© copyright 2015, vorys health care advisors llc. all rights reserved. another chapter in the civil...

© Copyright 2015, Vorys Health Care Advisors LLC. All Rights Reserved.

Another Chapter in the Civil Rights Movement for Individuals

with I/DD:

HCBS Rule and Transition PlanningNYSACRA Toolkit for DD Provider Agencies

December 4, 2015

Maureen Corcoran, President, Vorys Health Care Advisors

Marisa Weisel, Senior Advisor, Vorys Health Care Advisors

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Agenda

• Recap: NY State & OPWDD HCBS Transition Plans

― OPWDD Settings Assessments

― Heightened Scrutiny

• NYSACRA Settings Survey Results

• Person-Centered Planning

• NYSACRA Toolkit

• Next Steps

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RECAP: NY STATE & OPWDD HCBS

TRANSITION PLANS

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HCBS Regulations

42 CFR 411.301 (4)-(5), “Home and Community-Based Settings”

•Became effective on March 17, 2014

•Requires state to submit a transition plan at the time of an HCBS waiver renewal

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HCBS Regulations

HCBS regulations address:

• Settings

• Person centered planning

• Provider owned or controlled

• Presumed not to be home-and community-based (heightened scrutiny)

• Conflict of interest

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NY State Transition Plan

NY State’s Statewide Transition Plan for HCBS Settings:

•“While the majority of participants in all waivers live in fully compliant settings, the largest number of individuals in partially compliant settings are participants in the 1915(c) HCBS Waiver operated by OPWDD”

•Transition Plan not approved yet

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OPWDD Transition Plan

Transition plan submitted Feb 2015 includes OPWDD’s 71,519 HCBS waiver participants:

•37,839 live in own home, home of family member, relative or friend = meets setting requirements

•9,218 live in supportive certified apartment program, family care home, group home with 4 or less individuals = more likely to meet setting requirements

•24,462 live in group homes with > 4 individuals = may or may not be in compliance, may need remediation

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OPWDD Transition Implementation: Steps

1. Cnducted on-site assessments of sample of providers (11/14-9/15)― Feedback will be given to providers surveyed (12/15)

2. Conducting “heightened scrutiny” reviews (10/15-9/16)3. Will dstribute heightened scrutiny self-assessment tool

for providers (12/15 or 1/16)― OPWDD review & inventory self assessments (thru 9/16)

4. Will conduct next round of assessments for sites up for recertification + feedback to providers (10/16-9/17)

5. Will formalize and implement full incorporation of all HCBS settings requirements

6. MUST ACHIEVE COMPLIANCE OCTOBER 1, 2018

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OPWDD HCBS Settings Assessment: Step 1

• OPWDD conducted review of sample of providers, including detailed review of person centered and site characteristics

• Feedback to providers Dec. 2015

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OPWDD HCBS Settings Assessment

“The CMS final HCBS regulations prohibit waiver services to be provided in settings that have the qualities of an institution, and seek to ensure that:

•People are supported in HCBS settings that are integrated in and facilitate full access to the broader community;

•People have a choice of where they live and who provides services to them; and

•Peoples’ rights are not arbitrarily restricted.”

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Part 1: Person-Centered Review:Completed for a sample of visits to IRA’s and CR’s between November 2014 and September 2015 for each individual in the sample – 1000 individuals

Part 2: Site-Based Review:During sample of recertification visits of IRA’s and CR’s, a review was completed once per site-specific operating certificate scheduled for a recertification/protocol visit – 2000 sites

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Part 1: Person-Centered Review:•Habilitation planning•Housing protection and due process•Rights•Access to broader community to same degree as others•Relationships•Restrictions, interventions, and rights modifications•Privacy•Choice of living arrangement / roommate•Freedom within the home – freedom to decorate, schedule, access food, access setting

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Part 2: Site Review:

•Location in relation to institutional setting

•Integration within the community

•Policies and procedures to promote HCBS rights / not intuitional in nature

•Staff competencies and training to promote rights, choice, autonomy, community

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Quick Note on “Same Degree As…”

• Assessments will consider “whether people share in the hallmarks of community living to the “same degree of access as individuals without disabilities.””

• “A very rural setting may preclude the person from frequenting their local communities in the same manner as people living in an urban setting, but this is also true for the public at large. The key analysis lies in the phrase “to the same degree of access that non-disabled people have to their local community.”

• “It is important that individuals who reside in very rural settings also understand that they have a choice of where they live and can ask to move to a more urban setting if they feel isolated from the greater community.”

