YEAR-END REPORT - 2019 Published 23-Dec-2019 HPTS Issue Brief 12-23-19.25 Health Policy Tracking Service - Issue Briefs Long-Term Care Home- and Community-Based Services Authored by Logan C. Mortenson, a Compliance Attorney at Thomson Reuters and a member of the Minnesota Bar. 12/23/2019 I. INTRODUCTION Home- and community-based services (HCBS) are a form of long-term care that provide a range of personal, support, and health services for individuals in their homes or communities. These services are designed to help people remain in their homes and live as [FN1] independently as possible. Over 10 million people in the United States need long-term care services and supports to assist them in life's daily activities, and about [FN2] 83 percent of them remain in the community, rather than in institutionalized settings. HCBS include medical and non-medical care [FN3] to the aged and to those with chronic illnesses or disabilities. The primary types of HCBS include homemaker services, personal care assistance, home health services, companion services, meal programs, senior centers, adult day care, rehabilitative services, transportation and respite care. For several reasons, HCBS programs have become more popular in recent years. II. COSTS AND FUNDING Many patients prefer HCBS because they provide them with the freedom to remain in their homes or communities instead of institutions. In addition, many studies indicate that HCBS offer significant savings for insurers as compared to institutional settings. Federally-funded Medicaid support, in the form of Medicaid waivers and direct personal assistance services (PAS), provides another [FN4] significant reason for the rising popularity of HCBS. Section 1915(c) of the Social Security Act offers states a federally-supported alternative to providing long-term care services in institutional settings by allowing them the option to waive Medicaid provisions in order to offer individuals HCBS. PAS allow Medicaid beneficiaries receiving personal care or HCBS to supervise, manage, and personalize their care. Between 2008 and 2013, the nursing care sector grew at an average annual rate of 1.6% while home care and assisted living grew at a rate of 7.2% and 5.6%, respectively, according to a report announced on May 13 by Research and Markets, an international market [FN5] research firm, McKnight's reports. The skilled care market is “increasingly suffering from state efforts to reimburse lower cost home care over higher priced nursing care,” according to a summary of the report. The study found that long-term care, as a whole, has been in a period of “solid expansion,” the market “encompassing assisted living, home care, nursing and hospice” grew from more than $224 billion in 2008 to nearly $277 billion last year. The National Investment Center for the Seniors Housing & Care Industry (NIC) found that the occupancy rate for seniors in independent living and assisted living properties averaged 90.5% and 89.0%, respectively, during the second quarter of 2014, representing a 1% overall increase from a year earlier. By contrast, the nursing care occupancy rate was 88.2% in the second quarter of 2014, a decrease [FN6] of 0.2 percentage points from the first quarter of 2013. A final rule released on January 10, 2014 by CMS will give states more flexibility on how they are able to use federal Medicaid funds to pay for HCBS, to better meet the needs of Medicaid enrollees, particularly the elderly and disabled. The final rule amends the Medicaid regulations to define and describe state plan section 1915(i) HCBS under the Social Security Act, as amended by the Affordable Care Act (ACA). Under the ACA, Medicaid programs will support HCBS settings that serve as an alternative to institutional care and that take into account the quality of individuals' experiences. According to CMS, the rule is meant to ensure that Medicaid's HCBS programs provide full access to the benefits of community living, and offer services in the most integrated settings. The final rule will be published in the January 16 Federal Register, and takes effect on March 17, © 2020 Thomson Reuters. No claim to original U.S. Government Works. -1- The rule also provides for a five-year duration for certain demonstration projects or waivers, at the discretion of CMS, when they provide medical assistance for individuals dually eligible for Medicaid and Medicare benefits, and includes payment reassignment provisions because state Medicaid programs often operate as the primary or only payer for the class of practitioners that includes HCBS providers. The final rule also makes several important changes to the regulations implementing Medicaid 1915(c) HCBS waivers to add new person-centered planning requirements, allows states to combine multiple target populations in one waiver and streamlines waiver [FN7] administration. Costs for HCBS remained relatively flat over 2013, a survey by long-term care insurer Genworth Financial finds. Nationally, the 2013 median hourly cost of homemaker services and home health aide services is $18 and $19 respectively, the Genworth 2013 Cost of Care Survey has found. Homemaker costs have risen just 1.4 percent since 2012 and 0.8 percent annually over the past five years, the report says. Home health aide services have risen 2.3 percent since 2012 and 1.0 percent annually over the past five years. The vast majority prefer care in their own homes: Genworth finds that 70% of Genworth's first time long-term care claimants choose in-home care where the costs have remained more manageable. By contrast, the daily cost for a semi-private skilled nursing facility room grew 3.6% since 2011 to a national median rate of $200 per day, according to the survey. The rate for a private SNF room jumped 4.2% [FN8] since 2011, up to a median daily rate of $222. As the popularity of assisted living facilities continues, concerns were raised in a report released in December 2012 by the HHS Office of Inspector General. The OIG is asking the Centers for Medicare & Medicaid Services (CMS) to issue additional guidance to state Medicaid programs, emphasizing the need to comply with federal requirements for covering HCBS under the 1915(c) waiver. Assisted living programs might not be giving enough information about access to HCBS funds, the agency said. In 2009, 35 state Medicaid programs reported that they covered HCBS at an annual cost of $1.7 billion, for more than 54,000 beneficiaries residing in approximately 12,000 ALFs, according to the report. Seven states with the highest numbers of beneficiaries that did not completely comply with the federal provider standards were selected. In the group, 77 percent of beneficiaries received HCBS in ALFs that were cited for noncompliance with at least one state licensure or certification requirement. Nine percent of beneficiaries' records did not include plans of care, and 42 percent did not include information on the frequency of HCBS furnished, the report found. CMS has concurred with the OIG recommendation to issue more guidance to state Medicaid programs and emphasize compliance with federal [FN9] requirements. Rising Medicaid costs and continuing fiscal pressures have led a number of state governments to look for savings by enrolling more Medicaid beneficiaries into managed care plans. State Medicaid programs are increasingly considering risk-based contracting with managed care organizations (MCOs) to provide long-term supports and services (LTSS)—and often acute and primary care as well —to those enrollees. As many as 20 states are expanding or plan to introduce risk-based managed care programs for Medicaid beneficiaries needing LTSS. In risk-based managed care arrangements, state Medicaid agencies pay their contracted MCOs a predetermined monthly per-member rate and the MCOs bear financial risk for providing all covered services within the rate. These fixed payments make Medicaid costs more predictable for states, but they may create incentives for plans to restrict access to services for individuals who have costly health care needs. This potential risk highlights the importance of state oversight to ensure that MCOs comply with all contract requirements—including the provision of all LTSS required to provide optimal care to their enrollees. To help keep seniors, disabled individuals and veterans in their homes and out of institutionalized long-term care facilities, additional government funding is being distributed. As authorized under the Affordable Care Act, nearly every state will receive a piece of the $25 million to establish Aging and Disability Resource Centers (ADRCs), meant to be a “one-stop shop” for elderly and disabled individuals who want to receive care in their homes and communities, rather than a long-term care facility. The funds will be made available over a one- to three-year period. The Veterans Health Administration will funnel an additional $27 million over three years to ADRC-funded states to help disabled veterans remain in their communities, as part of the initiative. Eight states will be selected for fast-track implementation of the program. The ADRCs will provide counseling services for those looking for access to services such as transportation to rehabilitation therapy, home health, and support with activities of daily living. The program is being administered through a partnership between the new Administration for Community Living, the Centers for Medicare & Medicaid Services (CMS) and [FN10] the Department of Veterans Affairs' Veterans Health Administration. A recent study compared the probability of older dual eligible Medicaid HCBS users and nursing home residents experiencing potentially preventable hospitalizations. Three years of Medicaid and Medicare claims data (from 2003 to 2005) from seven states (Arkansas, Florida, Minnesota, New Mexico, Texas, Vermont, and Washington) were analyzed. A primary diagnosis of an ambulatory care sensitive condition on the inpatient hospital claim was used to identify potentially preventable hospitalizations. Researchers used inverse probability of treatment weighting to mitigate the potential selection of HCBS versus nursing home use. Researchers found that the most frequent conditions accounting for hospitalizations were the same among the HCBS users and nursing home residents, and included congestive heart failure, pneumonia, chronic obstructive pulmonary disease, urinary tract infection, and dehydration. Compared to nursing home residents, however, elderly HCBS users had an increased probability of experiencing hospitalizations. The researchers concluded that the increased probability for hospitalizations of HCBS users suggests a [FN11] need for more proactive integration of medical and long-term care. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -2- PACE Program The Program for All-Inclusive Care for the Elderly (PACE) should be expanded to include patients in accountable care organizations (ACOs) and other delivery system models, beyond fee-for-service, speakers urged at a briefing sponsored by the [FN12] National PACE Association, BNA reports. PACE uses Medicare and Medicaid funds to cover all of a beneficiary's medically necessary care and services for individuals 55 or older who are certified as needing nursing home levels of care. The program serves more than 30,000 participants in 31 states. Anne Montgomery, a senior policy analyst at the Altarum Institute's Center for Elder Care and Advanced Illness, said that expanding the program would require waivers from Medicare requirements such as the three-day hospitalization requirement before admission to a nursing home. Joseph Antos, an economist at the American Enterprise Institute pointed out that while the waivers may be necessary, Congress is generally risk-averse and wouldn't want to end up writing a blank check. PACE needs more flexibility, but he said Congress needs to find a way to make sure it doesn't give the program too much flexibility and spend too much money. A bipartisan group of senators, however, has urged expansion of the regulatory flexibility of PACE programs, in a letter sent to CMS on September 17. In the letter, lawmakers stated that “current regulatory and statutory barriers have inhibited PACE growth and innovation,” and call on CMS to allow PACE to operate in a variety of community settings—such as adult day health centers or senior [FN13] centers—as well as to offer concurrent reviews at the federal and state level to speed up the provider application process. Conditions Of Participation For Home Health Agencies On October 6, 2014, CMS released a proposed rule revising the current conditions of participation (CoPs) that home health agencies (HHAs) must meet to participate in the Medicare and Medicaid programs. In the rule, CMS proposes four new HHA CoPs and revises several others. The new CoPs proposed by CMS include: • patient rights measures, which “would emphasize an HHA's responsibility to respect and promote the rights of each home health patient”; • care planning, coordination of services and quality of care measures, which “would incorporate the interdisciplinary team approach”; • quality assessment and performance improvement (QAPI) measures, which “would charge each HHA with responsibility for carrying out an ongoing quality assessment, incorporating data-driven goals, and an evidence-based performance improvement program of its own design to affect continuing improvement in the quality of care furnished to its patients”; and • infection prevention and control measures, which “would require HHAs to follow accepted standards of practice to prevent and control the transmission of infectious diseases and to educate staff, patients, and family members or other caregivers on these accepted standards. The HHA would be required to incorporate an infection control component into its QAPI program.” According to the rule, “The proposed requirements would focus on the care delivered to patients by home health agencies, reflect an interdisciplinary view of patient care, allow home health agencies greater flexibility in meeting quality care standards, and eliminate [FN14] unnecessary procedural requirements.” III. “MONEY FOLLOWS THE PERSON” GRANTS The “Money Follows the Person” (MFP) grant program, a part of the Deficit Reduction Act of 2005, was an important component of the New Freedom Initiative, a nationwide effort to remove barriers to community living for people of all ages with disabilities or chronic illnesses. The MFP grant program is a five-year demonstration project with an incremental appropriation of $1.75 billion between fiscal year (FY) 2007 and fiscal year (FY) 2011. Participating states receive an enhanced federal match for key Medicaid services that facilitate and ensure the successful transition of individuals from institutions to community settings. States are then expected to reinvest the savings provided by the enhanced match into their long-term care system in order to expand the availability and quality of community-based long-term care services over time. The objectives of the MFP program are as follows: • Increase the use of home- and community-based, rather than institutional, long-term care services. • Eliminate barriers or mechanisms, whether in the state law, the state Medicaid plan, the state budget, or otherwise, that prevent or restrict the flexible use of Medicaid funds to enable Medicaid-eligible individuals to receive support for appropriate and necessary long- term services in the settings of their choice. • Increase the ability of the state Medicaid program to assure continued provision of HCBS to eligible individuals who choose to transition from an institutional to a community setting. • Ensure that procedures are in place (at least comparable to those required under the qualified HCBS program) to provide quality assurance for eligible individuals receiving Medicaid HCBS and to provide for continuous quality improvement in such services. Phase I of the MFP grants were announced in January 2007, identifying 17 states that would receive the money. Thirteen more states and the District of Columbia were added in May 2007, for a current total of 31 jurisdictions. The following table shows the distribution of the awards based on CMS data: State Transitions Year One Award Amount Five-Year Commitment © 2020 Thomson Reuters. No claim to original U.S. Government Works. -3- Arkansas 305 $139,519 $20,923,775 California 2,000 $90,000 $130,387,500 Connecticut 700 $1,313,823 $24,207,383 Delaware 100 $132,537 $5,372,007 District of Columbia 1,110 $2,546,569 $26,377,620 Georgia 1,312 $480,193 $34,091,671 Hawaii 415 $231,250 $10,263,736 Illinois 3,357 $6,879,166 $55,703,078 Indiana 1,031 $860,514 $21,047,402 Iowa 528 $307,933 $50,965,815 Kansas 934 $102,483 $36,787,453 Kentucky 546 $4,973,118 $49,831,580 Louisiana 760 $524,000 $30,963,664 Maryland 2,413 $1,000,000 $67,155,856 Michigan 3,100 $2,034,732 $67,834,348 Missouri 250 $3,398,225 $17,692,006 Nebraska 900 $202,500 $27,538,984 New Hampshire 370 $297,671 $11,406,499 New Jersey 590 $230,000 $30,300,000 New York 2,800 $192,981 $82,636,864 North Carolina 1,045 $16,055 $16,897,391 North Dakota 110 $18,089 $8,945,209 Ohio 2,231 $2,079,488 $100,645,125 Oklahoma 2,075 $3,526,428 $41,805,358 Oregon 780 $80,785 $114,727,864 Pennsylvania 2,490 $130,609 $98,196,439 South Carolina 192 $34,789 $5,768,496 Texas 2,616 $143,401 $142,700,353 Virginia 1,041 $13,793 $28,626,136 Washington 660 $108,500 $19,626,869 Wisconsin 1,262 $8,020,388 $56,282,998 Totals 38,023 $40,109,539 $1,435,709,479 © 2020 Thomson Reuters. No claim to original U.S. Government Works. -4- In order to continue participation in the program, the selected states are expected to demonstrate annual numeric benchmarks, such as an increase in state Medicaid support for HCBS and satisfaction of the specified number of eligible individuals assisted to transition. States are also expected to select additional benchmarks that will be used to measure the impact of the long-term care investments made by the MFP demonstration program which resulted in improvements to the ways that individuals access and receive community- based long-term care services. On February 22, 2012, Sebelius announced that 13 states will receive a total of $621 million in grants through 2016 to help move Medicaid recipients out of nursing homes and into home- or community-based settings. The states will also receive $45 million to fund “Money Follows the Person” demonstration programs. The Affordable Care Act extended the MFP demonstration program until 2016. The MFP program provides funding for people with intellectual, physical, or developmental disabilities who live in nursing homes or other institutions to live in residential settings. In August 2012, the Kaiser Commission on Medicaid and the Uninsured surveyed states about the