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Medicaid Home-and-Community-Based Waiver Programs in New York State

Views: 33935
Posted: 02 Sep, 2010
by Valerie Bogart (New York Legal Assistance Group)
Updated: 07 Oct, 2014
by Valerie Bogart (New York Legal Assistance Group)

Advocates Guide to Medicaid Long Term Services and Supports

Medicaid home and community-based services [HCBS] are available through waiver programs to groups of individuals who would be eligible for Medicaid if institutionalized and, but for the services, would be institutionalized in a hospital or nursing facility. Under section 1915(c) of the Social Security Act, the federal government grants waivers of requirements that are otherwise applicable to Medicaid “state plan” services.

Congress enacted section 1915(c) of the Social Security Act in the Omnibus Reconciliation Act (OBRA) of 1981. Until then, comprehensive long-term care services through Medicaid were available only in institutional settings. Although mandatory home health services and optional personal care services were available as Medicaid benefits before OBRA 1981, states had largely restricted their use and limited the amount of services - New York being an exception with its personal care program and the Lombardi or Long Term Home Health Care Program (LTHHCP), which was established by Chapter 895 of the New York Laws of 1977. In fact, Congress reportedly modeled 1915(c) waivers in part on New York’s experience with the Lombardi program.

In waiver programs, CMS waives key requirements that apply to Medicaid “state plan” services – those provided to all Medicaid recipients in the state. State plan services are either “mandatory” or “optional,” meaning that a State may elect to include them in the state plan. Once elected by a state, an optional service must still comply with all of the federal requirements. For a waiver, however, waivers of the “statewideness” or “comparability” requirements of federal Medicaid law allow states to create waiver programs that target only a particular population -- limited by age, diagnosis, or geographic area of the state, or that limit the number of waiver slots available. Waiver of the financial eligibility requirements allow states to include individuals who would normally not meet Medicaid’s income/resource guidelines.

Waivers have grown nationally with the momentum to “rebalance” long term care services from institutional care to care in the communities. However, they are not the only Medicaid home care services -- Medicaid programs offer “state plan” services which are part of the state’s statewide Medicaid plan, offered to all people of all ages and diagnoses in the state, if eligible. Unlike waiver services, state plan services may not have a waiting list. New York State has long led the nation in these two state plan services:  personal care (also known as home attendant services in NYC) and certified home health care program (CHHA) services. 

This training outline by Selfhelp Community Services provides background, with statutory and regulatory references, about the various Home and Community Based Waiver Programs in New York State.  A Table of Contents is set forth below.  

Related Links and Documents on Waivers in New York

Background on Waivers - Federal Law Requirements and Trends - See Cynthia Shirk, Rebalancing Long Term Care: The Role of the Medicaid HCBS Waiver Program, Georgetown University National Health Policy Forum, 2006

GIS 07 MA/018   (elimination of transfer penalty in all waiver programs)

1.   Long Term Home Health Care Program (Lombardi/ LTHHCP, includes AIDS LTHHCP)

  • As of April 1, 2013, this program is no longer an alternative to Managed Long Term Care for "dual eligibles" (have Medicare and Medicaid) adults age 21+ who need Medicaid home care services in New York City and other counties in which enrollment in MLTC is otherwise mandatory for this population.  The State has received  approval from CMS to require all LTHHCP/Lombardi recipients in mandatory counties to enroll in MLTC plans.  Additionally, those who are not dual eligibles and who are subject to mandatory enrollment in mainstream Medicaid managed care must enroll in those plans to receive home care services, and leave the Lombardi program.  See MICSA Alert from NYC HRA regarding this mandatory transition.
  • Approval Letter for LTHHCP Waiver Amendment  
  • Approval Letter to amend Partnership Plan and F-SHRP
  • NYS Dept. of Health LTHHCP Reference Manual (REVISED May 2012)

  • Statewide Directory of Long Term Home Health Care programs in each county (plus hospices, CHHAs, LHCSAs)

  • 02 OMM/ADM-4 (May 28, 2002)(Notice and Fair Hearing Procedures for the LTHHCP);

  • 11-LTC-ADM-01 - Long Term Home Health Care Program Waiver Renewal (continuation of spousal protections, some new services within waiver)(April 26, 2011)

    • Attachment I (Consumer Fact Sheet)
    • Attachment II (Waiver Services Definitions)
    • Attachment III (Division of responsibilities local vs. state govt in monitoring, etc.)
    • Attachment IV (Reporting requirements)

    • ADM clarifies obligation to do discharge planning before discontinuing services.   "If services can not be maintained within the budget after alternatives are considered, participants must be informed and referred to other options for care as necessary. This may include the range of existing State Plan home care services, other available 1915c waivers such as the Nursing Home Transition and Diversion waiver, and Managed Long Term Care. "

The regulations also require discharge planning. 18 NYCRR 360-2.6 requires that "the district must inform the recipient of available assistance and services, and help the recipient in obtaining them."  SEE FH decision #5953201Z on OTDA FH archive. 

  • Long Term Home Health (Lombardi) Program Complaint Process

  • Financial Budgeting Rules for Lombardi/LTHHCP, Transfers of Assets & Spousal Protections - For married couples, the rules on income and assets are different than in "community" Medicaid used for most people living in their homes, AND different than "institutional budgeting" for people in nursing homes and their spouses.

    • As in "community Medicaid," there is no penalty on transferring assets for this program -- See GIS 07 MA/018   (elimination of transfer penalty in all waiver programs)

    • Married couples get the benefit of Spousal Impoverishment Protections very similar to those used in nursing homes to allow a "community spouse" to retain the couple's income and assets.  See- GIS 10 OLTC/003 Long Term Home Health Care Program (LTHHCP) Waiver Extension (May 3, 2010).

