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Date ArticleType
11/24/2015 Payment/Reimbursement
Notice from Indiana Division of Aging Concerning Aged & Disabled Waiver Program

IHCA/INCAL has been recently notified by the Indiana Division of Aging (the “Division”) that the Division has been in communication with CMS recently concerning the Home and Community Based Services rule (see HCBS Rule).  CMS made it clear to the Division that only providers that were certified at the time of the rule’s effective date are subject to the transition plan requirements and that all providers certified after that date must be fully in compliance with the rule.  The Division has also received some information on the requirements around “heightened scrutiny” and a prohibition on payment for any settings that are subject to heightened scrutiny that have NOT been approved by CMS. 
The Division is working with a contractor to develop a desk review and site survey process to apply to all current AL waiver providers to determine who will be subject to heightened scrutiny and to provide the evidence we will submit to CMS to assert that appropriate (presumed institutional) settings are identified as HCBS.  “Presumed institutional” applies to those facilities that are:
1. Adjacent to an institution, public or privately owned, that provides inpatient care and treatment, including nursing facilities. 
2. Adjacent or on the grounds of a publicly owned institution (such as state hospitals, or the Vets’ Home).
3. Settings that have the effect of isolating.  We believe that this language will be what is applied to locked memory care units. 
The Division has made a decision that, until they have completed the site survey and established the process by which they will submit sites for heightened scrutiny, the Division will only be approving for participation in the waiver program those settings that can clearly be identified as home and community based.  The Division will NOT be approving any settings that fall into the “presumed institutional” categories until they have a clear process for measuring the resident experience and quality of life in these settings as required by CMS.  Buildings that have secured memory care units may be approved for participation in the waiver program; however, the Division will note clearly that the certification will not apply to the memory care unit. 
The Division has posted a notice on our provider certification website to make this clear to providers at the earliest possible point in their self-directed certification process.  This action is intended to safeguard the waiver and any new providers from having to do some kind of payback to CMS as a result of premature approvals for settings that are subject to heightened scrutiny and for CMS has not approved. 

• Additional Insights Concerning the HCBS Rule

When IHCA/INCAL was contacted by the Division about this issue and the notice that they were drafting, we, along with colleagues from the Indiana Assisted Living Association and LeadingAge Indiana, asked several question of the Division concerning the notice and also the HCBS rule in general.  Below are a list of those questions and the responses from the Division for your information and background.  There are some important take-aways in the below, including information that indicates if a nursing facility currently has a residential wing that provides waiver services, that provider will be removed from the waiver prior to the deadline for the State’s compliance with the HCBS rule.  Nursing facilities are not permitted to participate in the HCBS waiver under the new rule as they are defined in the law as not HCBS settings.

1. A.  Will the notice clearly state that any new provider (one applying after the effective date of the rule) cannot be a NF, a hospital, or an ICF/IID, as these are settings that are defined as not being able be qualify as HCBS even through heightened scrutiny? 
FSSA Response:  We currently do not receive applications from any of these providers to participate in waiver programs.  We had not planned to include any notice to those providers.  If you think we need to, we are happy to consider, but I do not want to clutter the message up. 
B.  It is important and we are aware of several NFs have residential units that are exploring waiver participation.   This exclusion and it being applied now rather than in 2019 is important for providers to know before they sink time and resources into trying to participate in a program they cannot participate in. 
FSSA Response:  We agree that we don’t want providers to sink any resources in this now if there is a chance that they won’t be deemed HCB after heightened scrutiny and that is why we are doing the website posting now.  I think that the confusion comes in over terminology.  We don’t certify (I hope) residential units within nursing facilities.  What we certify are assisted living communities that happen to be co-located with nursing facilities.  But we will ensure that the language is as clear as possible. 

2. A.  Regarding the triggering of heightened scrutiny, what does adjacent to an institution mean?  Does the rule or any guidance give a definition of distance or proximity?   
FSSA Response:  The word in the rule only uses “adjacent to or on the same grounds of….”  This particular language applies only to those facilities co-located with public institutions.  Presumed institutional in private settings are those that are located in the same building.
B.  Would a private AL that is across the parking lot from a NF, but is not physically connected to the NF, be ok under this rule? 
FSSA Response:  That setting would not be presumed institutional.
C.  How will CMS/Division of Aging treat NFs that are licensed to and operated by county hospitals?  Are those NFs public institutions?  I recall discussion on this before and that the Division though that public institution referred to the "traditional" state run hospital or home.
FSSA Response:  Correct. 
D.  Does located in the same building include CCRCs where the nursing home and the AL are connected by a connector corridor?  By eliminating this, CMS would be depriving married couples where one is in AL and one in NH to easily visit, especially in winter. What about facilities where the AL and NH are on different floors? 
FSSA Response:  CMS guidance to date is that CCRCs are not considered settings that isolate.  For existing providers, our statewide site survey will give us the opportunity to evaluate the need for heightened scrutiny and to provide evidence to CMS that these communities are, in fact, HCB in nature.  Remember that the notice that we are putting on our website is NOT targeted to existing providers, but rather to prospective providers – and – it is not intended to be the final word.  We are simply stating that, at this time, until we have completed the site survey process and applied heightened scrutiny to existing providers, that we are not going to be approving any settings that are presumed institutional. 

3. Will the notice clearly state that current providers that may be subject to heightened scrutiny later are still able to participate in the waiver until that process is defined?
FSSA Response:  We will try to make that clear. 

4. A.  Will NF providers, those that provider waiver services in a residential wing under the same roof as the NF, be allowed to participate until March 2019 or will they be removed from the program sooner as those settings, absent significant physical plant modification, are defined as not being an eligible HCBS setting? 
FSSA Response:  They will be removed sooner than March 2019.  After they are identified as being not in compliance, there will be an opportunity for them to come into compliance with some date identified for them the achieve that.  CMS has made it very clear that they expect a target earlier than March 2019 to have individuals transitioned out of non-compliant settings.
B.  Will this be in the guidance that FSSA issues?  If not, why?  Is it a given that AL connected in any way with a NH will automatically be consider not in compliance? 
FSSA Response:  No.  They are presumed institutional, based on their physical characteristics, but heightened scrutiny is intended to measure the residents’ experience and determine if evidence is available to submit to CMS that a community is in fact, HCB, despite its physical characteristics.
C.  If the facility operates in the person centered manner desired, has a separate entrance and separate programming, would they still be considered not in compliance? 
FSSA Response:  No.  Remember that the heightened scrutiny process is intended to identify, based on the residents’ experiences, evidence that the community is actually HCB in nature.  If we cannot provide that evidence, then we may need to deem some communities as institutional, but that is what the process is intended to help us do. 

5. For the category of "settings that have the effect of isolating", what other issues aside from locked units fall under this category?  Does this include transportation issues, service planning for community integration, segregation of payor types in specific areas of a facility, or are all those items treated in other areas such as service planning? 
FSSA Response:  All of those factors can come into play, but the primary determinant will be how that setting is experienced by an individual and whether individuals with disabilities have access to the same experiences as individuals without disabilities.

6. You used the term locked memory unit and also referred to secured memory unit.  I assume you are using the terms interchangeably? 
FSSA Response:  The net effect of the usage below was interchangeable, although I believe that we will identify that they could have different meanings and that we will need to be very specific in our approach to this. 

7. When will the site survey and heightened scrutiny process be complete? As I recall from last meeting we could be looking at summer 2016 or later? 
FSSA Response:  We are working with our contractor now on that timeline.  I anticipate that the surveys themselves will be completed by next spring.  We need to confirm with CMS what the process is going to be for submitting evidence of community-based settings when the presumption is that the setting is institutional.  CMS is placing VERY stringent requirements around the public input that is site-specific and we will need to factor that into our timelines as well. 

8. Is there any discussion around increased waiver rates for memory care units? 
FSSA Response:  Rate methodology will be a significant piece of the waiver redesign project that we will be starting early next year.
 For additional information contact Katie Niehoff at kniehoff@ihca.org or 317-616-9028.