REFORM (PROVIDERS)- Provider group seeks 2-year moratorium on HCBS settings rule enforcement

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[MM Curator Summary]: In which the nursing home lobby asks for more time to remedy abysmal member care. 2 more years, to be exact.


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A new white paper from LeadingAge recommends a two-year enforcement moratorium on the federal government’s home- and community-based services settings final rule, saying that it is flawed policy.

The final rule from the Centers for Medicare & Medicaid Services, originally proposed in 2014 and in effect since March, creates “significant challenges” and “pain points” as it fails to ensure access to person-centered care and creates obstacles to assisted living and other providers trying to deliver services, according to the paper.

The white paper, titled “Home and Community-Based Settings Rule: How Regulation Intended to Ensure Access to Medicaid Funded Services Falls Short, and Changes Needed to Fix It,” was released Wednesday. 

LeadingAge President and CEO Katie Smith Sloan said in a statement that although the intent of the HCBS settings final rule is “laudable,” it is problematic in practical application. The association recommends the two-year enforcement moratorium for HCBS providers while the Biden administration develops specific guidance for them.

“When applied to certain types of care settings, including assisted living and adult day services, the rules’ requirements could potentially harm an older adult,” Sloan said. “As a result of these issues, the rule is limiting older adult Medicaid beneficiaries’ access to HCBS — the opposite of its intent.”

Providers could leave Medicaid

The sentiments echo a letter Sloan sent to leaders of the Senate Special Committee on Aging and Senate Committee on Health, Education, Labor and Pensions last month. States had until March 17 to comply with most of the rule’s provisions. Assisted living communities providing HCBS to their residents through Medicaid waivers are among those affected.

The white paper presents examples demonstrating how the settings rule affects assisted living and some other providers — for instance in the areas of employment counseling, kitchen access and lockable door requirements for assisted living residents living with dementia. As a result, LeadingAge said, the rule could “chill access” to services, with many assisted living and adult day providers declining to accept Medicaid payments.

Currently, 18% of assisted living residents rely on Medicaid to pay for daily services, and 61% of all assisted living communities are Medicaid-certified, according to the National
Center for Assisted Living.

“Additional costs for staffing to complete lengthy person-centered service planning templates with inapplicable questions, coupled with renovations and policy changes, do not make financial sense in a system already struggling with low Medicaid reimbursement rates and a staffing crisis,” the paper stated. “These pressures have pushed — and will push — providers out of the Medicaid provider space, further limiting options for low-income older adults, and forcing more individuals to go without care, or pushing them into their only remaining option — a nursing home — quite the opposite of the intent of the settings rule.”

Thirty-four percent of assisted living residents are living with diagnosed dementia, according to the Centers for Disease Control and Prevention’s National Center for Health Statistics. Eighteen percent of assisted living communities have dedicated dementia care wings or floors, and 11% serve only adults who are living with dementia, according to NCAL.

More feedback recommended

Along with a two-year moratorium on the settings rule, LeadingAge is proposing that CMS treat services for older adults differently than those for working-aged individuals with disabilities. The association also recommended soliciting feedback from aging services experts, providers and state officials on the settings rule, to better define compliance parameters for the population being served.

“By better defining parameters for compliance in settings where the settings rule doesn’t fit the population being served, settings rule compliance efforts can focus more directly on services to individuals for which the rule was intended,” the paper concluded.