current status of their MFP demonstrations. Key findings include: • Over 25,000 individuals have transitioned back to the community since 2008 and another 6,400 transitions were in progress. The pace of transitions has accelerated over the past couple years, averaging 8,000 since 2010. • Comprehensive benefits are provided to participants to ensure successful transition back to the community. Demonstration-specific services were offered by 36 states; supplemental services (not necessarily long-term care in nature) were offered by 22 states. • Average monthly cost savings per MFP participant in the community was $4,432 per person. • Housing resources are seen as an issue in many states; housing specialists and statewide partnerships help bridge the gap between [FN15] demand and availability of safe, affordable housing options. The budget proposed by President Obama would extend the demonstration period through FY 2020 to enable states to continue to rebalance their long-term care systems and transition individuals to home and community-based services within the existing appropriation. Individuals currently must enter institutions to qualify for covered home and community-based services in the Money Follows the Person Demonstration. To support individuals remaining in the community, this proposal would modify the demonstration to allow funds to be used to prevent individuals from entering an institution in the first place, as well as transition services. This proposal would also reduce the institutional requirement from 90 to 60 days and allow skilled nursing facility days to be counted towards the institutional requirement. Lastly, this proposal would allow individuals in certain mental health facilities to transition to home and [FN16] community-based services under the demonstration. IV. MEDICAID WAIVERS, PERSONAL ASSISTANCE SERVICES AND OTHER MEDICAID-RELATED OPTIONS HCBS provide opportunities for Medicaid beneficiaries to receive services in their own home or community. HCBS programs under Medicaid serve a variety of targeted population groups, such as people with mental illnesses, intellectual disabilities, and/or physical disabilities. HCBS first became available in 1983 when Congress added Section 1915(c) to the Social Security Act, giving states the option to receive a waiver of Medicaid rules governing institutional care. In 2005, HCBS became a formal Medicaid State plan option. Several states include HCBS services in their Medicaid State plans, with 47 States and DC operating at least one 1915(c) waiver. State Medicaid agencies have several HCBS options: • § 1915(c) Home and Community-Based Waivers • § 1915(i) State Plan Home and Community-Based Services • § 1915(j) Self-Directed Personal Assistance Services Under State Plan • § 1915(k) Community First Choice CMS works in partnership with states, consumers and advocates, providers and other stakeholders to create a sustainable, person- driven long-term support system in which people with disabilities and chronic conditions have choice, control, and access to a full array [FN17] of quality services that assure optimal outcomes, such as independence, health, and quality of life. The programs and partnerships contained in this section of Medicaid are aimed at achieving a system that is: • Person-driven: The system affords older people, people with disabilities and/or chronic illness the opportunity to decide where and with whom they live, to have control over the services they receive and who provides the services, to work and earn money, and to include friends and supports to help them participate in community life. • Inclusive: The system encourages and supports people to live where they want to live with access to a full array of quality services and supports in the community. • Effective and Accountable: The system offers high quality services that improve quality of life. Accountability and responsibility is shared between public and private partners and includes personal accountability and planning for long-term care needs, including greater use and awareness of private sources of funding. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -5- • Sustainable and Efficient: The system achieves economy and efficiency by coordinating and managing a package of services paid that are appropriate for the beneficiary and paid for by the appropriate party. • Coordinated and Transparent: The system coordinates services from various funding streams to provide a coordinated, seamless package of supports, and makes effective use of health information technology to provide transparent information to consumers, providers and payers. • Culturally Competent: The system provides accessible information and services that take into account people's cultural and linguistic needs. In 2012, HHS Secretary Sebelius announced the creation of a new agency, the Administration for Community Living (ACL), to help enable those with disabilities and seniors “to live at home with the supports they need, participating in communities that value their [FN18] contributions—rather than in nursing homes or other institutions.” The goal of the new agency is to promote community living and finding new mechanisms to help ensure that the supports people with disabilities and seniors need to live in the community are accessible, Secretary Sebelius said. The creation of ACL brings together the Administration on Aging, the Office on Disability and the Administration on Developmental Disabilities into a single agency “that supports both cross-cutting initiatives and efforts focused on the unique needs of individual groups, such as children with developmental disabilities or seniors with dementia,” according to Sebelius. The new agency will collaborate with CMS “to develop, refine, and strengthen policies that promote independent living among all [FN19] populations, especially those served by Medicaid,” according to HHS. § 1915(c) Home and Community-Based Waivers One way that states can provide Medicaid HCBS is through the optional Section 1915(c) HCBS waiver. Section 1915(c) of the Social [FN20] Security Act gives states authority to waive Medicaid provisions in order to allow long-term care services to be delivered in community settings. In 2009, nearly one million individuals were receiving services under HCBS waivers. Nearly all States and the District of Columbia offer services through HCBS waivers. States can operate as many HCBS Waivers as they want; currently, more [FN21] than 300 HCBS Waiver programs are active nationwide. To qualify, state HCBS Waiver programs must: demonstrate that providing waiver services won't cost more than providing these services in an institution; ensure the protection of people's health and welfare; provide adequate and reasonable provider standards to meet the needs of the target population; and ensure that services follow an individualized and person-centered plan of care. Specific Medicaid program requirements that can be waived include: • “Statewideness”—lets states target waivers to areas of the state where the need is greatest, or where certain types of providers are [FN22] available. • “Comparability of services”—lets states make waiver services available only to certain groups of people who are at risk of institutionalization. For example, states can use this authority to target services to the elderly, technology-dependent children, people with behavioral conditions, or people with intellectual disabilities, or they might target services on the basis of disease or condition, such [FN23] as AIDS. • “Income and resource rules applicable in the community”—lets states provide Medicaid to people who would otherwise be eligible only in an institutional setting, often due to the income and resources of a spouse or parent. States can also use spousal impoverishment [FN24] rules to determine financial eligibility for waiver services. States can offer a variety of unlimited services under an HCBS Waiver program. Programs can provide a combination of standard medical services and non-medical services. Standard services include but are not limited to case management (i.e. supports and service coordination), homemaker, home health aide, personal care, adult day health services, habilitation (both day and residential), and respite care. States can also propose “other” types of services that may assist in diverting and/or transitioning individuals from [FN25] institutional settings into their homes and community. § 1915(i) State Plan Home and Community-Based Services States can offer a variety of services under a § 1915(i) State Plan HCBS benefit, which was first authorized in 2005 and then enhanced by the Affordable Care Act permitting states to offer HCBS without the use of a waiver. People must meet state-defined criteria based on need and typically get a combination of acute-care medical services (like dental services, skilled nursing services) and long-term services (like respite, case management, supported employment, and environmental modifications). Under the § 1915(i) State Plan HCBS benefit, the state can: target the HCBS benefit to one or more specific populations; establish separate additional needs-based criteria for individual HCBS; establish a new Medicaid eligibility group for people who get state plan HCBS; define the HCBS included in the benefit, including state- defined and CMS-approved “other services” applicable to the population; and allow any or all HCBS to be self-directed. States can develop HCBS benefits to meet the specific needs of a population, within Federal guidelines. Requirements include: establishing a process to ensure that assessments and evaluations are independent and unbiased; availability of the benefit to all eligible individuals within the state; measures taken to protect the health and welfare of participants; adequate and reasonable provider © 2020 Thomson Reuters. No claim to original U.S. Government Works. -6- standards to meet the needs of the target population; services provided in accordance with a plan of care; and a quality assurance, monitoring and improvement strategy for the benefit. To be approved, the state Medicaid agency must submit a state plan amendment to CMS for review and approval to establish a 1915(i) HCBS benefit. State plan HCBS benefits don't have a time limit on approval except when states choose to target the benefit to a specific population. When a state targets the benefit, approval periods are for 5 years, with the option to renew with CMS approval for [FN26] additional 5-year periods. In 2012, CMS proposed additional guidance to states regarding the option. Under 1915(i), states can receive federal reimbursement for services that were previously only eligible for federal funding through a waiver or demonstration. CMS first proposed a regulation to implement the 1915(i) benefit in April 2008. However, that proposed rule was not finalized and, with the enactment of ACA in 2010, CMS concluded that the proposed regulation would not comply with new requirements in ACA. As a result, it issued the new proposed rule which retains many of the policies contained in the April 2008 proposed rule, CMS said in a background summary, and also reflects comments received. The new proposed rule: • provides a five-year approval or renewal period for certain Medicaid waivers in which a state provides services for “dual eligibles” (enrollees who are eligible to receive both Medicare and Medicaid). • eliminates the “direct payment” requirement that mandates Medicaid payments be made only to certain individuals or entities and allows the state to claim as a provider payment amounts that are not directly paid to the provider, but are withheld and paid to a third party on behalf of the provider. • defines a home and community-based setting that would be used for services offered through the CFC option and the 1915(i) state plan option. [FN27] Additional information is available in a fact sheet provided by CMS. § 1915(j) Self-Directed Personal Assistance Services Under State Plan Self-directed personal assistance services (PAS) are personal care and related services provided under the Medicaid state plan and/ or section 1915(c) waivers that the state already has in place. Participation in self-directed PAS is voluntary. Participants set their own provider qualifications and train their PAS providers, and determine how much they pay for a service, support, or item. Under this plan, states can target people already getting section 1915(c) waiver services, limit the number of people who will self-direct their PAS, and limit the self-direction option to certain areas of the state, or offer it Statewide. Enrollees can hire legally liable relatives (such as parents or spouses); manage a cash disbursement; purchase goods, supports, services or supplies that increase their independence or substitute for human help (to the extent they'd otherwise have to pay for human help); and use a discretionary amount of their budget to purchase items not otherwise listed in the budget or reserved for permissible purchases. The 1915(j) service plan is based on an assessment of need for PAS. The service plan and budget plan are developed using a person- centered and directed process in which participants can engage in and direct the process. They can choose family, friends, and professionals to be involved as needed/wanted. The participant's preferences, choices, and abilities and strategies to address these preferences must be identified in the service plan. In addition, the plan must include an assessment of contingencies that pose a risk of harm to participants and an “individualized backup [FN28] plan” to address those contingencies, as well as a “risk management plan” that outlines risks participants are willing to assume. Alabama was the first state to receive federal approval to allow self-directed PAS as a feature of its Medicaid plan. A number of states [FN29] have expressed interest in following Alabama's lead in taking advantage of the DRA provision. § 1915(k) Community First Choice The “Community First Choice (CFC) Option” lets states provide home and community-based attendant services to Medicaid enrollees with disabilities under their State Plan. This option became available on October 1, 2011 and provides a 6% increase in federal matching payments to states for expenditures related to this option. Community First Choice was established under the Affordable Care Act of 2010. In 2012, CMS released the final rule implementing the CFC option that provides an incentive for states to expand their Medicaid coverage for person-centered home- and community-based attendant services and supports. According to a fact sheet provided [FN30] by CMS, states that elect the CFC option are eligible for a 6 percent increase in their federal medical assistance percentage. Individuals who require an institutional level of care are eligible for the services, which will be offered in community-based settings. States electing the CFC option will make available HCBS to assist beneficiaries in accomplishing activities of daily living, instrumental activities of daily living, and health-related tasks. States may also choose to provide coverage for transition costs to assist Medicaid beneficiaries who are leaving institutions and for services that increase independence or substitute for human assistance, such as non- medical transportation services. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -7- In order to qualify for the enhanced match, States must agree to develop their CFC benefit with the input of a stakeholder council that includes members with disabilities, elderly individuals, and their representatives; establish a comprehensive quality assurance system; collect and report information for federal oversight and program evaluation; and for the first 12 months, maintain or exceed the level of expenditures for HCBS provided under the state plan, waivers or demonstrations for the preceding 12 month period. The ACA directs that the CFC benefit may only be available in a “home or community” setting, and this rule does not finalize the definition for such settings. CMS estimated that the final rule would have an economic impact of $1.3 billion in fiscal year 2012, with federal and state shares reflecting $820 million and $480 million, respectively. In a proposed rule also released on April 26, 2013, CMS issued revised standards for HCBS settings. While the setting requirements are proposed, the CFC option is in full effect, and CMS will rely upon these proposed provisions as it reviews new state plan amendments to implement the CFC option. To the extent there are changes when the settings standard is finalized, CMS will offer states a reasonable transition period (of not less than one year) to make any needed changes to come into compliance with the final rule. ACA requires CMS to conduct an evaluation by December 31, 2015, in order to determine the effectiveness of the CFC option in allowing individuals to lead an independent life, the impact on the physical and emotional health of individuals receiving these services, and a comparative analysis of the costs of services provided under CFC and those provided in an institution. An interim report of this evaluation is due to Congress by December 31, 2013. California is the first state to get regulatory approval for CFC. By approving the First Choice program, CMS will now give the state a 6% increase in its federal medical assistance percentage for funds spent on personal attendant services. California will immediately get [FN31] the increased federal funding, with the state slated to get an additional $573 million in government funds in the first two years. News Studies Find Key HCBS Themes Among States Three new briefs collected the latest data on enrollment and spending, state policy trends and waiver waiting lists in the program, drawing upon KFF's 17th annual survey of Medicaid home and community-based services enrollment, spending and program policies. Noticeable enrollment and spending variances were found among states, indicating differing choices about optional HCBS authorities, [FN32] benefits packages and scope of covered services. Additionally, there were significant differences in program breadth, intensity and longevity of service use. Specific findings included: • About 4.6 million enrollees received Medicaid HCBS with joint federal and state HCBS spending totaling $82.7 billion in 2017. • Nearly all Medicaid HCBS enrollment (86%) and spending (93%) went to services that are provided at state option. • Services provided through waivers account for the majority of HCBS enrollment (52%) and spending (69%). • Medicaid HCBS spending per enrollee averaged just over $17,800 nationally, with substantial variation among states. • Per enrollee spending by Section 1915 (c) waiver target population