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Date ArticleType
3/21/2017 INCAL
Indiana A&D Waiver Providers Update

IHCA/INCAL has obtained a copy of the Memoradum of Understanding (MOU) between the Division of Aging and the ISDH.  The MOU is not yet executed, but we are told it will occur very soon. The key point of this article is to explain what the association currently understands as the process for new provider to enter the Medicaid waiver program as it is designed today. This is limited to new providers that do not have qualities of institutions such as being co-located with a nursing facility or have secured memory care, or both. 

To obtain a waiver from the ISDH on the two components of the RCF rule that the Division of Aging say run afoul of the HCBS requirements, an RCF must include in the waiver request:

A. The specific rule for which the facility is requesting a waiver.
B. An explanation of why the facility cannot comply with the residential care rules.  In this case, it will likely include an explanation of why the facility cannot meet the residential care rules along with the HCBS requirements.
C. Given that these requests will deal with care issues, provide a plan for how the facility will be addressing care issues to assess and meet the needs of the residents. 
D. An explanation of how the granting of the waiver will not adversely affect the health, safety, and welfare of its residents. 

Item A is satisfied by referring to the Division of Aging document that discussed the two provisions of the RCF regulations the Division say are problematic.

Item B will require the applicant to be specific about why the HCBS requirement runs afoul of the RCF regulation.  For example:

• To address the involuntary discharge/transfer RCF regulation (410 IAC 16.2-5-1.2(r)), explain how landlord tenant laws and protection from eviction are different than the involuntary discharge and transfer process. IHCA is looking into this and can offer further guidance at a future date.  If any of you get there first, please share.

• To address the acuity cap in the RCF regulation (410 IAC 16.2-5-0.5(f), explain how person centered planning is different than discharging the resident if the resident needs more care than is currently allowed under the RCF regulations.  Attached and highlighted is the federal regulation that the Division of Aging refers to regarding the person centered planning process and a person centered plan.  The main point here is that while discharge may be the ultimate result either way, the person centered plan gets there in a different way than does the “hard and fast” acuity cap (recognizing there is grey area in that as well).

Items C and D will require some creativity and mostly deals with policy and procedure to ensure residents care needs will be met. Engagement with the case manager, physicians, family members, legal representatives, etc., will likely be necessary as part of this policy and procedure.

More to come on this process. In the meantime, Terry Whitson, Assistant Commissioner at the ISDH in charge of this area, has been sending out the below message to individuals asking him about what the ISDH waiver process will require.

The ISDH has been requested to consider requests of residential care rules in consideration of FSSA Home and Community Based Settings (HCBS) requirements.  State statute allows the ISDH to issue a waiver of health facility rules if the waiver does not adversely affect the health, safety, and welfare of the patients or residents.  The issuing of waivers is not particularly unusual in that the ISDH regularly issues a number of waivers related to design or physical plant requirements.   These are different only in that the waiver requests are related to care standards. 

The ISDH will consider waiver requests for residential care facilities that cannot comply with HCBS standards.  In reviewing the issue, the ISDH does not believe that there is a need for many waivers.  Most HCBS issues may be resolved through facility policies that would not conflict with residential care rules.  

There is no required form for submitting a waiver request. At this time, the ISDH has not developed guidance or a template. As the ISDH begins to work with these waiver requests, the ISDH will likely identify issues and information that will improve the review process. The process is essentially the same as requesting a waiver of a physical plant requirement. To provide some initial direction, a facility may request a waiver of a health facility rule as follows:

• The facility must submit a written request for waiver of a health facility rule to the ISDH Division of Long Term Care at ltcproviderservices@isdh.IN.gov.

• The request for waiver must include:

o The specific rule for which the facility is requesting a waiver.
o An explanation of why the facility cannot comply with the residential care rules.  In this case, it will likely include an explanation of why the facility cannot meet the residential care rules along with the HCBS requirements.
o Given that these requests will deal with care issues, provide a plan for how the facility will be addressing care issues to assess and meet the needs of the residents. 
o An explanation of how the granting of the waiver will not adversely affect the health, safety, and welfare of its residents. 

The ISDH regularly reviews a number of requests to include license applications, change of ownerships, bed changes, and plan reviews as well as the processing of health care facility surveys. These waiver requests will be processed similarly to the plan review requests. After initial review, the ISDH often requests additional information to clarify the request. If the request is determined to meet requirements, the ISDH incorporates language into the resulting waiver that details responsibilities.