Medicaid Program; Home and Community-Based Services (HCBS) Waivers, 29453-29456 [E9-14559]
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Federal Register / Vol. 74, No. 118 / Monday, June 22, 2009 / Proposed Rules
Planning Unit, U.S. Environmental
Protection Agency, EPA New England
Regional Office, One Congress Street,
Suite 1100 (CAQ), Boston, MA 02114–
2023, telephone number (617) 918–
1664, fax number (617) 918–0664,
e-mail Burkhart.Richard@epa.gov.
Dated: June 12, 2009.
Ira W. Leighton,
Acting, Regional Administrator, EPA New
England.
[FR Doc. E9–14604 Filed 6–19–09; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Part 441
[CMS–2296–ANPRM]
RIN 0938–AP61
Medicaid Program; Home and
Community-Based Services (HCBS)
Waivers
sroberts on PROD1PC70 with PROPOSALS
AGENCY: Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Advance notice of proposed
rulemaking.
SUMMARY: This advance notice of
proposed rulemaking announces the
intention of CMS to publish proposed
amendments to the regulations
implementing Medicaid home and
community-based services waivers
under section 1915(c) of the Social
Security Act and solicits advance public
comments on the merits of providing
States the option to combine or
eliminate the existing three permitted
waiver targeting groups, and on the
most effective means to define home
and community.
DATES: To be assured consideration,
comments must be received at one of
the addresses provided below, no later
than 5 p.m. on August 21, 2009.
ADDRESSES: In commenting, please refer
to file code CMS–2296–ANPRM.
Because of staff and resource
limitations, we cannot accept comments
by facsimile (FAX) transmission.
You may submit comments in one of
four ways (please choose only one of the
ways listed):
1. Electronically. You may submit
electronic comments on this regulation
to https://www.regulations.gov. Follow
the instructions under the ‘‘More Search
Options’’ tab.
2. By regular mail. You may mail
written comments to the following
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address only: Centers for Medicare &
Medicaid Services, Department of
Health and Human Services, Attention:
CMS–2296–ANPRM, P.O. Box 8016,
Baltimore, MD 21244–1850.
Please allow sufficient time for mailed
comments to be received before the
close of the comment period.
3. By express or overnight mail. You
may send written comments to the
following address only: Centers for
Medicare & Medicaid Services,
Department of Health and Human
Services, Attention: CMS–2296–
ANPRM, Mail Stop C4–26–05, 7500
Security Boulevard, Baltimore, MD
21244–1850.
4. By hand or courier. If you prefer,
you may deliver (by hand or courier)
your written comments before the close
of the comment period to either of the
following addresses:
a. For delivery in Washington, DC—
Centers for Medicare & Medicaid
Services, Department of Health and
Human Services, Room 445–G, Hubert
H. Humphrey Building, 200
Independence Avenue, SW.,
Washington, DC 20201
(Because access to the interior of the
Hubert H. Humphrey Building is not
readily available to persons without
Federal government identification,
commenters are encouraged to leave
their comments in the CMS drop slots
located in the main lobby of the
building. A stamp-in clock is available
for persons wishing to retain a proof of
filing by stamping in and retaining an
extra copy of the comments being
filed.).
b. For delivery in Baltimore, MD—
Centers for Medicare & Medicaid
Services, Department of Health and
Human Services, 7500 Security
Boulevard, Baltimore, MD 21244–1850.
If you intend to deliver your
comments to the Baltimore address,
please call telephone number (410) 786–
7195 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses
indicated as appropriate for hand or
courier delivery may be delayed and
received after the comment period.
FOR FURTHER INFORMATION CONTACT:
Mary Sowers, (410) 786–6814.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All
comments received before the close of
the comment period are available for
viewing by the public, including any
personally identifiable or confidential
business information that is included in
a comment. We post all comments
received before the close of the
comment period on the following Web
site as soon as possible after they have
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been received: https://
www.regulations.gov. Follow the search
instructions on that Web site to view
public comments.
Comments received timely will also
be available for public inspection as
they are received, generally beginning
approximately 3 weeks after publication
of a document, at the headquarters of
the Centers for Medicare & Medicaid
Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday
through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an
appointment to view public comments,
phone 1–800–743–3951.