ranged from nearly $5,000 for people with HIV/AIDS to nearly $43,000 for people with traumatic brain or spinal cord injuries and over $44,000 for people with intellectual or developmental disabilities. State HCBS policies were found to be instrumental in increasing beneficiary access to HCBS and shifting the balance of Medicaid [FN33] LTSS spending in favor of HCBS over nursing homes and other institutional care. While improved, the historical bias toward institutions, requiring states to cover nursing home case while making most HCBS optional, remains in federal Medicaid law. Specific findings included: • HCBS is being used to advance community integration and counter the historical bias toward institutional care. Most states are using waivers to expand HCBS financial eligibility up to the federal maximum (300% SSI) and are using the same financial and functional eligibility criteria for HCBS and institutional care, placing HCBS on equal footing with nursing homes. Over 70% of states with the personal care state plan benefit offer services at a beneficiary's work site, and over 60% offer services elsewhere in the community outside of a home or work setting. • Newer HCBS state plan authorities are being used, including Section 1915 (i) and Community First Choice (CFC), to expand or augment the populations and services covered under waivers. Nearly all states that elect the CFC attendant services option also offer personal care state plan services, and nearly all states that elect the Section 1915 (i) HCBS state plan option also serve the same target populations through waivers. • Policy changes are continually being made in response to key federal regulations affecting HCBS. States were further along in identifying policy changes required to come into compliance with CMS's home and community-based settings rule compared to the prior two years. Policy changes are also being made in response to the U.S. Department of Labor's minimum wage and overtime rules for direct care workers. CMS Issues HCBS Guidance © 2020 Thomson Reuters. No claim to original U.S. Government Works. -8- CMS has issued new guidance on implementation of the 2014 Home and Community Based Services rule, which required states to scrutinize facilities, including an assisted living facilities or group homes, receiving HCBS funding to make sure they met certain [FN34] standards. The 2014 rule aimed to define the characteristic of “community based” to move these settings and facilities away from the qualities of an “institution.” Due to concerns regarding the transition process, a three-year extension was granted in May 2017. To ensure compliance, the transition period was further extended to March 17, 2022, during which time states can work with existing HCBS providers to complete remediation and be validated as fully compliant with settings criteria. Non-compliance could mean loss of Medicaid funding. The new guidance defines a setting that is isolating individuals as a facility that limits any opportunities for patients and residents to interact with the broader community. Certain settings are presumed under the regulations to have the qualities of an institution: • Settings located in a building that is also a publicly or privately-operated facility that provides inpatient institutional treatment; • Settings that are in a building located on the grounds of, or immediately adjacent to, a public institution; and • Any other settings that have the effect of isolating individuals receiving Medicaid home and community-based services from the broader community of individuals not receiving Medicaid HCBS. CMS removed specific examples of settings automatically identified as institutional due to isolation, and instead will now account for the following factors: • Due to the design or model of service provision in the setting, individuals have limited, if any, opportunities for interaction in and with the broader community, including with individuals not receiving Medicaid-funded HCBS; • The setting restricts beneficiary choice to receive services or to engage in activities outside of the setting; or • The setting is physically located separate and apart from the broader community and does not facilitate beneficiary opportunity to access the broader community and participate in community services, consistent with a beneficiary's person-centered service plan. States are permitted to identify additional factors. If a setting is presumed to have institutional qualities, it can be approved to continue providing HCBS and receive Medicaid funding through a heightened scrutiny process, which requires the state to provide evidence demonstrating that a setting meets HCBS criteria. House Medicaid Extension Package Protects HCBS Recipients The U.S. House of Representatives reached a deal for a Medicaid expansion package that provides a 4.5-year extension of protections [FN35] for HCBS recipients against spousal impoverishment. The bill, known as the Empowering Beneficiaries, Ensuring Access, and Strengthening Accountability Act of 2019 (H.R. 3253), also includes 4.5 years of federal funding for the Money Follows the Person (MFP) Rebalancing Demonstration Program. The rebalancing program is critical to supporting the ability of persons who are elderly or disabled to live in care settings of their choice. As of December 2016, over 75,000 people with chronic conditions and disabilities have transitioned from institutions back into the community through MFP programs. Spousal impoverishment protection provides spouses of nursing home residents or those on an aged and disability waiver financial relief from paying for home care. Study Questions Wisdom of HCBS Shift A recent University of Chicago study found that elderly, dual-eligible Medicaid beneficiaries in long-term care settings are not more likely to be hospitalized than those receiving home and community-based care, even though long-term care residents tend to be older [FN36] and have more chronic issues. The main reason for this, according to the study, is because care intensity and duration tend to suffer more with untrained caregivers in HCBS settings. The recent shift to HCBS has been significant. In 1996, 19% of Medicaid long-term care expenditures were for HCBS. In 2016, that number jumped to 57%. Some experts believe that the shift to HCBS, at the sacrifice of skilled nursing providers, might be detrimental to patients and lead to worse health outcomes. In addition, researchers noted that such practices might underscore continuing health disparities: The benefits of expanding funding for Medicaid long-term care home and community-based services relative to institutional care are often taken as self-evident…Our findings suggest that home and community-based services need to be carefully targeted to avoid adverse outcomes and that the racial/ethnic disparities in access to high-quality institutional long-term care are also present in (home- care settings). It was found that among home-care users, blacks were more likely to be hospitalized than non-Hispanic whites. Medicaid HCBS spending was also higher for whites than for nonwhites, and higher Medicare and Medicaid hospital spending for blacks and Hispanics did not offset this difference. Highlights of Recent Legislative and Regulatory Activity Alabama © 2020 Thomson Reuters. No claim to original U.S. Government Works. -9- Effective December 24, 2018, 2018 AL REG TEXT 505601 (NS) amends AL ADC 560-X-52-.03 (Eligibility) regarding the Home and Community-Based Living at Home (LH) Waiver. Alaska Effective June 13, 2019, 2019 AK REG TEXT 505501 (NS) adopts regulation changes dealing with Medicaid home and community- based waiver services, nursing oversight and care management services, and adopted-by-reference materials. On August 8, 2019, 2019 AK REG TEXT 530964 (NS) proposed to adopt home and community-based waiver regulations related to limitations on day habilitation services. Arkansas Effective January 1, 2019, 2019 AR REG TEXT 506903 (NS) revises Medical Services policy to provide clarification that the penalty period start date for a Home and Community-Based Waiver Services (HCBS) applicant is no later than the point at which the applicant would otherwise be receiving HCBS waiver coverage except for the penalty. It also clarifies that an individual can establish their own special needs trust. Effective January 1, 2019, 2019 AR REG TEXT 506904 (NS) is updating and changing the rules governing the ARChoices in Homecare s. 1915(c) Home and Community-Based Services (HCBS) Waiver Program (ARChoices), IndependentChoices, Living Choices Assisted Living, Program of All-Inclusive Care for the Elderly (PACE), and Personal Care Provider Manuals. Effective December 24, 2018, 2018 AL REG TEXT 505598 (NS) amends AL ADC 560-X-52-.01 (Authority and Purpose) regarding the Home and Community-Based Living at Home (LH) Waiver. California On April 25, 2019, 2019 CA A.B. 50 (NS) was amended/substituted. If adopted, it would require the department to submit, in 2019, to the federal Centers for Medicare and Medicaid Services a request for renewal of the Assisted Living Waiver program with specified [FN37] amendments. On February 1, 2019, 2019 CA REG TEXT 516045 (NS) provided notice of renewal of the 1915(c) HCBS Multipurpose Senior Services Program (MSSP) waiver. On August 16, 2019, 2019 CA REG TEXT 531511 (NS) provided notice that the Department of Health Care Services (DHCS) intends to submit an amendment to the Home and Community - Based Alternatives (HCBA) Waiver. On October 12, 2019, 2019 CA S.B. 289 (NS) was adopted. It requires the retention of placement on the waiting list for, or the reenrollment in, specified HCBS waiver programs for an individual who is a dependent child or spouse of an active duty military service member and who transfers out of state with the military service member on official military orders, if the individual subsequently reestablishes residence in this state and meets other specified procedural requirements. Colorado On March 10, 2019, 2019 CO REG TEXT 519155 (NS) provided notice that the Department intends to submit waiver amendments for specified Home- and Community Based-Services (HCBS) waivers. Effective September 13, 2019, 2019 CO REG TEXT 536754 (NS) amends, via emergency rule, to update the rules to be in alignment with statute and define the changes made to the HCBS-CHRP waiver. Delaware On April 1, 2019, 2019 DE REG TEXT 520608 (NS) provided notice related to the renewal of Pathways to Employment Home and Community Based State Plan Amendment authorized under 1915 (i) of the Social Security Act. Federal On January 4, 2019, 2019 CONG US HR 260 was introduced. If adopted, it will extend the Medicaid Money Follows the Person Rebalancing demonstration, to extend protection for Medicaid recipients of home and community-based services against spousal impoverishment, to extend the Temporary Assistance for Needy Families program, and for other purposes. On February 25, 2019, 2019 CONG US HR 1343 was introduced. If adopted, it will extend protection for Medicaid recipients of home and community-based services against spousal impoverishment. On April 18, 2019, 2019 CONG US HR 1839 was signed into law. It amends title XIX to extend protection for Medicaid recipients of home and community-based services against spousal impoverishment. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -10- On June 25, 2019, 2019 CONG US HR 3461 was introduced. If adopted, it will establish a Community-Based Institutional Special Needs Plan demonstration program to target home and community-based care to eligible Medicare beneficiaries, and for other purposes. On June 27, 2019, 2019 CONG US S 2000 was introduced. If adopted, it will amend title XIX of the Social Security Act to remove an institutional bias by making permanent the protection for recipients of home and community-based services against spousal impoverishment. Florida On June 5, 2019, 2019 FL REG TEXT 525351 (NS) provided notice of development of proposed rules and negotiated rulemaking. If adopted, it would provide training requirements for Home and Community Based Services Medicaid Waiver Providers. Idaho Effective April 11, 2019, 2019 ID REG TEXT 506030 (NS) amends ID ADC 16.03.10.319 (HCBS—Termination of Participant Enrollment) regarding the addition of a requirement for termination of enrollment when a participant no longer meets Home and Community Based Services (HCBS) eligibility criteria. Indiana On November 20, 2019, 2019 IN REG TEXT 539956 (NS) provided notice of intent to adopt amendments regarding the addition of criteria for post-eligibility treatment of incomes for members receiving home and community-based service waivers. Iowa On February 6, 2019, 2019 IA H.F. 296 (NS) was introduced. If adopted, it will modify the enrollment process for Medicaid home and community-based services (HCBS) waivers. Kansas On February 20, 2019, 2019 KS S.B. 208 (NS) was introduced. If adopted, it will increase reimbursement rates for home and community-based services. Louisiana Effective December 20, 2018, 2018 LA REG TEXT 504129 (NS) amends various sections regarding Home and Community-Based Service Waivers—Adult Day Health Care Waiver. Effective January 20, 2019, 2019 LA REG TEXT 507157 (NS) amends LAC 50:XXI Chapter 137, sections 13933 and 14301 regarding complex care services under the HCBS New Opportunities Waiver. Effective June 20, 2019, 2019 LA REG TEXT 519682 (NS) amends 50 LA ADC Pt XXI, § 8105 (Programmatic Allocation of Waiver Opportunities) regarding the Community Choices Waiver. Effective August 20, 2019, 2019 LA REG TEXT 524172 (NS) revises and adopts sections regarding provider requirements for home and community-based service waivers. On November 20, 2019, 2019 LA REG TEXT 540354 (NS) provided notice of intent to make amendments regarding home and community-based behavioral—health service waiver—coordinated system of care discharge criteria. Maryland On February 1, 2019, 2019 MD REG TEXT 515991 (NS) provided notice that the Maryland Department of Health (MDH) is amending the Community Pathways Waiver, Family Supports Waiver, and Community Supports Waiver programs which provide various home and community-based services to support participants as they work toward individually defined life outcomes, self-determination, community living, socialization, and economic self-sufficiency. On February 4 and 8, 2019, 2019 MD H.B. 1009 (NS) and 2019 MD S.B. 700 (NS) were introduced. If adopted, they will repeal the initial cap on participation in an HCBS waiver and require an HCBS waiver submitted by the Maryland Department of Health to the Centers for Medicare and Medicaid Services to include a request for a cap on waiver participation that is set at no less than a certain percentage of the projected annual demand for certain services. On May 13, 2019, 2019 MD S.B. 699 (NS) was adopted. It will prohibit the Maryland Department of Health from denying an individual access to a home- and community-based services waiver due to a lack of funding for waiver services if the individual is living at home or in the community at a certain time, received certain services, will be or has been terminated from the Maryland Medical Assistance © 2020 Thomson Reuters. No claim to original U.S. Government Works. -11- Program due to certain entitlement or enrollment, meets certain eligibility criteria, and certain services received by the individual would qualify for federal matching funds. On March 28, 2019, 2019 MD H.B. 832 (NS) was engrossed. If adopted, it will prohibit the Maryland Department of Health from denying an individual access to a home- and community-based services waiver due to a lack of funding for waiver services if the individual is living at home or in the community at a certain time, received certain services, will be or has been terminated from the Maryland Medical Assistance Program due to certain entitlement or enrollment, meets certain eligibility criteria, and certain services received by the individual would qualify for federal matching funds. On June 7, 2019, 2019 MD REG TEXT 525802 (NS) and 2019 MD REG TEXT 525804 (NS) provided a general notice that the Maryland Department of Health (MDH) is amending the Community Pathways Waiver, Family Supports Waiver, and Community Supports Waiver. On June 21, 2019, 2019 MD REG TEXT 526679 (NS) provided notice that the Maryland Department of Health (MDH) is amending three waiver programs: Community Pathways Waiver, Family Supports Waiver and Community Supports Waiver. On July 5, 2019, 2019 MD REG TEXT 527895 (NS) provided notice that the Maryland Department of Health (MDH) is amending three waiver programs: the Community Pathways Waiver, Family Supports Waiver and Community Supports Waiver. Massachusetts Effective February 8, 2019, 2019 MA REG TEXT 507128 (NS) amends 101 CMR 359.00 regarding rates for two new Home & Community-Based Services (HCBS) waiver services, “Community Based Day Supports” and “Community Support and Navigation,” that were added to the federally approved HCBS waivers. Minnesota On May 22, 2019, 2019 MN S.F. 573 (NS) was adopted. It revises various sections regarding home and community-based services for elderly individuals. Missouri Effective July 30, 2019, 2019 MO REG TEXT 515874 (NS) establishes requirements that must be met for settings in which home and community-based services are provided under a 1915(c) HCBS waiver program. Effective July 30, 2019, 2019 MO REG TEXT 515873 (NS) implements home and community-based services waiver definitions. On February 25, 2019, 2019 MO S.B. 441 (NS) was introduced. If adopted, it will modify provisions relating to certain MO HealthNet home and community-based services. Montana On April 18, 2019, 2019 MT H.B. 529 (NS) was adopted. It revises requirements regarding waiting list criteria for home and community- based services. Nevada Effective June 7, 2019, 2019 NV S.B. 425 (NS) requires the Director of the Department of Health and Human Services to amend the State Plan for Medicaid to provide certain additional home and community-based services. New Jersey On March 18 and 25, 2019, 2018 NJ S.B. 3593 (NS) and 2018 NJ A.B. 5219 (NS) were introduced. If adopted, they will require the Division of Medical Assistance and Health Services in DHS to accept permanent change of station order for purposes of satisfying residency requirement for provision of home and community-based services under certain circumstances. New Mexico Effective July 1, 2019, 2019 NM REG TEXT 515684 (NS) amends NM ADC 8.314.3 (Medically Fragile Home and Community-Based Services Waiver Services). New York On January 25, 2019, 2019 NY A.B. 2788 (NS) was introduced. If adopted, it will establish payment rules regarding home and community based long term care services. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -12- On April 3, 2019, 2019 NY S.B. 4972 (NS) was introduced. If adopted, it will establish payment criteria for home and community based long term care services. Effective May 29, 2019, 2019 NY REG TEXT 518978 (NS) amends various sections in 14 NYCRR 636-2 (Home and community-based services and settings requirements, effective October 1, 2021). Effective October 9, 2019, 2019 NY REG TEXT 524598 (NS) requires that nursing homes provide information about home and community-based services and community transition programs to residents upon admission. Effective August 21, 2019, 2019 NY REG TEXT 524599 (NS) adopts home and community-based service rules regarding person centered planning. Ohio Effective January 1, 2019, 2018 OH REG TEXT 506692 (NS) and 2018 OH REG TEXT 506693 (NS) amend, rescind and adopt various provisions regarding home and community-based waiver services regarding PASSPORT, nursing facilities and home care. Effective January 1, 2019, 2018 OH REG TEXT 504726 (NS) amends provisions regarding the MyCare Ohio HCBS Waiver Program. Effective July 1, 2019, 2019 OH REG TEXT 521520 (NS) amends provisions regarding Home and Community-Based Services Waivers; Documentation and Payment for Services Under the Individual Options and Level One Waivers; Assistive Technology Under the Individual Options, Level One, and Self-Empowered Life Funding Waivers. Effective July 1, 2019, 2019 OH REG TEXT 521105 (NS) amends OH ADC 5160-1-06.1 (Home and community-based service waivers: PASSPORT). Effective July 25, 2019, 2019 OH REG TEXT 523404 (NS) adopts, amends and rescinds various provisions regarding home and community-based service waivers. Effective July 1, 2019, 2019 OH REG TEXT 521522 (NS) and 2019 OH REG TEXT 521718 (NS) enact OH ADC 5160-44-05 (Nursing facility-based level of care home, community-based services (HCBS) programs and specialized recovery services (SRS) program: incident management) and OH ADC 5160-44-12 (Nursing facility-based level of care home and community-based services programs: home maintenance and chore services). On October 1, 2019, 2019 OH REG TEXT 535564 (NS) proposed to amend sections regarding the Medicaid Home and Community- Based Services Program - Individual Options Waiver, Self-Empowered Life Funding Waiver, and Level One Waiver. On November 15, 2019, 2019 OH REG TEXT 539772 (NS) was proposed. If adopted, it will amend and rescind rules regarding nursing facility-based level of care home and community-based services programs. Oklahoma Effective September 1, 2019, 2019 OK REG TEXT 512277 (NS) updates assisted living rules regarding Home and Community-Based Services (HCBS) Waivers for visitation in residential HCBS settings. Effective September 1, 2019, 2019 OK REG TEXT 512284 (NS) revises provisions regarding employment services through home and community-based service waivers. On March 5, 2019, 2019 OK H.B. 1277 (NS) was engrossed. If adopted, it will extend the billing cycle for home and community-based services. On May 15, 2019, 2019 OK H.B. 1278 (NS) was adopted. It establishes requirements for reductions in planned services regarding community-based service providers. Oregon Effective June 1, 2019, 2019 OR REG TEXT 525393 (NS) repeals OR ADC 410-172-0700 (1915(i) Home and Community Based Services). Effective June 1, 2019, 2019 OR REG TEXT 525391 (NS) adds rules regarding 1915(i) Home and Community Based Services State Plan Option. Effective July 1, 2019, 2019 OR REG TEXT 527615 (NS) amends OR ADC 461-160-0620 (Income Deductions and Client Liability; Long-Term Care Services or Home and Community-Based Care; OSIPM). On October 1, 2019, 2019 OR REG TEXT 536231 (NS) was proposed. If adopted, it will add specified rules regarding 1915i Home and Community-Based Services to comply with Federal requirements based on 2014 changes to 1915 of the Social Security Act. Effective November 26, 2019, 2019 OR REG TEXT 530624 (NS) repeals OR ADC 410-172-0700 (1915(i) Home and Community Based Services). © 2020 Thomson Reuters. No claim to original U.S. Government Works. -13- Rhode Island On February 13 and 27, 2019, 2019 RI S.B. 280 (NS) and 2019 RI H.B. 5566 (NS) were introduced. If adopted, they will expand the number of persons eligible for home and community care services to the elderly to include those persons under the age of 65 suffering from Alzheimer's disease or a related dementia confirmed by a licensed physician with income not exceeding 250% of the federal [FN38] poverty level. Tennessee On February 6, 2019, 2019 TN H.B. 702 (NS) and 2019 TN S.B. 608 (NS) were introduced. If adopted, they will require that amendments to rules concerning home-based and community-based settings be consistent with an intent for services to be received in the most integrated setting appropriate to the person's needs. Texas On January 23, 2019, 2019 TX H.B. 1016 (NS) was introduced. If adopted, it will add requirements relating to eligibility determinations [FN39] for the STAR+PLUS home and community-based services (HCBS) program. On March 7, 2019, 2019 TX S.B. 1957 (NS) was introduced. If adopted, it will require HCBS participants to receive a personal needs allowance no less than $85 of the participant's monthly SSI. Effective September 2, 2019, 2019 TX REG TEXT 527945 (NS) amends 1 TX ADC § 355.723 (Reimbursement Methodology for Home and Community-Based Services and Texas Home Living Programs). Effective July 23, 2019, 2019 TX REG TEXT 519332 (NS) and 2019 TX REG TEXT 519333 (NS) repeal and establish new sections regarding the HCBS Adult Mental Health program. Effective July 23, 2019, 2019 TX REG TEXT 519333 (NS) adopts rules concerning the Home and Community-Based Services--Adult Mental Health Program (HCBS-AMH). On October 11, 2019, 2019 TX REG TEXT 536581 (NS) provided notice that the Texas Health and Human Services Commission (HHSC) is submitting to the Centers for Medicare and Medicaid Services (CMS) a request to amend the Home and Community-based Services (HCS) waiver administered under section 1915(c) of the Social Security Act. CMS has approved this waiver through August 31, 2023. On October 18, 2019, 2019 TX REG TEXT 537266 (NS) proposed new s.355.727, concerning Add-on Payment Methodology for Home and Community-Based Services Supervised Living and Residential Support Services. On November 1, 2019, 2019 TX REG TEXT 538290 (NS) provided notice that the Texas Health and Human Services Commission (HHSC) is submitting to the Centers for Medicare and Medicaid Services (CMS) a request to amend the Home and Community-based Services (HCS) waiver administered under section 1915(c) of the Social Security Act. CMS has approved this waiver through August 31, 2023. The proposed effective date for the amendment is March 9, 2019. Utah Effective July 2, 2019, 2019 UT REG TEXT 529979 (NS) provided a notice of continuation for home and community-based service waivers. Effective July 15, 2019, 2019 UT REG TEXT 523844 (NS) updates the process used to transition interested individuals from Intermediate Care Facilities (ICFs) to home and community-based services (HCBS). The amendment also provides additional information regarding how education about HCBS will be provided to both individuals residing in ICFs and those considering admission to ICFs. Vermont On February 8, 2019, 2019 VT H.B. 189 (NS) was introduced. If adopted, it will require annual inflationary increases to Medicaid reimbursement rates for home- and community-based service providers. Washington Effective June 15, 2019, 2019 WA REG TEXT 516189 (NS) amends WA ADC 388-845-1410 (Are there limits to the prevocational services you may receive?) removing prevocational services as of March 1, 2019 since they no longer meet federal requirements for home and community-based services settings. On November 6, 2019, 2019 WA REG TEXT 516192 (NS) proposed to incorporate federal requirements for home and community- based settings. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -14- V. DISABLED PERSONS On June 22, 1999, the U.S. Supreme Court held in Olmstead v. L.C. that unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act (ADA). The Court held that public entities must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity. The Court explained that its holding “reflects two evident judgments.” First, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life.” Second, “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, [FN40] work options, economic independence, educational advancement, and cultural enrichment.” Ten years later, Judge Nicholas Garaufis of the Federal District Court in Brooklyn ruled that the state of New York had violated the ADA by leaving thousands of mentally ill citizens in privately-operated adult homes. Garaufis ruled that the state's housing of approximately 4,300 mentally ill residents in 28 adult homes in New York City is illegal because the homes constitute “institutions [FN41] that segregate residents from the community and impede resident's interactions with people who do not have disabilities.” The ADA required states to remove the mentally ill from psychiatric institutions and integrate them into the larger community so that they could learn independent living skills and gain self-sufficiency. Judge Garaufis ruled that the adult homes are essentially segregated institutionalized settings that prevent residents from interacting with others in their neighborhood, developing relationships, and minimizing their employment options. The judge also noted that supported housing for the mentally ill is less expensive for the state [FN42] than adult homes. On March 1, 2010, Judge Garaufis released a plan for transitioning the adult home residents and ordered the state to begin moving them into their own apartments or homes. The plan requires the state to develop at least 1,500 supported housing units per year for the next three years. Judge Garaufis' plan is a rejection of the proposal issued by the state, which called for the development of 1,000 total units, to be made available over a five year period. In his opinion, the judge noted that the court “is disappointed and, frankly, [FN43] incredulous that defendants sincerely believed this proposal would suffice.” The transition order exempts individuals with severe mental illness who pose a danger to themselves or others. These individuals will continue to reside in large adult homes. According to a statement from the office of Gov. David Paterson (D), the state is considering an appeal. The U.S. Department of Justice announced on May 25, 2010, that it had filed briefs in three separate court cases involving alleged violations of the ADA. The DOJ filings support two private lawsuits in Florida and New Jersey and a proposed class action settlement in Illinois. All three briefs argue that the three states are not complying with ADA and the Supreme Court's Olmstead decision, which bans unjustified institutionalization. In addition, Georgia officials have committed to spend $15 million in the current budget and an additional $62 million in 2012 to help mentally ill and developmentally disabled people move out of state mental hospitals and receive services in their communities, under a settlement with the DOJ. States find they face opposing mandates: while they must provide, within their resources, community-based services for the disabled, Medicaid rules require that they provide nursing home care—but not home care—to people with disabilities. In light of dwindling budgets, at least 17 states have cut into funding for assistance to the disabled since 2009 or are planning to do so this year. The cuts include cash, home nursing services, and grants to agencies that help the disabled live independently. Since home-based care is an optional service, states are opting to cut those services, observes Ann Kohler, executive director of the National Association of State Medicaid Directors. Not being able to afford the community-based services is not an excuse, says Thomas Perez, assistant attorney general for civil rights. He says the Justice Department has been working with the Department of Health and Human Services to find [FN44] more funding for some of the states it is going up against in court. After a year-long investigation, Senate Health, Education, Labor and Pensions (HELP) Committee Chair Tom Harkin released a report showing that the ADA's promise of integration is not being met for many Americans with disabilities. Nearly 15 years ago, the Supreme Court ruled in Olmstead v. L.C. that unnecessary segregation of individuals with disabilities is a violation of the ADA. The HELP committee report finds, however, that states have yet to make adequate progress in ensuring independent living. Providing services for people with disabilities outside of an institution is most cost-effective option, yet more than 200,000 Americans with disabilities under age 65 remain unfairly segregated in nursing homes and the number of working-age Americans with disabilities confined to nursing homes is actually growing, the report says. The report, titled “Separate and Unequal: States Fail to Fulfill the Community Living Promise of the Americans with Disabilities Act,” is the result of requests for information sent by Chairman Harkin to all 50 states on the progress made to transition individuals out of institutions. While progress has been made nationally, by 2010 only 12 states spent more than 50 percent of Medicaid funds on community-based care instead of institutional care, the investigation found. Delaware announced on July 6, 2011 that it has agreed to comprehensive reform of its mental health system under the terms of a five-year settlement with the Justice Department over allegations of ADA violations. The alleged violations were identified during a three-year federal investigation of the state psychiatric hospital and community services provided by the state for people with mental illness. The results of the investigation showed that the state was not in compliance with the ADA requirement to provide people with disabilities in the most integrated settings appropriate to their needs. Under the agreement, people with mental illnesses will be able © 2020 Thomson Reuters. No claim to original U.S. Government Works. -15- to reside successfully in their homes and communities rather than entering costly segregated facilities, according to Thomas E. Perez, assistant attorney general for civil rights. He points out that in addition to satisfying ADA obligations and fulfilling its moral interest in serving people with mental illness, the agreement will save Delaware money. Where it costs the state an average of $220,000 to treat a person in the Delaware Psychiatric Center, that same person can be treated for $50,000 in the community, and the federal government [FN45] picks up part of the tab. On January 24, a federal court approved a settlement resolving a lawsuit that charged California's efforts to eliminate its Medicaid- supported Adult Day Health Care program violated the ADA. Filed in the U.S. District Court for the Northern District of California, the settlement calls for the ADHC program to be phased out and replaced on March 1 with the Community-Based Adult Services (CBAS) program. The state maintains that the CBAS program “will provide necessary medical and social services to individuals with intensive health care needs.” Former ADHC participants who do not qualify for CBAS will be eligible to receive enhanced case management and other services through the state's Department of Health Care Services and Medi-Cal managed care plans that contract with DHCS, the state said. Eligibility to participate in CBAS will be determined by state medical professionals on the basis of medical need and with the goal of ensuring a loss of services does not result in institutionalization. The state DHCS said it expects about half of the 35,000 former ADHC beneficiaries—mostly seniors and younger people with traumatic brain injuries or other cognitive disabilities—to qualify under CBAS. The other half will have case management services to help them find other, adequate, community-based services, DHCS said. The lawsuit alleged that eliminating the day care services without providing an adequate alternative would violate the ADA by placing [FN46] former recipients at risk of institutionalization, hospitalization, injury, or death. State officials in Illinois agreed on August 30, 2011, to a proposed settlement to end the state's reliance on nursing facilities to house adults who have physical and mental disabilities. The proposed settlement, filed in federal court, would require state agencies to offer subsidized apartments to thousands of Cook County nursing home residents who can function independently and want to move out of the institutions. The settlement still requires court approval and a “fairness hearing” to consider the comments and objections of interested parties before becoming state policy. Advocates have hailed the agreement as a civil rights victory for low-income people with disabilities, saying the new settlement would bolster other recent court agreements and legislative reforms aimed at reshaping long-term care system. State officials say the new agreement would not burden Illinois taxpayers because the state would recoup [FN47] Medicaid dollars as it offers apartments and community housing to the former nursing home residents. Hundreds of mentally ill people in New York, who have been confined to nursing homes, would move to apartments or other housing within three years under a legal settlement with the state. The settlement resolved a case that was filed in Brooklyn federal court in 2006 and that accused the state of violating the spirit of its own longstanding rules for housing mentally ill people. The plaintiffs found that psychiatric centers and nursing homes had developed “turnaround agreements, which essentially were written agreements to transfer patients back and forth,” Veronica S. Jung, senior staff attorney for New York Lawyers for the Public Interest said. Under longstanding legal principle in New York and elsewhere, the mentally ill cannot be confined unless they are considered a threat to [FN48] themselves or others, and should be housed in the least restrictive setting appropriate for their needs. Texas will expand community-based services for those with intellectual and developmental disabilities (IDD) as part of an interim settlement agreement with the U.S. Department of Justice announced on August 19. Under the interim settlement agreement filed with the U.S. District Court for the Western District of Texas, the state will begin to provide community alternatives to nursing facilities for thousands of people while the parties temporarily suspend their ongoing litigation as negotiations continue toward a comprehensive settlement. In a statement, DOJ called the interim agreement the “first statewide