The Patient Protection and Affordable Care Act (?ACA? or ?the Act?) was enacted in March 2010.1 The ACA will dramatically expand access to health insurance, and it also contains provisions designed to improve health through other means. This short paper discusses several provisions designed to make home and community-based services (HCBS) available to more Medicaid beneficiaries.
Participating states must establish criteria for determining an individual?s need for covered HCBS that are less stringent that those the state uses to determine eligibility for institutional services.5 Services covered are those that could be covered for 1915(c) waivers: case management, homemaker/home health aide and personal care, adult day health, habilitation, respite care, and other partial hospitalization services, psychosocial rehabilitation services, and clinic services (whether or not furnished in a facility) for individuals with chronic mental illness.6 States may also allow individuals to direct their own care.7 States must use an independent evaluation to determine an individual?s eligibility and an independent assessment to determine the necessary level of services and supports in an individualized care plan.8
The ACA makes several significant changes to the 1915(i) option. First, it enables states to expand eligibility to individuals with incomes up to 300 percent of the SSI benefit rate (about $2022 per month) and who are eligible for (but not necessarily enrolled in) a 1915(c), (d), (e), or 1115 waiver.9 It also expands the scope of services that may be covered. One important difference between 1915(c) waivers and the original 1915(i) option was that, under 1915(c) waivers, it was possible for states to cover services not specifically listed in the statute as long as the Centers for Medicare & Medicaid Services (CMS) approved.10 In contrast, the 1915(i) option as first enacted restricted coverage to those services specifically listed. The ACA removes this limitation and states may now offer other CMS-approved HCBS services under 1915(i).11
States are no longer allowed to waive the requirement that services be available statewide nor to place caps on enrollment and maintain waiting lists.14 But, they may still limit enrollment indirectly. They are required to project and report to CMS the number of individuals that they expect to receive services under 1915(i). If enrollment exceeds a state?s estimate, it may modify the needs-based eligibility criteria to restrict further enrollment without getting advance permission from CMS. The State must give CMS and the public at least 60 days notice of such modification, and any individuals who are eligible for services will remain so until they no longer meet the original eligibility criteria.15
There is good reason to welcome the 1915(i) option as it offers an additional way for states to expand coverage of HCBS. In particular, it improves states? ability to cover services for people with mental illnesses.18 It is especially helpful that states may no longer have waiting lists for 1915(i) services. But, while this flexibility may encourage states to offer benefits that they otherwise would not, it also defeats part of the purpose of having a benefit offered as part of a state plan, i.e. that states must cover benefits in an equal amount, duration, and scope for all eligible individuals. And, advocates should be aware that states could attempt to use the option to limit services. For example, North Carolina requested permission to offer personal care services (PCS) to individuals living in adult care homes through a 1915(i) plan option. At the same time, it requested permission to limit the scope of PCS for individuals living in their own homes. On balance, this would have allowed the State to reduce coverage of PCS, a crucial community based service, through a tool intended to expand the scope of coverage of HCBS. Advocates understand that CMS may reject this request. But, based on examples given by CMS itself, a state could eliminate coverage of PCS for everyone, then reinstate coverage only for people with physical disabilities, thus circumventing the comparability requirement and resulting in a net loss of HCBS. Thus, the issue requires close monitoring by advocates.