I. Overview
We are issuing this advance notice of
proposed rulemaking (ANPRM) to
announce our intention to publish a
proposed rule and solicit public
comments on the changes necessary to
provide States the option to design
home and community-based services
(HCBS) waiver programs serving more
than one target population. We are
particularly interested in receiving
comments on how removal of the
existing regulatory barrier regarding
target groups may increase a State’s
ability to design service packages based
on need, rather than diagnosis or
condition. Furthermore, we are
interested in receiving comments on
how this change may affect the State’s
ability to serve individuals requiring an
institutional level of care and may
facilitate compliance with the
Americans with Disabilities Act of 1990
(ADA). Title II of the ADA prohibits
discrimination on the basis of disability
and the Supreme Court ruled in
Olmstead v. L.C., 527 U.S. 581 (1999),
that unnecessary institutionalization
may constitute discrimination under the
ADA. Many States have used the home
and community-based services waiver
as a component of their Olmstead
compliance efforts and we are interested
in receiving comments about how this
change may affect these efforts. We are
intending to propose this change in an
effort to remove barriers to personcentered, needs-based service delivery
methods. Consequently, we are also
hoping to hear from interested parties
regarding recommendations to
strengthen person-centered principles
and practices for the successful
operation of any HCBS waiver program,
including those that may serve
individuals based upon identified
needs, rather than diagnosis.
It is also our intention to publish as
a part of the proposed rule requirements
related to identifying the home and
community-based character of the
settings in which HCBS participants
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Federal Register / Vol. 74, No. 118 / Monday, June 22, 2009 / Proposed Rules
reside and/or receive services. During
the development of the regulation for
the new State plan HCBS benefit under
section 1915(i) of the Social Security
Act 1 (the Act), we received, as solicited,
extensive comments on this issue. In
preparation of this ANPRM, we took
these comments into consideration and
are contemplating publication of a
proposed rule that would provide that
States must define, and CMS approve,
standards for home and community
under HCBS waivers. Many commenters
asked for a deliberative stakeholder
process for developing criteria for home
and community standards. This
announcement provides advance notice
of such a process in regard to HCBS
waivers, and provides an opportunity
for parties to express interest in
participating.
II. Background
Section 1915(c) of the Social Security
Act (the Act) authorizes the Secretary of
Health and Human Services to waive
certain specific Medicaid statutory
requirements so that a State may offer
HCBS to State-specified group(s) of
Medicaid beneficiaries who meet a level
of institutional care that is provided
under the Medicaid State plan. This
provision was added to the Act by the
Omnibus Budget and Reconciliation Act
(OBRA) of 1981 (with a number of
subsequent amendments). Regulations
were published to effectuate this
statutory provision, with final
regulations issued in the mid-1990s.
sroberts on PROD1PC70 with PROPOSALS
A. Removing Regulatory Barrier To
Designing 1915(c) Waivers Based on
Needs Rather Than Diagnosis or
Condition
Section 1915(c) of the Act authorizes
the Secretary to waive section
1902(a)(10)(B) of the Act, allowing
States to waive comparability and target
an HCBS waiver program to a specified
Medicaid-eligible group or sub-group
who would otherwise require an
institutional level of care. A section
1915(c) waiver may currently only serve
one of the three target populations
identified in regulations at 42 CFR
§ 441.301. These three target groups are:
Aged or disabled, or both; Mentally
retarded or developmentally disabled,
or both; and Mentally ill. States must
develop separate 1915(c) waivers in
order to serve more than one of these
populations. This regulatory provision
has contributed to States offering
waivers with service packages tailored
to different groups of individuals based
1 73 FR 18676, https://edocket.access.gpo.gov/
2008/pdf/08-1084.pdf.
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upon diagnosis, rather than the
individuals’ actual need for support.
Because the three target populations
outlined above are typically associated
with a particular institutional level of
care, the necessity to offer multiple
separate waivers, is often framed as an
inability to combine levels of care. For
example, waiver costs for persons with
developmental disabilities are most
frequently compared to costs of
Intermediate Care Facilities for Persons
with Mental Retardation or conditions
closely related to mental retardation
(ICFs/MR), while waiver costs for
persons who are aged or with physical
disabilities are compared to nursing
facility costs. However, the impediment
to serving more than one target group
through an HCBS waiver relates to the
division between the target groups
required in the regulation, not the
associated institutional settings where
those target groups would otherwise
receive services but for the provision of
HCBS. For example, some individuals
with the need for mental health services
may be appropriately served in the
community at the nursing facility level
of care.
Historically, in many cases pre-dating
the 1915(c) HCBS waiver program,
States have utilized a targeted approach
to funding and budgeting for services for
various populations. The CMS
regulations published in the mid-1990s
were modeled after those practices; the
regulations reflect the funding
approaches common in some State
budgets. As the number of HCBS
waivers across the country has grown to
more than 350 waivers serving more
than 1 million individuals, some States,
with concurrence from stakeholder
groups and individuals, have expressed
a desire for the flexibility to combine
these target groups in order to provide
services based upon needs rather than
diagnosis or condition, and for
administrative relief from operating and
managing multiple 1915(c) waiver
programs.
