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)

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, 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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[[Page 78763]]

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.
---------------------------------------------------------------------------

    \22\ https://www.medicaid.gov/medicaid/ltss/downloads/statewide-transition-plan-toolkit.pdf.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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]
BILLING CODE 4120-01-P