HCBS rule under continued threat
The home and community based services settings rule was first promulgated in January 2014 under sections 1915(c), (i) and (k) of the Medicaid statute. The rule lays out clearly the next step in the continued process to address the imbalances between institutional and community-based settings in Medicaid spending. Originally, states had five years, until March 2019, to submit plans to CMS outlining how their Medicaid agency would evaluate a setting's compliance. Actions by CMS, under the guise of giving states more time to address challenges, have pushed back enforcement of this rule for three years, to March 2022.
Unfortunately, large-scale institutions, especially those serving people with developmental disabilities, have seen this pushback as an opportunity to further erode enforcement. These operators have consistently provided services in size, scale, and scope that demonstrate noncompliance with the rule. Instead of working to scale back their institutions to facilitate compliance, they have used legislative pressure - in the form of letters to CMS and proposed budget amendments - seeking to undermine the rule and allow their institutions to be considered community-based settings. Expect further action by these groups, as well as reaction from the disability advocacy, community going forward.