We have considered these issues and
intend to propose to change the
regulations in 42 CFR subpart G to allow
States the flexibility to combine any of
the three target groups in one HCBS
waiver, or possibly to choose to offer
waiver services to groups defined
differently from the pre-defined
targeting groups. The intended proposed
regulatory change would not mandate
any change in State criteria for targeting
HCBS waivers, it would provide
additional State flexibility. We expect
that States would continue to appreciate
the narrow targeting permitted under
section 1915(c) of the Act, particularly
for populations with high needs or
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receiving unique services. Under the
change we are planning to propose,
States would still have to determine that
without the waiver, participants would
require institutional level of care, in
accordance with section 1915(c) of the
Act. Likewise, the intended proposal to
provide additional targeting flexibility
for States will not affect the costneutrality requirement inherent in
section 1915(c) waivers.
In order to assure that individuals
served by waivers targeting a broad
range of conditions receive
individualized care, we further plan to
propose to require that: (1) The service
planning process be person-centered,
and (2) the services specified in the plan
of care be based upon the needs of the
individual, not an average need among
one target group. In addition, we intend
to update the language in the regulation
related to the target groups to reflect
more contemporary, person-first
language.
We intend to propose this change to
provide States with one additional tool
to better serve their citizens, with
person-centered delivery systems driven
by need, not diagnosis or existing
dedicated funding streams. A Federal
regulatory change that permits
combining targeted groups within one
waiver, while optional for States and
not an instantaneous change in State
structures, would remove one barrier for
States wishing to design waivers across
various populations. We encourage
comments on all aspects of the change
we contemplate proposing, including its
possible utility in enhancing State
flexibility, minimizing administrative
burden, facilitating compliance with the
ADA, and facilitating a more needsbased service system.
B. Home and Community-Based
Characteristics
We are also intending to propose
adjusting the regulations at 42 CFR
subpart G to describe expectations with
regard to waiver participants being
served in the home and community. We
believe such proposed requirements
would increase choice by providing
waiver participants with notice of
housing alternatives, and would create
greater demand and market incentive for
person-centered residential settings. Our
intended proposed changes would
include methods that States may follow
to identify appropriate financing
mechanisms for reducing the size of
existing larger residences, divesting
themselves or helping their providers
divest themselves of sizable properties,
and assisting providers’ transition to
smaller, more individualized settings.
We invite commenters to suggest other
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Federal Register / Vol. 74, No. 118 / Monday, June 22, 2009 / Proposed Rules
forms of technical assistance that CMS
might provide to assist States in
enhancing their efforts for optimal
choice, control, and community
integration for persons with disabilities
and individuals who are aging.
Since the inception of the 1915(c)
HCBS waiver program in the 1981, the
Centers for Medicare & Medicaid
Services (CMS) (formerly known as
Health Care Finance Administration
(HCFA)) has supported State efforts to
serve individuals in the least restrictive
setting possible. However, home and
community have not been explicitly
defined, and as a consequence, some
individuals who receive HCBS in a
residential setting managed or operated
by a service provider have experienced
a provider-centered and institution-like
living arrangement, instead of a personcentered and home-like environment
with the freedoms that should be
characteristic of any home and
community-based setting. For some
years, we have attempted to address this
problem indirectly through our review
of State service definitions for HCBS,
with limited success. Through this
ANPRM, we are announcing our
intention to propose to affirmatively
identify expectations for characteristics
of home and community-based settings.
The Deficit Reduction Act of 2005
created a new section 1915(i) of the
Social Security Act. Section 1915(i)
permits States to offer the HCBS
specifically identified in section
1915(c)(4)(b) of the Act as a State plan
option without requiring States to
submit a waiver application. In addition
to making HCBS available under the
State plan, Congress expressed interest
in assuring small, community-based
home-like environments through
statutory requirements in section 6071
of the DRA of 2005 for the Money
Follows the Person Demonstration
Program. This program authorized
grants to States to increase the use of
HCBS, rather than institutional services,
and required that community-based
residential settings include no more
than a specific limited number of
residents.
A regulatory change articulating CMS
requirements for the nature of home and
community-based residence under
section 1915(c) HCBS waivers is
necessary to ensure that the
expectations for home and community
characteristics are consistent across
section 1915(c) of the Act and section
1915(i) authorities, and to ensure, most
importantly, that individuals receiving
HCBS have meaningful alternatives to
institutional care, regardless of the
section of the statute authorizing their
services. Therefore, we are planning to
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propose adding to 42 CFR subpart G a
requirement that individuals receiving
HCBS waiver services must reside in the
home or community, in accordance with
either of two criteria enumerated below:
• Resides in a home or apartment not
owned, leased or controlled by a
provider of any health-related treatment
or support services; or
• Resides in a home or apartment that
is owned, leased or controlled by a
provider of one or more health-related
treatment or support services, and that
meets standards for community living,
as defined by the State and approved by
the Secretary.
We believe that this wording takes
into account the variety of living
situations that should be exempt from
evaluation, and avoids indirect
indicators such as number of residents.