      • However,  the spouse receiving LTHHCP services may only retain a monthly "Personal Needs Allowance" (PNA)  that is  the difference between the Medicaid income level for a household of one and the Medicaid income level for a household of two.  In 2013, that is $375/month.  Evans v. Wing, 277 A.D.2d 903, 716 N.Y.S.2d 269 (4th Dept. 2000), reargument denied, 724 N.Y.S.2d 143 (4th Dept. 2001).  NYS DOH GIS  01-MA-021 (June 28, 2001). 

2.   Traumatic Brain Injury (TBI) Waiver

3.   New York State Transition & Diversion Waiver (NHTDW)

4.    Home and Community-Based Services Waiver- administered by OPWDD- Office for People with Developmental Disabilities (formerly OMRDD)

  • THE HCBS WAIVER IS BEING OVERHAULED INTO THE "People First Waiver" - See this webpage for developments, including videos, message boards, sign up for e-mail information, monthly updates, etc. 
  • The NYS DOH webpage provides a brief description of the HCBS Waiver and which individuals can apply to enroll. 
  • To enroll in the HCBS Waiver, contact the Eligibility Coordinator at the Developmental Disabilities Regional Office that covers the county where the individual lives or search for a provider agency that provides “service coordination” in the county where the individual lives by using the OPWDD Provider Directory.  
  • GIS 07 MA/018 explains that there is no transfer penalty, or “look-back” period, for HCBS Waiver applicants. 

***NOTE: Individuals who have Medicaid do not need to be enrolled in the HCBS Waiver in order to receive OPWDD services, however OPWDD does need to determine them “eligible” for OPWDD services.  The eligibility review process starts at one of OPWDD’s five Developmental Disability Regional Offices (DDROs).  Each DDRO provides services to a specific county or group of counties.   Certain documents, including reports from assessments conducted by qualified practitioners to support a qualifying diagnosis of “developmental disability,” must be submitted to the DDRO to receive an eligibility determination, and an individual must be given notice and appeal rights.

5.   Care at Home for Children with Physical Disabilities - Levels I & II

6.  OMH Waiver for Children and Adolescents with Serious Emotional Disturbance

7.   Bridges to Health (B2H) Waiver

8.  New Federal Options for Waivers and Community-Based Long Term Care

=================================================================================================

Training Outline on Waivers in New York State by Selfhelp Community Services

Provides background, with statutory and regulatory references, about the various Home and Community Based Waiver Programs in New York State. 

1.   HCBS Waivers:  Federal Landscape.............................................................................................................4
2.   Introduction – 1915(c) Waivers.......................................................................... .......................................... 4
  • Waivers vs. State Plan Services..........................................................................                                    5
  • Table 1 -- Comparison of  National and NYS Medicaid Spending on Community-Based vs. Institutional 
    Long-Term Care.......... ................................ ..............................................................................           6
  • Two Main Waiver Requirements – Avoid Institutionalization and Cost Neutrality  ..................................       7
3.    Medicaid HCBS Waiver Programs in NYS (adults) ...................................... .............................................   7
  1. TABLE 2:  COMPARISON OF NYS AND NATIONAL ENROLLMENT, EXPENDITURES, AND WAITING LISTS FOR HCBS WAIVERS............................................................................................................................................8

  2. FINANCIAL ELIGIBILITY ISSUES FOR WAIVERS...................................................................................9

  3. Long Term Home Health Care PROGRAM (LTHHCP) Lombardi     ...............................................   11                         

  4. Traumatic Brain Injury (TBI) Waiver Program........................................................................................   14

  5. Nursing Home Transition and Diversion Waiver (NHTD).................................. .......................................  20

  6. NYS Office of PEOPLE WITH DEVELOPMENTAL Disabilities Waivers (formerly called OMRDD)..   24

4.   CHILDREN’s WAIVERS:................................................................................... .......................................28

  • Care at Home for Children with Physical Disabilities - Levels I & II...............  ..........................................28
  • OMH Waiver for Children  with Serious Emotional Disturbance..............................................................  30
  • Bridges to Health (B2H) Waiver....................................................................... ....................................33
5.  New Options under Federal Law – PPACA................................................................................................. 35
  • Community First Choice Option, PPACA § 2401, Recon. Act § 1205.
  • Removal of Barriers to Providing HCBS  services, PPACA § 2402.
  • Expansion of State Plan 1915-i Option to Provide HCBS Services..
  • Money Follows the Person Rebalancing Demonstration, PPACA § 2403.
  • State Balancing Incentive Program (Sec 10202 PPACA).

This article was authored by the Evelyn Frank Legal Resources Program of Selfhelp Community Services, Inc.

Selfhelp


Attached files
file 2013-04-18 lombardi mltc.pdf (102 kb)
file Medicaid Waivers Outline.pdf (221 kb)
file Lombardi Program List Statewide with County.pdf (126 kb)

Also read
document Medicaid Personal Care or Home Attendant Services
document The Various Types of Medicaid Home Care in New York State
document Medicaid Certified Home Health Agency (CHHA) Services
document Nursing Home Medicaid Coverage - Basic Financial Eligibility Rules about Income, Resources, and Spousal Protections
document Managed Long Term Care
document State Rescinds Directive that Banned Use of Pooled Trusts for Married Couples where One Spouse is in a Managed Long Term Care Plan - Pending Clarification from CMS

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