The DHS’s New Deal:
Major Revisions to Home and Community Based Services
by Anthony Marone, Esq.
McAndrews Law Offices, P.C.
The Pennsylvania Department of Human Services (DHS) is in the process of instituting a major overhaul of its home and community based services (HCBS) Medicaid Waiver program. Regulations are being rewritten, responsibilities are being reassigned, new groups are being offered services and the definition of where services and supports can be offered is being sharpened. The impetus for the DHS’s actions is a fundamental rethinking of how services and supports are provided to persons with disabilities and elderly persons by the Federal government. It began with the “Final Rule” of the Centers for Medicare and Medicaid Services (CMS) in 2014 which was intended to integrate programs into community settings.
CMS’s Final Rule.
On January 10, 2014, the Centers for Medicare and Medicaid Services (CMS) announced the publication of its “Final Rule” about HCBS provided through Medicaid’s 1915(c) HCBS Waiver program. Section 1915(c) of the Social Security Act authorizes the Secretary of Health and Human Services to use her authority to waive certain requirements in Medicaid law in order for states to provide HCBS services to meet the needs of individuals who choose to receive their long-term care services and supports in their home or community, rather than in institutional settings. CMS’s stated purpose in enacting the Final Rule is to ensure that individuals receiving services and supports through Medicaid’s HCBS programs have full access to the benefits of community living and are able to receive services in the most community integrated setting.
State compliance with the Final Rule will greatly alter the way long-term care services and supports are administered and delivered through the HCBS waivers. For persons who are elderly or disabled, the most significant changes as States rewrite the rule-book to comply with the Final Rule will be:
- States have the option to combine coverage for multiple target populations into one waiver;
- The Final Rule defines and describes the requirements for HCBS appropriate settings; and,
- The Final Rule defines person-centered planning requirements for HCBS authorities.
CMS’s Final Rule received extensive public comment and took five years to complete. Notably, the 2014 Final Rule was the first time CMS issued a Final Rule in 20 years. For more information about the Final Rule, please refer to https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Supports/Home-and-Community-Based-Services/Home-and-Community-Based-Services.html.
Pennsylvania’s HCBS Statewide Transition Plan.
A statewide transition plan is a roadmap of how a State will comply with the Final Rule. Pennsylvania submitted its statewide transition plan to CMS on April 1, 2015 following several months of public comment. After feedback from CMS, Pennsylvania is in the process of revising its transition plan and will resubmit the plan in March, 2016. While the exact route Pennsylvania will take to Final Rule compliance is not yet written, it is clear that Pennsylvania intends to and will drastically alter its HCBS Waiver program. Pennsylvania’s statewide transition plan can be found at
- The Individual Waiver Transition Plans.
Pennsylvania’s current HCBS Waiver organization provides valuable services, albeit through a morass of bureaucracy. Pennsylvania currently has nine 1915(c) HCBS Waivers effected by the transition plan.1 These nine Waivers are designed to address the needs of a single group, or the “target population,” requiring long-term services and supports. In Pennsylvania, the target populations include infants and toddlers who are developmentally delayed, adults with autism, adults who are physically disabled under the age of 60 years, adults over the age of 60 who need care in a nursing facility, etc. The Pennsylvania Department of Aging and three separate program offices from the DHS administer the nine Waivers. Financial eligibility for the Waivers is determined by a fourth DHS program office. This splintered system must seem impenetrable to many persons with disabilities as well as their families. These are Pennsylvania’s nine 1915(c) HCBS Waivers and their administering offices:
- Infants, Toddlers, and Families Waiver (ITF) by The Office of Child Development and Early Learning (OCDEL).
- Adult Autism Waiver (AAW) by the Office of Developmental Programs (ODP)
- Consolidated Waiver by ODP
- Person/Family-Directed Support (P/FDS) Waiver by ODP
- Aging Waiver by the Pennsylvania Department of Aging (PDA)
- Attendant Care Waiver by The Office of Long-Term Living (OLTL)
- COMMCARE Waiver by OLTL
- Independence Waiver by OLTL
- OBRA Waiver by OLTL
Pennsylvania’s transition plan for individual Waivers, in general terms, is to revise the three Waivers administered by ODP while consolidating four of the five Waivers administered by PDA and OLTL. The Aging, Attendant Care, Independence, and COMMCARE Waivers will be consolidated into one Waiver administered by OLTL. The OBRA Waiver will remain separate while continuing to be administered through OLTL. No changes in policy or regulations are planned for the Infants, Toddlers, and Families Waiver administered by OCDEL. It is not clear at this point if the three ODP Waivers will actually be consolidated.
The consolidation and revision of the Waivers will require major changes in the DHS’s policies and procedures. To effectuate these changes, ODP is drafting 55 Pa. Code Chapter 6100 to replace the current Chapter 51. The drafted regulations should be available for public comment in the fall of 2016. As detailed below, OLTL is drastically changing the way it does business.
The OLTL Waivers will be provided through the Community HealthChoices program.2 Community HealthChoices envisions an integrated system of physical health and long-term Medicare and Medicaid services and supports for older adults and adults with disabilities in the community.
- HCBS Appropriate Settings.
Prior to issuance of the Final Rule, CMS defined appropriate community settings where persons could receive HCBS Waiver services by defining “what they were not.” CMS now defines what an appropriate settings is, not what it is not. CMS issued rules prescribing the minimum requirements for all settings. For example, all settings must ensure an individual’s right to privacy, dignity and respect and integrate the individual into the greater community to the same degree as individuals not receiving Medicaid HCBS. There are specific rules for residential settings and rules identifying unallowable community settings, such as nursing homes and hospitals.
