FamiliesUSA Health Action 2010 ConferenceJanuary 29, 2010

Gene CoffeyNational Senior Citizens Law Center

Community First Choice Option of the Patient Protection and Affordable Care ActSection 2401 of PPACA

Proposes to add a new paragraph (k) to 42 U.S.C. §1396n (“(k) State Plan Option to Provide Home and Community-Based Attendant Services and Supports”)

Text of provision very similar to content of the Community Choice Act of 2009, S. 683 and H.R. 1670, introduced in 111th Congress

Community First Choice Option would provide states the financial incentive to make home and community-based care an unconditional option for individuals who meet their states’ standard of need for institutional-level services.

Current framework of Medicaid’s LTSS coverageIndividual has needs equivalent to state’s

clinical eligibility standard for Medicaid coverage of nursing facility servicesAdvantage of choosing institutional services

Financial eligibility screened against higher income standard (standard can be as high as 300% of Supplemental Security Income (SSI) federal benefit rate--$2,022 a month). If individual’s income is greater than income limit, s/he must be permitted to qualify through a medically needy category or income trust

Coverage for services guaranteed

Current framework of Medicaid’s LTSS coverage, continued What if the individual does not want to enter a nursing facility?

Options: HCBS waiver program

State limited in money it may spend on waiver program Because of state spending limit, enrollment may be capped State may apply 300% SSI income eligibility threshold, but may deny

eligibility to individuals with incomes above waiver limit HCBS state plan benefit

Benefit limited to individuals with incomes at or below 100% of the FPL. Individuals with higher incomes may only qualify through medically needy category (but not if their income is above 150% of the FPL)

Benefit is optional for states States not limited in spending, but may cap enrollment and may choose not

to offer benefit to individuals who meet clinical eligibility standard for institutional services

Home health care services Mandatory Medicaid benefit, but only for individuals with incomes at or

below 100% of the FPL. Individuals with higher incomes may only qualify through medically needy category

Personal Care services Benefit is optional for states. For states that adopt it, coverage is limited

to individuals who either have incomes below 100% of FPL and/or qualify through medically needy category

Change proposed by Community First Choice optionStates that choose to adopt the option will

receive a 6 percentage point increase in their federal reimbursement rate for services provided under the option

No time limit on duration of enhanced reimbursement rate

States will be permitted to provide coverage for the benefit beginning October 1, 2010

Change proposed by Community First Choice option, continued Individuals who meet the state’s institutional level of care standard

and are financially eligible for Medicaid will be able to choose community-based care over institutional care Eligible individuals must receive coverage for community-based

attendant services that will assist the individual in accomplishing activities of daily living, instrumental activities of daily living, and health-related tasks that includes hands-on assistance, supervision, or cueing.

Medicaid-enrolled institutionalized individuals may receive coverage for transition services under the benefit, such as rent and utilities deposits, first-month’s rent and utilities, bedding, basic kitchen supplies, and other necessities

Service plan must be agreed to in writing by individual Individual has authority to hire and fire providers; family members

may be included

States may not cap enrollment, or limit coverage to select areas of the state, or target the benefit toward individuals with certain conditions. States are not restricted in the expenditures they may make for the benefit

Eligibility restrictionsBenefit restricted to individuals whose

incomes are below 150% of the FPL, or, if greater, the state’s income limit for coverage of institutional services (up to 300% of the SSI federal benefit rate)

Where can the services be received? Home and community-based attendant services are available

under the Community-First Choice Option “in a home or community setting which does not include a nursing facility, institution for mental diseases, or an intermediate care facility for the mentally retarded.”

Historically, anything but a hospital, nursing facility, ICF-MR, or institution for mental diseases has sufficed for a “home” or “community-based” location A state’s Medicaid HCBS waiver must provide that services are

furnished only to “recipients who are not inpatients of a hospital, nursing facility, or ICF-MR.” 42 C.F.R. §441.301(b)(1)(ii)

“Residence” in the description of Medicaid home health services “does not include a hospital, nursing facility, or [ICF-MR]. . . .” 42 C.F.R. §440.70(c)

Medicaid personal care services are “services furnished to an individual who is not an inpatient or resident of a hospital, nursing facility, [ICF-MF], or institution for mental diseases. . . .” 42 C.F.R. §440.167(a)

“Most integrated setting” States implementing the Community First Choice option must

ensure that services are delivered “in a manner that provides such services and supports in the most integrated setting appropriate to the individual’s needs. . . .”

Money Follows the Person State not eligible for enhanced federal reimbursement if MFP

participant transitions to residence of four or more unrelated individuals unless certain conditions are met

HCBS State Plan Option While “a simple definition” of home and community-based would be any

residence not a hospital, nursing facility or ICF-MR, “this definition is insufficient to ensure that enrollees in this State plan benefit receive services in the type of setting intended. There are other public and private, large and small, residences whose character is equally institutional in nature.” 73 Fed. Reg. 18676, 18685 (April 4, 2008)

CMS “Advanced notice of proposed rulemaking,” which features proposal to develop standards for “home and community-based” characteristics. 74 Fed. Reg. 29454 (June 22, 2009).

State requirementsTo offer home and community-based attendant

services under the Community First Choice Option, a state must:Collaborate with a Development and Implementation

Council established by the state, the majority of which must be persons with disabilities, elderly individuals, and their representatives

Maintain during the first year in which the benefit is offered the same level of Medicaid spending for persons with disabilities or elderly individuals attributable during the previous fiscal year

Establish a comprehensive quality assurance system with respect to community-based attendant services

Future DirectionHHS must conduct evaluation of Community

Choice OptionInterim report must be submitted to

Congress by December 31, 2013Final report must be submitted to Congress

by December 31, 2015

Gene CoffeyNational Senior Citizens Law Center

1444 Eye Street, NW, #1100Washington, D.C. 20005

(202) 683-1992gcoffey@nsclc.org