Comments of
DisAbility Rights Idaho
Idaho Medicaid
Transition Plan for Compliance with CMS/HCBS Community Integration Regulations
Introduction
DisAbility
Rights Idaho (DRI) is the Protection and Advocacy Agency for the State of Idaho
under 42 USC §§ 15041-15045, 42
U.S.C.A. §§ 10801-10807, 10821-10827, and 29 USC § 794e. We are deeply
concerned with the implementation of these Federal regulations and with the
rights of people with disabilities generally.
Insuring that Idahoans with disabilities have full access to their
communities, and control over their lives and homes, is a high priority for
DRI. We believe that the approach to this transition should be much broader
than the review of current state facility rules. Many Medicaid rules, practices
and payment rates have a profound effect on whether people receiving HCBS
services can achieve community integration and self determination within their
own homes.
Recommendation 1. The
comment process being used by the Department of Health and Welfare (IDHW) is
very technical and generally inaccessible to many consumers and stakeholders.
The series of webinars have consisted of a recitation of the departments
conclusions that certain rules either do or do not have provisions which relate
to the new federal regulations. Without finding and reviewing the rules
involved, commenters cannot determine whether they agree with the findings or
not. The plan consists only of statements to address in some unspecified way
the areas of current rules identified as “gaps”. Consumers, family members and
even some providers cannot make meaningful comments on such a plan. DRI concurs
with the recommendation of the Idaho Council on Developmental Disabilities
(ICDD) on improving the comment process.
Recommendation 2. The
transition plan should contain more than a statement of identified gaps in
Idaho Medicaid rules, and the process should include more than a review of the
rules’ text. Determining whether Idaho Medicaid complies with the community
integration mandate must explore actual conditions and experience of
participants in HCBS settings. It must also review rate structures to determine
whether they encourage or prevent integrated settings and practices, and how
other factors such as cost sharing may impede access to community activities
compared to people who are not HCBS recipients.
Recommendation 3.
CMS has not required states to submit a transition plan on how the state
conducts “Person Centered Planning” (PCP). However, the PCP process is a key
part of the community integration process and the new CMS regulations include
changes to the language describing requirements for PCP. It will not be
possible for Idaho to comply with the HCBS rules without proper implementation
of changes to PCP processes. In order to be in compliance with the CMS
regulations Idaho will need to change the person centered planning process in
several HCBS programs. This issue is not addressed in the plan.
Recommendation 4. Idaho
Medicaid imposes limits on the cost of services for each individual in HCBS
waivers and in Adult DD services under section 1915(i) of the Social Security
Act. These limits are called individual budgets. The budgets set upper limits
on the total cost of services for each individual. The budgets are determined
differently in each waiver. However, in every case the budgets are set in a
process which is prior to, and independent of, the person centered planning
process. CMS rules address individual budgets only in the context of self
directed services, but the budgets have the potential to affect each person’s
ability to participate in community integrated activities. People whose budgets
force them to access only center based or group services do not have the
ability to choose individual or community integrated activities to the same
degree as people who are not dependent on HCBS services. This issue is not addressed
by the transition plan.
Recommendation 5. Reimbursement
rates for services can create unintended barriers to community
integration. “Blended rates” for Section
1915(i) services which pay the same rate for individual and group services
creates a strong incentive to provide services in groups or in segregated
centers. Center based and group services can have the effect of limiting
individual choices and preventing participation in community integrated
settings. For some individuals, the combination of individual budgets and rate
incentives can effectively require them to spend all or most of their day in
segregated, or disability group activities. The same effect can be seen in HCBS
DD waiver models when individual budget limitations force a person to utilize
mostly or only group based services. The transition plan does not address these
issues.
Recommendation 6. Medicaid
Transportation can have a huge affect on a person’s ability to make personal
choices about the services they receive. The current contract with AMR and its
implementation restrict a participant’s choice of provider and the place where
the service is received by limiting transportation to the closest Medicaid
provider site to offer the service. This may pose another hidden barrier to
participant choice and community integration, in violation of the CMS
regulations. The issue is not addressed in the plan.
Recommendation 7. Recent
activities of the ICDD in surveying people receiving HCBS/DD services have
revealed widespread practices by Medicaid providers which restrict individual
choice and freedom. These include restrictions on access to food, and allowing
participants to receive phone calls or respond to surveys. Even when current
Medicaid rules might prohibit the restrictions, such practices persist and may
be commonplace. The transition plan should include a plan to investigate the
prevalence of such practices and the development of proper oversight and
enforcement. (see also comments by ICDD)
Recommendation 8. The
CMS rules allow person centered planning processes to authorize exceptions to
the new rules in settings which are provider owned or controlled, such as
Certified Family Homes and Residential and Assisted Living facilities. The
rules do not allow for a similar exception in non-provider owned settings such
as Supported Living or My Voice My Choice. Idaho has made good use of these
community integrated models for people with significant disabilities and
significant behavioral issues. In Idaho’s system these HCBS models serve
participants who could not be served well in congregate care settings. The
success of these placements sometimes depends on the ability of the provider to
restrict certain activities, and choices, when those choices pose a significant
threat to the safety of the participant, their roommates, or members of the
public. The effect of these CMS rules could be to force these participants into
less integrated and less appropriate congregate care facilities. Idaho needs to
explore the creation of one or more care models which can recreate the
advantageous community integration of the current supported living model, while
allowing for legitimate safety based concerns. These settings could include
allowing provider leasing or ownership of a residence in a 2 or 3 bed community
residence which can restrict unsafe activities, or application for a “Community
Safety” waiver model under a non-HCBS authority such as section 1115 of the
Social Security Act. Safeguards must be developed to insure that these models
are not used to restrict the choices of people who do not pose a legitimate and
significant safety risk.
Recommendation 9. Cost
sharing provisions of the HCBS/A&D waiver can also seriously impair the
choices of participants as expressed in this comment we received from one of
our clients:
Under
current law the home that I live in and the lift equipped van I own are not
considered a resource for Medicaid. The problem with Idaho's personal needs
allowance (PNA) is that it does not allow a participant to use his own income
to repair, maintain, insure or even sometimes use the home or vehicle.
I live in my own home but do not drive and require a caregiver to drive me to
church, the movies, my son's band concert, and other activities in the greater
community. I was told by a previous home healthcare provider that these type
caregiver hours were not included in my UAI. I was required to private pay for
these caregiver hours. I think I should have the same rights as a Medicaid
participant living in a certified family home or a residential assisted living
facility.
I don't believe I'm allowed control over how my resources are spent to the same
extent that a non-HCBS person living in the greater community has over
their resources.
I feel like I am being institutionalized in my own home.
Some of
these recommendations will also apply to non-residential settings and service
design should consider both residential and non-residential services.
Submitted by
DisAbility Rights Idaho
Contact:
James R. Baugh, Executive Director
4477 Emerald
St., Ste. B-100 Boise, ID 83706
Ph:
208-336-5353, e-mail: jbaugh@disabilityrightsidaho.org