ADDP NEW BANNER 2011
HCBS Community Rule & State Transition Plan Raise Questions
Massachusetts Transition Plan Raises Questions
 
Working hand in hand with the Department of Developmental Services, Mass Health is expected to submit its transition plan to CMS,outlining how the state will comply with the Final Rule on January 15, 2015.

In the DDS section of the Transition Plan, the department has identified 14 residential programs with 58 residential settings, that it believes will have to make the most substantive changes to program design and its residential settings.

The common denominator between those programs are residential sites that house more than five individuals in what the state identifies as a congregate environment.

The pending Massachusetts Transition requires these programs to submit to the state, by September 30, 2015, individual provider transition plans that spell out how these individual programs will come into compliance by 2019.

Many of these 14 programs are meeting with their Boards of Directors, DDS and staff to review the extent to which their programs will have to be modified.

Questions have arisen to what extent CMS and/or DDS is actually going to demand program reconfiguration. 

Some within DDS have suggested that any group living; or campus based programs with over four individuals living together, will need to be shuttered while others maintain that such actions are not actually the intent of CMS. 

During the Final Rule rulemaking, CMS commented: "It is not the intent of this rule to prohibit congregate settings from being considered home and community based settings (79 Fed Reg. 2957). 
However the state's draft transition plan references giving DDS the authority to decide whether a provider with over 5 residents will be required to reduce its capacity.
 
ADDP will be asking the state to modify its transition plan to spell out how DDS would make this decision and what standards might be used; and whether overarching inclusive outcomes for the individual in these programs will have any impact on that determination.

 
Changes Are Expected Throughout Service System
  Change
The manner in which supports and services are delivered to individuals with developmental disabilities is expected to change dramatically over the next four years due to the articulation by the Center for Medicare and Medicaid Services (CMS) of a Community Final Rule that seeks to ensure greater community engagement for people served by programs receiving funding through the Home and Community Based Service Waiver program.

As stated by CMS, the intent of the Final Rule is ensure that community programs offer its participants "access to the benefits of community living and the opportunity to receive services in the most integrated setting."

Specific changes to all residential community based programs will include:
  • the residential setting, and the resident, be protected through a legally enforceable agreement such as a lease
  • residents have the same responsibilities/protections from eviction, as all other tenants of the local community
  • bedrooms must have locking doors
  • entrances must have lockable doors with resident access to keys
  • residents must have freedom to choose their own roommates
  • residents have freedom to control their own schedule and access to food at anytime.
  • residences must be physically accessible to the resident

States will have five years to bring their programs into compliance and must submit in early 2015 a transition plan describing how the state will comply with the Final Rule. 

After Residential Changes, What does CMS Plan to Do Next?
  CMS logo
In discussions between CMS and a variety of national disability organizations, participants suggest that CMS Community Final Rule actions will likely not be limited to just residential services and that day and employment services may next be focused on for more inclusive changes.

Evidence of such action has been on the horizon for a few years as evidenced by CMS Guidance to states to reduce or eliminate sheltered workshops or risk losing federal Medicaid matching dollars.

How similar Final Rule changes would impact Day Services, Day Habilitation or other federally funded services will likely be a source of significant controversy.
Will these changes impact the state budget?
 
It is likely that the state budget could be impacted in many ways by the Final Rule whether state decision makers favor the changes or not.

In the extreme, CMS could withhold federal funding of some or all residential sites if the state fails to comply; or the state could choose to continue some programs with state general funds only; and if changes are needed to be made to 58 residential sites, the state may be looked to to help fund program redesign.  There are some in the legislature who have suggested that CMS may be bluffing and might withhold redesign dollars resulting in litigation and an uncertain future.

Needless to say, the next few years will not be dull.