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Heightened Scrutiny – Steps 2 & 3

HCBS vs. Institution - categories of providers:

HCBS settings – ARE home- and community-based; regs related to HCBS settings DO apply

Institutions – (e.g., ICFs, NFs) are NOT home- and community-based; regs related to HCBS settings do NOT apply, cannot be HCBS

Settings presumed NOT to be home and community-based – settings where Medicaid HCBS may be paying for the service now, but setting is questionable under regs; heightened scrutiny applies; regs related to HCBS settings MAY apply

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CMS on Heightened Scrutiny

• “States have an obligation to identify settings that are presumed intuitional”

• Regs describe process of “heightened scrutiny” for states to overcome this presumption

• State will collect information, determine which settings meet criteria for heightened scrutiny, then conduct a public input process

• CMS will review info presented by state, other parties, federal partners to “determine whether each and every one of the qualities of a home and community based setting” are met

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CMS & OPWDD on Heightened Scrutiny

• “CMS will review the information or documentation to ensure that all participants in that setting are afforded the degree of community integration required by the regulation and desired by the individual”

• “Providing documentation that a percentage or “some” participants have community access will not be considered sufficient to show that the setting meets the regulations”

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OPWDD Heightened Scrutiny Review: Step 2

• Oct 2015 – Sept 2016: OPWDD reviewing ALL certified IRAs, CRs, day hab, and day training to determine which settings will be subject to heightened scrutiny― Using new tool that replaces the Part I and Part II tools

used last year

• Sites subject to heightened scrutiny will be reviewed to obtain baseline compliance data

• Oct 2016 – Sept 2017: review progress made toward full compliance through survey cycle, self-reporting; evidence will become available for public comment

• Oct 2016: HCBS settings and person-centered planning process standards will be part of OPWDD surveys.

• Enforcement begins Oct 1, 2018; action may be taken for those unlikely to comply by this date

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OPWDD Heightened Scrutiny Review: Step 2

Assessment tool includes:

•Section 1: triggers (see next slide)

•Section 2: access to community

•Section 3: site operations / practices promote HCBS rites, not institutional in nature

•Section 4: rights protections

•Section 5: site environmental characteristics

•Section 6: individual habilitation planning

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OPWDD Heightened Scrutiny Review

1st Wave Triggers

Triggers if setting is:•Located in a building on grounds / adjacent to public institution •Located in building that is also provides inpt. institutional treatment•Converted from ICF on or after March 17, 2014•Part of group or multiple settings “co-located” / operationally related•Designed and appears to be isolating or institutional (clustered)•Specifically mentioned by CMS as type of setting that isolates (gated, farmstead, residential school, labeled / signed, close to undesirable location, has video surveillance) 22


OPWDD Heightened Scrutiny Review – Trigger Process

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OPWDD Heightened Scrutiny Review

• Those deemed subject to heightened scrutiny will need to submit a compliance work plan to OPWDD within 20 days of the on-site review.

• Heightened scrutiny sites will also need to prepare an evidence/narrative package re: how the setting will be compliant by Oct. 2018

• Intent is for complete compliance with requirements.

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Provider Self Assessment for Heightened Scrutiny: Step 3

• 12/15 OPWDD is preparing a PROVIDER SELF ASSESSMENT for heightened scrutiny.

• Spring 2016 Evidence template completed by the provider and submitted to OPWDD.

• 10/16-2/17 Heightened scrutiny information validated by DQI

• Spring 2017 Public input process for settings subject to heightened scrutiny.

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Heightened Scrutiny – Self Reporting

• “It is in the providers’ interest to help OPWDD identify sites that may be subject to heightened scrutiny as soon as possible, so providers can have as much time as possible to prepare the evidence that will be necessary for submission to CMS.”

• In addition to comprehensive work plan (20 days of review), providers subject to heightened scrutiny will need to submit a written narrative re: evidence of:

― How the setting is or will be compliant by Oct 2018

― How the setting overcomes the presumption that it is isolating or instructional in nature for all individuals

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Heightened Scrutiny – Ongoing Documentation

Settings subject to heightened scrutiny required to maintain documentation re: individuals’ activities and opportunities.

“OPWDD intends to develop a HIPAA compliant summary template where providers can capture the essential community inclusion information for each individual in a setting.”•Community inclusion activities of importance•Documentation showing activities have occurred•Evidence of review of person’s interests, priorities, necessary supports – every 6 months or more often•Efforts made to support and promote new experiences, learning to promote full access to broader community

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Heightened Scrutiny – Ongoing Documentation

• “Providers may not impose restrictions on individuals who express a desire to participate in their community unless such participation would jeopardize the health or safety of the individual or other individuals and this determination is based upon an individualized assessment. “

• “Individuals who do not desire to avail themselves of opportunities to fully participate in the community shall not be required to do so. However, providers shall document all efforts to encourage this community participation.”