settlement to vindicate the Olmstead rights of [FN49] individuals in nursing facilities.” The Olmstead v. L.C. ruling requires states to eliminate unnecessary segregation of people with disabilities and to ensure that they receive services in the most integrated setting appropriate to their needs. A class action was filed against the state in December 2010 by private plaintiffs and DOJ filed a partial consent motion to intervene in the case in June 2011. Approximately 4,500 Medicaid-eligible individuals over 21 years old currently living in nursing facilities are considered to be inappropriately placed and could benefit from living in a community settlement, according to the 2011 filing. The litigation involves claims that the state violated the ADA and other federal laws “both by segregating these individuals in nursing homes and by failing to provide them with the treatment and services they needed while there,” according to an August 19 statement released by Disability Rights Texas, a federally designated legal protection and advocacy agency and nonprofit that formed part of the representation of the [FN50] six private plaintiffs who brought the suit. News Federal HCBS Rule Still Being Tweaked Federal officials are continuing to clarify a rule determining whether a living arrangement for a person with disabilities qualifies as either [FN51] a community-based or institutional setting. The 2014 rule issued by CMS requires that settings offer full access to the community, provide privacy, foster independence and allow those with disabilities to assert their own preferences about service and providers in order to be paid through HCBS waivers. Earlier guidance said newly-constructed facilities were required to be operational and serve Medicaid beneficiaries before they would be determined to overcome an institutional presumption. Additionally, factors beyond the physical structure of the setting itself would © 2020 Thomson Reuters. No claim to original U.S. Government Works. -16- be considered, including if individuals residing or receiving services in the setting actually experience it in a manner that promotes independence and community integration. In the latest guidance, CMS is softening its earlier stance saying it can now review a setting once services are being provided, even if recipients are not Medicaid beneficiaries: “CMS believes that an accurate analysis of a setting's adherence to the regulatory criteria can be performed at the state and federal levels based on the experiences of non-Medicaid beneficiaries.” States were initially required to comply with the settings rule by the end of this year, but the Trump administration pushed the deadline back to March 2022. Highlights of Recent Legislative and Regulatory Activity California On December 14, 2018, 2018 CA REG TEXT 512126 (NS) provided notice of amendments to the 1915(c) Home and Community - Based Services (HCBS) Waiver for Persons with Developmental Disabilities. On August 2, 2019, 2019 CA REG TEXT 530272 (NS) provided notice that the Department of Health Care Services (DHCS) in partnership with the Department of Developmental Services (DDS) is seeking to amend the 1915(c) Home and Community-Based Services (HCBS) Waiver for Persons with Developmental Disabilities. On October 25, 2019, 2019 CA REG TEXT 538038 (NS) provided notice that the Department of Health Care Services in partnership with the Department of Developmental Services is seeking to amend the 1915(c) Home and Community Based Services Waiver for Persons with Developmental Disabilities. Delaware On February 1, 2019, 2019 DE REG TEXT 516233 (NS) provided notice of a proposed renewal for the DDDS Lifespan HCBS Waiver. District of Columbia Effective February 7, 2019, 2019 DC REG TEXT 517046 (NS) provided notice of the adoption, on an emergency basis, of amendments to Chapter 9 (Medicaid Program); and Chapter 42 (Home and Community-Based Services Waiver for Persons who are Elderly and Individuals with Physical Disabilities) of Title 29 (Public Welfare) of the District of Columbia Municipal Regulations (DCMR). Idaho Effective January 1, 2019, 2018 ID REG TEXT 494444 (NS) amends ID ADC 16.03.10.326 (Aged and Disabled Waiver Services: Coverage and Limitations) reauthorizing the Idaho Home Choice Program to continue after September 30, 2020 by modifying 1915(c) Home and Community Based Services (HCBS) Waivers. Indiana On November 13, 2019, 2019 IN REG TEXT 539482 (NS) provided notice that the Indiana Family and Social Services Administration (FSSA) Division of Disabilities and Rehabilitative Services (DDRS) intends to submit a renewal of the Community Integration and Habilitation (CIH) waiver and a renewal of the Family Supports waiver (FSW) to the Centers for Medicare and Medicaid Services (CMS) for consideration. These waiver renewals will allow DDRS to continue providing home and community-based services (HCBS) to individuals who, but for provisions of such services, would require institutional care. The anticipated effective date is April 17, 2020. Iowa On February 6, 2019, 2019 IA H.F. 294 (NS) was introduced. If adopted, it will require the department of human services to eliminate the monthly budget maximum or cap for individuals eligible for the Medicaid home and community-based services brain injury waiver. [FN52] On May 3, 2019, 2019 IA H.F. 570 (NS) was adopted. It relates to the brain injury home and community-based services waiver monthly budget maximum. Maine Effective January 7, 2019, 2019 ME REG TEXT 506978 (NS) amends ME ADC 10-144 Ch. 101, Ch. II, § 19 (Home and Community Benefits for the Elderly and Adults with Disabilities). Effective January 7, 2019, 2019 ME REG TEXT 506979 (NS) amends ME ADC 10-144 Ch. 101, Ch. III, § 19 (Home and Community Benefits for the Elderly and Adults with Disabilities). © 2020 Thomson Reuters. No claim to original U.S. Government Works. -17- Mississippi Effective June 1, 2019, 2019 MS REG TEXT 522154 (NS) removes the Assisted Living Waiver, Elderly and Disabled Waiver, Independent Living Waiver, and Traumatic Brain Injury/Spinal Cord Injury Waiver's requirements to complete the PASRR. New Hampshire On May 30, 2019, 2019 NH REG TEXT 524822 (NS) provided notice of a proposal to readopt He-E 801 with amendments, describing eligibility for, services covered by, and provider requirements for the Choices for Independence (CFI) program, which is a Medicaid 1915(c) waiver program for seniors and adults with disabilities, also known as the Home and Community Based Care program (HCBS- CFI) or CFI waiver program. Ohio Effective January 1, 2019, 2018 OH REG TEXT 506723 (NS) and 2018 OH REG TEXT 506724 (NS) rescind, amend and adopt various Developmental Disability Home and Community-Based Waiver Service provisions. On November 18, 2019, 2019 OH REG TEXT 536986 (NS) issued revised filings regarding amendments to rules for home and community-based services waivers - documentation and payment for services under the individual options and level one waivers. On November 27, 2019, 2019 OH REG TEXT 537210 (NS) issued revised filings regarding the adoption and amendment of rules regarding home and community-based waiver services for persons with developmental disabilities. Texas On June 14, 2019, 2019 TX H.B. 3117 (NS) adopted. It makes changes relating to the development of a proposed long-term care plan for persons with an intellectual disability participating in the home and community-based waiver program. Virginia On February 4, 2019, 2019 VA REG TEXT 436613 (NS) proposed to redesign three existing home and community based waivers as follows: Individual and Family Developmental Disabilities Support Waiver (12VAC30-120-700 et seq.) is changing to the Family and Individual Supports (FIS) Waiver, Intellectual Disability Waiver (12VAC30-120-1000 et seq.) is changing to the Community Living (CL) Waiver, and the Day Support Waiver for Individuals with Mental Retardation (12VAC30-120-1500 et seq.) is changing to the Building Independence (BI) Waiver. Washington On February 6, 2019, 2019 WA REG TEXT 516170 (NS) provided notice of a preproposal to amend various sections regarding DDA home and community-based service waivers. West Virginia On January 11, 2019, 2019 WV H.B. 2336 (NS) was introduced. If adopted, it will add WV ST § 9-5-27 regarding I/DD Medicaid HCBS Waiver Requirements. Wyoming On September 26, 2019, 2019 WY REG TEXT 535337 (NS) provided a notice of intent to adopt rules regarding Environmental Modifications and Specialized Equipment for Medicaid Home and Community-Based Waiver Services; DD Waiver Provider Standards, Certification, and Sanctions; Medicaid Supports and Comprehensive Waivers. VI. EXPANSION OF HCBS PROGRAMS A state-by-state summary of assisted living regulations was released in March 2012, by The National Center for Assisted Living (NCAL). The study analyzes regulatory and legislative changes in 2011 and provides state-by-state highlights, along with contact information for state agencies that oversee assisted living activities and each agency's Web site address. According to the report, 16 states in 2011 reported making statutory, regulatory or policy changes impacting assisted living/residential care communities, and at least four of these (Georgia, South Dakota, Nevada, and North Carolina) made major changes. As of February 2012, Florida and several other states were also considering significant changes to assisted living regulation. Highlights of the report: • A second level of licensure for Assisted Living Community standards—covering disclosure, required services, admission thresholds, resident assessment, medication management, physical plant, staffing, staff training, and fire safety requirements—was created by several other states. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -18- • Education and training requirements for direct care workers were revised or added in six states and certification standards for home care aides established. • Refined standards for disclosure of information, fire safety, infection control and TB testing, discharge/transfer between care sites, admission/retention thresholds, medication management, and physical plant were reported in several states, along with increased enforcement tools and incentives for higher quality ratings. • Medicaid coverage of services for assisted living residents was impacted in several states, including choice of health care providers, [FN53] home-like condition of assisted living center, and adjustment of supplemental security payment benefits. On November 4, 2013, the Office of Management and Budget received for review a final rule (CMS-2249-F) from CMS that will revise Medicaid regulations to define and describe State plan HCBS under the Affordable Care Act. The rule offers States flexibilities in providing necessary and appropriate services to elderly and disabled populations. The rule provides additional guidance to states offering HCBS under the so-called 1915(i) benefit which allows states to offer HCBS without first obtaining a waiver from the CMS. As a result, states can receive federal reimbursement for services that were previously eligible for federal funding only through a waiver and demonstration. In particular, the rule provides for a five-year approval or renewal period for certain Medicaid waivers. The time period will apply for demonstration and waiver programs in which a state provides services to enrollees who are eligible to receive both Medicare and Medicaid. The rule also eliminates the “direct payment” requirement that mandates Medicaid payments be made only to certain individuals or entities; the rule will allow the state to claim as a provider payment amounts that aren't paid directly to the provider but are withheld and paid to a third party on behalf of the provider for health and welfare contributions, training costs and other benefits. [FN54] The AARP Public Policy Institute issued a report in February 2012 that examines the transformations of long-term services and supports (LTSS) taking place in many states. As a result of the lagging economy and increased demand for publicly funded LTSS, the report finds state policymakers are under pressure to find solutions. Many states either have or plan to implement Medicaid Managed LTSS, with 12 states having existing programs and another 11 with plans for implementation; at least 28 states are focusing on improved integration of care for people who are eligible for both Medicare and Medicaid. Many states used the economic downturn as an opportunity to balance services from institutional to noninstitutional settings, with 27 states reporting that the HCBS census increased from fiscal year (FY) 2010 to FY 2011, and 31 states reporting expected increases from FY 2011 to FY 2012. The report found six clear patterns emerging from the states: • States are transforming the financing and delivery of LTSS: a significant number of states either have or plan to implement Medicaid Managed LTSS, and a majority of states seeks better integration of Medicare and Medicaid services for “dual eligibles.” • The aftermath of the Great Recession continues to impact state budgets; many made cuts to non-Medicaid LTSS funded services. • Demand for publicly-funded services continues to increase due to rising numbers of older adults and persons with disabilities in need of these services. • States continue to remain committed to HCBS; many states work to balance services from institutional to non-institutional settings and continue to make progress in serving more individuals with LTSS needs in their homes or communities, as opposed to nursing homes. • Changes in LTSS state leadership are at record highs. • Uncertainty around the constitutionality of the Affordable Care Act (ACA); while the ACA provides states with new options to expand [FN55] HCBS, pending constitutionality litigation makes adoption of these options a challenge. In addition to a detailed analysis of the six common themes, the report also includes extensive state-by-state data on budgets, plans for [FN56] LTSS expansion, integration of dual eligibles, Medicaid HCBS waivers, and nursing facility activities. In FY 2014 and FY 2015, 42 and 47 states, respectively, took actions that expanded the number of persons served in a home and [FN57] community-based services (HCBS) setting, A Kaiser Family Foundation survey has found. In contrast, just 26 states took such action in FY 2012 and 33 in FY 2013. The in-depth report examines Medicaid budgets in the 50 states, for fiscal years 2014 and 2015. While most states reported using Section 1915(c) waiver authority to expand HCBS, a significant number of states (13 in FY 2014 and 16 in FY 2015) reported that the incentives built into their managed long-term services and support (LTSS) programs were expected to increase the number of people served in community settings. Nineteen states had at least one of the new ACA LTSS options in place in FY 2013; an additional 12 states in FY 2014 and 15 states in FY 2015 plan to implement one or more of these options. Additionally, the survey found a marked increase in the establishment of “health home” initiatives. The ACA provides a new state plan option for Medicaid programs to establish health homes, designed to be person-centered systems of care that facilitate access to and coordination of the full array of primary and acute physical health services, behavioral health care, and community-based LTSS, for beneficiaries who have at least two chronic conditions (or one and at risk of a second or a serious mental health condition). States may implement a health home program after gaining CMS approval. Then, a 90 percent federal match rate is available for qualified expenditures for health home services for the first eight quarters of a state's program. In the survey, 12 states said that health homes © 2020 Thomson Reuters. No claim to original U.S. Government Works. -19- were “in place” in FY 2013, 14 states reported having adopted or expanded health homes in FY 2014 and 26 states reported plans to do so in FY 2015. Federal Legislation People younger than 55 would become eligible for a program to prevent unnecessary nursing home admissions if lawmakers pass a bill introduced on May 1 in the U.S. House of Representatives. These younger people currently are not allowed to participate in the [FN58] Program of All-Inclusive Care for the Elderly (PACE), noted bill sponsor Rep. Earl Blumenauer (D-OR) in a press release. The program, which now is running in 31 states, has been a “huge success,” Blumenauer said. As introduced by Blumenauer and Rep. Chris Smith (R-NJ), the “PACE Pilot Act” (2013 FD H.B. 4543 (NS)) would bring younger people “into the fold” in a budget-neutral manner, he said. PACE is designed for individuals who need a nursing home level of care. But instead of institutional care, it puts in place a health care team to enable participants to live in home- or community-based settings whenever possible. PACE is run through private health plans that receive capitated payments from the government. They are charged with providing coordinated care for people who otherwise would be billing Medicare and/or Medicaid for less integrated services. The measure would also eliminate the nursing home level of care requirement, which would widen access to preventative services and treatments for the “frailest members of our society,” Smith said. BNA reports that a bipartisan group of senators urged the CMS to increase the regulatory flexibility of a program that allows the frailest [FN59] and costliest Medicare and Medicaid beneficiaries to receive care at home. The letter, dated September 17, was signed by Sens. Thomas R. Carper (D-Del.) and Patrick J. Toomey (R-Pa.), along with 11 others. The lawmakers urged the CMS to expand the Program of All-Inclusive Care for the Elderly (PACE), which they said can offer high quality, cost-effective care to seniors who are eligible for Medicare and Medicaid. The PACE program uses Medicare and Medicaid funds to cover all of a beneficiary's medically necessary care and services. An enrollee can have either Medicare or Medicaid or both to join PACE. In the letter, lawmakers state that “current regulatory and statutory barriers have inhibited PACE growth and innovation,” and are calling on CMS to allow PACE to operate in a variety of community settings—such as adult day health centers or senior centers—as well as to offer concurrent reviews at the federal and state level to speed up the provider application process. VII. CAREGIVERS AND DIRECT CARE WORKERS In December 2009 the National Alliance for Caregiving (NAC), in conjunction with AARP, released a comprehensive study on caregiving in the United States. According to the study, nearly one-third of American adults served as a caregiver in 2009. For the purposes of the report, a caregiver is defined as an