Enacted into statute: 1981
This rule was revised and added to the existing 1915 (c) regulations
Issued: January 16, 2014 (effective March 17, 2014)
Settings that were in the state’s HCBS delivery system prior to the effective date of the rule (3/17/14) must comport with the settings requirements in the final rule by 3/17/2023. Settings that are new to the state’s HCBS delivery system after March 17, 2014 must comport with the final rule settings requirements prior to HCBS being delivered in those settings. All other requirements in this final rule, including conflict of interest mitigation and person-centered planning requirements, became effective on March 17, 2014.
The 1915(c) waiver authority permits a state to offer home and community-based services to individuals who: (a) are found to require a level of institutional care; (b) are members of a target group that is included in the waiver; (c) meet applicable Medicaid financial eligibility criteria; (d) require one or more waiver services in order to function in the community.
- State-wideness
- Comparability
Community income rules for medically needy population
Information on waiver processing can be located at: https://www.medicaid.gov/resources-for-states/spa-and-1915-waiver-processing/index.html
Application submitted electronically via §1915(c) HCBS waiver application.
Application and instructions available at: https://wms-mmdl.cms.gov/WMS/faces/portal.jsp
Initial application: 3 years (5 year-approvals available if the program serves individuals eligible for both Medicare & Medicaid)
Renewal:5 years
States may make amendment to the approved waiver at any time during the approved waiver period.
Waiver amendments with substantive changes may only take effect on or after the date when the amendment is approved by CMS.
Substantive changes also must be accompanied by information on how the state has assured smooth transitions and minimal adverse impact on individuals impacted by the change.
Annual reports. (CMS 372 reports on statistical data and quality).
Evidence Based Review process prior to renewal.
Link to process: https://www.medicaid.gov/sites/default/files/2019-12/3-cmcs-quality-memo-narrative_0.pdf
Administered by the Single State Medicaid Agency (SSMA).
May be operated by another state agency under an interagency agreement or memorandum of understanding.
Required between providers and the SSMA.
Delegation allowed to a provider agency under the Organized Health Care Delivery System or Provider of Financial Management Services. Requires written specification of delegated activity and a voluntary reassignment of payment by the provider of services.
A state may specify the Medicaid eligibility groups that are served in the waiver. In order for an eligibility group to be included in the waiver, it must already have been included in the state plan.
States are permitted to use institutional income and resource rules for the medically needy (institutional deeming).
May include the special income level group of individuals and may permit income up to 300% of SSI.
Individuals must meet institutional level of care.
Waivers are limited to one or more of the following target groups or any subgroup thereof:
- Aged or disabled, or both;
- Individuals with Intellectual Disabilities or a developmental disability, or both;
- Persons with mental illnesses.
States may also specify age ranges within the target groups and/or subgroups served.
Additional targeting criteria may include but are not limited to:
- Nature or type of disability;
- Specific diseases or conditions;
- Functional limitations (e.g., extent of assistance required in activities of daily (ADLs) and/or instrumental activities of daily living (IADLs).
Additional criteria also may be specified in order to align the waiver to service population eligibility criteria that are specified in state law.
42 CFR 447.205. for payment methodology
The state is required to establish a public input process specifically for HCBS waiver changes that are substantive in nature.
Consistent with 42 CFR 441.304(f) stipulates that a state must share with the public the entire waiver. In addition, the state’s public input process must have included at least two (2) statements of public notice and public input procedures, with at least one being web-based AND at least one being non-electronic to ensure that individuals without computer access have the opportunity to provide input. This state must provide at least a 30-day public notice and comment period, and be completed prior to submission of the proposed change to CMS.
States may operate multiple 1915(c) HCBS waivers
Cannot cover:
Room & board costs.
Habilitation does not include special education and related services provided under IDEA that are education related only & vocational services provided under Rehab Act of 1973.
Allowed.
Allowed.
Statutory Services:
- Case management services
- Homemaker/home aide services & personal care services
- Adult day health services
- Habilitation services
- Respite care
- Other services requested by State as Secretary may approve”
- Day treatment or other partial hospitalization services*
- Psychosocial rehabilitation services*
- Clinic services*
*For individuals with chronic mental illness
Settings where individuals receive support must comport with the settings requirements as set forth in 2014 final rule.
Reasonable standards identified by the state, subject to CMS approval.
Required if participant direction is offered. May be covered as a waiver service or a Medicaid administrative activity.
States may identify what options are available for employer authority in a participant directed model of service:
Co-Employment. Under this approach, the participant is supported by an agency that functions as the common law employer of workers recruited by the participant. Also known as “agency with choice.”
Common Law Employer. Under this approach, the participant is considered the legally responsible employer (common law employer) of workers whom he or she (or his or her representative) hires, supervises and discharges directly. The participant or his or her representative is liable for the performance of necessary employment-related tasks and uses a Government or Vendor Fiscal/Employer Agent.
Permitted as a waiver service.
Required (state may offer options that can be utilized voluntarily by providers to meet this requirement).
Can be coupled with a managed care authority for different payment arrangements.
State must describe the methods that are employed to establish provider payment rates for waiver services and the entity or entities that are responsible for rate determination.
Cost-neutrality.
Average annual Medicaid costs per waiver participant cannot exceed average institutional cost per person for each level of care.
Extensive quality management and quality improvement activities required per the HCBS Waiver Application, including how state will comply with all waiver assurances and how state will conduct quality oversight, monitoring and discovery, remediation and improvement of issues relating to quality.
Participants have access to and must utilize state plan services provided under 1905(a) (including all EPSDT benefits) before using identical extended state plan services under the waiver.
Waiver services may not duplicate state plan services.
Individuals may be eligible for and receive services from multiple HCBS authorities simultaneously, so long as the person centered service plan ensures no duplication of services.
HCBS waivers may be operated concurrently with other authorities, for example 1915(a) or 1915(b).
Requirements at 42 CFR 431.301(c)(1)(vi).
Providers of HCBS for the individual, or those who have an interest in or are employed by a provider of HCBS for the individual must not provide case management or develop the person-centered service plan, except when the State demonstrates that the only willing and qualified entity to provide case management and/or develop person centered service plans in a geographic area also provides HCBS. In these cases, the State must devise conflict of interest protections including separation of entity and provider functions within provider entities, which must be approved by CMS. Individuals must be provided with a clear and accessible alternative dispute resolution process
Under no circumstances can a direct service provider determine eligibility – this applies to financial and functional eligibility. The requirements listed are the minimum; states may impose additional criteria.
Must meet the requirements regarding the person centered plan and process at 42 CFR 441.301(c)(1), (2) and (3).
The person centered plan must be based on an independent assessment.
In addition to specific requirements regarding the process used to develop the plan, the regulations establish that the person-centered service plan must reflect the services and supports that are important for the individual to meet the needs identified through an assessment of functional need, as well as what is important to the individual with regard to preferences for the delivery of such services and supports.