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Rest of Process

4. OPWDD conduct next round of assessments for sites up for recertification + feedback to providers (10/16-9/17)

5. Formalize and implement full incorporation of all HCBS settings requirements

6. ACHIEVE COMPLIANCE OCTOBER 1, 2018

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NYSACRA HCBS SURVEY RESULTS

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NYSACRA Survey Process

• Survey 1 – Basic demographic information, programs in which agencies are engaged. All agencies.

• Survey 2 – Information about community integration, living arrangements. Used sampling methodology to assess different size homes. Only IRA Supervised, Community Residences, and Family Care.

• Survey 3 – Person-centered planning. Only IRA Supervised, Community Residences, and Family Care. (Early 2016)

• Survey 4 – Day and employment services (TBD)

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Survey 2 Respondents

Survey 2: 110 responses from 47 unique agencies. Demographics:

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n = 10947 unique agencies

Note: since answer choice for number of beds included 75+ (73% of respondents chose this answer), the answers provided for IRA supervised beds and locations cannot be converted to a “beds per location” figure.


Survey 2 Questions

• Numbers of beds and locations• Institutional qualities• Staff training• Leases / occupancy agreements• Locks, knocking policies, privacy, measuring

residents’ satisfaction• Freedom within the home (roommates, décor,

access to meals and snacks, access to and supported use of phones and internet, visitors, schedules)

• Freedom outside the home (community-ness, transportation)

• Barriers to change33


Staff Training

Do you require support staff to complete and be annually recertified in training course in positive behavioral strategies and physical intervention techniques? ALSO, require training in individual rights and individual choice? (Almost exact same answers for 2nd question.)

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Leases

Does each individual have a lease, written occupancy agreement, or other written agreement that reflects that the premises are owned, rented, or occupied by the individual receiving services under a legally enforceable agreement? (The document must reflect that the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under landlord/tenant law.)

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Locks

Do individuals have keys (or other means of access) to the front door of the residence and can they go to/from the setting whenever they choose?

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Locks

Do most individuals have a key to their bedroom?

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Privacy

Do individuals have privacy in the bathroom as evidenced by their ability to close and lock the bathroom door?

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Privacy

To what extent do you agree with this statement: individuals’ health and other applicable information is kept private, locked or not accessible, and not posted publically in the home?

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Roommates

Do you ask individuals if they are satisfied with their roommates and their living situations?

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Roommates

When an individual expresses dissatisfaction with his/her roommate, can they get a new roommate or a private room? (Note: Since the ability of an individual to move is NOT under the control provider, we only asking about ability to assist with changing roommates or getting a new room in their current home.) Choose all that apply.

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Decor

Do you allow individuals to decorate and redecorate their bedroom to reflect their individual interests and tastes?

Sub Question - If you said there are guidelines, please give an example. ie. There are specific

paint colors that are allowed. (summary of responses below)

•Must meet fire safety / regulations / more regulations for Life Safety Code houses

•Noting inappropriate / no pornography if room shared / nothing offensive in common areas / offensive to a roommate

•Try to maintain a neutral color scheme and decor theme in the home

•Discourage or disallow dark paints / consider costs if an entire house wants to paint

•Rented apartment - not allowed to change paint colors

•Cannot make electrical or structural changes

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Freedoms (General)

Do you have any policies, procedures, or practices that limit individual rights, choice, or autonomy, including but not limited to the right to choose one's own schedule, come and go from the setting at any time, have visitors at any time, have access to food 24 hrs/day, etc.?

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Freedom Within the Home

Do individuals have full and unrestricted access to typical spaces in a home including a kitchen with cooking facilities and the refrigerator; dining area; laundry; and comfortable seating in shared areas?

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Schedules

Does your staff regularly ask individuals whether they are satisfied with their schedule of activities?

Do you regularly ask individuals if they know how to request assistance with changing their schedules if they want to?

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Schedules

In this specific home, is there a schedule or routine for the home, such as meal times, times for structured leisure activities, bedtimes, etc.?

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Meals & Snacks

Describe an individual's access to meals and snacks. Choose all that apply.

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Meals & Snacks

If someone’s individualized assessed needs indicate that a modification is necessary to restrict access to food, do you have a mechanism by which to ensure that other individuals in the home have access to food at any time?

