NAPAS OLMSTEAD UPDATE (August 2002)

CMS Offers Simplified Waiver Template

In Effort To Encourage Self-Directed Services Waiver

On May 9, 2002, the Centers for Medicare & Medicaid Services (CMS) announced a waiver option for states referred to as "Independence Plus" waivers. The goal of the waiver is to encourage states to provide Medicaid reimbursement for self-directed care by allowing states to use a simplified model template on electronic media for 1115 and 1915(c) waivers offering person-centered planning and self-directed service options. CMS hopes that states will be more likely to provide self-directed services because the new templates will better inform states about these options and will streamline applications for these waivers, thus reducing administrative burden.

CMS developed the new waiver in an effort to implement one recommendation made by HHS in Delivering on The Promise A Report of HHS Actions To Eliminate Barriers and Promote Community Integration. The Report was prepared in response to President Bush's New Freedom Initiative to implement the U.S. Supreme Court's decision in Olmstead v. L.C. and E.W. Specifically, in this report CMS promised to:

Provide states a simplified model waiver (for 1115 and 1915 (c) waivers) on electronic media that offers both person-centered planning and self-directed service options. CMS will also develop technical assistance materials outlining existing options for states to develop flexible, cost-effective, and consumer-driven methods of providing home health or personal assistance services.

The Independence Plus waiver templates (one template for 1115 waivers and one template for 1915 (c)) are designed to facilitate completion and submission by states and enable electronic tracking, sorting, querying and analyzing. The template is comprised of a series of check boxes with pop-up instructions imbedded in the check boxes offering completion instructions. The 1115 template also includes a simplified/streamlined budget neutrality model and sample terms and conditions.

The following goals are what CMS established for the states offering these waivers:

1. States must recognize the essential role of the family or the individual in the planning, purchasing of health care supports and services by providing family or individual control over an agreed resource amount.

2. States must increase family and individual satisfaction through the promotion of personal control and choice.

3. States must encourage cost effective decision-making in the purchase of supports and services.

4. States must allow eligible families and individuals to receive a cash allowance or individual budget to obtain personal assistant services and related supports.

5. States must promote solutions to the problem of worker availability.

6. States must provide fiscal/employer agent and supports brokerage services to support and sustain families or individuals as they direct their own services.

7. States must delay or avoid institutional or other high cost out-of-home placement by strengthening supports to families or individuals.

The new waiver template contains new elements that are not part of the existing Section 1915(c) streamlined waiver format, including a detailed description of the state's quality assurance and improvement program, the steps the state has taken to ensure that specified participant protections are in place, and the inclusion of new cost effectiveness calculations specific to self-directed services. Some of these new participant protections, include:

1. Participants should have procedures to assure that families have the requisite information to manage their care. These tools may include training in managing caregivers, assistance in locating caregivers, and assistance in completing and submitting paperwork associated with billing, payment, and taxation.

2. A viable system should be put in place for assuring emergency back up and emergency response capability in the event those providers of services and supports essential to the individual's health are not available.

3. Families should have assurances that services needed to avoid out-of-home placement and the continuation of the health and welfare of the individual are available.

4. Provider qualifications background checks should be available at no cost to the participants.

While overall advocates are supportive of the Independence Plus waiver, no one is calling for a grand showing of appreciation. On the good side, the Independence Plus waiver templates may increase state participation. On the bad side, CMS has not used the opportunity provided by the new freedom initiative to expand options for providing consumer directed services.

In particular, advocates are questioning the differences between the existing Cash and Counseling Programs and Independence Plus. The response of CMS is that Independence Plus includes refinements based on the experiences of the participating states and states' developing "self-determination" models. It incorporates direct family or individual involvement as an essential element of the program design. It does not require a participant assignment into a treatment or control group.

