Hi everyone – I know that some are confused by the CMS Final Settings Rule. I offer the following to help put it in perspective.
First, many services are currently provided under a CMS Home and Community Based Services (HCBS) Waiver, which allows states to provide services in different ways than the original Medicaid program would normally allow. For example, OPWDD has been doing it for many years and Traumatic Brain Injury services are under an HCBS waiver.
However, CMS promulgated new rules regarding where HCBS services may be delivered (The Final Settings Rule), and the timing of that rule is purely coincidental to the NYS roll out its new HARP Behavioral Health HCBS. Its effective date was March 17, 2014.
CMS gave the states some time to bring settings into compliance where HCBS are currently being delivered. Because OPWDD has used a waiver for the provision of HCBS in all kinds of settings for many years now, they must make sure they get those settings in line with the new rule or they will have to take people out or stop delivering the services in those settings.
Check this out from OPWDD http://www.opwdd.ny.gov/opwdd_services_supports/HCBS/hcbs-transition-plan-response-public-comment
Because there are no HCBS in OMH programs except for kids, our existing services in our existing settings are not implicated. However, for new services like the ones under HARP, CMS expects states to bring settings where HCBS will be delivered under the rule in one year so that new services do not become entrenched in what they think are inappropriate settings – that basically means that NY has to be compliant regarding HARP HCBS settings now, on a go forward basis.
The State submitted, in March, 2015, its NYS 5 year transition plan to bring settings in the state into compliance with the new federal HCBS settings requirements and CMS responded in September 2015. Our new HARP HCBS are not mentioned in the document anywhere, nor are our settings because these are brand new and will start only in appropriate settings. The only OMH program affected are those under the Serious Emotional Disturbance (SED) Children’s Waiver, which is for 1,803 children who live with their families, so there is no settings issue there.
CMS expected an answer in December. NYS asked for an extension to the December deadline and they were given that, so there is no approved 5 year plan in place yet.
The bottom line: OMH has to make sure that any new HCBS provided to their clients are provided in appropriate settings, which is why they are restricting the service settings until they can review each setting.
Once again, below is the chart that tells you what an approved setting is. ANY CLIENT LIVING IN A NON-APPROVED SETTING IS NOT ELIGIBLE FOR HCBS. Hopefully, some of the programs under review will ultimately be approved settings, however, the chart only shows OMH and OASAS settings. This does not give you insight into a lot of other congregate settings that are out there. We will be working with OMH to get more and more clarification.
Hope this helps. Take care. Toni