A woman of Asian descent is at a medical consultation. She is sitting at a table next to her doctor. The doctor is a mixed-race man of Asian and Indian descent. The two individuals are having a conversation. The patient is smiling and talking.
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Eleven states are planning to go live under the regulations of the home- and community-based settings final rule on March 18, according to Melissa Harris, deputy director for the CMS Disabled and Elderly Health Programs.

Harris spoke Tuesday at an informational session hosted by the Centers for Medicare & Medicaid Services.

States must demonstrate compliance with the rule by March 17, although they can file corrective action plans to obtain additional time. An additional 40 states either have submitted corrective action plans or expect to do so, Harris said, indicating that CMS has daily conversations with state officials to keep apprised of the status of related efforts.

The federal government issued the HCBS settings final rule in January 2014 to help ensure that beneficiaries of Medicaid HCBS programs, including those who are assisted living residents, have full access to services in settings that are integrated into the community rather than in institutional settings such as skilled nursing facilities. Some assisted living communities provide HCBS to their residents through Medicaid waivers.

Last fall, the federal government issued a compliance warning to HCBS providers to make progress on meeting the requirements of the rule. States that thought they would be unable to meet the March deadline had until Jan. 1 to submit statewide transition plans documenting their efforts to adopt new regulations, conduct provider compliance assessments and establish processes for beneficiaries to report provider noncompliance.

CMS is providing updates on the Medicaid.gov website regarding incoming corrective action plan submissions from states as well as approvals of those plans. 

Following the expiration of the statewide transition plans and corrective action plans, language in Medicaid HCBS waivers — including the Section 1915(c) waivers commonly used for assisted living providers — should describe how states will conduct ongoing monitoring to ensure compliance, said Ryan Shannahan, deputy director of CMS’ Division of Long Term Services & Supports. He characterized the waivers as the “new law of the land” for states to follow to ensure compliance with the HCBS settings final rule. 

States that received approval from CMS for public health emergency-related flexibilities related to the HCBS settings final rule — such as Section 1915(c) waivers — have six months from the end of the PHE to ensure compliance with the rule. In a Feb. 9 letter to governors, HHS Secretary Xavier Becerra said that the PHE would end May 11, following a similar proclamation from President Biden. HHS also provided a roadmap detailing the transition. 

“We will continue to pay attention to [corrective action plans], and then our collective attention will turn to ongoing monitoring — the information that is continued in the waivers and state plans — and that will be the information that carries the day,” Harris said. “We wanted to lay out the parallel work streams playing out right now, then understand, one by one, how those competing priorities will disappear, depending on the state. And we will, at some point, be left with the entire focus being on ongoing monitoring as embedded in the underlying state plan amendments and the 1915(c) waiver.”

As of Feb. 21, 20 states — Alaska, Arkansas, Connecticut, Delaware, Hawaii, Idaho, Kentucky, Minnesota, Missouri, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington and Wyoming — as well as Washington, DC, have received final approval of their statewide transition plans, according to Medicaid.gov, meaning that CMS has notified the state that “public comment, input and summary requirements are met” and that “the STP has provided all necessary information.”

That number of states has remained unchanged since at least May 2022.

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