Another area of advocate concern is that states will now be required to use the these electronic application formats to request the renewal of any existing HCBS waiver or a research and demonstration program in which self-directed services are to be furnished to at least of a portion of program participants. The worry is that mandating the use of the templates in order to renew their existing Section 1915(c) waiver programs is likely to lead some states to either drop self-direction as a program option or carve self-directed services out of their existing waiver programs and set up separate, "boutique" self-directed waiver programs instead.

If you would like more information about the Independence Plus waiver you can go to www.cms.hhs.gov/medicaid. You can also contact Elizabeth Priaulx at NAPAS. CMS is soliciting comments to improve the templates. Comments on the template applications may be directed to: Selfdirectionwaiver@cms.hhs.gov (for 1915(c) Waiver comments) or Selfdirectiondemo@cms.hhs.gov (for §1115 Demonstration comments).

CMS's Clarification of The Medicare Homebound Rule

May Have Made The Definition Tighter - CMS Seeks Examples of Individuals Harmed Bt this Rule

Many P&As have assisted clients who feel imprisoned in their home as a result of the Medicare home health homebound rule. On July 26, 2002, The Center for Medicare and Medicaid Services (CMS) issued guidance, with the stated intent of "clarifying Medicare policy, so people who are considered homebound can occasionally take part in their communities, without fear of losing their benefits." Unfortunately, the new program instruction to home health agencies and Medicare carriers is even more restrictive than the already overly restrictive homebound definition in the statute.

Currently, in order to receive Medicare home health services, a beneficiary must have a post acute or chronic skilled care need and must be "homebound". To be considered "homebound": 1) The individual must have "a normal inability to leave home"; 2) "leaving home requires a considerable and taxing effort by the individual," e.g., by relying on a wheelchair or cane or the assistance of another person; and, 3) trips outside the home must be of an "infrequent or of relatively short duration". The exception to this is that the law permits an individual to be absent from their home to receive health care or to attend adult day care or religious services at anytime The law likewise states that: "Any other absence of an individual from the home shall not so disqualify an individual if the absence is of infrequent or of relatively short duration." [42 U.S.C. '1395n(a)(2)(F)] .

CMS' new guidance cites examples of when "chronically disabled individuals who otherwise qualify as homebound should not lose home health services because they leave their homes infrequently for short periods of time for special occasions, such as family reunions, graduations or funerals." CMS points out that its list of excused absences is meant to be illustrative rather than all-inclusive. However, listing examples like these, may create more problems than it solves, since the examples seem more limiting than what some states are currently allowing as an "infrequent absence."

As a more effective fix, some disability advocates are working to enact legislation this year to ensure that Medicare beneficiaries with permanent and severe disabilities who require skilled home health services can leave their homes for any reason and length of time without having to fear of being thrown off the services. In addition, Tom Scully, the Administrator of CMS has asked for the disability community's help in identifying Medicare beneficiaries who have had their home health services cut off because of an extremely harsh interpretation of the homebound restriction. P&As may wish to inform clients who have been cut off home health for what may have been a wrongful interpretation of the homebound rule to contact Tom Scully at:: tscully@cms.hhs.gov, or Centers for Medicare & Medicaid Services 7500 Security Boulevard, Baltimore MD 21244-1850
Phone: 410-786-3000

For more information on activities regarding the Medicare Homebound care rule contact Elizabeth Priaulx at NAPAS. [Thank you to Bob Williams and Henry Claypool at Advancing Independence: Modernizing Medicare and Medicaid for large portions of this article.]

The U.S. Department of Health and Human Services Creates A New Office on Disability

On July 26, 2002, HHS officially announced the creation and head of the new Office on Disability, which HHS had indicated it would create in its report "Delivering on the Promise: Federal Agency Actions To Eliminate Barriers and Promote Community Integration." The mandate of the new office is to oversee the coordination, development and implementation of programs and special initiatives within HHS that impact people with disabilities. Margaret J. Giannini, M.D., F.A.A.P., currently the principal deputy assistant secretary for aging at the Administration on Aging (AoA), has been appointed the director. The office is expected to open in the Fall of 2002.