This afternoon, CMS issued a Request for Information (RFI) related to accelerating the provision of home and community-based services (HCBS) to Medicaid beneficiaries. To be sure, this is a noble goal, as providing health and supportive services to individuals in their homes and communities rather than an institutional setting is often not only the cost-effective choice, but the one which older adults and people with disabilities would prefer. In the wake of the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999) and with the creation of the Administration for Community Living within the Department of Health and Human Services and the additional funding and mandates provided by the Affordable Care Act, the current administration has taken a number of steps towards rebalancing long-term care away from its historically institutional status quo.

Today’s RFI asks stakeholders and the public how this work can be carried further. Acknowledging the critical shortage of competent long-term care professionals in the workforce and the difficulties posed by the recent Department of Labor decision to require overtime for these employees if they work more than 40 hours per week, CMS appeals for suggestions on how the federal government, in partnership with states, can work within their existing statutory and budgetary limits to encourage a well-trained and well-equipped cadre of dedicated home care workers. The RFI also asks for consideration of how uniform federal requirements for personal care workers might impact the delivery and quality of HCBS, and seeks additional information on how CMS can work to ensure that HCBS care is both available and high-quality.

In perhaps the most interesting request, CMS asks for comments on a new interpretation of the Medicaid statutes that would limit payment for health-related care and services provided in a nursing facility to only those patients whose care can only be provided in institutional facilities. That is to say that Medicaid would only pay for nursing facility care if a person’s care needs could not be met by HCBS. This would be a fairly radical proposal, one which CMS admits would perhaps be best implemented through a state’s 1115 demonstration authority. While this would certainly serve to further the administration’s efforts to rebalance long-term care, it would create a host of complications in the areas of institutional eligibility and individual choice.

While any individual proposal or inquiry may or may not eventually bear fruit, it seems almost certain that CMS will receive a significant number of responses to this RFI. Commenters will have 60 days from the date of its publication in the Federal Register, or until January 8, 2017 to respond. If Applied Policy can be of any assistance as you formulate your comments or think through your own HCBS ideas and concerns, please don’t hesitate to contact us at gpugh@appliedpolicy.com or 202-558-5272.