CMS has adopted a new Access Rule that will advance Home and Community-Based Services (HCBS) by allowing for better access to quality care through Medicaid. HCBS is a key support for people with disabilities and those in need of long-term services and supports (LTSS) to live independently in their communities. These changes will alleviate some of the barriers to accessing these services. These barriers include workforce shortages and lower wages for those workers that provide HCBS. This new rule aims to decrease the waitlists for services to allow more people to receive the services they need.
Why do we need HCBS?
Created by Congress in the early 1980s, HCBS help keep people with disabilities and those in need of LTSS to live independently. This can either be in their homes or in a home-like setting (including group homes and independent living neighborhoods) in their communities. HCBS are optional for states to cover through their state plans, but all states do cover some HCBS benefits for their residents. Medicaid has become the primary payer for those services and support in the US. Home and Community Based Services include adult day services; assisted living; home health care; personal support services; private-duty nursing; meal delivery; case management; respite care; assistance with activities of daily living; home modifications supporting aging in place; and transportation. Other home-based services are available only in certain states.
Standards for HCBS
In 1999, the Supreme Court decided in Olmstead v. LC that the Americans with Disabilities Act requires that a person with a disability be served in their community, in the least restrictive setting appropriate to their needs, whenever possible. This decision was meant to support people in moving out of institutions. These changes aimed to improve the self-determination of people with disabilities to live in their communities. The decision stated that local and state governments should improve access to home and community-based care services for people who need them.
However, change is needed and long overdue, according to Nicole Jorwic of Caring Across Generations:
“Medicaid Home and Community-Based Services are the main path for disabled people and aging adults to receive long-term care. There are currently long waiting lists, and a workforce crisis in this service system, with family members filling in the gaps of services. So many assume that their private insurance or Medicare will cover these needs, but they do not, and many won’t realize what they don’t have access to until they are in crisis. Home and Community-based services support independence, autonomy and dignity, but without more investments, too many go without.”
What’s new with HCBS in 2024
With the adoption of the “Ensuring Access to Medicaid Services” final rule, Medicaid is improving community care services. The change creates national standards for those enrolled in Medicaid to be able to better access care when they need it. This rule strengthens HCBS “which millions of older adults and people with disabilities rely upon to live in the community.”
What are the changes with The Access Rule?
- Person-centered planning: The Access Rule establishes that at least once a year, all individuals receiving continuous HCBS programs receive a reassessment of their needs. There was not always a standard timeline for this before, and changes could be made based on changing needs, circumstances, or locations of care for the individual. Mandating an annual needs assessment for service users allows for a consistent continuum of care. Their service plans will then be changed based on the assessment results annually.
- Grievances: A grievance process must be established at the state level for individuals receiving HCBS programs when they are in what are known as fee-for-service (FFS) programs. This process will be similar to what already exists within Medicaid systems. This process creates a pathway for individuals to notify state Medicaid agencies about complaints they have surrounding their care plans and HCBS needs.
- Payment changes: Effective July 2030, at least 80% of all Medicaid HCBS payments must compensate direct care workers. The Access Rule applies to three types of HCBS service workers: (i) homemaker providers, (ii) home health aides, and (iii) personal care providers. Historically, compensation was divided between direct care workers and administrative overhead costs, with workers getting a smaller percentage. A lack of livable wages for the direct care providers caused gaps in the workforce. To ensure these payments are fair and adequate, this change requires states to report on payment rates for both the services listed and the compensation of the workers. The “80/20” rule is to be implemented in full by July 2030.
- Waitlists and Service Access: The majority of states in the US currently have waiting lists for HCBS programs, and the change seeks to move individuals off them quicker. States must now maintain accurate waiting lists that reflect the breakdowns of separate homemaker, habilitation, home health aide, and personal care services. This allows transparency between the states as well.
- Public Comment on HCBS Quality of Care: The Access Rule allows for opportunities for public comment when states report on national standards of quality measures for HCBS services. This process has been established by CMS. Previously, these were closed-door sessions.
- Incidents: Now, states must maintain their own electronic incident management and reporting system. Within that system, each state must establish a common definition of what is a “critical incident” for reporting. There are also now mandated timeframes for the process of addressing, investigating, and reporting on each incident and its outcome within their electronic management system.
HCBS Access Rule Shows Progress and Promise
“Community living is a civil right, and many people with disabilities and older adults need high-quality HCBS to exercise it. HCBS make it possible for people to live in their own homes, stay connected to friends and family, and participate in the community in ways that are meaningful to them. This historic rule takes significant steps toward expanding access to HCBS and to improving quality.” – Administration for Community Living
While we know this is not necessarily a silver bullet, we know it’s a good start. It will take the consistent advocacy and work of families and those living with disabilities and relying on LTSS for their daily lives to continue to be the voices for changes. Together we can drive policies to continue to do the most good for the most people who need them.
Follow along with HCBS news and policy as it relates to people with disabilities through our weekly Disability and Public Health newsletter.
This policy highlight was written by Devon Anderson.