Democrats in the U.S. House of Representatives and Senate unveiled legislation, the Better Care Better Jobs Act, yesterday to implement the Biden administration’s goal of spending hundreds of billions of dollars on home-based care in the coming years. The legislation would give states far more money to invest in and expand home-and-community-based care programs. States…
Democrats in the U.S. House of Representatives and Senate unveiled legislation, the Better Care Better Jobs Act, yesterday to implement the Biden administration’s goal of spending hundreds of billions of dollars on home-based care in the coming years.
The legislation would give states far more money to invest in and expand home-and-community-based care programs. States would be given $100 million, by no later than one calendar year after enactment of the legislation, to create plans to expand access to Medicaid HCBS and “strengthen” the HCBS workforce.
Over 3.5 million older adults and people with disabilities are currently receiving HCBS.
The bills would “strengthen and expand access to HCBS” by expanding financial eligibility criteria for HCBS to federal limits; requiring coverage for personal care services; expanding supports for family caregivers; adopting programs that help people navigate enrollment and eligibility; expanding access to behavioral health care; improving coordination with housing, transportation, and employment supports; and developing or improving programs to allow working people with
disabilities to access HCBS.
In addition, the bills would “strengthen and expand the HCBS workforce” by addressing HCBS payment rates to promote
recruitment and retention of direct care workers; regularly updating HCBS payment rates with public input; passing rate increases through to direct care workers to increase wages; and updating and developing training opportunities for this workforce as well as family caregivers.
The legislation would permanently authorize protections against impoverishment for individuals whose spouses are receiving Medicaid HCBS and make the Money Follows the Person Rebalancing Demonstration permanent.
Under the terms of the legislation, states would become eligible for permanent increases to their Medicaid match funds of 10 percentage points, an expansion of the temporary boost provided in the American Rescue Plan. Eligibility could require states to expand HCBS access, help people utilize long-term care options, and provide additional support to family caregivers.
In addition, states would need “to promote recruitment and retention of direct care workers” by “regularly updating HCBS payment rates with public input.” The goal would be to increase compensation and training for workers to better attract and retain a stable direct care workforce.
Regular reporting by states would be required to demonstrate the legislative goals are being met. The Centers for Medicare & Medicaid Services (CMS) would receive additional funding for oversight.
The legislation is sponsored by Senators Bob Casey of Pennsylvania and Ron Wyden of Oregon, as well as Debbie Dingell of Michigan; all Democrats and all long-time friends of the home care and hospice community.
Interestingly, the same day the Better Care Better Jobs bills were introduced, President Biden and a bipartisan group of legislators announced a compromise agreement to spend almost $580 billion in new money on the country’s creaky infrastructure. That agreement did not include any funding for long-term care, though President Biden originally called for $400 billion in new spending to be part of the country’s infrastructure investment. Republicans balked at that, saying infrastructure does not include long-term care investments.
With this legislation not included in the bipartisan infrastructure agreement and extremely unlikely to attract support from enough Republicans to pass the Senate, the terms of the Better Care Better Jobs Act could be made into law through the reconciliation process. Many Democrats have signaled determination to use reconciliation to pass elements of Biden’s infrastructure agenda that are not included in the bipartisan agreement reached on Thursday, June 24.
While it is impossible to determine with certainty whether President Biden’s proposal to increase funding for Medicaid home and community-based services (HCBS) by $400 billion will ultimately be included in one of a number of expected large legislative packages, NAHC is encouraged by recent signaling that the HCBS boost continues to be a priority for the Administration.
The latest indication of support for the increased HCBS funding was its inclusion in the President’s FY2022 budget, released on Friday, May 28th. The budget asks Congress to appropriate the $400 billion investment in HCBS over 10 years, the same proposal Biden has been pushing for as part of his infrastructure-focused American Jobs Plan.
The HCBS proposals currently lack detail, but much of the public positioning on the plan emphasizes supporting the direct care workforce by increasing wages, benefits, and career ladder opportunities. The President’s budget states “The President’s plan makes substantial investments in the infrastructure of America’s care economy, starting by creating new and better jobs for caregiving workers. It would provide home and community-based care for individuals who otherwise would need to wait as many as five years to get the services they badly need.”
While the President’s budget is not a binding document, and Congress is under no obligation to craft legislation that tracks the budget’s requests, it does typically have more influence when there is unified control of Congress and the Presidency, as there is now with the Democratic party. Many observers expect that the President’s budget will serve as the blueprint for congressional leaders’ efforts to craft their own budget resolution, which would be the first step in the process towards passing a massive infrastructure package along party lines using the complex process called “budget reconciliation”.
However, President Biden has not yet definitely signaled that he supports the “reconciliation” route at this time. He continues to engage with a group of Republican lawmakers in an effort to determine if there is a bipartisan deal to be had on an infrastructure bill.
Notably, the latest Republican counterproposal to Biden’s plan, released on May 27th, does not include any HCBS provisions. In an earlier memo from the Administration to the group of GOP negotiators, Biden again called out HCBS as a critical component of an infrastructure vehicle.
