by Michelle Diament | July 16, 2020
The Trump administration is holding off on implementing a Medicaid rule establishing a new standard for what counts as home- and community-based services for people with disabilities.
In a letter to state Medicaid officials this week, the Centers for Medicare & Medicaid Services said it would delay the compliance deadline for a 2014 regulation detailing criteria that programs must meet in order to be considered community-based and eligible to be paid for through Medicaid home- and community-based services waivers.
Under the rule, home- and community-based settings must be places that individuals choose to live that are integrated in and provide full access to the community. They also must offer privacy, dignity and respect and allow people with disabilities the ability to make independent choices about their daily activities, physical environment and who they are in contact with.
The criteria apply to homes as well as day and job-training programs and other non-residential offerings provided through waivers.
Originally, there was a five-year transition period for states to come into compliance with the regulation, but the Trump administration already extended that deadline by three years to 2022. Now, the administration is pointing to the “unprecedented challenges” presented by COVID-19 as it announces another delay, this time to March 17, 2023.
“States’ stay-at-home and/or safer-at-home orders and the process of social distancing have made it difficult, if not impossible, for states to accurately evaluate how an individual is experiencing community integration in current HCBS settings,” wrote Calder A. Lynch, deputy administrator and director of the Center for Medicaid & CHIP Services. “These necessary directives have seriously impacted not only the measurement of community integration for individuals, but the intent of the settings rule to ensure that individuals with disabilities and older adults have the opportunity to be active participants in their communities.”
Lynch said the decision to bump back the compliance deadline for a second time came at the request of states who were struggling to assess settings.
The announcement drew mixed reaction from disability advocates.
The HCBS Advocacy Coalition, a group of 20 national organizations that have pushed for implementation of the new rule, said the move sends the “wrong message” particularly with the previous implementation deadline still more than 20 months away.
“The COVID-19 pandemic has laid bare the risks of large congregate settings and made the rule’s focus on more individualized supports in smaller and non-disability specific settings more important than ever,” the coalition, which includes The Arc, the National Disability Rights Network and the Center for Public Representation, among others, said in a statement. “States should see the settings rule as a critical part of their COVID-19 safety strategy and at the forefront of their reopening efforts.”
However, Desiree Kameka Galloway, director of the Autism Housing Network, which promotes housing options for adults with developmental disabilities, said the delay is warranted given that the pandemic could be influencing how services are being rendered.
“Evidence of integration should be closely tied to the implementation of one’s person-centered plan,” she said. “If (the deadline is) not extended, COVID-19 could be used as an excuse for why people have not been supported in the ways they envisioned and documented.”
Federal Medicaid officials said at the time the rule was initiated that they were motivated by reports of homes built on the sites of former institutions that were being described as community based. They have indicated in the past that the rule is likely to affect services for more than a million people with disabilities across the nation.