Do you help individuals purchase and store their own food/snacks and special food and keep this food available for their use at any time?

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Visitors

Do you let individuals know and help them understand that they can have visitors of their choosing at any time?

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Freedom Outside the Home

To what extent do you agree with this statement: all individuals use community and other resources, including public transportation/ volunteers, to ensure that individuals have full access to the community according to their preferences?

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Freedom Outside the Home

Does your staff facilitate access to transportation that supports peoples’ choice of activities and schedules? Choose all that apply.

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Barriers

What would it take to provide every individual in this home with spontaneous, unscheduled trips and access to the community?

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Barriers

Which would be more expensive? Additional funding for transportation or for freedom within the home?

Which would be more logistically difficult? Additional funding for transportation or for freedom within the home?

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Barriers

SUMMARY OF “OTHER” RESPONSES

•Greater funding - to raise staff wages, hire more staff, recruit staff, retain staff•Greater funding - for vehicles, parking spaces, adaptive equipment, environmental modifications, insurance•Greater funding - for public transportation•Additional training for staff to shift culture / philosophy•Individuals in house may not achieve skills to do this independently•Individuals in house have similar interests and often chose to do things as a group

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Barriers

If you said there are limitations on the ability for individuals to control their schedule, access food or have visitors at any time, etc. what would it take to provide every individual with complete freedom within THIS home? (Assume that complete freedom is limited only by safety considerations for the individual.)

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Barriers

SUMMARY OF “OTHER” ANSWERS

•Funding for technology to increase levels of independence•Restrictions and safeguards in place for health and safety reasons•Residents schedule events •Greater funding for staff, transportation (see previous question)•Individuals in house may not achieve skills to do this independently•Need to shift culture / philosophy - for staff, founders, and surveyors•Rural area doesn't have public transportation, communities are far away from these sites

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PERSON-CENTERED PLANNING

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HCBS Person-Centered Planning

• HCBS regulations require both a person-centered planning process and a person-centered service plan developed for each individual.

• NY final regulation on person-centered planning became effective November 1, 2015.― Applicable to OPWDD funded HCBS Waiver

services and OPWDD funded service coordination

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OPWDD on Blanket Policies

• “The federal rules require that people have the freedom to control schedules and activities and that providers support the person to do so.”

• “Providers must be flexible to allow people to remain in their home on days when they do not want to attend other services, or are not able to do so because of an illness.”

• “OPWDD also agrees that any blanket facility policies that restrict individual rights will not be permissible.”

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OPWDD on Modifications

• “OPWDD agrees that there are circumstances where ‘modifications’ to a person’s rights are necessary for health and safety reasons but should not be imposed without following the process and requirements outlined including trying positive approaches first.”

• “The modifications must be specific, tied to a particular need, time-limited and routinely evaluated to ensure the continued need for the limitation.”

• “The service planning process should continually explore options that assist the person to gain the skills needed to have full expression of these rights.”

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OPWDD on Conflict of Interest

• OPWDD’s existing Medicaid Service Coordination protocols review for conflicts of interest between the service coordination / person centered planning function and the service delivery function

• OPWDD requires there be separate reporting hierarchies and individual choice of service providers and evidence of such during review processes (“firewalls”)

• Assumes that DISCO will ‘fix’ this. Status quo for the time being.

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NYSACRA Conflict of Interest

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NYSACRA TOOLKIT

• NYSACRA will be developing a toolkit to help our members understand and adapt to the new HCBS regulations

• Please record your ideas on the index cards – we will collect them at the end of the day

• QUESTION #1 Please take a few minutes to talk at your table to brainstorm items that should be included in the toolkit

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NYSACRA TOOLKIT

• QUESTION #2 Enhancing person centered planning in your agency…what can NYRACRA do to help?

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NEXT STEPS

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Next Steps

• Heightened scrutiny self-assessment

• Heightened scrutiny compliance work plans

• Continue NYSACRA Survey work re: person-centered planning and day and employment services

• NYSACRA toolkit

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About Vorys Health Care Advisors

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VHCA helps health care providers, decision makers and professional associations achieve their objectives in a constantly changing

governmental and business health care environment and assists them in making well informed, strategic and tactical decisions

tailored to their individual goals, needs and aspirations.

Maureen M. Corcoran, MSN, MBA

[email protected]

Vorys Health Care Advisors

52 E.Gay St Columbus OH

614-464-5461

www.VorysHCAdvisors.com

Marisa P. Weisel, MPH

[email protected]

© copyright 2015, vorys health care advisors llc. all rights reserved. another chapter in the civil...

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