![](media/image1.png){width="3.4791666666666665in"
height="0.9166666666666666in"}

we anticipate that the provider would both control the housing and be
expected to provide the PAS." AHCA/NCAL agrees that many assisted living
facilities would not be interested in their residents receiving PAS;
however, some assisted living facilities are open to having outside
providers provide PAS services. We think that barring assisted living
residents from participating in PAS programs outright in the regulations
exceeds the statutory language, would be unnecessarily inflexible, and
may unnecessarily constrain options available for Medicaid beneficiaries
under the statute. (The DRA states that "self-directed personal
assistance services may not be provided under this subsection to
individuals who reside in a home or property that is owned, operated, or
controlled by a provider of services, not related by blood or
marriage.")

There are several important reasons why CMS should not make the
regulations overly rigid with regard to assisted living. First, the term
"assisted living" encompasses a wide range of licensed facilities and
providers, which, depending on state law and marketplace variation, can
range from small home-like environments to campus-like settings that
provide many levels of care. By barring all residents of facilities
licensed as assisted living or residential care, CMS may inadvertently
remove providers of care that could successfully provide services within
the statutory intent of the PAS option and, thereby, take away
beneficiary choice.

Second, the way that some states regulate assisted living may better fit
the requirements of the statute than others. For example, in several
states, including Connecticut and Minnesota, home health agencies are
the licensed providers of services in assisted living facilities while
the housing component falls outside the purview of assisted living
regulation. (For more information on this regulatory approach, see
"Assisted Living In Unlicensed Housing: The Regulatory Experience Of
Four States," Research Report, Bernadette Wright, AARP Public Policy
Institute, April 2007.) Residents in such states tend to have stronger
tenancy rights. In such states, PAS may well be a possibility as the
housing provider may have little or no control over services, at least
in some instances.

Third, some assisted living communities provide a "light" level of care
and verge on being independent living housing. Certainly, residents in
these settings should be provided the PAS option.

Fourth, residents of assisted living facilities often contract for
services provided by caregivers from outside the facility. While it is
true that many facilities want to coordinate such outside services to
make sure residents receive needed care and to control liability,
third-party care arrangements are common in assisted living. If
residents and facilities come to agreement through a needs assessment
process, service plans, or negotiated risk agreements about outside
services, then residents should not be barred from the PAS option.

Fifth, some state Medicaid programs already include assisted living as
an option under their cash and counseling programs. For example, New
Mexico's "Mi Via" program, which was implemented in November 2006,
includes assisted living services as an option. Furthermore, New Mexico
state officials are supportive of providing Medicaid beneficiaries with
a wide range of options under the program including assisted living.

(For more information on New Mexico's Mi Via program, contact Guy Surdi,
Mi Via program outreach coordinator, in the New Mexico Department of
Aging and Long Term Services' Elderly and Disability Division, at
505-476-4731 or guy.surdi@state.nm.us.)

Rather than imposing an outright exclusion of assisted living in the
regulations or their preamble, AHCA/NCAL recommends that CMS suggest
that states follow the rule of reasonableness in crafting their PAS
programs under the statutory language so that Medicaid beneficiaries can
receive self-directed services in flexible ways that best meets their
needs and choices.

Outright exclusion of assisted living also might signal a disturbing
trend by extending the precedent of excluding or severely limiting the
availability of assisted living as a choice for Medicaid beneficiaries
-- especially in the wake of CMS' decision in implementing the DRA's
Money Follow the Person grant program in a way that significantly
constrains the inclusion of assisted living. Assisted living is an
important option for the frail elderly and assisted living providers
strive to respect residents' privacy, independence, and dignity.

Sec. 441.464 -- State Assurances

We agree with CMS' statement that it is important that individuals be
made aware of feasible alternatives before enrolling in the PAS option.
We fully agree that it is vital that Medicaid home and community based
options, including assisted living, are available alongside the PAS
option. To ensure that beneficiaries have an ample range of options, it
is also important that they receive information about specific
facilities, services, and programs that might be available to them
outside the PAS program (not simply statements about general categories
of care).

Section 441.476 -- Risk Management

In response to CMS' request for input, AHCA/NCAL believes that criminal
background checks should be mandatory for persons receiving PAS, their
caregivers, and representatives. This is necessary both to ensure the
safety of the consumer and as a protection against fraud.

Furthermore, state oversight of PAS programs should involve some sort of
on-site oversight, including interviews of participants, care providers,
and representatives. Information should be provided to all parties
involved about access to the state long term care ombudsman and
complaints should be investigated immediately and thoroughly by state
officials.

Section 441.480 -- Use of a Representative

We agree with CMS that, in order to protect against conflict of
interest, a participant's representative should be prohibited from also
serving as a paid provider of PAS services to the participant.

In conclusion, AHCA/NCAL believes that elderly Americans should have a
wide range of options under the Medicaid program and that the PAS
program should be implemented in a way that maximizes beneficiaries'
ability to receive services that meet their needs and preferences in
their setting of choice, including assisted living.

Thank you for this opportunity to comment. For more information, please
contact Karl Polzer, Senior Policy Director, National Center for
Assisted Living, at <kpolzer@ncal.org> or 202-898-6320.

Sincerely,

Bruce Yarwood

President & CEO

American Health Care Association

David Kyllo

Executive Director

National Center for Assisted Living