In 1999, the Supreme Court ruled in Olmstead that unnecessary institutionalization of people with disabilities is a type of discrimination prohibited by the Americans with Disabilities Act.[1] In response, federal Medicaid rules have set standards to ensure Medicaid-funded home and community-based services (HCBS) are provided in settings that are not institutional in nature. HCBS waivers allow states to provide home and community-based services as an alternative to nursing facility care. HCBS waivers, especially during the COVID-19 pandemic, are essential for low-income, older adults to remain in their homes, where they are generally safer from the virus than in nursing homes and receive the services they need.
HCBS under a waiver are broadly defined by federal law; as a result, specific services and service levels vary from state-to-state, depending on states’ choices. Possible services include, but are not limited to, personal care, case management, homemaker services, home health aide services, adult day health care, assisted living, and respite care. HCBS under a waiver are not an entitlement, and a state may request permission from the Centers for Medicare & Medicaid Services (CMS) to limit enrollment to a set number of persons, to particular populations, and/or to specific regions of a state, if the federal government approves such limits.[2] The state remains subject to the requirement of the Americans with Disabilities Act that state programs not result in unnecessary institutionalization.
In response to the COVID-19 emergency, Medicaid programs serving beneficiaries with HCBS are encouraged to apply for administrative flexibility through Appendix K applications to strengthen HCBS programs, accelerate applications and approvals focused on HCBS, and make it easier for seniors and people with disabilities to get HCBS. States are receiving federal approval to modify their Medicaid HCBS waivers in a variety of ways. The changes include modifications to:
Access and eligibility (eliminating many procedural requirements);
Services (authorizing remote services);
Payment to family members and legal representatives;
Provider qualifications (eliminating or significantly modifying provider qualifications);
Processes for level of care evaluations and reassessments;
Rates (increasing payment rates and expanding provider reimbursement);
Person-centered service plans;
Incident reporting requirements;
Support during hospitalization; and
Expanding opportunities for self-direction (e.g., control over the training, hiring, and firing of care authority (employer authority); discretion over how to allocate an HCBS budget (budget authority), or both).[3]
As of May 26, 2020, 44 states had been approved for Appendix K amendments in response to COVID-19.[4] In Maryland, steps taken to make it easier to get HCBS include permitting virtual assessments and person-centered planning meetings, modifying processes for level-of-care evaluations, extending reassessment and revaluation dates, and modifying person-centered planning processes.[5] Maryland has expanded services and settings by adjusting service limits, changing prior authorizations, and allowing HCBS in alternative settings.[6] Finally, Maryland has used Appendix K to strengthen the HCBS workforce by expanding paid family caregiver limits, increasing payment rates, and making retainer provider payments.[7]
For more information on states’ approved Home and Community-Based Services Waivers or enhanced HCBS flexibility, contact M.E. Roberts Law, LLC.
References
[1] See, e.g., Olmstead v. L.C., 527 U.S. 581 (1999).
[2] 42 U.S.C. § 1396n(c)(3).
[3] Eric Carlson & Gelila Selassie, Changes in HCBS Programs in Response to COVID-19, National Center on Law & Elder Rights 1, 1–2 (May 2020), https://ncler.acl.gov/getattachment/Legal-Training/HCBS-Changes-Ch-Summary.pdf.aspx?lang=en-US.
[4] Medicaid, Emergency Preparedness and Response for Home and Community Based (HCBS) 1915(c) Waivers, https://www.medicaid.gov/resources-for-states/disaster-response-toolkit/home-community-based-services-public-health-emergencies/emergency-preparedness-and-response-for-home-and-community-based-hcbs-1915c-waivers/index.html (last visited May 26, 2020).
[5] Jessica Schubel, States Are Leveraging Medicaid to Respond to COVID-19, Table 1, Center on Budget and Policy Priorities, https://www.cbpp.org/research/health/states-are-leveraging-medicaid-to-respond-to-covid-19 (last visited May 20, 2020).
[6] Id.
[7] Id.
Alyssa Testo attends the University of Maryland Francis King Carey School of Law and will graduate in May 2021. At Maryland Carey Law, Alyssa is an Articles Editor for Maryland Law Review, a student attorney in the Low Income Taxpayer Clinic, a research assistant for Professor William J. Moon, and a member of the Women’s Bar Association and Business Law Society. She is particularly proud of her Note published in Volume 79 of Maryland Law Review. See Alyssa Testo, Verition Partners Master Fund, Ltd. v. Aruba Networks, Inc.: Deal Price as a Ceiling in Statutory Appraisal Actions, 79 MD. L. REV. (forthcoming 2020).
Alyssa has a Bachelor’s degree in Business Management from the University of Tampa, and prior to law school, Alyssa had nine years of experience in administrative and human resources work. She has a passion for world travel and, in her personal time, is an avid reader, yogi, and dog mom.