individual who provides unpaid care to an adult or child. The study revealed that 29 percent of American adults, comprising 65.7 million people, provided an average of 20 hours of care per week for disabled adults, the elderly and special-needs children. The report also found that the average age of caregivers is 48 years and the majority of them, 66 percent, are women. Furthermore, 86 percent provide care to a relative, 36 percent of which are the caregivers' own parents. The study also found that individuals who care for adults, as well as the recipients of such care, are on average older than they were five years [FN60] ago. The AARP Public Policy Institute released a report showing that in 2009 there were 42.1 million people caring for an adult family member, partner, or friend with chronic conditions or disabilities. Their unpaid services amounted to the equivalent of $450 billion. At a time when government services for the elderly and disabled are being cut, both the nation and states are relying more and more on these unpaid caregivers. And the numbers are rising. The AARP report shows the value of the unpaid care in 2007 was $375 billion. About 57 percent of that increase was due to an increase in the number of family caregivers and hours of care, and about 43 percent [FN61] was because of an increase in the estimated economic value per hour, from $10.10 in 2007 to $11.16 in 2009. Although previous studies have provided conflicting evidence on whether being a family caregiver is associated with increased or decreased risk of mortality, a recent study finds that family caregiving may be associated with modest survival benefits. The study examined whether 3,503 family caregivers enrolled in the national Reasons for Geographic and Racial Differences in Stroke (REGARDS) Study showed differences in all-cause mortality from 2003 to 2012 compared with a matched sample of non-caregivers. During an average 6-year follow-up period, a proportional hazards model indicated that caregivers had an 18% reduced rate of death compared with non-caregivers, the study found. Subgroup analyses by race, sex, caregiving relationship, and caregiving strain failed to identify any subgroups with increased rates of death compared with matched non-caregivers. The authors conclude that public policy and discourse should recognize that providing care to a family member with a chronic illness or disability is not associated with [FN62] increased risk of death in most cases, but may instead be associated with modest survival benefits for the caregivers. On November 8, 2012, CMS published a final rule that updates the Home Health Prospective Payment System rates, including the national standardized 60-day episode rates, the national per-visit rates, the low-utilization payment amount, the non-routine medical supplies conversion factor, and outlier payments under the Medicare prospective payment system for home health agencies effective January 1, 2013. Payments to home health agencies are estimated to decrease by approximately $10 million in calendar year 2013. According to a CMS fact sheet, payments under the home health prospective payment system (HH PPS) are estimated to be virtually unchanged in CY 2013, decreasing 0.01 percent. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -20- The reimbursement cut reflects the combined effects of the home health marketbasket and wage index updates and previously finalized reductions to the home health prospective payment system rates to account for changes in coding practices, the agency said. In acute or post-acute care settings, the final rule provides additional flexibility in certifying patients as eligible for the home health benefit, CMS said. In addition, the rule makes changes that help ensure patients maintain access to therapy services, while reducing burden on [FN63] home health agencies, according to CMS. Home health agencies would be given an opportunity to achieve compliance with federal health and safety standards, known as the conditions of participation (CoPs), through new methods, such as directed plans of correction or directed in-service training, and would allow CMS to impose alternative sanctions in addition to termination for agencies that do not maintain or achieve compliance with CoPs. According to CMS, the proposal would promote quality of care for patients by ensuring that home health agencies that are out of compliance with the CoPs could correct their performance and achieve prompt compliance. The proposal also would establish new survey and certification requirements for home health agencies including definitions for types of surveys, survey frequency, surveyor [FN64] qualifications, and the opportunity for informal dispute resolution. A recent report from the HHS Office of Inspector General examining Medicaid personal care services (PCS) has found significant and persistent compliance, payment, and fraud vulnerabilities. CMS must take a more active role with States to combat these issues, the report urges. In 2011, Medicaid costs for PCS totaled approximately $12.7 billion, a 35-percent increase since 2005. Several Federal court decisions and Department of Health and Human Services policy initiatives aimed at providing more home- and community- based options to Medicaid beneficiaries contribute to the increase in PCS use. As more and more State Medicaid programs explore home care options like PCS, it is critical that adequate safeguards exist to prevent fraud, waste, and abuse in PCS and other important home care benefits, the report says. The document summarizes OIG's PCS work and, on the basis of the analysis of this work in the [FN65] aggregate, offers recommendations to improve the integrity of Medicaid PCS. In a report released on May 15, 2013, the Health and Human Services Office of Inspector General recommended that CMS routinely conduct look-behind surveys for oversight of State agencies, which conduct most HHA recertification surveys. CMS concurred with OIG's recommendation and stated that its central office would work with the CMS regional offices to identify State agencies with the greatest need for look-behind surveys. State agencies and accreditation organizations conducted recertification surveys for nearly all home health agencies (HHAs) within the required 36-month timeframe and cited 12 percent of HHAs with “condition”-level deficiencies, the most serious type of deficiency, the report explained. Ninety-three percent of these HHAs corrected their condition-level deficiencies within the required 90-day timeframe; the remaining 7 percent corrected the deficiencies late or left Medicare. Fifteen percent of HHAs had complaints lodged against them; surveyors conducted complaint investigation surveys for nearly all of these HHAs and cited 7 percent of them with condition-level deficiencies, the report noted. With few exceptions, HHAs corrected all condition-level deficiencies cited during complaint surveys. State agencies exceeded the required number of look-behind surveys for oversight of accreditation organizations. According to the report, CMS rarely conducted look-behind surveys for oversight of State agencies' surveys of HHAs and [FN66] that such look-behind surveys are not required by Federal regulation. The CMS has decided to use monetary penalties and payment suspension against home health agencies sparingly, and has lowered the penalty levels for second-level offenses. As outlined in the 2013 final pay rule for home health released on November 2, the policy keeps 2013 rates at approximately the same level as this year and establishes requirements for the home health and hospice quality reporting programs. In the final rule, CMS indicates that it expects to use monetary penalties only when deemed necessary to bring providers into compliance. The final rule also states that CMS will not use civil monetary penalties, payment suspensions and the informal dispute resolution until July 1, 2014. The rule establishes new survey and certification requirements, including definitions for types of surveys, survey frequency, surveyor qualifications, and the opportunity for informal dispute resolution, according to the rule. [FN67] Under a recommendation approved by the Medicare Payment Advisory Commission (MedPAC) on January 16, home health providers with relatively high rates of hospital readmissions would see their Medicare payments reduced, beginning in FY 2015. About 29 percent of post-hospital home health services result in readmission, MedPAC staff said. The overall goal of the policy is to improve care coordination beyond the inpatient setting, and establishing home health readmission penalties would align incentives with other entities, staff said. The recommendation is expected to cut Medicare spending between $50 and $250 million in FY 2015, through lower payments to home health providers that incur the penalty. Additional savings would be realized through reduced costs for inpatient [FN68] care. Home health agencies have been filing more appeals related to Medicare Part A claim determinations since 2008, although the proportion of successful appeals has dropped significantly, according to a new report issued by the Office of Inspector General of the Department of Health and Human Services. After receiving a claim determination from a Medicare contractor, a provider has 120 days to file a first-level appeal, known as a redetermination. The OIG derived the figures from an analysis of a government database, and released the numbers in the report “The First Level of the Medicare Appeals Process, 2008-2012: Volume, Outcomes, and Timeliness.” [FN69] The number of appealed Part A home health claims grew dramatically, from 13,385 in 2008 to 112,844 in 2012, and increase of 700 percent. The rate of favorable redeterminations for appellants, however, dropped from 24 and 39 percent in 2008 and 2009, respectively, to just 4 percent in 2012. Taking into account all provider types, the number of redeterminations processed by Medicare © 2020 Thomson Reuters. No claim to original U.S. Government Works. -21- contractors increased 33% for the four years leading up to 2012, the OIG found. However, the success rate of first-level appeals plummeted from 50% to 24%. The growth of the recovery audit contractor program is linked to these trends, the report indicates. Home health care providers are urging CMS to create interim pay models focused on home health until other, value-based approaches catch on, saying that Medicare often isn't paying for home health services because there are not enough pay models that include home health. On February 26, 2013, at a panel sponsored by the Alliance for Home Health Quality and Innovation, home health representatives lamented the lack of payment models for home care services that they said can significantly cut down on costs and hospital readmissions. CMS is testing an alternative payment model called the Independence at Home demonstration. The health reform law lets CMS transition successful demonstrations to national programs, but it typically takes multiple years, including time to analyze the data, Peter Boling, chair of geriatric medicine at Virginia Commonwealth University, said. Although providers are grateful that CMS is running the demo, Boling said, the demonstration is not the only tool to increase shared-savings home health programs and stakeholders are considering pushing for legislation. For home care programs to reach their full potential, “we must expand on the successful in-home medical care models and create responsible financing methods that control overall costs while rewarding providers appropriately,” Boling writes in a home care supplement to the Cleveland Clinic Medical Journal released at the panel. The medical community must figure out what works across transitions. Standardizing patient hand-offs is the most important policy to reducing [FN70] readmissions, he said. Wage and overtime issues: BNA is reporting that state Medicaid directors and home health care advocates are at opposite sides of a proposed rule issued by the Department of Labor that would extend minimum wage and overtime protections to home health care workers. The National Association of Medicaid Directors (NAMD) has asked the Office of Management and Budget, which is reviewing the proposed rule, for a meeting to discuss the costs and burdens they think the rule would impose on state Medicaid programs, Matt Salo, NAMD's executive director, told BNA April 16. Medicaid directors are concerned that the proposed rule would adversely affect the close, personal relationships that are required between caregivers and Medicaid beneficiaries in need of home health services, Salo said. The DOL proposed rule, issued Dec. 27, 2011 (76 Fed. Reg. 81,190), would limit FLSA's domestic companion exemption, extending the minimum wage and overtime requirements to home health care workers. Labor rights advocates in favor of the proposed rule say the objections expressed by opponents are not supported by research or on-the-ground evidence in the 15 states (and the District of Columbia) that already have implemented overtime and minimum wage rights for home health care workers. Edelstein noted that the proposed rule generated more than 20,000 public comments during the comment period, which ended March 21, 2012, with [FN71] more than three-quarters of the comments supporting the DOL proposal. The U.S. Supreme Court ruled on June 30, 2014, that home health care workers cannot be forced to pay union fees if they are not in a union. By a 5-to-4 vote, the court's conservative justices said an Illinois requirement that home health aides help cover a union's cost of collective bargaining violates their First Amendment right to free speech. The case had prompted widespread concern among public- sector unions because Illinois had deemed the aides, who are paid by the state, to be public employees. But the court said the aides are only quasi-public because their real employers are their patients. “If we accepted Illinois' argu-ment” that the workers can be forced to pay the union fees against their will, Justice Samuel A. Alito Jr. wrote for the majority, “we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize [FN72] speech by a third party that he or she does not wish to support.” In another case, the U.S. Supreme Court refused to review a decision holding that two group home caregivers were employees, rather [FN73] than independent contractors, and therefore entitled to be paid for overtime. ASUI sought review of a Fifth Circuit decision, which, after applying the “economic reality” test, concluded that ASUI controlled all meaningful aspects of its employment relationship with Vera Chapman and Krystal Howard. In concluding the two caregivers weren't independent contractors, the Fifth Circuit found that ASUI and a vice president and program manager hired the caregivers, assigned them to group homes, set their work schedules and determined their rates of compensation. The Fifth Circuit also found that FLSA's companionship services exemption (29 U.S.C. Section 213(a)(15)) didn't apply in the case because Chapman and Howard weren't working in a “private home” within the meaning of the FLSA. Surety bonds are not required of home health agencies (HHAs), but the HHS Office of Inspector General says that CMS could have collected at least $39 million in Medicare overpayments from agencies between 2007 and 2011 if it had required them to obtain a surety bond to participate in the program in a report issued on September 28. As of February, HHAs still owed CMS about $408 million in Medicare overpayments made to them between 2007 and 2011, the OIG said in Surety Bonds Remain an Unused Tool to [FN74] Protect Medicare from Home Health Overpayments (OEI-03-12-00070). If home health agencies had been required to take out $50,000 surety bonds to participate in the program, CMS could have recovered at least $39 million of that money, the report says, and recommended that CMS implement a surety bond regulation. In 1998, CMS had issued a final rule requiring surety bonds, but later suspended it following concerns of some Congressional members, according to the report. CMS concurred with the recommendation to issue a new regulation, and is drafting a proposed rule that, among other topics, addresses the issue of surety bonds for HHAs, the OIG said. As of July, the agency did not have an estimate as to when this proposed rule will be completed, the report added. In addition, the [FN75] Affordable Care Act (ACA) states that the amount of the surety bond can be based on an HHA's billing volume. Federal Legislative Actions © 2020 Thomson Reuters. No claim to original U.S. Government Works. -22- In an effort to help improve the care offered by direct-care workers and lower care costs for both older Americans and the health care industry, a new bill would test models of care that use direct-care workers (DCWs) in advanced roles. The “Improving Care for Vulnerable Older Citizens through Workforce Advancement Act of 2014” (2013 FD S.B. 2251 (NS) and 2013 FD H.B. 4445 (NS)) was introduced on April 10 by Rep. Matt Cartwright (D-PA) and Sen. Bob Casey (D-PA). The measure would establish six three-year demonstration projects, according to the press release: • Two will use the abilities of DCWs to promote smooth transitions in care and help to prevent unnecessary hospital readmissions. DCWs will be incorporated as essential members of interdisciplinary care coordination teams. • Two will focus on maintaining the health and improving the health status of older adults with multiple chronic conditions and long-term care needs by helping in monitoring health status, follow prescribed care, and educating the consumer and family caregiver(s). • Two will train DCWs to take on deeper clinical responsibilities related to specific diseases, such as Alzheimer's, dementia, congestive heart failure, and diabetes. Long-term care and rehabilitation facilities, home health agencies, managed care entities and hospitals would be among the organizations eligible to participate in the demonstration projects. The Paraprofessional Healthcare Institute (PHI) and the Caregiver Action Network have both endorsed the bill. Participants would receive funding to plan, carry out, and report on the outcomes of the projects. Outcome measures would include effects on direct-care worker job satisfaction and turnover, and patient/resident hospitalization rates. Additional federal legislation related to caregivers includes: • 2013 FD S.B. 851 (NS), introduced on April 25, 2013, the “Caregivers Expansion and Improvement Act,” would extend to all veterans with a serious service-connected injury eligibility to participate in the family caregiver services program. • 2013 FD S.B. 1485 (NS), referred to Committee on August 1, 2013, would