After multiple delays, federal officials say they are plowing ahead with implementing a long-awaited Medicaid rule establishing standards for what counts as home and community-based services for people with disabilities.

The Centers for Medicare & Medicaid Services outlined a strategy late last month for imposing a 2014 regulation spelling out the criteria programs must meet in order to be considered community based and thereby eligible for funding provided by Medicaid home and community-based services waivers.

The rule requires that home and community-based settings are places individuals choose to live that are integrated in and provide full access to the community. Such settings must offer privacy, dignity and respect and allow people with disabilities the ability to make independent choices about their daily activities, physical environment and who they are in contact with.

CMS has indicated that the changes are expected to have implications for more than a million people receiving home and community-based services through Medicaid. The agency created the rule after hearing reports of homes built on the sites of former institutions that were being labeled as community based.

Originally, states were given a five-year transition period — ending in 2019 — to comply with the new standards. But in 2017, the Trump administration extended the deadline by three years. Then, with the onset of the COVID-19 pandemic, officials pushed things back again to March 17, 2023.

Now, the Biden administration says it’s sticking to that plan. Under the newly released strategy, states must have a transition plan approved and meet the new criteria by the deadline next March, but there are some caveats in light of the ongoing public health emergency, or PHE, brought on by the pandemic.

“States and providers must be in compliance with all settings criteria not directly impacted by PHE disruptions, including PHE-related workforce challenges, by March 17, 2023,” CMS said in its update. “Time-limited corrective action plans (CAPs) will be available to states to authorize additional time to achieve full compliance with settings criteria that are directly impacted by PHE disruptions, when states document the efforts to meet these requirements to the fullest extent possible, and are in compliance with all other settings criteria.”

In justifying the approach, federal Medicaid officials acknowledged that the pandemic has exacerbated a crisis in the workforce of direct support professionals, but said that “there are significant aspects of the settings criteria unrelated to pandemic disruptions that should be in place by now but are inconsistently implemented throughout the country.”

CMS said those aspects include: individuals should have protections from a lease or similar legal agreement, access to food and visitors at any time, physical accessibility, a person-centered plan and they should have a lockable door and privacy in their unit as well as the ability to decorate and furnish it as they like. The agency said it expects all states and providers to be in compliance with these criteria by the March 2023 deadline or they will risk losing out on federal reimbursement for home and community-based services.

“We’re glad to see CMS is holding firm to the 2023 deadline,” said Julia Bascom, executive director of the Autistic Self Advocacy Network. “People with disabilities will have been waiting nine years for the basic rights guaranteed by the rule, like the right to lock our doors, decorate our rooms and eat when we’re hungry. The corrective action plan option outlined by CMS is a smart strategy to hold states accountable while navigating the complexities of the pandemic. We’re looking forward to working with CMS to ensure the rule is implemented with fidelity in every state, and that every person with a disability who is supposed to be receiving HCBS is able to truly experience genuine community integration.”

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