This week, our In Focus section comes from HMA Principals Ellen Breslin (MA) and Sharon Lewis (OR). In direct response to COVID-19, the Centers for Medicare & Medicaid Services (CMS) has encouraged states to maximize Medicaid flexibilities to protect people during the pandemic emergency. This includes state flexibilities for people receiving home and community-based services. States may temporarily amend their Home and Community-Based Services (HCBS) 1915(c) waivers through an expedited process by submitting an Appendix K request. As of March 31, 2020, CMS had approved Appendix K submissions for thirteen states with effective periods ranging from four months to one year.[1] The thirteen states are: Alaska, Connecticut, Colorado, Hawaii, Iowa, Kentucky, Minnesota, New Mexico, Pennsylvania, Rhode Island, Washington, West Virginia and Wyoming.
Through the Appendix K, states can request temporary flexibility to make changes to a range of HCBS policies and practices. This includes requesting changes to those related to access and eligibility, service delivery, provider qualifications, payment rates, person-centered planning processes, oversight and monitoring and self-direction. To date, there are some consistent requests across states. All thirteen states, for example, have included the temporary use of an electronic method of delivery for case management and/or assessments in lieu of face-to-face requirements. State requests also include many unique ideas to protect and support the people who rely on HCBS and the providers who deliver the services.
Below, HMA provides a snapshot of the trends in approved Appendix Ks to date. As such, this summary is not comprehensive in nature. All flexibilities listed on the table below represent temporary changes. HMA’s review does not address state authorities that are reflected in existing state waivers. As CMS is approving additional emergency requests daily, we anticipate that some approved requests will be updated as the situation continues to evolve.
| Areas of Focus | Appendix K Approvals and State Examples |
| Maintaining access and continuity of care | States are modifying requirements for level-of-care assessments, redeterminations and/or person-centered planning processes due to the epidemic. Modifications include extending timelines by up to one year, allowing the process to occur through telehealth, and allowing current assessments to satisfy requirements. Additionally, some states are allowing individuals to maintain eligibility when they access fewer than one service per month. Rhode Island is allowing initial level of care determinations to be conducted remotely and postponing annual level-of-care re-evaluations for up to six months. Connecticut is allowing assessments to be conducted virtually and is extending the required frequency up to twelve (12) months beyond the re-evaluation deadline. Washington is allowing participants to receive fewer than one service per month for a period of ninety (90) days without being subject to discharge. |
| Embracing telehealth delivery, for both case management and direct services | States are modifying their HCBS programs to use telehealth for case management, conduct level of care (LOC) assessments, engage in service planning, and offer personal care and habilitative supports. States are expanding access to “virtual” supports to discourage face-to-face (FTF) meetings and expansive circles of contact. Virtual supports may include telephone, video conferencing, written communications and/or a range of technology-based methods consistent with the recent Health Insurance Portability and Accountability Act (HIPAA) guidance published by the U.S. Department of Health and Human Services Office of Civil Rights.[2] Every state with an approved Appendix K (to date) has included the temporary use of an electronic method of delivery for case management and/or assessments in lieu of FTF requirements. Colorado added Remote Support Services. Hawaii is allowing telehealth delivery of most day and employment services. Kentucky included behavioral health therapies in telehealth options. New Mexico is allowing nursing consultation and therapies to be delivered via telehealth. Minnesota is allowing case management and level of care assessments to occur remotely. |
| Modifying provider qualifications | States are extending and/or waiving training requirements and some screening requirements to expand the workforce at both the agency-level and the worker-level. In addition, states are allowing Medicaid-certified providers for certain services to provide other services. This flexibility would allow adult day health providers to offer personal care, for example. To be sure, states are gaining flexibility for provisional workers. New Mexico is allowing provider enrollment or re-enrollment with modified risk screening elements such as suspending fingerprint checks or modifying training requirements. Colorado is lowering the age limit for in-home direct care workers for certain service from age 18 to age 16; and, allowing licensed professionals to expand from providing Medicaid state plan services to HCBS waiver services within their scope of practice. Kentucky is allowing any enrolled Medicaid provider to offer home delivered meals. |
| Allowing payment for family members and legally responsible individuals | States are allowing provider payments for family members, and in some states, legally responsible individuals, including parents of children and spouses. Alaska is allowing providers to hire family caregivers as direct service workers for certain services, including in-home supports. Pennsylvania is including residential habilitation services among those that can be delivered by family members. West Virginia is allowing legal representatives to be paid as Personal Attendants should the person’s primary caregiver become unable to provide services/supports. |
| Gaining flexibility in settings requirements | Federal and state regulations related to HCBS settings are being waived to reduce contacts and to provide flexibility in contingency planning, including restrictions on visitors, changing staffing ratios, and allowing non-traditional service settings. Washington is expanding HCBS settings of care to a range of settings including hotels and churches. Several states have severely restricted visitor access to HCBS residential settings and are allowing day program services to be provided in participants’ homes. Iowa is allowing the homes of direct care providers to be authorized settings and allowing direct care providers to move into the home of participants, subject to approval. |
| Lifting service limits | States are lifting service limits in many ways, such as modifying hours and spending caps. Colorado is allowing participants to exceed limits for non-medical transportation, meals, behavioral services, therapies, respite, specialized medical equipment and other services. New Mexico is doubling the assistive technology benefit from $250 to $500, including allowing the purchase of devices for remote video conferencing, training and monitoring by clinicians. Alaska is allowing budgets in the Individual Supports Waiver to increase by $5,000 should an individual contract COVID-19 or a primary unpaid caregiver is quarantined. In Wyoming, during times when school districts are closed or not providing educational services to students, waiver services may be provided to children/youth who are typically in school services. |
| Enhancing payment rates and offering retention payments | States have requested flexibilities in payment structures and are authorizing retention payments to maintain provider participation and resources for staff overtime to support the workforce. Pennsylvania is increasing some service rates by up to 40% to account for excess overtime of direct support professionals, additional infection control supplies and service costs, and is providing 75% retention payments for certain services. Several other states are providing retainer payments for HCBS residential services, aligned to nursing facility bed-hold policies of 30 consecutive days. |
| Modifying incident reporting or other participant safeguards | States are providing flexibility in incident reporting and other participant safeguard requirements consistent with emergency circumstances, including extending timelines for situations such as evacuations. Connecticut is suspending Human Rights Committee (HRC) approvals for restrictive or intrusive interventions, so long as the individual’s team approves the proposed measures. Hawaii may modify verbal and written timelines for incident reporting as deemed necessary (e.g., limiting the focus to the most critical adverse incident reports). |
For more information please contact Ellen Breslin at [email protected] and Sharon Lewis at [email protected].
[1] https://www.medicaid.gov/state-resource-center/disaster-response-toolkit/hcbs/appendix-k/index.html
[2] https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html