Only living situations in which a paid
provider of services has opportunity to
affect the degree of independence and
choice will trigger application of
additional State-defined and CMSapproved standards for community
living. Standards for community living
are to optimize participant
independence and community
integration, promote initiative and
choice in daily living, and facilitate full
access to community services. To ensure
that these goals are met, standards must
be developed through strong
stakeholder input. We would be
interested in receiving comments
regarding strategies that States could
employ to solicit and incorporate strong
stakeholder input in their efforts to
define standards for community living.
We do not contemplate specifying
criteria for home and community
standards in the proposed regulation.
We do solicit stakeholder interest in
working with CMS to develop policy
guidelines for State definitions.
The intent of these guidelines is to
create the necessary conditions so that
individuals are able to reside in personcentered, home-like environments
where they can enjoy all of the liberties
of community living. We recognize that
it is difficult for a State to develop and
monitor standards related to the
individual’s standing in a landlord/
tenant relationship or in
homeownership without inadvertently
omitting an arrangement that could be
ideal for a particular individual.
Furthermore, we recognize that the
criteria listed above may not address the
possibility that some providers may
undertake efforts to avert stateestablished standards. In light of the
complexity of this matter, the longstanding HCBS waivers operating in the
country currently, and the many
existing efforts to ensure that
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29455
individuals are provided services in the
setting where they have maximum
choice, control and individual liberties,
CMS solicits public input on strategies
to address this issue of maximum
individual choice and control for the
1915(c) waiver participants. We solicit
comments on pathways that States may
take to improve their systems to ensure
that the settings where services are
rendered are truly home and
community-based in nature, and that
individuals are offered meaningful
opportunities for community living. In
addition, we solicit input on the
potential impact of this issue on
federally recognized tribes. We
recognize that States will require
assistance and technical guidance as
they make changes, and also solicit
comments on the nature of guidance
and assistance that may be needed.
III. Intentions of This Notice
We encourage comments that assist us
in determining all implications of our
contemplated proposed regulatory
changes, and to assist us in constructing
the regulations in a manner that
provides appropriate guidance and
incentives to result in meaningful,
positive change for the nearly one
million individuals currently served
through 1915(c) HCBS waivers.
IV. Response to Comments
Because of the large number of
comments we normally receive on a
proposed rule, we are not able to
acknowledge or respond to them
individually. However, we will consider
all comments we receive by the date and
time specified in the DATES section of
this advance notice of proposed
rulemaking, and will address these
comments in any proposed regulation
that results from this advance notice.
V. Collection of Information
Requirements
This document does not impose
information collection and
recordkeeping requirements.
Consequently, it need not be reviewed
by the Office of Management and
Budget under the authority of the
Paperwork Reduction Act of 1995.
Authority: Secs. 1102 and 1871 of the
Social Security Act (42 U.S.C. 1302 and
1395hh).
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Federal Register / Vol. 74, No. 118 / Monday, June 22, 2009 / Proposed Rules
Dated: May 29, 2009.
Charlene Frizzera,
Acting Administrator, Centers for Medicare
& Medicaid Services.
Approved: June 16, 2009.
Kathleen Sebelius,
Secretary.
[FR Doc. E9–14559 Filed 6–19–09; 8:45 am]
BILLING CODE 4120–01–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Part 107
[Docket No. PHMSA–2008–0010 (HM–208G)]
RIN 2137–AE35
Hazardous Materials Transportation;
Miscellaneous Revisions to
Registration and Fee Assessment
Program
AGENCY: Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Withdrawal of notice of
proposed rulemaking.
SUMMARY: The Pipeline and Hazardous
Materials Safety Administration
(PHMSA) is withdrawing the notice of
proposed rulemaking published under
this docket on May 5, 2008 (73 FR
24519). Our revised estimates of
unexpended balances from previous
years and revenues expected to be
generated at current registration fee
levels indicate that an increase in
registration fees is not necessary to fund
the national Hazardous Materials
Emergency Preparedness (HMEP) grants
program at its authorized level of
$28,318,000 for Fiscal Year 2009.
FOR FURTHER INFORMATION CONTACT:
Deborah Boothe, Office of Hazardous
Materials Standards, (202) 366–8553, or
David Donaldson, Office of Hazardous
Materials Planning and Analysis, (202)
366–4484, Pipeline and Hazardous
Materials Safety Administration, U.S.
Department of Transportation.
SUPPLEMENTARY INFORMATION:
sroberts on PROD1PC70 with PROPOSALS
I. Background
The Hazardous Materials Emergency
Preparedness (HMEP) grants program, as
mandated by 49 U.S.C. 5116, provides
Federal financial and technical
assistance to States and Indian tribes to
‘‘develop, improve, and carry out
emergency plans’’ within the National
Response System and the Emergency
Planning and Community Right-ToKnow Act of 1986 (Title III), 42 U.S.C.
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11001 et seq. The grants are used to
develop, improve, and implement
emergency plans; to train public sector
hazardous materials emergency
response employees to respond to
accidents and incidents involving
hazardous materials; to determine flow
patterns of hazardous materials within a
State and between States; and to
determine the need within a State for
regional hazardous materials emergency
response teams. The HMEP grants
program is funded by registration fees
collected from persons who offer for
transportation or transport certain
hazardous materials in intrastate,
interstate, or foreign commerce.
Congress reauthorized the Federal
hazardous materials transportation law
(Federal hazmat law; 49 U.S.C. 5101 et
seq.) in 2005. The Hazardous Materials
Transportation Safety and Security
Reauthorization Act of 2005 (Title VII of
the Safe, Accountable, Flexible,
Efficient Transportation Equity Act—A
Legacy for Users, Pub. L. 109–59, 119
Stat. 1144, Aug. 10, 2005) authorizes
$28.3 million per year for the HMEP
grants program and lowered the
maximum registration fee from $5,000
to $3,000. The Consolidated
Appropriations Act of 2008 (Pub. L.
110–161, 121 Stat. 2404, Dec. 26, 2007)
set an obligation limitation of
$28,318,000 for expenses from the
HMEP fund, and the Administration’s
Fiscal Year 2009 budget requests
$28,300,000 in support of HMEP
activity.
II. Current Rulemaking
To ensure full funding of the HMEP
grants program for FY 2009, PHMSA
proposed an increase in registration fees
to fund the program at the $28.3 million
level (73 FR 24519, May 5, 2008). For
those registrants not qualifying as a
small business or not-for-profit
organization, we proposed to increase
the registration fee from $975 (plus a
$25 administrative fee) to $2,475 (plus
a $25 administrative fee) for registration
year 2009–2010 and following years. As
explained in the NPRM, an existing
surplus enabled us to delay an increase
in registration fees, but we concluded
that we would not be able to fund the
HMEP grants program at the $28.3
million level in Fiscal Year 2009
without an increase.
We received 13 written comments in
response to the NPRM from shippers
and carriers and from the emergency
response community, including the
American Trucking Association (ATA),
Council on the Safe Transportation of
Hazardous Articles (COSTHA), Institute
of Makers of Explosives (IME),
International Association of Fire Chiefs
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(IAFC), National Association of SARA
Title III Program Officials (NASTTPO),
and Vessel Operators Hazardous
Materials Association, Inc. (VOHMA).
We have recently re-examined our
estimates for funding the HMEP grants
program based on updated information
from the Department of Treasury on the
HMEP account carry-over balance, deobligations of unused grant and
administrative funds, increased
enforcement of the registration
requirements, and current registrant
data, and we have further refined our
estimates of revenues we anticipate
collecting for registration years 2008–
2009 (covering July 1, 2008 to June 30,
2009) and 2009–2010 (covering July 1,
2009 to June 30, 2010) at current
registration fee levels. Based on this
analysis, we have concluded that we
will be able to fund the HMEP grants
program at the $28.3 million level in
Fiscal Year 2009 without an increase in
registration fees. Accordingly, PHMSA
is withdrawing the May 5, 2008, NPRM
and terminating this rulemaking
proceeding. Depending on appropriated
and available funding for Fiscal Year
2010, we may initiate a future
rulemaking to adjust registration fees for
future registration years.
Issued in Washington, DC, on June 9, 2009
under authority delegated in 49 CFR part
106.
Theodore L. Willke,
Associate Administrator for Hazardous
Materials Safety.
[FR Doc. E9–14569 Filed 6–19–09; 8:45 am]
BILLING CODE 4910–60–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS–R6–ES–2009–0037; 92210–1117–
0000–B4]
Endangered and Threatened Wildlife
and Plants; 90-Day Finding on a
Petition To Revise Critical Habitat for
Eriogonum pelinophilum (Clay-Loving
Wild Buckwheat)
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Notice of 90-day petition
finding and initiation of critical habitat
review.
SUMMARY: We, the U.S. Fish and
Wildlife Service (USFWS), announce a
90–day finding on a petition to revise
critical habitat for Eriogonum
pelinophilum (clay-loving wild
buckwheat) under the Endangered
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Agencies
[Federal Register Volume 74, Number 118 (Monday, June 22, 2009)]
[Proposed Rules]
[Pages 29453-29456]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-14559]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 441
[CMS-2296-ANPRM]
RIN 0938-AP61
Medicaid Program; Home and Community-Based Services (HCBS)
Waivers
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This advance notice of proposed rulemaking announces the
intention of CMS to publish proposed amendments to the regulations
implementing Medicaid home and community-based services waivers under
section 1915(c) of the Social Security Act and solicits advance public
comments on the merits of providing States the option to combine or
eliminate the existing three permitted waiver targeting groups, and on
the most effective means to define home and community.
