CMS Approves Intellectual Disability Waiver Amendments
Earlier this year, the Office of Developmental Programs (ODP) proposed various changes to the Community Living, Consolidated, and Person/Family Directed Supports (P/FDS) Waivers. The proposed waiver changes were submitted to the Center for Medicare and Medicaid Services (CMS) on April 20, 2021 and approved with an effective date of November 22, 2021. A full chart detailing the Waiver amendments is available here. Below are highlights of some substantive changes in the approved Waiver amendments:
- Behavioral Support Services: CMS approved an added clarification that physical restraints may only be utilized in an emergency or crisis to prevent an individual from immediate physical harm to self or others. This is not a new regulation; merely a clarification. Ideally, an individual has one Behavioral Support Plan that is used across all services.
Housing Transition and Tenancy Sustaining Services: Language was added to clarify that these services may not be used to find homes located in a development or building where more than 25 percent of the units (apartments, townhomes or condominiums) have ODP-funded waiver participants residing in them. This ensures individuals are living in integrated, rather than segregated, settings within their communities.
- Benefits Counseling Services: Based on feedback about difficulty accessing the Certified Work Incentives Counselor certification, individuals may now obtain a Work Incentive Practitioner credential by completing the Cornell University Work Incentives Planning & Utilization for Benefit Practitioners Online Certificate course. To maintain the credential, individuals must complete 60 hours of continuing education units for training approved by Cornell within 5 years of obtaining the full credential.
- Community Participation Support: ODP has extended the time for Employment & Community Participation Support qualifications for Association of Community Rehabilitation Educators (ACRE) and Certified Employment Support Professional (CESP) from 6 months to 9 months after hire.
- Assistive Technology: ODP has changed the name of Independent Living Technology to Remote Supports. Remote Supports is for waiver participants ages 16 and older during periods of time that direct, in-person services are not required. Remote Supports are defined as the use of technology that uses two-way real-time communication in the participant’s home or community that allows someone from a provider agency who is offsite to monitor and respond to the participants’ safety needs.
Remote Supports are different from Remote Services. An example of a Remote Support is a stove sensor on the participant’s stove. An offsite provider monitors the stove sensor and contacts the participant if there is concern the stove has been on too long and/or the participant may need a reminder to turn it off. An example of Remote Services is an offsite staff using Zoom videoconference to interact with a participant over a period of time, while guiding through all the steps of using the stove and preparing a meal.
The cost of the internet is not included in Remote Supports. ODP has a variance process for intensive Remote Supports above the annual limit of $5,000. Any funding used for Remote Supports is not included in the overall Assistive Technology lifetime limit of $10,000. An agency must be enrolled with ODP to provide Remote Supports. Remote Supports cannot be rendered through an organized health care delivery system or participant-directed services model. Individuals using participant-directed services model can still access Remote Supports, but must do so through an agency.
Language was also added to the ODP waivers to clarify that the direct provision of Community Participation Support as well as the on-call and Remote Supports component shall not be rendered on the same days and times that Remote Supports are rendered under Assistive Technology. The waiver amendment details the criteria for when Remote Supports can be used in Community Participation and in Residential services.
- Residential Habilitation and Life Sharing: The ODP waiver amendments also include new provider qualifications for residential providers. Currently enrolled or new hires for Executive Director, Chief Executive Officer, Chief Operations Officer, or Director, Assistant or Associate Director, must have bachelor’s degree and minimum 5 years’ experience in an executive-level position relating to the provision of residential services including detailed criteria spelled out in the waivers. The residential provider qualifications spelled out in more detail in the waiver are not required for all the above listed positions. The requirement is for at least one of those positions (i.e., E.D., CEO) to meet the criteria.
- Criminal Background Checks: The waiver amendments include requirements for criminal background checks for all services, residential and non-residential, including staff, consultants, and contractors. If the criminal history background check identifies a criminal background for the applicant, providers must make a case-by-case determination about hiring that individual that includes consideration of various factors such as the nature of the crime; facts surrounding the conviction; time elapsed since the conviction; evidence of the individual’s rehabilitation; and the nature and requirements of the job. This waiver amendment does not “relax” current regulations as there is no law that prohibits providers from hiring individuals with a criminal history; only that the background check occurs. This amendment gives ODP waiver providers a framework for considering whether to hire an individual with a criminal conviction and requires their rationale to be documented in the staff person’s personnel file if hired.
On December 13, 2021, ODP presented a webinar that reviewed in detail the above Waiver amendments. To watch a recording of the webinar, click here. ODP plans to hold a follow-up webinar early in 2022 to provide more detail on Remote Supports in order to address more nuanced questions and scenarios, as well as updates to the Individual Support Plan manual to align with the changes in these amendments.
Each waiver application approved by CMS is available via the links below: