Dr. Don Berwick
Centers for Medicare and Medicaid Services
Room 445-G Hubert Humphrey Building
200 Independence Ave. SW
Washington, DC. 20201
File Code: CMS-2337-P
Dear Dr. Berwick:
The undersigned members of the Campaign for Better Care appreciate the opportunity to comment on the CMS proposed rule on the Medicaid Community First Choice Option, published in the Federal Register, vol. 76, no. 38, pages 10735-10753.
The Campaign for Better Care is a broad-based coalition of consumer organizations with a direct stake in improving the health and quality of life for older adults with multiple health conditions and their family caregivers. We are committed to ensuring that new models of care delivery provide the comprehensive, coordinated, quality, patient- and family-centered care that individuals want and need. The Campaign supports initiatives to expand access to Home and Community Based Services (HCBS). HCBS services perfectly match the intent of the Affordable Care Act (ACA) since they provide consumers with personalized support services and potentially save costs by reducing unnecessary institutionalization. Most importantly, they allow millions of older adults and people with disabilities to live independently, and at their maximum health and functional capacity.
The Community First Choice Option (CFCO) presents an important opportunity for states to expand access to HCBS services to populations within their Medicaid programs. The CBC applauds HHS for developing a regulation that emphasizes the need to maximize consumer self-direction of their own health care and leverage supports for consumers self-directing their care. Furthermore, the CBC appreciates that HHS has carefully thought about developing system-wide programmatic standards with respect to HCBS services and key related standards and definitions, such as ?person-centered? services. We appreciate the challenges in setting out broader policy through the ACA § 2401 regulation, and commend HHS for the effort to lay the groundwork for the forthcoming ACA § 2402(a) regulation.
Nonetheless, the CBC provides comments to address some concerns in the proposed rule. In particular, we consider that some portions of the proposed rule do not include enough guidance. Without more details, states will lack the guidance to effectively implement CFCO options. More importantly, vulnerable consumers will lack the protections necessary to ensure that they have meaningful access to high-quality services. The CBC understands that HHS will be issuing additional guidance in conjunction with the development of this regulation; the CBC would like to encourage HHS to consider comments below for that guidance if they are not incorporated into the regulation. However, the CBC urges HHS to include the most important consumer protections within the proposed regulation ? America?s vulnerable older adults and people with disabilities deserve to see their well-being safeguarded in formal regulation.
§441.505 ? Definitions
We commend the use of broad definitions, such as those for Activities of Daily Living and Instrumental Activities of Daily Living including the language ?but not limited to?, which will allow flexibility to consider the supports needed by a wide range of individuals with functional limitations.
We commend the inclusion of examples, but recommend that additional examples of the term ?Backup systems and supports? be included, such as medication management and tele-health care technologies.
We recommend that the term ?Individual?s representative? be defined to also include ?spouse? and ?partner?.
§441.510 ? Eligibility
The CBC commends the regulatory decision to allow states to cover populations up to 150% of the Federal Poverty Level (FPL) without a required showing of nursing facility clinical eligibility (NFCE). The population below 150% of FPL is extremely vulnerable, with the poorest health status and the least personal resources to acquire additional services and supports. States which choose to cover this population at levels of acuity below NFCE will help lessen any potential functional decline to NFCE status for these vulnerable individuals in the state.
The preamble to the proposed rule suggests, but §441.510 does not mention, the requirement for a yearly verification of income for CFCO applicants since this may be relevant to the level of care requirement for eligibility. We recommend that this requirement not be included, since income verification requirements are already a standard part of the Medicaid redetermination process. There is no need to create an additional and redundant barrier to eligibility. Furthermore, states should be encouraged and reminded of any authority to use ?passive redetermination? methods, which result in far fewer accidental and unwarranted terminations, and less administrative burdens for individuals and state programs alike.
§441.520 ? Required Services
The CBC notes that the inclusion of ?permissible? services within the ?required services? subheading may create confusion in program administration, and the two sections should be separated for clarity. We understand that in §441.525 you have included language allowing some exceptional services ?based on a specific need identified in the service plan?. While we understand the need for that language in reference to exceptional excluded services, we believe the inclusion of this same language at §441.520(b)(3) may be overbroad when applied to all permissible services, and consider that this language could put a difficult burden on consumers to identify all possible future support needs during the care assessment phase.
§441.525 ? Excluded Services
We commend the expansion of coverable services to include:
- Some services that may fall under ?§441.520(a)(5)?; and
- Some that may be ?based on a specific need identified in the service plan when used in conjunction with other? HCBS services.
With regard to the former, we note the technical error in the regulation referring to ?§441.520(a)(5)? (there is no (a)(5) provision), and suggest you replace that reference with §441.520(a). With respect to the latter, we have understood your inclusion of this language to limit the circumstances when assistive technology could be covered (i.e., as an exception to the general policy of non-coverage). We strongly support this exception and note that it is cost-effective to substitute technology for attendant staff. However, we believe the inclusion of this same language at §441.520(b)(3) may be overbroad when applied to all permissible services, and consider that this language could put a difficult burden on consumers to identify all possible future support needs during the care assessment phase.
We commend your inclusion of the language ?that are related to education only? in (b).
We note your request for comment on a proposal to allow states to determine at what point the amount of funds to purchase devices and adaptations places them in the statutorily excluded categories. This language appears in the preamble, but not the regulation. We are concerned that regulatory language on this point might confuse the cost of service with the type (or purpose) of service. State should not have absolute discretion to target exclusions strictly based on cost. You state in the preamble that CFCO ?would not include services furnished through another benefit or section under the Act.? We consider this statement to be overbroad and recommend it be altered to avoid confusion. We suggest editing it to read that CFCO ?would not include certain specific types of services furnished through another benefit or section under the Act.?
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