While timelines remain fluid, it is expected that if significant progress is not made within the next week or two on a bipartisan compromise, Democratic lawmakers will begin the reconciliation process in earnest, working under the assumption that a large infrastructure package will need to pass with Democratic votes only.
NAHC continues to advocate with policymakers to support HCBS proposals that will benefit our members, their workforce, and the patients and families they serve in every community across the country. We will update our membership as the negotiations unfold and a clearer path on major legislation emerges.
While it is impossible to determine with certainty whether President Biden’s proposal to increase funding for Medicaid home and community-based services (HCBS) by $400 billion will ultimately be included in one of a number of expected large legislative packages, NAHC is encouraged by recent signaling that the HCBS boost continues to be a priority for…
The Centers for Medicare & Medicaid Services (CMS) issued additional guidance to states with regards to the HCBS 10 percent federal medical assistance percentage (FMAP), which was included as part of the American Rescue Plan. As a reminder, this is a temporary increase to the FMAP for certain qualifying Medicaid expenditures for home and community-based services (HCBS) and is meant to supplement and not supplant existing state funds. CMS guidance is directing states to use the funds to enhance, expand, or strengthen activities within home and community-based services under the Medicaid program.
While the original communications regarding the temporary FMAP increased left out mention of Private Duty Nursing Services (PDN), NAHC was pleased to see that CMS took our initial comments to heart and made it a point to explicitly include PDN as an eligible service.
With the issuance of this guidance, it now falls on the states to create their plans for the temporary FMAP increase and we encourage everyone to work with your applicable state associations to ensure the plans are inclusive of the needs of the private duty home care community.
Medicaid coverage of home and community-based services (HCBS) is, by far, the leading source of support for health care in the home for millions of individuals with disabilities and infirmities of all kinds. This important area of health care has received notable focus in recent months, including as part of President Biden’s “Build Back Better”…
Medicaid coverage of home and community-based services is, by far, the leading source of support for health care in the home for millions of individuals with disabilities and infirmities of all kinds beyond the incredible efforts of unpaid family and friends who are the backbone of home caregivers in our nation.
Each year, millions of children, adults, and seniors are provided the opportunity to have their health care needs met at home in a cost-effective and clinically successful manner. Still, there are hundreds of thousands of individuals on waitlist for home care and many more outside without access to comprehensive home care options due to uneven supports by state Medicaid programs. The HCBS Access Act of 2021 addresses many of the limitations and weaknesses in the current Medicaid home care support system.
The HCBS Access Act of 2021 (HAA) would establish a mandated HCBS benefit in Medicaid. Such action is far preferable to the longstanding optional status that the host of HCBS programs has had that has led to a wide range of home care supports as alternatives to institutional care. The optional status of home care in Medicaid is the core reason why the rebalancing of Medicaid long term services and supports has been significantly uneven across the states. The HHA would also operate with 100% federal financing thereby incentivizing states to rebalance supports in favor of home care.
To ensure that state Medicaid actions in implementing HAA result in narrowing of the wide variation of services and supports that are available in each state, we recommend the following revisions to the bill draft:
- HAA should include the establishment of federal standards on the minimum level of the scope and duration of services covered under new “home and community-based services” Medicaid benefit. Doing so would address the pronounced disparities that currently exist between various states’ home care programs. With the program supported with 100% federal financing, states should not have full control in establishing the benefit scope and duration.
- HHA should include federal standards for rate setting and payment methodologies to ensure care access and supports for frontline caregivers. Today, many Medicaid programs are plagued with low payment rates that translate to care access barriers and inadequate compensation to caregivers. For example, if a state provides $12 per hour payment rates, home care employers cannot provide a living wage to caregivers and staff recruitment and retention is unmanageable. There should also be a recognition that any increase in caregiver compensation in Medicaid HCBS will affect the cost of care in Medicare home health and hospice, VA and Agency on Aging programs, and private pay home care where the same Medicaid caregivers often provide services. The bill may then include provisions to provide a directive for rate adjustments in those programs and financial support to consumers with private pay home care.
- Any successful HCBS program must recognize the wide differences in the patient populations served. That means that programs should include full access to both self-directed care models and agency model service providers. Many HCBS patients desire and are capable of managing self- directed care. However, there is a significant segment of the HCBS population that does not want to and/or is not fully capable of taking on the role of an employer that is required with self- directed care. Further, an agency model option provides protection for individuals who face gaps in care that occur when their caregiver is absent or terminates the relationship.
- With respect to HCBS caregivers, recruitment and retention has been a longstanding concern. With reasonable rate setting, the wages of the direct caregiver workforce can be improved. However, another issue is the availability of health insurance. It might be useful to consider steps that would make health insurance affordable through the ACA marketplace or action that would make Medicaid eligibility more easily accessible for that workforce. The options could include a disregard of income earned through direct caregiving employment in determining subsidization status in the ACA marketplace or Medicaid eligibility for the individual or household.
- Given that many of the Medicaid HCBS recipients are dually eligible for Medicaid, it would be helpful for the bill to include a directive that the Secretary spell out specifically how the two programs interrelate in terms of scope of coverage. The proposed expansion of Medicaid HCBS should ultimately provide Medicare savings as individuals will have greater options to avoid costly institutional care through a combination of Medicare and Medicaid coverage of health care at home.