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, no later than 5 p.m. on August 21, 2009.
ADDRESSES: In commenting, please refer to file code CMS-2296-ANPRM.
Because of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one
of the ways listed):
1. Electronically. You may submit electronic comments on this
regulation to https://www.regulations.gov. Follow the instructions under
the ``More Search Options'' tab.
2. By regular mail. You may mail written comments to the following
address only: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-2296-ANPRM, P.O. Box 8016,
Baltimore, MD 21244-1850.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address only: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-2296-ANPRM,
Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
4. By hand or courier. If you prefer, you may deliver (by hand or
courier) your written comments before the close of the comment period
to either of the following addresses:
a. For delivery in Washington, DC--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Room 445-G, Hubert
H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC
20201
(Because access to the interior of the Hubert H. Humphrey Building
is not readily available to persons without Federal government
identification, commenters are encouraged to leave their comments in
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing
by stamping in and retaining an extra copy of the comments being
filed.).
b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid
Services, Department of Health and Human Services, 7500 Security
Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address,
please call telephone number (410) 786-7195 in advance to schedule your
arrival with one of our staff members.
Comments mailed to the addresses indicated as appropriate for hand
or courier delivery may be delayed and received after the comment
period.
FOR FURTHER INFORMATION CONTACT: Mary Sowers, (410) 786-6814.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following Web
site as soon as possible after they have been received: https://www.regulations.gov. Follow the search instructions on that Web site to
view public comments.
Comments received timely will also be available for public
inspection as they are received, generally beginning approximately 3
weeks after publication of a document, at the headquarters of the
Centers for Medicare & Medicaid Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an appointment to view public comments,
phone 1-800-743-3951.
I. Overview
We are issuing this advance notice of proposed rulemaking (ANPRM)
to announce our intention to publish a proposed rule and solicit public
comments on the changes necessary to provide States the option to
design home and community-based services (HCBS) waiver programs serving
more than one target population. We are particularly interested in
receiving comments on how removal of the existing regulatory barrier
regarding target groups may increase a State's ability to design
service packages based on need, rather than diagnosis or condition.
Furthermore, we are interested in receiving comments on how this change
may affect the State's ability to serve individuals requiring an
institutional level of care and may facilitate compliance with the
Americans with Disabilities Act of 1990 (ADA). Title II of the ADA
prohibits discrimination on the basis of disability and the Supreme
Court ruled in Olmstead v. L.C., 527 U.S. 581 (1999), that unnecessary
institutionalization may constitute discrimination under the ADA. Many
States have used the home and community-based services waiver as a
component of their Olmstead compliance efforts and we are interested in
receiving comments about how this change may affect these efforts. We
are intending to propose this change in an effort to remove barriers to
person-centered, needs-based service delivery methods. Consequently, we
are also hoping to hear from interested parties regarding
recommendations to strengthen person-centered principles and practices
for the successful operation of any HCBS waiver program, including
those that may serve individuals based upon identified needs, rather
than diagnosis.
It is also our intention to publish as a part of the proposed rule
requirements related to identifying the home and community-based
character of the settings in which HCBS participants
[[Page 29454]]
reside and/or receive services. During the development of the
regulation for the new State plan HCBS benefit under section 1915(i) of
the Social Security Act \1\ (the Act), we received, as solicited,
extensive comments on this issue. In preparation of this ANPRM, we took
these comments into consideration and are contemplating publication of
a proposed rule that would provide that States must define, and CMS
approve, standards for home and community under HCBS waivers. Many
commenters asked for a deliberative stakeholder process for developing
criteria for home and community standards. This announcement provides
advance notice of such a process in regard to HCBS waivers, and
provides an opportunity for parties to express interest in
participating.
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\1\ 73 FR 18676, https://edocket.access.gpo.gov/2008/pdf/08-1084.pdf.
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II. Background
Section 1915(c) of the Social Security Act (the Act) authorizes the
Secretary of Health and Human Services to waive certain specific
Medicaid statutory requirements so that a State may offer HCBS to
State-specified group(s) of Medicaid beneficiaries who meet a level of
institutional care that is provided under the Medicaid State plan. This
provision was added to the Act by the Omnibus Budget and Reconciliation
Act (OBRA) of 1981 (with a number of subsequent amendments).
Regulations were published to effectuate this statutory provision, with
final regulations issued in the mid-1990s.