amend the Internal Revenue Code to provide an income tax credit for elder-care expenses. VIII. TRANSITION OF CARE SERVICES On September 14, a bipartisan group of lawmakers introduced legislation that would reimburse providers for coordination of care services. The legislation (2011 FD H.B. 6413 (NS)), called the Medicare Transitional Care Act of 2012, seeks to improve the transition of care for beneficiaries transferring into a skilled nursing facility or back into their own homes from the hospital. The bill would have Medicare provide a specific payment based on performance metrics and improved outcomes to providers performing coordination activities. The legislation was sponsored by Reps. Earl Blumenauer (D-OR), David Loebsack (D-IA), Thomas Petri (R-WI), Allyson Schwartz (D-PA), and Jan Schakowsky (D-IL). The legislation comes as hospitals prepare to face penalties beginning on October 1 for failing to prevent readmissions for conditions such as pneumonia and heart failure. IX. COMMISSION ON LONG-TERM CARE RECOMMENDATIONS With the elimination of the CLASS program, the American Taxpayer Relief Act of 2012 (2011 CONG US HR 8) established the Commission on Long-Term Care which was charged with recommending to Congress, within 6 months, “a plan for the establishment, implementation, and financing of a comprehensive, coordinated, and high-quality system that ensures the availability of long-term services and supports (LTSS).” The Commission was established with 15 members: three members each were appointed by the President, the majority leader of the Senate, the minority leader of the Senate, the Speaker of the House of Representatives, and the minority leader of the House of Representatives. The Commission convened its first meeting on June 27, 2013, and subsequently held four pub-lic hearings, solicited extensive comments [FN76] from the general public, and met in 9 executive sessions, according to the Commission's Final Report. The Commission met on Sep-tember 12, 2013 and voted, by a vote of 9 to 6, in favor of putting this Final Report forward as the broad agreement of the Commission. The Commission's recommendation focused more on the provision of LTSS, as opposed to institutional setting, and has garnered support for its emphasis on HCBS. Among the recommendations enumerated in its Final Report, the Commission proposes the following: • Balanced array of LTSS: promote services for persons with functional limitations in the least restrictive setting appropriate to their needs—building a system, including Medicaid, with options for people who would prefer to live in the community. • Uniform assessment: completion of a simpler and more usable standard assessment mechanism across care settings (acute, post- acute, and LTSS). • Consumer access/assistance: expand the “No Wrong Door” approach to provide en-hanced counseling options for individuals to navigate LTSS, provide sup-port to make this approach effective nationally; provide information and assistance to consumers and family caregivers in advance of transition from one setting to the next; and improve access to information technology to enable better access to information. • Quality: improve focus on—with par-ticular attention to home and community-based services. • Payment reform: advocate for new models of public payment that pay for post-acute and long-term services and supports on the basis of the service rather than the setting. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -23- • Family caregiving: maintain and strengthen a person- and family-centered LTSS system with both the patient and the family caregiver as a focus for services and supports; include family caregivers and their needs in assessment and care planning processes; include family caregivers in patients' records and as a mem-ber of the care team; ensure family caregivers have access to relevant information; and encourage caregiver interventions, including respite op-tions, and integration with volunteer efforts. • Paid workforce: revise scope of practice to broaden opportunities for profes-sional and direct care workers; enable national criminal background checks. • Direct care workforce: provide opportunities for career advancement and im-proved compensation; integrate direct care workers into care teams; improve standards and establish a certi-fication process for home-care workers. The Commission failed to offer a recommendation on how to address the issue of financing LTSS, and five of the Commissioners felt that the Commission failed to fulfill its mandate. On September 23, they offered their own set of recommendations in an “alternative report.” Like those put forth by the full Commission, several recommendations in the alternative report address issues related to home- and community-based services: • Direct-care workers are paid a living wage, are well trained, and have opportunities for career advancement, to ensure high-quality services for individuals and their families in all service settings. • Family caregivers are engaged, and their needs addressed; integrate family caregivers into a comprehensive LTSS system. • Medicare program must be adapted to reduce counterproductive, outdated, and unreasonable barriers to outpatient therapies, home health, and skilled nursing facility care. • Medicaid: existing financial incentives to states for quality HCBS must be extended and streamlined to make it easier to rebalance Medicaid LTSS; benefits must be improved for people who rely on Medicaid's services. • tax-preferred savings accounts must be provided for people and their families who are not currently receiving LTSS through the Medicaid program, to provide new ways to access LTSS for persons with disabilities; • Medicaid buy-in program for workers with modest earnings must be expanded, and a new program for workers with significant disabilities who have higher earnings must be piloted. The authors of the alternative report were Democratic appointees to the Commission. Full text of the alternative report is available [FN77] online, on the Center for Medicare Advocacy, Inc.'s website. X. HCBS EXPERIENCE SURVEYS AND STUDIES Patients who receive home health care as the first care setting following hospital discharge tend to have lower overall Medicare episode payments, compared with patients who receive care from other facility-based settings, a study released on May 22 found. The study, [FN78] “Use of Home Health Care and Other Care Services Among Medicare Beneficiaries,” was published in a working paper, the third in a series of four that are part of the Clinically Appropriate and Cost-Effective Placement (CACEP) Project. The study was conducted by consulting group Dobson DaVanzo and Associates on behalf of the Alliance for Home Health Quality and Innovation. The study examined the care pathways patients receive for three distinct episode types: post-acute, pre-acute, and non-post-acute. A pathway refers to the care processes an individual receives in the health care delivery system during an episode of care. When looking at post-acute care, those patients who used home health as a first setting had episodes that were less costly for Medicare, the study found. According to the study, 10 of the most common pathways consist solely of home health care and community (physician and outpatient) care—and rarely involve hospital admissions—suggesting that home and community-based services may be effectively helping patients to prevent avoidable facility-based care. “This working paper provides a tangible example to lawmakers and healthcare policy leaders as they begin to contemplate the basic architecture for a bundled payment system in the Medicare program,” Allen [FN79] Dobson, CACEP lead researcher and president of Dobson DaVanzo & Associates, said in a statement. When home health care is used as the first post-acute care setting after a hospital stay, it was found to be the most cost-effective care setting, new research suggests. In the study, conducted by Dobson DaVanzo and Associates, investigators examined Medicare claims data for 24,239,080 total post-acute episodes and a total of $472.8 billion in Medicare payments. Post-acute settings included skilled nursing facilities, inpatient rehab facilities, and long-term care hospitals. The investigators also looked at acute care hospital readmissions after a major joint replacement, finding that it was around double the percentage for patients who went to a skilled nursing facility or inpatient rehab instead of home health. While the findings are preliminary, the study concludes that: post-acute care episodes show high Medicare payments for post-acute care settings (in facility-based care settings or home health, as opposed to ambulatory care settings); the pre-acute episodes on the other hand, show very little Medicare episode payments for home health or facility-based care settings; and in the non-post-acute care community-based episodes, there is a significant reliance on home heath following discharge from the index home health episode, and a significantly lower proportion of payments for acute care hospitals or other facility- based settings. These preliminary findings suggest that prior to admission into formal care settings—facility-based care or home health —patients typically rely on their physicians to keep them clinically stable. However, once a patient is admitted to a facility, such as an acute care hospital, they are generally more likely to remain in facility-based care. This finding has significant implications for Medicare [FN80] episode payments. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -24- Nationally the 2013 median hourly cost of homemaker services and home health aide services is $18 and $19 respectively, the Genworth 2013 Cost of Care Survey has found. Homemaker costs have risen just 1.4 percent since 2012 and 0.8 annually over the past five years, the report says. Home health aide services have risen 2.3 percent since 2012 and 1.0 percent annually over the past five years. The vast majority prefer care in their own homes. Genworth finds that 70% of Genworth's first time long term care claimants choose in-home care where the costs have remained more manageable. By contrast, the cost of receiving long-term care in a setting such as an assisted living facility or nursing home continues to rise steadily while the cost to receive care at home through homemaker services or a home health aide is rising at a much more gradual pace, The median annual cost for a private nursing home room rose 3.6 percent from 2012 to 2013, to $83,950, or 4.5 percent annualized over the past five years. The comparable cost for care in an assisted living facility is $41,400, representing an increase of 4.6 percent since 2012 and a 4.3 percent annual increase over the past five years. National private nursing home costs over the past 10 years have gone up from $65,200 to $83,950, increasing at more than four percent a year. Genworth's Cost of Care Survey covered nearly 15,000 long term care providers nationwide, including 437 regions that cover all [FN81] Metropolitan Statistical Areas defined for the 2010 U.S. Census. The survey was conducted during January and February 2013. CMS is requesting comments on the proposed information collection “The Home and Community-Based Service (HCBS) Experience Survey,” in accordance with the Paperwork Reduction Act of 1995, according to a notice published on July 24 in the Federal Register. The survey is a one-time pilot field test involving individuals who receive HCBS from Medicaid programs. According to the notice, the field test will be conducted for the following purposes: • To assess survey methodology—to determine how well a face-to-face survey and telephone survey performs with individuals who receive HCBS services; • Psychometric Analysis—to provide information for the revision and shortening of the survey based on the assessment of the reliability and construct validity of survey items and composites; and Case mix adjustment analysis—to assess the variables that may be considered as case mix adjusters. These preliminary research activities are not required by regulation, and will not be used by CMS to regulate or sanction its customers. They will be entirely voluntary and the confidentiality of respondents and their responses will be preserved. The information collected will be used to revise and test the survey instrument described in the Background section of the PRA package's Supporting Statement. The end result will be an improvement in information collection instruments and in the quality of data collected, a reduction or minimization of respondent burden, increased agency efficiency, and improved responsiveness to the public. Interested persons should send comments to the Office of Management and Budget by August 23. XI. NATURALLY OCCURRING AND CONTINUING CARE RETIREMENT COMMUNITIES HHS defines a naturally occurring retirement community (NORC) as “a community with a large proportion of older people residing within a defined geographic area” that differs from assisted living or continuing care retirement communities because it was not specifically [FN82] designed for older people. Continuing care retirement communities, on the other hand, are communities that contain various living options on one campus, including housing for those who live very independently, assisted living facilities that offer more support and [FN83] nursing homes for those needing skilled care. The issue of financial stability of CCRCs is examined in a recent report by the Government Accountability Office. The GAO was asked to describe the risks CCRCs and their residents face and how state laws address the risks. The GAO found that CCRCs offer a range of contract types and fees that are designed to provide long-term care and transfer different degrees of the risk of future cost increases from the residents to the CCRC. Once operational, risks to long-term viability include declining occupancy and unexpected cost increases. Seven of the eight states examined by the GAO had CCRC-specific regulations, with varying measures addressing risks of CCRC viability. Financial difficulties faced by CCRCs can lead to unexpected increases in residents' monthly fees. Although rare, bankruptcies or closures could force residents to lose all or part of their entrance fees. Most states reviewed by the GAO take steps to [FN84] protect the interests of the residents, such as requiring escrow of entrance fees and mandated disclosures. Continuing-care retirement communities in New Jersey are offering new services and incentives to entice senior citizens as they sell their homes and look for new ones. These services include personal moving consultants, lists of preferred real estate agents and cash loans, all offered to seniors, who make up about 20 percent of the seller's market. The continuing-care retirement communities are part independent living, part assisted living and part skilled nursing homes, providing care that progresses as the needs of an individual resident increase. In New Jersey there are 27 such communities, according to a state report. There are no statistics tracking the market for these continuing-care communities, but as more homes sell across the state, sales directors report increased interest. Some of this trend has as much to do with real estate sales as it does with demographics. From 2000 to 2010, New Jersey's population grew by 4.5 percent, according to the U.S. Census. But the 55-and-older population grew by nearly 20 percent. The demographic realities and some improvement in the real estate market have breathed new life into the continuing-care industry, which is still trying to [FN85] rebound from the worst of the recession. XII. VETERANS © 2020 Thomson Reuters. No claim to original U.S. Government Works. -25- A new effort launched by the Department of Veteran Affairs (VA), Administration on Aging, and National Resource Center for Participant-Directed Services (NRCPDS) uses participant-directed services to keep veterans in their communities and out of nursing homes. The NRCPDS, the only national center of its kind, helps people of all ages and disabilities get the support they need to live as independently as possible and offers a range of training and technical assistance to staff at VA Medical Centers for Veterans enrolled in the Veteran Directed Home and Community-Based Services Program (VD-HCBS). Known as “participant direction,” the new program will allow veterans to manage their own flexible spending budgets for their personal care services—deciding for themselves which goods and services best meet their needs, hiring and supervising their own workers, including family and friends, and purchasing items [FN86] or services that will help them live more independently. The VA also has additional programs to help veterans stay in their homes: • The Housebound Aid and Attendance Allowance Program provides cash to eligible veterans with disabilities and their surviving spouses to purchase home- and community-based long-term care services such as personal care assistance and homemaker services. The cash is a supplement to the eligible veteran's pension benefits • Veteran Directed Home and Community Based Services program—developed in 2008 for eligible veterans of any age, provides veterans with a flexible budget to purchase services. Counseling and other supports for veterans are provided by the Aging Network in partnership with the Veterans Administration • Program of Comprehensive Assistance for Family Caregivers—In May 2010, Congress required VA to establish a program to support family caregivers of seriously injured post-9/11 veterans, and in May 2011, the Veterans Health Administration (VHA) implemented its Family Caregiver Program at all VAMCs across the country, offering caregivers an array of services, including a monthly stipend, training, counseling, referral services, and expanded access to mental health and respite care. In fiscal year 2014, VHA obligated over $263 million for the program. On September 18, 2014, GAO released a report that examines how VHA is implementing the program, including the types of issues that have been identified during initial implementation. GAO found that the VHA significantly underestimated the demand for services, and recommended that the VA and VHA: (1) expedite the process for implementing a new IT system that will enable officials to obtain workload data; (2) identify solutions to alleviate VAMCs' workload burden in advance of obtaining a new IT system, and (3) use data from the new IT system, once implemented, and other relevant data, to re-assess the [FN87] program and implement changes as needed. VA has agreed with GAO's recommendations. The VA has delayed the effective date to April 1, 2014 of a final rule to change the billing methodology for non-VA providers of home health services and hospice care. The rulemaking makes the VA regulation governing payments for certain non-VA health care applicable to non-VA home health services and hospice care. It provides, among other things, that the CMS fee schedule or prospective payment system amounts will be paid to certain non-VA providers, unless VA negotiates other payment amounts with such [FN88] providers. Highlights of Recent Legislative and Regulatory Activity California On October 12, 2019, 2019 CA S.B. 289 (NS) was adopted. It adds Section 14132.993 regarding home and community-based waiver services for military service members. Mississippi On January 8, 2019, 2019 MS S.B. 2051 (NS) was introduced. If adopted, it will amend MS ST § 43-13-115 (Eligible recipients) authorizing transitioning active duty military service members to use their state of legal residence to qualify their dependents with [FN89] special needs for home and community-based services. On January 21, 2019, 2019 MS S.B. 2739 (NS) was introduced. If adopted, it will authorize the Division of Medicaid to apply for federal waivers to authorize transitioning active duty military service members to use their state of legal residence to qualify their dependents [FN90] with special needs for HCBS reimbursement. Ohio On November 6, 2019, 2019 OH H.B. 287 (NS) was engrossed. If adopted, it will reserve a portion of the participant capacity for home and community-based waiver services for relatives of active duty military. XIII. CONCLUSION The need for long-term care in the United States will only increase as large numbers of baby boomers age. Lawmakers at the federal level, recognizing the importance of this issue, have responded by including HCBS provisions in the national health care reform legislation. At the state level, legislators over the last two years have introduced and adopted numerous bills intended to expand and regulate HCBS. Long-term care experts note that HCBS are a much less expensive form of care for the elderly and disabled than © 2020 Thomson Reuters. No claim to original U.S. Government Works. -26- nursing facilities. At a time when most states are facing budget shortfalls, the transition from institutionalized long-term care to HCBS could prove to be a particularly cost-effective and attractive option. © Copyright Thomson/West - NETSCAN's Health Policy Tracking Service [FN1] . U.S. Department of Health and Human Services, National Clearinghouse for Long-Term Care Information, “Understanding LTC,” available at www.longtermcare.gov. [FN2] . “Medicaid and Long-Term Care Services and Supports,” Kaiser Commission on Medicaid and the Uninsured (June 2012), available at www.kff.org/medicaid/upload/2186-09.pdf. [FN3] . See www.medicare.gov/LongTermCare/Static/Home.asp. [FN4] . 