider for furnishing standardized worker training • What would standardized
the right services to the right beneficiary requirements may be supported by qualifications look like in terms of the
at the right price. Without strong entities focused on home care worker following:
program integrity safeguards, HCBS engagement and program integrity
funds are at risk of being misspent, ++ Educational requirements
safeguards, but are generally not
beneficiaries in need of HCBS are at risk supported by disability rights ++ Minimum age requirements
of receiving substandard quality of care organizations and self-advocates, who ++ Screening requirements
that may result in beneficiary harm, and favor more flexible programs that base • Should standardization include the
institutionalization may be used in training requirements on individual expectation that certain circumstances
situations where it would otherwise be beneficiary circumstances. We believe require more than the standard, or
unnecessary. that ensuring both interests are included different standards?
Personal care services (PCS), are a as part of the overall delivery of HCBS • What role could state-administered
critical component of HCBS, and there is important to successful delivery of home care worker registries play in
is evidence of program integrity high quality HCBS to Medicaid facilitating access to HCBS? What issues
vulnerabilities in their provision. The beneficiaries. should be addressed in the creation of
Office of Inspector General (OIG) We are particularly interested in the home care worker registries?
recently issued an Investigative operational feasibility for states of these • What issues should be considered
Advisory 29 that identifies PCS fraud recommendations and the implications in requiring criminal background
issues encountered during the course of for beneficiary choice and control. We checks? In the states that are utilizing
OIG investigations that have resulted in also seek input into the feasibility and fingerprinting and background checks
misspent funds (such as through implications in each of two different already, what lessons can be learned
timecard falsifications), and examples of service delivery models: Agency- from implementation and experience
beneficiary abuse and services furnished directed PCS (including ‘‘agency with with these approaches?
by unqualified providers. We have not choice’’ models in which the provider • What role can home care worker
required states to adopt a standardized agency and the beneficiary are co- organizations play in providing training
set of minimum qualifications for PCS employers of the PCS attendant) and to support implementation of federal
attendants. Currently, some states self-directed PCS. HCBS have a long qualification standards? What regulatory
require PCS attendants to enroll in history of utilizing consumer-directed/ or policy provisions would either
Medicaid as providers, including self-directed models of service delivery, support, or inadvertently disadvantage,
undergoing a criminal background a facilitation of beneficiary choice and home care worker organizations?
check, and assign each attendant a control that CMS supports. These
• Should states be required to enroll
unique provider number. However, include models through which a range
or register all PCS attendants and assign
many states do not have such of services and supports are planned,
them unique numbers for purposes of
procedures in place, and we have not budgeted, and directly controlled by an
tracking claims?
issued minimum Federal qualifications individual (with the help of
representatives, if desired) based on the • What is the feasibility for state
for PCS attendants. OIG has strongly Medicaid programs of including home
encouraged CMS to undertake actions individual’s needs and preferences that
maximize independence and the ability care worker identity on claims
establishing minimum federal submitted for Medicaid reimbursement?
qualifications and screening standards to live in the setting of the individual’s
choice. Even in more traditional models • What other program integrity
for PCS attendants, including
of HCBS delivery, in which agencies are safeguards should be put in place, either
background checks; and require states to
utilized, there has been movement over as an alternative to, or in addition to,
enroll or register all PCS attendants and
time to incorporate beneficiary the controls recommended by OIG, for
assign them unique numbers for
expectations of participating in training agency-directed PCS? For self-directed
purposes of tracking claims.
Given the nature of these services, and determining the qualifications of PCS?
focusing on activities of daily living workers that are most relevant to • Are the program integrity
individual needs and preferences. safeguards that are appropriate for
jstallworth on DSK7TPTVN1PROD with PROPOSALS

(ADLs) such as eating, bathing, toileting,
and transferring, and instrumental The use of minimum qualifications agency-directed personal care services
activities of daily living (IADLs) such as and screening and enrollment also appropriate for self-directed
money management and meal requirements may create administrative personal care services?
preparation, community-based provider implications, increase costs and impact • How can program integrity
qualifications have tended to be less beneficiary choice and control. On the safeguards be developed and
other hand, a lack of adequate program implemented to support key HCBS
29 https://oig.hhs.gov/reports-and-publications/ integrity safeguards could pose risk to programmatic objectives such as choice
portfolio/ia-mpcs2016.pdf. both Medicaid beneficiaries and and self-direction?