A. Removing Regulatory Barrier To Designing 1915(c) Waivers Based on
Needs Rather Than Diagnosis or Condition
Section 1915(c) of the Act authorizes the Secretary to waive
section 1902(a)(10)(B) of the Act, allowing States to waive
comparability and target an HCBS waiver program to a specified
Medicaid-eligible group or sub-group who would otherwise require an
institutional level of care. A section 1915(c) waiver may currently
only serve one of the three target populations identified in
regulations at 42 CFR Sec. 441.301. These three target groups are:
Aged or disabled, or both; Mentally retarded or developmentally
disabled, or both; and Mentally ill. States must develop separate
1915(c) waivers in order to serve more than one of these populations.
This regulatory provision has contributed to States offering waivers
with service packages tailored to different groups of individuals based
upon diagnosis, rather than the individuals' actual need for support.
Because the three target populations outlined above are typically
associated with a particular institutional level of care, the necessity
to offer multiple separate waivers, is often framed as an inability to
combine levels of care. For example, waiver costs for persons with
developmental disabilities are most frequently compared to costs of
Intermediate Care Facilities for Persons with Mental Retardation or
conditions closely related to mental retardation (ICFs/MR), while
waiver costs for persons who are aged or with physical disabilities are
compared to nursing facility costs. However, the impediment to serving
more than one target group through an HCBS waiver relates to the
division between the target groups required in the regulation, not the
associated institutional settings where those target groups would
otherwise receive services but for the provision of HCBS. For example,
some individuals with the need for mental health services may be
appropriately served in the community at the nursing facility level of
care.
Historically, in many cases pre-dating the 1915(c) HCBS waiver
program, States have utilized a targeted approach to funding and
budgeting for services for various populations. The CMS regulations
published in the mid-1990s were modeled after those practices; the
regulations reflect the funding approaches common in some State
budgets. As the number of HCBS waivers across the country has grown to
more than 350 waivers serving more than 1 million individuals, some
States, with concurrence from stakeholder groups and individuals, have
expressed a desire for the flexibility to combine these target groups
in order to provide services based upon needs rather than diagnosis or
condition, and for administrative relief from operating and managing
multiple 1915(c) waiver programs.
We have considered these issues and intend to propose to change the
regulations in 42 CFR subpart G to allow States the flexibility to
combine any of the three target groups in one HCBS waiver, or possibly
to choose to offer waiver services to groups defined differently from
the pre-defined targeting groups. The intended proposed regulatory
change would not mandate any change in State criteria for targeting
HCBS waivers, it would provide additional State flexibility. We expect
that States would continue to appreciate the narrow targeting permitted
under section 1915(c) of the Act, particularly for populations with
high needs or receiving unique services. Under the change we are
planning to propose, States would still have to determine that without
the waiver, participants would require institutional level of care, in
accordance with section 1915(c) of the Act. Likewise, the intended
proposal to provide additional targeting flexibility for States will
not affect the cost-neutrality requirement inherent in section 1915(c)
waivers.
In order to assure that individuals served by waivers targeting a
broad range of conditions receive individualized care, we further plan
to propose to require that: (1) The service planning process be person-
centered, and (2) the services specified in the plan of care be based
upon the needs of the individual, not an average need among one target
group. In addition, we intend to update the language in the regulation
related to the target groups to reflect more contemporary, person-first
language.
We intend to propose this change to provide States with one
additional tool to better serve their citizens, with person-centered
delivery systems driven by need, not diagnosis or existing dedicated
funding streams. A Federal regulatory change that permits combining
targeted groups within one waiver, while optional for States and not an
instantaneous change in State structures, would remove one barrier for
States wishing to design waivers across various populations. We
encourage comments on all aspects of the change we contemplate
proposing, including its possible utility in enhancing State
flexibility, minimizing administrative burden, facilitating compliance
with the ADA, and facilitating a more needs-based service system.
B. Home and Community-Based Characteristics
We are also intending to propose adjusting the regulations at 42
CFR subpart G to describe expectations with regard to waiver
participants being served in the home and community. We believe such
proposed requirements would increase choice by providing waiver
participants with notice of housing alternatives, and would create
greater demand and market incentive for person-centered residential
settings. Our intended proposed changes would include methods that
States may follow to identify appropriate financing mechanisms for
reducing the size of existing larger residences, divesting themselves
or helping their providers divest themselves of sizable properties, and
assisting providers' transition to smaller, more individualized
settings. We invite commenters to suggest other
[[Page 29455]]
forms of technical assistance that CMS might provide to assist States
in enhancing their efforts for optimal choice, control, and community
integration for persons with disabilities and individuals who are
aging.
Since the inception of the 1915(c) HCBS waiver program in the 1981,
the Centers for Medicare & Medicaid Services (CMS) (formerly known as
Health Care Finance Administration (HCFA)) has supported State efforts
to serve individuals in the least restrictive setting possible.
