Under HCBS waiver programs, states are permitted to waive Federal comparability and statewideness requirements in order to provide home and community services to people who would otherwise require an institutional level of care reimbursable by Medicaid.
Illustrative Service Criteria for Personal Care Services: State Examples
Arkansas. To be eligible for State Plan Personal Care services, a person must have physical dependency needs and require assistance performing the following tasks and routines: eating, bathing, dressing, personal hygiene, bladder and bowel requirements, taking medications, laundry, incidental housekeeping, and shopping for personal maintenance items.
Texas. To be eligible for State Plan Personal Care services, the applicant/client must
To be eligible for waiver services, individuals must first meet a waivers targeting criteria, such as age and diagnosis or condition. A state may have a number of waiver programs targeting different groups: people age 65 or older, those age 18 to 64 with physical disabilities, children who are technology dependent, persons with intellectual disabilities and other developmental disabilities (hereafter referred to as developmental disabilities), persons with AIDS, and persons with traumatic brain injury.
Individuals who meet the targeting criteria must then meet service criteria, which for HCBS waiver programs are the level-of-care criteria states use to determine eligibility for either a hospital, nursing facility, or intermediate care facility for persons with intellectual disabilities (ICF/ID)--also called institutional criteria.17 Level-of-care criteria explicitly describe the type and level (or severity) of functional limitations and/or medical and nursing needs an individual must have to be admitted to an institutional setting.
These criteria usually include measures of the need for nursing and medically-related services and for assistance with ADLs. A determination that a person meets the required level-of-care criteria is based on information gathered through a formal assessment process carried out when an individual applies for services. In the case of ICF/ID services, applicants must have an intellectual disability or a related condition, and be found to need various supports necessary to maintain or improve functioning.18 In the case of nursing facility services, the need for skilled and unskilled nursing care is generally assessed, as is the need for assistance with ADLs and other aspects of functioning.
The Federal requirement that states use the same or equivalent service criteria for waiver services that they use for institutional placement stems from the waiver programs primary purpose: to offer an alternative to institutionalization.19 This statutory requirement was added by Congress in part to address concern about the cost of expanding home and community services: states must demonstrate that they are providing waiver services only to people who are eligible for institutional placement. CMS cannot waive this requirement or lessen its impact by regulation. Congress would have to amend the Federal Medicaid statute to allow states to use substantively different service criteria for a waiver program than for institutional services (i.e., criteria not based on the need for institutional services).
Level-of-Care Criteria for ICFs/ID and HCBS Waiver Programs for People with Developmental Disabilities
Some states use categorical level-of-care criteria referencing specific related conditions by medical diagnoses or type, such as intellectual disability, spina bifida, or autism. Other states use functional criteria, such as that provided by the Federal Developmental Disabilities Assistance and Bill of Rights Act of 2000,20 which are based on a persons adaptive abilities or capacity to perform tasks at a specific level. The majority of states, however, use a combination of the two approaches, referencing both categorical and functional criteria.21
When the waiver authority was enacted in 1981, home and community services could be provided under a waiver program only to persons who met the level-of-care criteria for any one of the following institutions: a Medicaid skilled nursing facility (SNF), an intermediate care facility (ICF) providing nursing services, an ICF/ID, or a hospital that is Medicaid certified as a hospital but provides long-term care services. In 1987, the Omnibus Budget Reconciliation Act eliminated the distinction between mandatory SNFs and the optional ICFs and mandated a new nursing facility benefit, which includes the former SNF and ICF benefits.
Lawsuit Related to Marylands Level-of-Care Criteria
On November 30, 2007, Marylands Court of Special Appeals ruled that Marylands standard for determining eligibility for nursing facility services and HCBS waiver programs--a need for constant skilled nursing care--was stricter than allowed under Federal law. The Court determined that people should be eligible if they need constant care and supervision provided by health care aides, but not necessarily the level of care that would require licensed or highly skilled nurses.22
As a result of the Courts ruling, the State developed new minimum level-of-care criteria for applicants who do not meet the criteria for a skilled level of nursing home care. These criteria include a need for health-related services above the level of room and board on a regular basis. The State describes such services as
The only Federal requirement for persons to receive the former ICF level of care--now the minimum level of care in a nursing facility--is a need on a regular basis for health-related care and services [provided] to individuals who because of their mental or physical condition require care and services, above the level of room and board, which can be made available to them only through institutional facilities.25 Within this broad definition, states are free to set whatever service criteria they choose for nursing facility care, which (or their equivalent) are then used to determine eligibility for waiver services. States vary considerably in the stringency of their minimum level-of-care criteria.26