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$Federal Register / Vol. 81, No. 217 / Wednesday, November 9, 2016 / Proposed Rules 78771 benefit and provides states with additional 4. Allow Full Medicaid Benefits for available to these Medicaid beneficiaries. By tools to manage their long-term care home Individuals in a Home and Community- adding psychiatric residential treatment and community-based service delivery Based Services State Plan Option facilities to the list of qualified inpatient systems. This proposal provides states with the facilities in 1915(c), this proposal provides option to offer a larger package of Medicaid access to home and community-based waiver 3. Expand Eligibility for the 1915(i) Home services to medically needy individuals who services for children and youth in Medicaid and Community-Based Services State Plan access home and community-based services who are currently receiving services in these Option through the state plan option under section settings and/or meet this institutional level of This proposal increases states’ flexibility in 1915(i) of the Social Security Act. Currently, care. Without this change to provisions in the expanding access to home and community- individuals who qualify as medically needy Social Security Act, children and youth who based services under section 1915(i) of the based on the unique financial deeming rules meet this institutional level of care do not many states use in providing 1915(i) coverage have the choice to receive home and Social Security Act. Currently, an individual may only receive 1915(i) services, instead of community-based waiver services and can who meets the coverage and targeting criteria the other services available to medically only receive Medicaid-covered services for for a 1915(i) benefit available under his or needy individuals under the state’s plan. the type of care they need in an institutional her state’s Medicaid program but whose This option will provide states with more setting where residents are eligible for income is above 150% of the federal poverty opportunities to support the comprehensive Medicaid. This proposal builds upon level (FPL) may only qualify for Medicaid if health care needs of medically needy findings from the 5 year Community the individual also meets the coverage and individuals who are eligible for 1915(i) Alternatives to Psychiatric Residential targeting criteria for a 1915(c) waiver services. Treatment Facilities Demonstration Grant approved as part of the state’s Medicaid 5. Provide Home and Community-Based Program authorized in the Deficit Reduction program. This proposal removes this Waiver Services to Children Eligible for Act of 2005 that showed improved overall limitation, which we anticipate will reduce Psychiatric Residential Treatment Facilities outcomes in mental health and social support the administrative burden on states and for participants with average cost savings of This proposal provides states with $36,500 to $40,000 per year per participant. increase access to home and community- additional tools to manage children’s mental based services for the elderly and individuals health care service delivery systems by [FR Doc. 2016–27040 Filed 11–4–16; 4:15 pm] with disabilities. expanding the non-institutional options BILLING CODE 4120–01–P jstallworth on DSK7TPTVN1PROD with PROPOSALS VerDate Sep<11>2014 14:36 Nov 08, 2016 Jkt 241001 PO 00000 Frm 00040 Fmt 4702 Sfmt 9990 E:\FR\FM\09NOP1.SGM 09NOP1$

Document Created: 2016-11-09 01:39:33
Document Modified: 2016-11-09 01:39:33

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Request for information.
Dates		To be assured consideration, comments must be received at one of
Contact		Melissa Harris, (410) 786-3397.
FR Citation		81 FR 78760
RIN Number		0938-ZB33

81 FR 78760 - Medicaid Program; Request for Information (RFI): Federal Government Interventions To Ensure the Provision of Timely and Quality Home and Community Based Services

DEPARTMENT OF HEALTH AND HUMAN SERVICESCenters for Medicare & Medicaid Services

Federal Register Volume 81, Issue 217 (November 9, 2016)

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services