However, home and community have not been explicitly defined, and as a
consequence, some individuals who receive HCBS in a residential setting
managed or operated by a service provider have experienced a provider-
centered and institution-like living arrangement, instead of a person-
centered and home-like environment with the freedoms that should be
characteristic of any home and community-based setting. For some years,
we have attempted to address this problem indirectly through our review
of State service definitions for HCBS, with limited success. Through
this ANPRM, we are announcing our intention to propose to affirmatively
identify expectations for characteristics of home and community-based
settings.
The Deficit Reduction Act of 2005 created a new section 1915(i) of
the Social Security Act. Section 1915(i) permits States to offer the
HCBS specifically identified in section 1915(c)(4)(b) of the Act as a
State plan option without requiring States to submit a waiver
application. In addition to making HCBS available under the State plan,
Congress expressed interest in assuring small, community-based home-
like environments through statutory requirements in section 6071 of the
DRA of 2005 for the Money Follows the Person Demonstration Program.
This program authorized grants to States to increase the use of HCBS,
rather than institutional services, and required that community-based
residential settings include no more than a specific limited number of
residents.
A regulatory change articulating CMS requirements for the nature of
home and community-based residence under section 1915(c) HCBS waivers
is necessary to ensure that the expectations for home and community
characteristics are consistent across section 1915(c) of the Act and
section 1915(i) authorities, and to ensure, most importantly, that
individuals receiving HCBS have meaningful alternatives to
institutional care, regardless of the section of the statute
authorizing their services. Therefore, we are planning to propose
adding to 42 CFR subpart G a requirement that individuals receiving
HCBS waiver services must reside in the home or community, in
accordance with either of two criteria enumerated below:
Resides in a home or apartment not owned, leased or
controlled by a provider of any health-related treatment or support
services; or
Resides in a home or apartment that is owned, leased or
controlled by a provider of one or more health-related treatment or
support services, and that meets standards for community living, as
defined by the State and approved by the Secretary.
We believe that this wording takes into account the variety of
living situations that should be exempt from evaluation, and avoids
indirect indicators such as number of residents. Only living situations
in which a paid provider of services has opportunity to affect the
degree of independence and choice will trigger application of
additional State-defined and CMS-approved standards for community
living. Standards for community living are to optimize participant
independence and community integration, promote initiative and choice
in daily living, and facilitate full access to community services. To
ensure that these goals are met, standards must be developed through
strong stakeholder input. We would be interested in receiving comments
regarding strategies that States could employ to solicit and
incorporate strong stakeholder input in their efforts to define
standards for community living.
We do not contemplate specifying criteria for home and community
standards in the proposed regulation. We do solicit stakeholder
interest in working with CMS to develop policy guidelines for State
definitions.
The intent of these guidelines is to create the necessary
conditions so that individuals are able to reside in person-centered,
home-like environments where they can enjoy all of the liberties of
community living. We recognize that it is difficult for a State to
develop and monitor standards related to the individual's standing in a
landlord/tenant relationship or in homeownership without inadvertently
omitting an arrangement that could be ideal for a particular
individual. Furthermore, we recognize that the criteria listed above
may not address the possibility that some providers may undertake
efforts to avert state-established standards. In light of the
complexity of this matter, the long-standing HCBS waivers operating in
the country currently, and the many existing efforts to ensure that
individuals are provided services in the setting where they have
maximum choice, control and individual liberties, CMS solicits public
input on strategies to address this issue of maximum individual choice
and control for the 1915(c) waiver participants. We solicit comments on
pathways that States may take to improve their systems to ensure that
the settings where services are rendered are truly home and community-
based in nature, and that individuals are offered meaningful
opportunities for community living. In addition, we solicit input on
the potential impact of this issue on federally recognized tribes. We
recognize that States will require assistance and technical guidance as
they make changes, and also solicit comments on the nature of guidance
and assistance that may be needed.
III. Intentions of This Notice
We encourage comments that assist us in determining all
implications of our contemplated proposed regulatory changes, and to
assist us in constructing the regulations in a manner that provides
appropriate guidance and incentives to result in meaningful, positive
change for the nearly one million individuals currently served through
1915(c) HCBS waivers.
IV. Response to Comments
Because of the large number of comments we normally receive on a
proposed rule, we are not able to acknowledge or respond to them
individually. However, we will consider all comments we receive by the
date and time specified in the DATES section of this advance notice of
proposed rulemaking, and will address these comments in any proposed
regulation that results from this advance notice.
V. Collection of Information Requirements
This document does not impose information collection and
recordkeeping requirements. Consequently, it need not be reviewed by
the Office of Management and Budget under the authority of the
Paperwork Reduction Act of 1995.
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh).
[[Page 29456]]
Dated: May 29, 2009.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
Approved: June 16, 2009.
Kathleen Sebelius,
Secretary.
[FR Doc. E9-14559 Filed 6-19-09; 8:45 am]
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