Summary of Key Home and Community-Based Services (HCBS) Provisions
Ensuring beneficiaries can access covered services is a critical function of the Medicaid program and a top priority of the Centers for Medicare & Medicaid Services (CMS). The proposed rule, Ensuring Access to Medicaid Services, outlined in this fact sheet, includes both proposed changes to current requirements and newly proposed requirements that would advance CMS’s efforts to improve access to care, quality, and health outcomes, and better promote health equity for Medicaid beneficiaries across fee-for-service (FFS) and managed care delivery systems, including for home and community-based services (HCBS) provided through those delivery systems. These proposed requirements are intended to increase transparency and accountability, standardize data and monitoring, and create opportunities for states to promote active beneficiary engagement in their Medicaid programs. Medicaid and CHIP are the nation’s largest health coverage programs. If adopted as proposed, these rules would build on Medicaid’s already strong foundation as an essential program for millions of families and individuals, especially children, pregnant people, older adults, and people with disabilities.
To advance the President’s long-term care priorities, President Biden’s Executive Order on Increasing Access to High-Quality Care and Supporting Caregivers directs the Department of Health and Human Services (HHS) to consider issuing several regulations and guidance documents to improve the quality of home care jobs, including by leveraging Medicaid funding to ensure there are enough home care workers to provide care to seniors and people with disabilities enrolled in Medicaid. Through this proposed rule, CMS is also fulfilling the directive for HHS to consider rulemaking to improve access to HCBS under Medicaid.
Public comments are requested on the Notice of Proposed Rulemaking (NPRM), including in response to specific questions articulated throughout the publication.
A substantive component of this proposed rule focuses on improving access to, and the quality of HCBS. Over the past several decades, HCBS have become a critical component of the Medicaid program and are part of a larger framework of progress toward community integration of older adults and people of all ages with disabilities that spans efforts across the Federal government. The proposed changes in this rule are intended to strengthen necessary safeguards to ensure health and welfare, promote health equity for people receiving Medicaid‑covered HCBS, and achieve a more consistent and coordinated approach to the administration of policies and procedures across Medicaid HCBS programs. Specifically, the proposed rule seeks to:
- Establish a new strategy for oversight, monitoring, quality assurance, and quality improvement for HCBS programs;
- Strengthen person‑centered service planning and incident management systems in HCBS;
- Require states to establish grievance systems in FFS HCBS programs;
- Require that at least 80% of Medicaid payments for personal care, homemaker, and home health aide services be spent on compensation for the direct care workforce (as opposed to administrative overhead or profit);
- Require states to publish the average hourly rate paid to direct care workers delivering personal care, home health aide, and homemaker services;
- Require states to establish an advisory group for interested parties to advise and consult on provider payment rates and direct compensation for direct care workers;
- Require states to report on waiting lists in section 1915(c) waiver programs; service delivery timeliness for personal care, homemaker and home health aide services; and a standardized set of HCBS quality measures; and
- Promote public transparency related to the administration of Medicaid‑covered HCBS through public reporting of quality, performance, and compliance measures.
Key HCBS Provisions of the “Access” Rule
If finalized, the HCBS requirements in this proposed rule, , are intended to supersede and fully replace the reporting and performance expectations described in March 2014 guidance for section 1915(c) waiver programs. To ensure consistency and alignment across HCBS authorities, CMS proposes to apply the new HCBS requirements to section 1915(c) waiver programs and to section 1915(i), (j), and (k) state plan services, except where it is noted that a proposed requirement would only apply to certain services. In addition, except where noted, the proposed requirements would apply to services delivered through both FFS and managed care delivery services. Further, we clarify in the rule that, consistent with the applicability of other HCBS regulatory requirements to section 1115 demonstration projects, the proposed requirements for section 1915(c) waiver programs and section 1915(i), (j), and (k) state plan services would apply to these same services included in demonstration projects, unless we explicitly waive or make not applicable one or more of the requirements as part of the approval of the demonstration project.
