Author(s)

Authors
Lindsay C. Jones
Schraff Thomas Law LLC
(440) 569-1505
Lauren Marinaro
Fink Rosner Ershow-Levenberg Marinaro, LLC
(732) 382-6070
NAELA News Journal - NAELA News Online

NAELA Welcomes Strong HCBS State Guidance from CMS

By Lauren Marinaro, Esq., and Lindsay Jones, Esq. | NAELA Federal Advocacy Committee

Guidance from CMS provides significant technical information on how states can and should apply for flexibilities to better address the needs of “medically needy” or other higher-income groupings, assisting individuals who may otherwise only be eligible for institutional-level Medicaid. NAELA State Chapters are in a great position to leverage this guidance for reform.
NAELANewsOnline01_2022_HCBS

NAELA policy goals and priorities have long included strengthening the availability and provision of home and community-based services (HCBS) through Medicaid, including strong policy support for money follows the person, spousal impoverishment rules in HCBS settings, and state waivers or plan amendments to liberalize income requirements for HCBS. In 2016, CMS finalized its guidance on the Affordable Care Act’s (ACA) requirement that states must apply the Medicaid statute’s spousal impoverishment protections to home and community-based service (HCBS) waivers. The ACA initially mandated those provisions until the end of 2018. Several extensions followed, with the most recent included in the Sustaining Excellence in Medicaid Act of 2019,1 set to expire in September of 2023.

Throughout this complex process, NAELA has taken the lead in efforts to rally aging and disability organizations and has directly lobbied to protect state flexibility for states like Minnesota, Massachusetts, and New Hampshire (to continue HCBS waiver eligibility pathways that are more favorable than the federally required standard) and to make permanent the ACA’s federal mandate for spousal impoverishment provisions to be applied to HCBS.

NAELA’s dedication resulted in the permanent “rule of construction” language, initially included in the Sustaining Excellence in Medicaid Act of 2019. On December 7, 2021, CMS issued its guidance2 on these provisions. This guidance provides significant technical information on how states can and should apply for flexibilities to better address the needs of “medically needy” or other higher-income groupings, assisting individuals who may otherwise only be eligible for institutional-level Medicaid. States are encouraged to use hypothetical spend-downs based on the standard monthly institutional cost of care figures or to create large-income disregards for HCBS Medicaid applicants. These provisions can be applied to higher-income individuals who might otherwise need to transition to a nursing home, an institution for those with developmental disabilities, or an institution to treat severe mental illness.

This guidance from CMS re-emphasizes the pressure placed on states to meet the Olmstead integration mandates3 by reforming waivers and state plans to liberalize income requirements and identify additional target groups. NAELA State Chapters are in a great position to leverage this guidance for reform.

The Build Back Better Act passed by the House would make the provisions permanent, but as everyone knows, the bill is stalled in the Senate. NAELA is seeking further clarification from CMS officials on the above-referenced guidance4 and expects to provide members with more education on this topic later in 2022. 


1 Congress.gov, H.R.3253 – Sustaining Excellence in Medicaid Act
of 2019
, https://www.congress.gov/bill/116th-congress/house-bill/
3253/text
(June 6, 2019).

2 Centers for Medicare & Medicaid Services, SMD# 21-004, RE: State Flexibilities to Determine Financial Eligibility for Individuals in Need of Home and Community-Based Services, https://www.medi
caid.gov/Federal-Policy-Guidance/Downloads/smd21004.pdf
(Dec. 7, 2021).

3 United States Department of Justice Civil Rights Division, Olmstead: Community Integration for Everyone, https://www.ada.gov/olmstead/ (accessed 1/11/22).

4 Supra n. 2.

About the Authors
Lauren Marinaro, Esq., is a member of the NAELA Board of Directors, co-chair of the NAELA Federal Advocacy Committee, and a member of the NAELA Diversity Committee.
Lindsay Jones, Esq., is a member of the NAELA Federal Advocacy Committee and the State Advocacy Committee.

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