- Stakeholders, including recipients and caregivers, should have the benefit of full opportunity to participate in any state policymaking to implement the HAA as well as the advisory panel established by the HAA. The bill should include a direct mandate on such.
The following are comments direct to specific provisions in the bill;
- In the proposed Section 1905(hh)(2)(A), a list of services is included by reference to current provisions with sections 1905 and 1915. Section 1905(a)(18) on hospice services is not included while “hospice services” is referenced in the proposed section 1905(hh)(2)(A)(x). We recommend that section 1905(a)(18) be included in those provisions referenced in (A) to avoid any confusion regarding the intent to include hospice services within the scope of covered HCBS services.
- We recommend that the proposed Section 1905(hh)(2)(A) also include “palliative care services” among the list of services that follows (A). The bill could offer a definition as well- “Palliative care means interdisciplinary patient and family-centered care that optimizes quality of life by anticipating, preventing, and treating suffering. Palliative care throughout the continuum of illness involves addressing physical, intellectual, emotional, social, and spiritual needs and to facilitate patient autonomy, access to information, and choice. Palliative care is appropriate at any age and any stage in a serious illness.” A conforming modification should be included in the patient eligibility standards as not all of patients needing palliative care have ADL or IADL related impairments.
- We further recommend that Section 1905(hh)(2)(A) also include “meal and nutritional supports” as a listed service given its role in social determinants of health.
- Section 1905(hh)(2)(B)(ii)((I)(bb) should be modified to be “HCBS providers” and to also include “HCBS provider organizations.” This would be consistent with the references to disability rights and aging organizations. Provider organizations offer a collective perspective that may be distinct from the voice offered by a single provider entity.
- Section 1905(hh)(2)(B)(iv) should be modified to require that the panel’s report be made public and that the report include that any actions by the Secretary regarding additions or removals of home and community-based services from the HCBS benefit be subject to full notice and comment under the Administrative Procedures Act.
- As a point of clarification, does the standard of eligibility in Section 1905(hh)(3) mean that all the existing HCBS services under current Medicaid law remain in place and that those benefits are applicable to individuals that do not meet the mandated HCBS eligibility standards in the HAA? For example, the current Medicaid home health benefit serves individuals who do not have impairments that are expected to “last at least 90 days” or who have functional impairments that require full assistance with 2 or more ADLs or IADLS. We recommend maintaining Medicaid benefits that appropriately cover such individuals.
- Section 1915 is amended by adding “(m) Sunset of Provisions Relating to Home and Community-Based Services.” With the proposed 5 year window for implementation of HAA, we recommend including a provision that requires states to maintain at least the level of existing HCBS programs through that 5 year period.
- The HAA provides for grant monies to states to develop HCBS implementation plans and to submit such plans to the Secretary. We recommend that states be required to provide notice and an opportunity to comment on any proposed plan in advance of submission to the Secretary.
- It is essential that the HAA specifically spell out how the measure is to be applied in the context of a managed Medicaid HCBS program. This would include the nature, scope, and duration of the benefits, rate setting, access and network standards, and quality of care measures and reporting. With multiple states employing managed care contractors to replace traditional fee-for-service coverage, the implementation of HAA through these contractors necessitates the inclusion of direct requirements addressing how HCBS is to be managed within a managed care organization.
- One area that should be considered is the circumstance where an HCBS patient is hospitalized or temporarily admitted to a nursing facility. We recommend that states be required to maintain the eligibility and service plan status of the individual for a period of no less than 30 days so that HCBS is available immediately at the time of discharge from the facility. A number of states have such an approach in current HCBS programs.
- With respect to establishing PACE as a mandatory HCBS benefit, it is essential to include quality of care measures and reporting in PACE. This should include all aspects of PACE care delivery including the use of hospice services for end-of-life care. Use of the CMS Compare site for public reporting is recommended, particularly for dual Medicare-Medicaid eligible services and Medicare Advantage enrollees.
QUALITY OF CARE
An essential component of Medicaid HCBS reform is the inclusion of uniform quality of care measures and public reporting. Currently, HCBS measures are nascent at best. We strongly recommend that the bill included detailed quality of care standards. This effort could be facilitated by the National Quality Forum (NQF) as many other sectors have had the benefit of NQF expertise.
NAHC will continue to work with congressional leaders on the HCBS Access Act of 2021.
Medicaid coverage of home and community-based services is, by far, the leading source of support for health care in the home for millions of individuals with disabilities and infirmities of all kinds beyond the incredible efforts of unpaid family and friends who are the backbone of home caregivers in our nation. Each year, millions of…
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The Centers for Medicare & Medicaid Services (CMS) recently released Updated Guidance for Emergency Preparedness-Appendix Z of the State Operations Manual (SOM), updates that incorporate the emergency preparedness (EP) revisions of the 2019 “Burden Reduction Rule”, Medicare and Medicaid Programs; Regulatory Provisions to Promote Program Efficiency, Transparency, and Burden Reduction (CoPs) (CMS 3346-F) Final Rule…