The three major Medicaid options for covering personal care (also called personal assistance) are the Medicaid State Plan Personal Care benefit, the Medicaid State Plan HCBS benefit, and an HCBS waiver. States may also provide personal care under the Community First Choice Option, authorized by the Affordable Care Act, effective October 2011.
Thirty-four states and the District of Columbia cover personal care under their Medicaid State Plans, but only a few states make it broadly available. For example, California, New York, and Texas operate relatively extensive State Plan Personal Care programs; elsewhere, provision of such services is more limited.38 Many states that offer personal care have strict limitations on its delivery. Some either stringently regulate the amount of personal care services an individual can receive or cap the dollar value of such services at a level well below the annual cost of nursing facility services.39
HCBS Waiver Core Services Definition: Live-in Caregiver
Live-in Caregiver: An unrelated live-in personal caregiver who resides in the same household as the waiver participant. Payment for this service includes the additional costs of rent and food that can be reasonably attributed to the unrelated live-in personal caregiver. Payment will not be made when the participant lives in the caregivers home or in a residence that is owned or leased by the provider of Medicaid services.
Under the HCBS waiver, states can elect to cover the costs of a live-in caregiver. These costs must be detailed in the cost-neutrality formula in the HCBS waiver application and must be described as a discrete service in the states waiver application. The Connecticut Department of Developmental Services (DDS) offers live-in caregiver as a service under its HCBS waiver for individuals with developmental disabilities using the following definition: DDS reimburses the waiver participant for the cost of the additional living space and increased utility costs required to afford the live-in caregiver a private bedroom. The reimbursement for the increased rental costs will be based on the DDS Rent Subsidy Guidelines and will follow the limits established in those guidelines for rental costs. The reimbursement for food costs will be based on the United States Department of Agriculture Moderate Food Plan Cost averages. Payment will not be made when the participant lives in the caregivers home or in a residence that is owned or leased by the provider of Medicaid services.
Others limit eligibility for personal care services by identifying a population or level of functional limitation for which they will provide assistance. However, states must be careful not to violate Medicaid comparability requirements by restricting services to those with a particular diagnosis or condition, such as by making benefits available only to people who use wheelchairs. All states are required to provide all §1905(a) services, including personal care, to children under the expanded EPSDT mandate, whether or not the state covers the service under its State Plan.
The principal reason why many states do not cover personal care under the State Plan or, if they do, impose considerable restrictions on its provision, is concern about controlling expenditures for an entitlement benefit. State officials often want to know (1) How many Medicaid beneficiaries will qualify to receive the service? (2) How many service hours will they use once eligible? On the other hand, because HCBS waivers permit states to cap the number of beneficiaries and the cost of services, most states cover personal care or a similar service under an HCBS waiver (or a §1115 waiver in Arizona and Vermont.)
Advocates for personal care point out that this service is usually less costly per person than institutional services and, consequently, that adding this coverage will result in lower institutional expenditures--by avoiding or delaying admission of individuals to institutions, as well as enabling institutionalized persons to return to the community. However, state officials are often concerned that such savings might be offset by the effect of more people overall seeking services once their availability becomes known (i.e., increased demand). The costs of meeting the needs of more people could offset the savings stemming from reduced nursing facility usage. Both are legitimate points and the challenge for state policymakers and disability advocates is to strike a balance between the need to control costs and the need to provide home and community services so that individuals can live in the least restrictive setting.
Personal Care and the Medicaid Home Health Benefit
Personal care is also provided by home health aides under the mandatory Medicaid Home Health benefit. However, this benefit is a very costly way to provide personal care because it is subject to the same rules regarding provider conditions for participation as the Medicare Home Health benefit. Under these rules, agencies must be Medicare certified and home health aides must be supervised by a licensed nurse. These requirements significantly increase the costs of a home health aide compared to that of a personal assistant from a non-Medicare certified agency and, of course, personal assistants hired by Medicaid beneficiaries who direct their services.
It is important to note that the Medicaid Home Health benefit cannot use the same eligibility criteria that Medicare uses, for example, requiring that individuals need skilled nursing care or be homebound. (See Chapter 3 for a more detailed discussion of the Medicaid Home Health benefit.)
Expenditure concerns, as noted earlier, have prompted many states to turn to an HCBS waiver program to secure Medicaid financing of personal care assistance services, since the waiver program permits tighter cost and use limits. Table 4-2 summarizes the differences in personal care service coverage between State Plan and HCBS waiver programs.
Personal Care: Issues in Both State Plan and Waiver Programs
Regardless of the Medicaid authority used, states need to consider several issues related to the provision of personal care. Depending on how they are addressed, these issues can either impede or facilitate its provision.
Delegation of Nursing Tasks
Certain health-related personal care tasks (e.g., medication administration and tube feeding) fall under the jurisdiction of states Nurse Practice Acts. Federal Medicaid policy does not dictate who must perform skilled nursing tasks, merely that such tasks be performed in compliance with applicable state laws. But state laws and regulations often dictate that such tasks be performed by or closely supervised by a licensed nurse, which can significantly increase the cost of serving individuals with medical or health-related needs in the community.
