NSCLC: Health Network Alert

From our Colleagues at NSCLC: 

The new federal Medicaid regulations for home and community-based services (HCBS) establish clear requirements for public comment — but some states already seem to be out of compliance.  Consumer advocates should be vigilant to ensure that their states provide them and other stakeholders with a draft transition plan, and then accept public comments on that draft.  This alert provides what the regulations require, what some states are doing and what actions you can take. 

What the Regulations Require

By law, the draft transition plan must address the standards and enforcement mechanisms that the state will employ, and should not merely describe the steps the state will take (surveys, workgroups, etc.) to develop a transition plan.  The new federal Medicaid regulations set standards for the settings in which HCBS are provided.  The requirements are extensive, requiring states both to adjust their standards, and to develop or modify procedures to ensure compliance with those standards.

Given the many changes that states will need to make, public comment will be vital to states’ development of revised standards and procedures.  The federal regulations provide for public comment procedures in which a state must do all of the following:

  • Make a draft transition plan available to the public for comment.  The transition plan must detail how the state will operate its HCBS programs in accordance with the new regulations.
  • Provide a notice-and-comment period of at least 30 days.
  • Consider and modify the transition plan, as the state deems appropriate, to account for public comment.
  • Submit a summary of the comments to the Centers for Medicare and Medicaid Services (CMS)with a proposed transition plan, including a list of changes made in response to the comments, and an explanation of why other comments did not lead to changes. 

What Some States Are Doing

In some states, however, what has been presented as a draft “transition plan” is in reality the state’s work plan for developing a transition plan.  Wyoming proposed a “State Plan for Assessing HCB Settings Compliance” with a comment period that closed on May 22, but that plan merely sets forth a process to solicit opinions and discuss alternatives.  The state evidently does not intend to provide the public with any opportunity to comment on the substantive transition plan.  According to the state’s timeline, the transition plan will be drafted by the state between December 1, 2014, and January 15, 2015, with no opportunity for public comment on a draft.

Similarly, the Iowa transition plan, with a comment period that closed on May 31, lists state activities to develop a transition plan.  The plan says that the state from August 2014 through July 2015 “will work to revise programmatic rules to reflect final [federal] regulations on HCBS setting requirements.”  The current transition plan does not address the content of those programmatic rules, and does not provide for a formal comment period for the final transition plan.

It is understandable that a state might require some months to develop a transition plan, and the development of a work plan may be an important initial step.  CMS and states must be clear, however, that a work plan is not the same thing as a transition plan, and public comment on work plans cannot in any way substitute for the public’s right under the regulations to comment on the substance of a state’s transition plan.

What You Can Do

Consumer advocates and other stakeholders are encouraged to monitor this issue and to demand meaningful public comment procedures in their states.  The new HCBS regulations present states and CMS with many policy decisions to be made, and those decisions deserve robust public input.  Stakeholders should be able to comment on the substance of the state’s HCBS policy, and not just the state’s process for developing that policy.

A model letter to state Medicaid officials is available here

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  • LAAAC is managed by St. Barnabas Senior Services; Funded, in part, by Archstone Foundation.
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