Some settings where HCBS Waiver services are provided may no longer pass muster. For example, sheltered workshops for persons with intellectual disabilities may not “integrate individuals into the community” to the extent required by the new CMS requirements. Sheltered workshops are not specifically banned or approved by the Final Rule.
Other settings may now be acceptable for HCBS Waiver services. Other States, such as Delaware and New Jersey, provide HCBS Waiver services to persons in Assisted Living Facilities while Pennsylvania does not. An Assisted Living Facility is an apartment-like setting where persons receive food, shelter, and assistance or supervision based on their need while being able to “age in place” as their needs evolve and grow. Many years ago, the DHS issued regulations governing the operation of Assisted Living Facilities but fell short of requesting a separate Waiver from CMS. The Final Rule defines Assisted Living Facilities as appropriate settings to receive HCBS Waiver services. Recently, Pennsylvania Officials have expressed interest in renewing the effort to provide HCBS Waiver services in Assisted Living Facilities, which may no longer require a Waiver.
- Person-Centered Planning, MLTSS and Community HealthChoices.
To comply with the person-centered planning requirements of the Final Rule, the DHS is transitioning to the program known as managed long-term services and supports (MLTSS). MLTSS is the delivery of long-term services and supports through a managed care program either in a nursing facility or in the community. The details of the DHS’s plans to provide MLTSS in nursing facilities will not be addressed in this article.
Managed care plans are a type of health insurance where participants choose health care services from a defined network of providers. An example of a managed care health plan is an HMO. The MLTSS program envisioned by OLTL is called Community HealthChoices.
The target population for Community HealthChoices is significantly different from the target populations currently served by the various OLTL Waivers and the Aging Waiver. Persons eligible for Community HealthChoices include the so-called “dual eligibles,” who are persons eligible for both Medicare and Medicaid. Dual eligible adults with long-term service and support needs were likely already receiving Waiver services through the OLTL or the PDA. However, Community HealthChoices is also available to dual eligibles who do not require long-term services and supports. These individuals would not have been medically eligible to receive HCBS Waiver services. Other groups in the Community HealthChoices target population include non-dual eligible adults receiving HCBS Waiver services and persons receiving services under ACT 150, which is a program for non-Medicaid recipients. Community HealthChoices does not apply to children or to adults receiving the ODP Waivers.
Community HealthChoices is a significant departure from the current delivery method of long-term services and supports. Community HealthChoices seeks to coordinate all the services available to the applicant, including Medicare, Medicaid long-term services and supports, Medicaid physical health services, and Medicaid behavioral health services. Prior to Community HealthChoices, the applicant and a service provider would develop a plan which only addressed Medicaid long-term services and supports. The applicant was left to their own devices to access Medicare or other types of services.
Participants in Community HealthChoices will receive covered services which include HCBS Waiver services and health services such as hospital, pharmacy, and hospice services. They will receive assistance in accessing, locating, and coordinating needed services such as social, housing, and educational services. The services will be monitored to ensure that the participants’ needs are being met.
The OLTL is moving forward with the implementation of Community HealthChoices. Recently, the OLTL significantly altered the gateway for elderly persons to access the Aging Waiver. The Pennsylvania Department of Aging was both the gateway and service provider for the Aging Wavier. PDA would determine if an applicant for the Aging Waiver was medically eligible to receive benefits. PDA would issue its report to the County Assistance Office, who would make the financial eligibility determination.
Now some of the authority for administering the Aging Waiver resides with OLTL. For many years, a private company called “Maximus” contracted with the OLTL to make the medical eligibility determination for persons applying for the original four OLTL Waivers. As of April 1, 2016 Maximus, and not the PDA, will make the medical eligibility determination for elderly persons applying for the Aging Waiver. PDA will continue to be a service provider. While this will consolidate the function of determining medical eligibility for all Pennsylvanians in one office, elderly persons will lose the luxury one dealing with one expert office to determine eligibility and services.
Pennsylvania plans to roll out the MLTSS program in three phases. From January 1, 2017 to January 1, 2019. On January 1, 2017 eligible persons will be able to enroll Community HealthChoices in Southwestern Pennsylvania.
The CMS Final Rule is a fundamental shift in thinking. The focus has evolved from providing long-term services and supports to elderly persons or persons with disabilities to keeping those persons integrated in the community while providing them with long-term services and supports and other services, if needed. Pennsylvania, through Community HealthChoices, will address the needs of target populations that may, but do not currently require, long-term services and supports such as the dual eligibles. The new requirements for settings will further enhance the integration of the target populations in the community. The shift seems almost preventative in the sense that early intervention and coordination of services before nursing facility care is required will alleviate the need for some persons to receive care in an institution.
As the delivery of services continues to shift away from institutional care, practitioners will need to remain informed to provide the best advice to their clients about the care and services that may be available to them.
1The AIDS Waiver was terminated on September 27, 2015.
2The LIFE Program (Living Independently for Elders) is a separate HCBS program administered by OLTL. LIFE provides managed care in the community but is not a 1915(c) Waiver. LIFE is Pennsylvania’s name for the PACE program and will not be offered through the Community HealthChoices. Elderly persons will have the option of enrolling the Community HealthChoices or the LIFE Program.