To avoid duplicating Home Health benefits already available through Medicare or under the Medicaid State Plan, many HCBS waiver programs do not offer skilled nursing or rehabilitative therapies. However, skilled paraprofessional services may still be provided by personal care workers under HCBS waivers or under the State Plan Personal Care option--as long as the services are provided in conformity with the states Nurse Practice Act.
A 1999 Medicaid Manual transmittal specifically states that
Services such as those delegated by nurses or physicians to personal care attendants may be provided so long as the delegation is in keeping with state law or regulation and the services fit within the personal care services benefit covered under a states plan. Services such as assistance with medications would be allowed if they are permissible in states Nurse Practice Acts, although states need to ensure that the personal care assistant is properly trained to provide medication administration and/or management.40
This policy and its applicability to optional State Plan personal care services and HCBS waiver programs were reaffirmed in a July 2000 letter from CMS to State Medicaid Directors.41
Several states, notably Oregon, have amended their Nurse Practice Acts to enable licensed nurses to delegate nursing tasks under specific conditions. Others have amended their Nurse Practice Acts to exempt certain individuals--such as participant-directed personal assistants--from the provisions of the Act, just as most Acts exempt unpaid family members who perform these tasks.
States typically require individuals who would provide personal care services to have completed a basic training course. To ensure proper supervision of personal care workers, some states require that they be employed by agencies that hire the workers and supervise them. More and more states are routinely requiring individuals who would provide personal care services to undergo criminal background checks and checks against abuse/neglect registries.
|TABLE 4-2. Key Features of Medicaid Options for Covering Personal Care|
|HCBS Waiver||State Plan HCBS|
|Entitlement||States can not target services by age or diagnosis.
States must provide services to all categorically eligible individuals who meet the eligibility criteria.
Services must be provided statewide.
|States can target services by age and diagnosis.
States can limit the number of people served.
States can limit the geographic area in which a waiver program is available.
|States can target services by age and diagnosis.
States must provide services to all individuals in an eligibility group who meet the eligibility criteria.
Services must be provided statewide.
|Financial Criteria||Beneficiaries must meet community financial eligibility standards.||States may set financial eligibility criteria up to 300 percent ($2,022 per month) of the Federal SSI benefit ($674 per month in 2010).||States may set financial eligibility criteria at 150 percent of the FPL ($1,354 per month in 2009) or at 300 percent of the Federal SSI benefit ($2,022 per month)42|
|Eligibility Criteria||Beneficiaries must have functional limitations--specified by the state--that result in a need for the services covered.||Beneficiaries must meet the minimum institutional level-of-care criteria and have a medical/functional need for the specific service.||Beneficiaries eligible under 150 percent of the FPL must meet functional eligibility criteria that is less stringent than institutional level-of-care criteria.
Beneficiaries eligible under the 300 percent of SSI income eligibility standard must meet institutional level-of-care criteria.
|Services||Services include only those specified in the Federal definition of personal care services.||Coverage can include a very broad array of state-defined services, only some of which are specified in statute.||Coverage can include a very broad array of state-defined services, only some of which are specified in statute.|
|Payment of Relatives||Relatives other than legally responsible relatives may be paid to provide personal care, at the states option.||Relatives, including those legally responsible, may be paid to provide personal care and other services under specific circumstances determined by the state.||Relatives, including those legally responsible, may be paid to provide personal care and other services under specific circumstances determined by the state.|
With the increase in state options for participants to direct their services, however, many states now allow individuals to directly hire the persons they want to provide services and to train and supervise them. States need to determine what provider qualifications will be required and, in so doing, balance concerns about safety with participants ability to choose who they will hire. (See Chapter 7 for a detailed discussion of various service delivery models for participant-directed services.)
Change in Medicaid Statute to Increase Participant Direction Service Delivery Options
Section 6087 of the DRA-2005 added §1915(j) to the Social Security Act, effective January 2007.43 This authority permits states to prospectively disburse cash to participants who direct their personal care/personal assistance services using an individual budget. States may not offer participant-directed services under the §1915(j) authority except through an existing State Plan Personal Care program or an HCBS waiver program.
Absent the §1915(j) authority, participant direction of Medicaid State Plan personal care is limited to use of the employer authority. The §1915(j) authority also allows states to permit participants who direct their services under the State Plan Personal Care option to use their individual budgets to purchase non-traditional goods and services other than personal assistance, to the extent that expenditures would otherwise be made for human assistance. (States already have the authority under §1915(c) to allow HCBS waiver participants to purchase a broad range of goods and services.)
Employing Family Members
All of the Medicaid authorities allow participants to hire friends and relatives to provide personal care services. States also have the option under the HCBS waiver authority, and the §1915(j) and §1915(i) authorities, to allow participants to hire legally responsible relatives (i.e., spouses, and parents and legal guardians of minor children).44 Generally, to be a paid personal care provider, a legally responsible relative has to be providing services that a parent or spouse would not be providing for a non-disabled spouse or minor child; for example, feeding a 15-year-old child or bathing a spouse. However, Medicaid still prohibits the hiring of legally responsible relatives under the State Plan Personal Care option.
Within the broad parameters of Federal policy, it is up to states to define the particular circumstances under which relatives will be paid to furnish services to participants. States can take various factors into account, including the availability of other sources for the same services, costs of using family members to provide services versus costs of purchasing such services from conventional sources, and specific circumstances with respect to participants.