Person-Centered Planning
To ensure a more consistent application of person‑centered service plan requirements across states and to protect the health and welfare of people receiving HCBS, this rule proposes to codify a minimum performance level for states to demonstrate that a reassessment of functional need, including changes in circumstances, is conducted annually for at least 90 percent of individuals continuously enrolled in the state’s HCBS programs for 365 days or longer. In addition, states would be required to demonstrate that they reviewed the person‑centered service plan and revised the plan as appropriate based on the results of the required reassessment of functional need every 12 months, for at least 90 percent of individuals continuously enrolled in the state’s HCBS programs for 365 days or longer.
The rule proposes that States report annually on the percent of beneficiaries continuously enrolled in the State’s HCBS programs for 365 days or longer for whom a reassessment of functional need was completed within the past 12 months. States would also be required to report on the percent of beneficiaries continuously enrolled in the state’s HCBS programs for 365 days or longer who had a service plan updated as a result of a re‑assessment of functional need within the past 12 months. For both metrics, CMS proposes allowing states to report on a statistically valid random sample of beneficiaries, rather than for all individuals continuously enrolled in the State’s HCBS programs for 365 days or longer. We proposed that these new performance levels and reporting requirements, if finalized, would be effective three years after the effective date of the final rule.
HCBS Grievance System
This rule proposes to require that states establish grievance procedures for Medicaid beneficiaries receiving HCBS through an FFS delivery system. This grievance process would give beneficiaries an opportunity to file an “expression of dissatisfaction,” or complaint, related to the State’s or a provider’s compliance with person‑centered planning and service plan requirements, and the HCBS settings requirements. The rule includes proposed recordkeeping requirements related to grievances, including that the record of each grievance contains a minimum set of elements, that states maintain records of grievances and review the information as part of their ongoing monitoring procedures, and that they are maintained in a manner that would be available upon CMS request. While CMS intends to apply these requirements across HCBS programs to avoid duplication with the existing grievance requirements for managed care at part 438, subpart F, we do not propose applying these requirements to managed care delivery systems. We proposed that these new grievance system requirements would be effective two years after the effective date of the final rule.
Incident Management Systems
In the rule, CMS proposes establishing a minimum definition of “critical incident” and minimum State performance and reporting requirements for investigation and action related to critical incidents. CMS also proposes to require that states operate and maintain an incident management system that identifies, reports, triages, investigates, resolves, tracks, and trends critical incidents.
Further, through this rule, we are proposing that states’ incident management systems include an electronic information system that collects, tracks, and trends data and that states identify critical incidents through required provider reporting and other data sources (e.g., claims, Medicaid Fraud Control Units, Adult Protective Services, Child Protective Services, law enforcement). If an entity other than the State investigates critical incidents, we are proposing that states must have an information-sharing agreement with the investigating entity to share the status and resolution of investigations and that states must investigate separately if the investigating entity fails to report on a resolution within state-specified timeframes. In addition, CMS proposes to require that States report every 24 months on the results of an incident management system assessment to demonstrate that they meet the new proposed incident management system requirements. We proposed that these requirements would be effective three years after the effective date of the final rule.
HCBS Payment Adequacy and Transparency
Access to most HCBS generally requires hands‑on and in‑person services to be delivered by direct care workers. However, direct care worker shortages are impacting beneficiaries’ access to services. In an effort to address direct care workforce shortages, CMS proposes to require that at least 80 percent of Medicaid payments in a State for homemaker, home health aide, and personal care services be spent on compensation for direct care workers. We are also proposing to require that states report annually, in the aggregate for each service, on the percent of payments for homemaker, home health aide, and personal care services that are spent on compensation for direct care workers, and separately report on payments for such services when they are self‑directed. We proposed that these requirements would be effective four years after the effective date of the final rule.