42 U.S.C.A. § 1396n. [FN5] . Tim Mullaney, “Nursing homes suffering from reimbursement shifts to home care, market analysis finds,” McKnight's Long-Term Care News & Assisted Living (May 14, 2014), available at: http://www.mcknights.com/nursing- homes-suffering-from-reimbursement-shifts-to-home-care-market-analysis-finds/article/346816/?DCMP=EMC- MCK_Weekly&spMailingID=8611250&spUserID=MjMzMDE0MTIxNwS2&spJobID=301712482&spReportId=MzAxNzEyNDgyS0. [FN6] . “Seniors Housing Occupancy Continues on Upward Path, Rent Growth Accelerates and Construction Level Shows Marginal Decrease —NIC MAP Data Reveals Quarterly Rent Growth Reaches 2%, National Investment Center for the Seniors Housing & Care Industry (July 11, 2014), available at: http://www.nic.org/press/2014/data-release-july-2014.aspx. [FN7] . Full text of the final rule is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-00487.pdf. [FN8] . “Genworth 2012 Cost of Care Survey” (Genworth Financial, 2012) is available at http://www.genworth.com/content/non_navigable/ corporate/about_genworth/industry_expertise/cost_of_care.html. [FN9] . “Home and Community-Based Services in Assisted Living Facilities,” Department of Health and Human Services Office of Inspector General (OEI-09-08-00360, Dec. 2012), available at: https://oig.hhs.gov/oei/reports/oei-09-08-00360.pdf. [FN10] . “Access: HHS Announces $52 Million in Funds to Aid Home and Community-Based Care,” BNA's Health Care Daily Report (June 1, 2012). 2012 WL 1950500 (B.N.A.). [FN11] . Andrea Wysocki, et al., “The Association Between Long-Term Care Setting and Potentially Preventable Hospitalizations among Older Dual Eligibles,” Health Services Research (first published online Mar. 13, 2014), available at: http://onlinelibrary.wiley.com/ doi/10.1111/1475-6773.12168/abstract. [FN12] . Nathaniel Weixel, “Medicare: Long-term Care Advocates Push to Expand Home-Based Elder Care Program,” BNA's Health Care Daily Report Journal (Nov. 18, 2014). 2014 WL 6296267 (B.N.A.). [FN13] © 2020 Thomson Reuters. No claim to original U.S. Government Works. -27- . Nathaniel Weixel, “Medicare: Senators Ask CMS to Make PACE Program for Elderly More Flexible,” BNA's Health Care Daily Report (Sept. 29, 2014). 2014 WL 4784919 (B.N.A.). [FN14] . 79 Fed. Reg. 61164 (Oct. 9, 2014), available at: 79 FR 61164-01, 2014 WL 5025017 (F.R.). [FN15] . M. O'Malley Watts, “Money Follows the Person: A 2012 Survey of Transitions, Services and Costs,” Kaiser Commission on Medicaid and the Uninsured (February 2013), available at: https://kaiserfamilyfoundation.files.wordpress.c/2013/02/8142-03.pdf. [FN16] . 2015 Budget in Brief, U.S. Department of Health & Human Services, available at: http://www.hhs.gov/budget/fy2015/fy-2015-budget- in-brief.pdf. [FN17] . CMS Medicaid and CHIP Program Information, available at: http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/ Long-Term-Services-and-Support/Long-Term-Services-and-Support.html. [FN18] . A Statement from Secretary Sebelius on the Administration for Community Living (Apr. 16, 2012), available at http://www.hhs.gov/ news/press/2012pres/04/20120416a.html. [FN19] . “Questions and Answers on the Establishment of the Administration for Community Living,” available at http://www.hhs.gov/acl/ about.html. [FN20] . 42 U.S.C.A. § 1396n. [FN21] . “Home & Community-Based Services 1915(c),” Centers for Medicare and Medicaid (June 2012), available at: http:// www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Support/Home-and-Community-Based- Services/Home-and-Community-Based-Services-1915-c.html. [FN22] . Section 1902(a)(1). [FN23] . Section 1902(a)(10)(B). [FN24] . Section 1902(a)(10)(C)(i)(III) [FN25] . “Home & Community-Based Services 1915(c),” Centers for Medicare and Medicaid (June 2012), available at: http:// www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Support/Home-and-Community-Based- Services/Home-and-Community-Based-Services-1915-c.html. [FN26] . “Home & Community-Based Services 1915(i),” Centers for Medicare and Medicaid (June 2012), available at: http://www.medicaid.gov/ Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Support/Home-and-Community-Based-Services/Home-and- Community-Based-Services-1915-i.html. [FN27] . Full text of the fact sheets is available at http://www.cms.gov/apps/media/press/factsheet.asp? Counter=4350&intNumPerPage=10&checkDate=&checkKey=&srchType=1&numDays=3500&srchOpt=0&srchData=&keywordType=All&chkNew [FN28] © 2020 Thomson Reuters. No claim to original U.S. Government Works. -28- . “Self-Directed Personal Assistance Services 1915(j),” Centers for Medicare and Medicaid (June 2012), available at: http:// www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-and-Support/Home-and-Community-Based- Services/Self-Directed-Personal-Assistant-Services-1915-j.html. [FN29] . U.S. Department of Health and Human Services, “Alabama First to Add Self-Directed Home-Based Services Through Its State Medicaid Plan,” Press Release, May 24, 2007, available at: www.hhs.gov. [FN30] . Full text of the fact sheet is available at http://www.cms.gov/apps/media/press/factsheet.asp? Counter=4350&intNumPerPage=10&checkDate=&checkKey=&srchType=1&numDays=3500&srchOpt=0&srchData=&keywordType=All&chkNew [FN31] . “California Nabs Federal Funding for Home- and Community-based Beneficiaries,” McKnight's Long-Term Care News & Assisted Living (Sept. 10, 2012). Available at: http://www.mcknights.com/california-nabs-federal-funding-for-home-and-community-based- program-for-medicaid-beneficiaries/article/258110/?DCMP=EMC-MCK_Weekly. [FN32] . MaryBeth Musumeci, Medicaid Home and Community-Based Services Enrollment and Spending, KFF (April 4, 2019) at: https:// www.kff.org/medicaid/issue-brief/medicaid-home-and-community-based-services-enrollment-and-spending/. [FN33] . MaryBeth Musumeci, Key State Policy Choices About Medicaid Home and Community-Based Services, KFF (April 4, 2019) at: https://www.kff.org/medicaid/issue-brief/key-state-policy-choices-about-medicaid- home-and-community-based-services/?utm_campaign=KFF-2019-April-Medicaid-Home-Community-Based- Services&utm_source=hs_email&utm_medium=email&utm_content=71455117&_hsenc=p2ANqtz-9keTA_qJrB6R60VxKQAGkfEFaObubTbVfNnx QmIOr1l8Gce0zoGwaQHugl6xp-7gZtxA8SzQB2OonbVFPHujaPNCL-ciwh_z2Y6Ig&_ hsmi=71455117. [FN34] . Grace Fleming, CMS Issues New Guidance to States on Home and Community Based Services, Crowell Moring (March 28, 2019) at: https://www.cmhealthlaw.com/2019/03/cms-issues-new-guidance-to-states-on-home-and-community-based-services/. [FN35] . Andrea Price-Carter, House Medicaid Extension Package Includes Medicaid MFP Provisions, Leading Age (June 19, 2019) at: https:// www.leadingage.org/legislation/house-medicaid-extension-package-includes-medicaid-mfp-provisions. [FN36] . Kimberly Marselas, Medicaid's shifting of residents from nursing facilities to home settings shown to be overrated, McKnight's (July 2, 2019) at: https://www.mcknights.com/news/medicaids-shifting-of-residents-from-nursing-facilities-to-home-settings-shown-to-be- overrated/. [FN37] . Held under submission. [FN38] . Both bills held for further study. [FN39] . Left pending in committee. [FN40] . 527 U.S. 581 (1999). [FN41] . John Riley, “Ruling Could Alter Mental Health Care,” Newsday, Sept. 9, 2009. 2009 WLNR 17640729. [FN42] . James Barron, “New York Cited in Warehousing of Mentally Ill,” New York Times, Sept. 9, 2009. 2009 WLNR 17644557. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -29- [FN43] . A.G. Sulzberger, “Judge Orders New York City to Move Mentally Ill Out of Large, Institutional Housing,” New York Times, March 2, 2010, 2010 WLNR 4322446. [FN44] . Marisol Bello, “States Cut Funds for Disabled—Recession-Battered Budgets May Push Some Out of Homes,” USA Today, August 6, 2010. 2010 WLNR 15661469. [FN45] . The text of the settlement agreement is available at http://governor.delaware.gov/docs/110706_ settlementagreement.pdf. [FN46] . “Medicaid: Court Gives Final Approval to Settlement, Resolves Medi-Cal Adult Day Health Care Suit,” BNA's Health Care Daily Report, January 26, 2012. 2012 WL 211056 (B.N.A.). [FN47] . David Jackson, “Nursing Home Deal Reached—Lawsuit Settlement Would Help Adults With Disabilities Move Out Of Facilities,” Chicago Tribune, Aug. 30, 2011. 2011 WLNR 17137670. [FN48] . Anemona Hartocollis, “In Deal, Hundreds of Mentally Ill People Will Leave Confinement of Nursing Home,” The New York Times, September 12, 2011. Available at: https://www.nytimes.com/2011/09/13/nyregion/settlement-changes-new-york-housing-policy-for-the- mentally-ill.html?ref=opinion. [FN49] . 527 U.S. 581 (1999). [FN50] . Justice Department Documents, Justice Department Press Releases, Federal Information & News Dispatch, Inc. (Aug. 19, 2013). 2013 WLNR 20607029. [FN51] . Michelle Diament, Feds Continue to Tweak Medicaid Waiver Rule, Disability Scoop (August 29, 2019) at: https:// www.disabilityscoop.com/2019/08/29/feds-continue-tweak-medicaid-waiver-rule/27087/. [FN52] . Withdrawn. [FN53] . “Assisted Living Regulatory Review 2012,” National Center for Assisted Living (Mar. 2012), available at http://www.ahcancal.org/ncal/ resources/Documents/Final1#2R#egR#eview.pdf. [FN54] . Ralph Lindemann, “Medicaid: OMB Receives for Review CMS Rule on Home, Community-Based Services,” BNA's Health Care Daily Report (Nov. 6, 2013). 2013 WL 5914352 (B.N.A.). [FN55] . On June 28, 2012 the Supreme Court upheld the Affordable Care Act, in National Federal of Independent Bus. v. Sebelius. [FN56] . On the Verge: The Transformation of Long-Term Services and Supports, AARP Public Policy Institute, February 2012. The report is available at: http://www.hcbs.org/files/210/10474/verge.pdf. [FN57] . Vernon K. Smith et al., “Medicaid in an Era of Health & Delivery System Reform: Results from a 50-State Medicaid Budget Survey for State Fiscal Years 2014 and 2015,” The Henry J. Kaiser Family Foundation (Oct. 14, 2014), available at: http://kff.org/medicaid/ report/medicaid-in-an-era-of-health-delivery-system-reform-results-from-a-50-state-medicaid-budget-survey-for-state-fiscal-years-2014- and-2015/. © 2020 Thomson Reuters. No claim to original U.S. Government Works. -30- [FN58] . For the full text of the press release, see http://blumenauer.house.gov/index.php/newsroom/press-releases/2349-blumenauer-smith- introduce-pace-bill-to-improve-healthcare. [FN59] . Nathaniel Weixel, “Medicare: Senators Ask CMS to Make PACE Program for Elderly More Flexible,” BNA's Health Care Daily Report (Sept. 29, 2014). 2014 WL 4784919 (B.N.A.). [FN60] . “Almost One-Third of U.S. Adult Population Plays Caregiver Role in Households across America,” AP Alert – Medical, Dec. 8, 2009. 12/8/09 APALERTMEDIC 14:39:18. [FN61] . Amanda Cuda, “Study: Family caregivers do billions in unpaid work,” Connecticut Post, Bridgeport, August 8, 2011. 2011 WLNR 15657813. [FN62] . David L. Roth et al., “Family Caregiving and All-Cause Mortality: Findings from a Population-based Propensity-matched Analysis,” American Journal of Epidemiology (July 15, 2013), available at: http://aje.oxfordjournals.org/content/early/2013/10/02/ aje.kwt225.abstract?sid=4d9f4df8-ac9b-4624-bfbc-6a658095a0b2. [FN63] . Full text of the rule is available at 7 FR 67068-01, 2012 WL 5425290 (F.R.). [FN64] . Steve Teske, “Medicare: CMS Proposed Rule Would Cut Home Health Funding by $20 Million in 2013,” BNA's Health Care Daily Report (July 9, 2012). 2012 WL 2640736 (B.N.A.). The proposed rule is available at http://op.bna.com/hl.nsf/r?Open=bbrk-8vxryv. [FN65] . “Personal Care Services—Trends, Vulnerabilities, and Recommendations for Improvement: A Portfolio,” U.S. Department of Health and Human Services Office of Inspector General (Nov. 2012, OIG-12-12-01). The portfolio is available at https://oig.hhs.gov/reports- and-publications/portfolio/portfolio-12-12-01.pdf. [FN66] . The report is available at http://oig.hhs.gov/oei/reports/oei-06-11-00400.pdf. [FN67] . “CMS Weakens Penalties in Final Home Health Rule,” Inside CMS (Nov. 8, 2012). 2012 WLNR 23788543. [FN68] . Nathaniel Weixel, “MedPAC Votes for Post-Acute Care Changes, Home Health Readmission Penalty,” BNA's Health Care Daily Report (Jan. 21, 2014). 2014 WL 187297 (B.N.A.). [FN69] . Full text of the Inspector General's report is available at: https://oig.hhs.gov/oei/reports/oei-01-12-00150.pdf. [FN70] . Michelle M. Stein, “Home Health Providers Urge CMS to Create Interim Payment Models,” Inside CMS (Feb. 28, 2013, vol. 16, issue 9). 2013 WLNR 5002589. [FN71] . Ralph Lindeman, “Medicaid: Medicaid Directors, Home Health Advocates at Odds Over DOL Proposal on Wages, Hours,” BNA's Health Care Daily Report (Apr. 17, 2013). 2013 WL 1615027. [FN72] . Harris v. Quinn, 134 S.Ct. 2618, 82 USLW 4662, 199 L.R.R.M. (BNA) 3741, (U.S. Jun 30, 2014). [FN73] © 2020 Thomson Reuters. No claim to original U.S. Government Works. -31- . Chapman v. A.S.U.I. Healthcare of Tex., Inc. (ASUI), 2012 WL 3614187 (S.D. Tex. Aug. 21, 2012), affirmed by 562 Fed. Appx. 182, 21 Wage & Hour Cas.2d (BNA) 1613 (5th Cir. (Tex.) Feb 3, 2014), cert. denied, A.S.U.I. Healthcare & Dev. Ctr., Inc. v. Chapman, 134 S.Ct. 2733 (2014). [FN74] . The report is available at https://oig.hhs.gov/oei/reports/oei-03-12-00070.pdf. [FN75] . William Dombi, “Medicare: OIG: CMS Could Have Collected $39 Million from HHAs If Surety Bonds Were Required,” BNA's Health Care Daily Report (Oct. 1, 2012). 2012 WL 4467696 (B.N.A.). [FN76] . Commission on Long-Term Care, Report to the Congress (Sept. 30, 2013), available at: http://www.ltccommission.senate.gov/. [FN77] . See http://www.medicareadvocacy.org/national-commission-on-long-term-care/. [FN78] . The working paper is available at http://www.ahhqi.org/download/file/Dobson_DaVanzo_ Working_Paper_3- Beneficiary_Pathways_5.21.12.pdf. [FN79] . Nathaniel Weixel, “Medicare: Study Shows Home Health Patients Have Lower Medicare Episode Payments,” BNA's Health Care Daily Report (May 23, 2012). 5/23/2012 HCD D7, 2012 WL 1852443 (B.N.A.). [FN80] . Use of Home Health Care and Other Care Services Among Medicare Beneficiaries, Clinically Appropriate and Cost-Effective Placement (CACEP) Project Working Paper Series, Working Paper #1: Creating and Benchmarking Episodes: Baseline Statistics of Episode Frequency and Patient Diagnoses, submitted by Dobson DaVanzo & Assocs. to Alliance for Home Health Quality and Innovation (Apr. 4, 2012). The report is available at http://ahhqi.org/download/file/DobsonD#aVanzo#orkingP#aper1#F#INAL-# ËpisodeF#requencies4#4#1#2.pdf. [FN81] . The report is available at: https://www.genworth.com/dam/Americas/US/PDFs/Consumer/ corporate/130568_032213_CostöfC#are_Final_nonsecure.pdf. [FN82] . Barbara A. Ormond, Kirsten J. Black, Jane Tilly and Seema Thomas, “Supportive Services Programs in Naturally Occurring Retirement Communities,” November 2004, available at: www.aspe.hhs.gov. [FN83] . “Continuing Care Retirement Communities (CCRC),” AARP, available at: http://www.aarp.org/families/housing_choices/other_options/ a2004-02-26-retirementcommunity.html. [FN84] . “Continuing Care Retirement Communities Can Provide Benefits, but Not Without Some Risk,” United States Government Accountability Office, GAO-10-611 (June 2010). [FN85] . Dan Goldberg, “Incentives Help Seniors Get Moving; Retirement Communities Reach Out with a Host of Services,” Star-Ledger (Newark N.J., Aug. 19, 2012). 2012 WLNR 17577971. [FN86] . “New Effort Launched to Help Veterans with Disabilities Live Independently at Home,” Robert Wood Johnson Foundation, January 7, 2011, available at www.rwjf.org/vulnerablepopulations/product.jsp?id=71670. [FN87] © 2020 Thomson Reuters. No claim to original U.S. Government Works. -32- . “VA HEALTH CARE: Actions Needed to Address Higher-Than-Expected Demand for the Family Caregiver Program,” U.S. Government Accountability Office (GAO-14-675, Sept. 18, 2014), available at: www.gao.gov/products/GAO-14-675. [FN88] . 78 Fed. Reg. 68364 (Nov. 14, 2013). 2013 WL 6002635 (F.R.). [FN89] . Died in committee. [FN90] . Died in committee. Produced by Thomson Reuters Accelus Regulatory Intelligence 05-Feb-2020 © 2020 Thomson Reuters. No claim to original U.S. Government Works. -33-