Expanded Home and Community Based Care Under PPACA

Medicaid has covered nursing home services for decades. States have to offer them, at least to the poorest individuals who are elderly or have disabilities. However, nursing home care is rarely a first choice as most people want to remain at home as long as possible.

The Patient Protection and Affordable Care Act (PPACA) (P.L.111-148) gave states several options to expand access to services that help people stay at home or in the community:

  • expanded the existing “Money Follows the Person” demonstration;
  • set up financial incentives for states to “rebalance” their spending on long-term care, shifting it from nursing facilities to home and community based services (HCBS);
  • added the Community First Choice (CFC) optional benefit, helping beneficiaries who need the level of care available in an institution to stay at home or in a more integrated setting, instead;
  • expanded the optional “state plan HCBS” established by the Deficit Reduction Act of 2005 to allow individuals to get needed help even though they don’t yet need the institutional level of care; and
  • For five years, beginning in 2014, states will be required to apply the same “spousal impoverishment” rules to couples when one of them needs HCBS as they would if the spouse were entering a nursing facility.

CMS recently released a final rule governing the CFC benefit; this rule implements  Soc. Sec. Act Sec. 1915(k) and becomes effective 60 days from its May 7 publication in the Federal Register. And a proposed rule was just published in the Federal Register to set standards for the expanded “state plan HCBS” under section 1915(i). A similar personal assistance benefit appears insection1915(j).

All three of these benefits cover personal assistance with activities of daily living (ADL) and instrumental ADLs and include at least a possibility of self-direction, allowing the beneficiary to select and dismiss the caregiver and decide how the assistance is to be performed. Each requires an assessment of the beneficiary’s need for assistance, which serves as the basis for a plan of service. But because the legislation creating each benefit was enacted piecemeal, the distinctions among them seem inconsistent.

The state plan HCBS benefit under section 1915(i), which is the subject of the proposed rule, may be made available to individuals who need assistance with ADLs but do not require the level of care provided in a nursing facility, hospital, intermediate care facility for individuals with developmental disabilities (ICF/DD) or inpatient psychiatric facility. The state may, but is not required to,  allow self-direction.

The state plan HCBS may be targeted to a particular population; for example, the state may choose to provide HCBS to patients with traumatic brain injury but not to patients with AIDS. The number of beneficiaries may not be capped, but the state projects the anticipated number of individuals who will receive the benefit. If that number is exceeded, the state may adjust its needs-based criteria so that new beneficiaries must have a higher level of need. Individuals who enrolled under the earlier, less restrictive criteria remain eligible as long as they continue to satisfy them. The state need not submit an amendment to its Medicaid plan to make this adjustment. If the state must adjust its standards to require a greater level of need for this form of HCBS, it may be necessary to raise the standard for institutional care as well.

On the other hand, the final rule for the CFC benefit does not permit “targeting”. If the state amends its plan to offer this optional benefit, anyone who is financially and categorically eligible and who needs the level of assistance provided in an institution must be granted HCBS regardless of age, diagnosis, type of disability or location in the state. Self-direction is an essential part of CFC. Beneficiaries may be given a budget for personal assistance and choose how they will spend it, although the agency may use vouchers once the budget is established. Financial management assistance must be available to patients using the self-direction and service budget model.

So, the benefit for those who need the most assistance must include self-direction, but the benefit for people who need less does not?

CMS did not finalize a standard for the settings where a patient may receive HCBS. Instead, its latest effort was included in the proposed rule for state plan HCBS. The problem is where to draw the line between an institution and a home based in the community? An ICF/DD is not a home, but what about an assisted living facility or a residence operated by providers? What about a temporary residence for individuals who have been homeless?

Under the proposed rule, to qualify as  home and community-based,  the home must be a designated physical space that the individual may rent or own, with legal protection from eviction. Residents must have full access to community services and activities. If the residence is provider-owned or a controlled residential setting, residents must be free to:

  • enter or leave the facility at any time;
  • live alone or share a living space with someone they choose;
  • lock their doors;
  • decorate their living space as they choose;
  • have visitors whenever they choose;
  • decide when and what to eat, with access to food at any time; and
  • choose their activities and the people they interact with each day.

Part of the problem is that states must provide nursing facility services but not HCBS, particularly personal assistance with ADLs. Perhaps we need to have one mandatory benefit to provide assistance with ADLs according to level of need without tying eligibility to a need for institutional care.