To ensure that HCBS stakeholders have increased awareness of how states establish Medicaid payment rates for personal care, homemaker, and home health aide services, CMS is proposing to require states to publish, every other year, the average hourly rate paid to direct care workers delivering these services. This information would separately compare rates for individual direct care providers and direct care providers employed by an agency. In addition, this proposed rule would require the establishment of an interested parties advisory group, to advise and consult with the State on payment rates for direct care workers. This group would include, at a minimum, direct care workers, beneficiaries and their authorized representatives, and other interested parties.
HCBS Quality Measure Set
On July 21, 2022, CMS issued State Medicaid Director Letter #22-003 to release the first official version of the HCBS Quality Measure Set. The HCBS Quality Measure Set is a set of nationally standardized quality measures for Medicaid-covered HCBS. This voluntary measure set is intended to promote more common and consistent use within and across states of nationally standardized quality measures in HCBS programs, create opportunities for CMS and states to have comparative quality data on HCBS programs, drive improvement in quality of care and outcomes for people receiving HCBS, and support states’ efforts to promote equity in their HCBS programs.
This rule proposes to require states to report every other year on the HCBS Quality Measure Set for their HCBS programs. We are also proposing to update the measure set at least every other year through a process in consultation with states and other interested parties. Through this process to update the measure set, CMS is proposing to include mandatory measures, measures that the Secretary of HHS will report on states’ behalf, measures that states can elect to have the Secretary of HHS report on their behalf, and measures that the Secretary will provide States with additional time to report.
As part of the reporting requirements proposed in the rule, states would be required to establish performance targets, subject to CMS review and approval, for each of the mandatory measures in the HCBS Quality Measure Set, and to describe the quality improvement strategies that they will pursue to achieve the performance targets for those measures. States would also be required to stratify data for certain measures by race, ethnicity, Tribal status, sex, age, rural/urban status, disability, language, or other factors in order to enable us to measure health disparities and advance health equity. We proposed that these requirements would be effective three years after the effective date of the final rule. However, considering the level of complexity required for such state reporting, CMS proposed that reporting for certain mandatory measures and reporting for certain populations of beneficiaries proposed in the rule may be phased-in over time. Further, the requirements for states to report stratified data would be phased in over a seven-year period after the effective date of the final rule.
Access Reporting
To improve public transparency, CMS proposes to require states that have a limit on the size of their waiver program to describe annually how they maintain the list of individuals who are waiting to enroll in the waiver program, including whether the State screens individuals on the waiting list for eligibility for the waiver program, whether the State periodically re‑screens individuals on the waiting list for eligibility, and the frequency of re‑screening if applicable. States would also be required to report the number of people on the waiting list and the average amount of time that individuals newly enrolled in the waiver program in the past 12 months were on the waiting list.
To improve oversight efforts to ensure access to care and services, CMS proposes to require states, for section 1915(c) waiver programs and section 1915(i), (j), and (k) state plan services, to report annually on the average amount of time from when homemaker, home health aide, or personal care services are initially approved to when those services began for individuals newly approved to begin receiving services within the past 12 months. We also propose to require states to report annually on the percent of authorized hours for homemaker, home health aide, and personal care services that are provided within the past 12 months. These reporting requirements would be effective three years after the effective date of the final rule.
Standardization of HCBS Reporting Requirements and Transparency
To promote public transparency related to the administration of Medicaid‑covered HCBS, this rule proposes to add requirements for states to compile and post required reporting data referenced above to a dedicated public HCBS webpage that meets certain availability and accessibility requirements. We also propose that CMS report on its website the information reported by states. We proposed that these provisions would be effective three years after the effective date of the final rule, with the exception of the payment adequacy provision which would be effective four years after the effective date of the final rule.
There will be a 60-day comment period for the notice of proposed rulemaking, and comments must be submitted to the Federal Register no later than July 3, 2023. For more information on how to submit comments or to review the entire rule, visit the Federal Register.
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