The Deficit Reduction Act of 2005 (DRA-2005) added §1915(i) to the Social Security Act, which allows states, at their option, to provide home and community-based services under the Medicaid State Plan without a waiver.31 Section 1915(i) was subsequently amended by the Patient Protection and Affordable Care Act of 2010 (hereafter, the Affordable Care Act).
The only Federal requirement regarding the needs-based criteria for this optional State Plan benefit is that they be less stringent than a states level-of-care criteria for institutional services, that is, nursing facilities, ICFs/ID, and hospitals that are Medicaid certified as hospitals but provide long-term care services. However, if a state chooses to use the 300 percent of Supplemental Security Income financial eligibility criteria for this benefit, to be eligible individuals must also be eligible for either a §1915(c), (d), or (e) waiver or a §1115 waiver. For a §1915(c) waiver, this means that individuals must meet the level-of-care criteria for institutional services.
If the state does not have needs-based criteria as part of its level-of-care criteria for these institutions, the state will have to add them.32 If a state revises its needs-based eligibility criteria, it must continue offering §1915(i) services in accordance with individual service plans to participants who do not meet the new revised needs-based criteria, but continue to meet the former needs-based criteria, for as long as the State Plan HCBS option is authorized.33
Needs-Based Level-of-Care Criteria
Because minimum eligibility for the §1915(i) benefit must be set below institutional level-of-care criteria, states may want to use this option to serve individuals with a low level of need and to serve only individuals with a higher level of need in institutions and through HCBS waivers. (However, states could choose not to set such a ceiling, and allow individuals whose needs meet institutional and HCBS waiver criteria to be able to receive State Plan HCBS.)
In order to implement the State Plan HCBS benefit, states may need to add needs-based criteria to their institutional level-of-care criteria requirements, if none presently exist. Section 1915(i) of the Social Security Act does not require that such added needs-based institutional level-of-care criteria necessarily result in excluding individuals who would be served without the added criteria. In fact, the purpose of §1915(i) is to expand access to home and community-based services for individuals who are not at an institutional level of care, rather than to reduce access to institutional and waiver services.