LeadingAge met with officials from the Domestic Policy Council, leaders from Medicaid, and leaders from the Administration for Community Living on August 18 to discuss our HCBS settings rule white paper. We explained our concerns with the impact on aging services providers and those they serve, particularly those with dementia. Centers for Medicare & Medicaid Services (CMS) is open to continuing the conversation and shared some feedback regarding elements our member reports in enforcement and how those match up with CMS’s guidance. We will continue to report out on these ongoing conversations.

LeadingAge continues to elevate the need for an all-of-government approach to aging in America. Since the July 12 release of our white paper outlining why the home and community-based settings final rule is a poor fit for aging services providers, we have been in contact with the Biden Administration to schedule a discussion of provider concerns. We have also engaged with other like-minded organizations on their experiences with the settings rule.

LeadingAge continues to push for a two-year enforcement moratorium while Centers for Medicare & Medicaid Services (CMS ) develops additional guidance for how the settings rule most aptly honor the unique needs of older adults, while also preserving access to the full continuum of Medicaid-funded aging services. Without this moratorium, we fear providers’ ability to comply with ever-stricter interpretations of the rule will limit access and force more people into institutional settings from a dearth of other appropriate services.

Upon publication of the final rule in 2014, states began developing comprehensive statewide transition plans for compliance with the provisions of the rule. These transition plans were inclusive of all services rendered in home and community-based settings regardless of age, disability status, target population, or other factors. Statewide transition plans included information states were requiring of providers to assess through heightened scrutiny reviews. For settings and locations that required more than a desk review, states and CMS were to conduct on-site visits. Some states have undergone multiple onsite reviews, while other states have been subject to no further CMS scrutiny.

CMS maintains a useful webpage with all statewide transition plans, submitted and approved corrective action plans, and documents related to heightened scrutiny reviews. Ongoing on-site reviews continue to illuminate pain points for aging services providers. As your states experience heightened scrutiny, review the CMS reports here.

A new white paper, Home and Community-Based Settings Rule: How Regulation Intended to Ensure Access to Medicaid Funded Services Falls Short, and Changes Needed to Fix It, released today from LeadingAge, the association of nonprofit providers of aging services, explains how flawed policy fails to achieve its intent of ensuring access to person-centered care – and recommends urgently needed solutions.

“While the intent of the Settings Rule is laudable, in practical application, it is problematic. This important paper explains, using real-world examples, how good-faith implementation of and compliance with the rule is impractical,” said Katie Smith Sloan, president and CEO, LeadingAge.

Read the full release here.

The Senate Special Committee on Aging and the Senate HELP Committee hosted a June 20 panel discussion in honor of the anniversary of the landmark 1999 Supreme Court Decision in Olmstead v. L.C. The decision found that individuals with disabilities could not be offered only institutional settings in which to receive services.

From this decision, states worked to deinstitutionalize and rebalance long-term services and supports offered through Medicaid programs. These efforts were proposed in Centers for Medicare & Medicaid Services (CMS) rule making initially released in 2008, and later codified in final rule making in 2014 as the Home and Community Based Settings Final Rule. The rule was heavily influenced by the younger disability advocates and better reflects person-centered planning and goal development for this population.

The rule is not a good fit for aging services providers.

LeadingAge president and CEO Katie Smith Sloan briefly outlined our position and concerns with the settings rule in a letter to the joint panel. We note that broadly applying the settings rule to providers of aging services and their participants doesn’t advance person-centeredness and further dilutes the laudable goals of rule.

LeadingAge is finalizing an issue brief outlining various concerns and pain points for aging services providers with the settings rule. For example, adult day and assisted living providers in some states are being advised they must help participants (many with dementia) find employment or volunteer positions.

In July 2020, CMS provided states, and providers, an additional year to comply with the rule, until March 17, 2023. CMS’ updated strategy presentation this week confirmed that this timetable, despite ongoing pandemic and workforce related concerns, holds firm. States have been charged with developing a state transition plan (STP) to ensure that state Medicaid programs come into compliance. As of today, 21 states (Alaska, Arkansas, Connecticut, Delaware, Hawaii, Idaho, Kentucky, Minnesota, Missouri, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, Wyoming and the District of Columbia) have received final CMS approval of their STPs. This table, which continues to be updated, provides all available documents related to STPs, along with CMS determinations of heightened scrutiny reviews.

CMS reiterated this week that, as part of the STPs, states and providers must be compliant with all settings criteria that have not been directly impacted by the Public Health Emergency (PHE). The federal government will not provide funding for services that do not meet the new rules. States are assessing all services and settings and are asking providers to make changes in how they operate to meet the federal rules by modifying policies and program designs, where and how services are delivered, and providing training to assure staff members understand the expectations of the HCBS Settings Rule.

CMS is giving states the option to apply for time-limited corrective action plans (CAPs), which would allow them additional time to achieve full compliance with settings criteria. CAPs are limited for states to meet requirements that have been directly impacted by the pandemic, including access to the broader community; options for a private unit and/or choice of a roommate; and choice of non-disability specific settings. CMS is also encouraging states to take advantage of “unprecedented” additional HCBS funding available as part of the American Rescue Plan.

Throughout the pandemic, LeadingAge members who provide Medicaid-funded adult day programs, assisted living, and home/personal care services all reimagined their service offerings to both keep the people they serve safe and connected to the care and supports they need. CMS and ACL are committed to working closing with stakeholders in the implementation of the Settings Rule over the next 10 months. LeadingAge members are encouraged to contact Georgia Goodman or Mollie Gurian with feedback on your state’s level of communication, documentation infrastructure, and ability to collaborate on resolving issues related to your Settings compliance progress.

In response to the 1999 Supreme Court Decision Olmstead v. L.C., which found that individuals with disabilities could not be offered only institutional settings in which to receive services, the Centers for Medicare and Medicaid Services (CMS) published the Home and Community-Based Services (HCBS) Settings Final Rule.

Set to go into effect in March 2023, the current rule is ill-suited when applied to HCBS services received by older adults in certain settings, particularly adult day and assisted living. What’s more, implementation of the rule is challenging and uneven.