DEPARTMENT OF HEALTH AND HUMAN SERVICES 

Centers for Medicare & Medicaid Services 

42 CFR Part 441 

[CMS-2337-P] 

RIN 0938-AQ35 

Medicaid Program; Community First Choice Option 

AGENCY: Centers for Medicare & Medicaid Services (CMS), 

HHS.

ACTION: Proposed rule. 

SUMMARY: This proposed rule implements Section 2401 of the 

Affordable Care Act (ACA) which establishes a new State 

option to provide home and community-based attendant 

services and supports. These services and supports may be 

offered through the Community First Choice State plan 

option. 

DATES: To be assured consideration, comments must be 

received at one of the addresses provided below, no later 

than 5 p.m. on [OFR--insert date 60 days after date of

publication in the Federal Register]. 

ADDRESSES: In commenting, please refer to file code 

CMS-2337-P. Because of staff and resource limitations, we 

cannot accept comments by facsimile (FAX) transmission. 

 You may submit comments in one of four ways (please 

choose only one of the ways listed): 
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1. Electronically. You may submit electronic 

comments on this regulation to http://www.regulations.gov. 

Follow the "Submit a comment" instructions. 

 2. By regular mail. You may mail written comments to 

the following address ONLY: 

 Centers for Medicare & Medicaid Services, 

Department of Health and Human Services, 

Attention: CMS-2337-P, 

P.O. Box 8016, 

Baltimore, MD 21244-8016. 

Please allow sufficient time for mailed comments to be 

received before the close of the comment period. 

3. By express or overnight mail. You may send 

written comments to the following address ONLY: 

 Centers for Medicare & Medicaid Services, 

 Department of Health and Human Services, 

 Attention: CMS-2337-P, 

 Mail Stop C4-26-05, 

 7500 Security Boulevard, 

 Baltimore, MD 21244-1850.

4. By hand or courier. If you prefer, you may deliver 

(by hand or courier) your written comments before the close 

of the comment period to either of the following addresses: 

 a. For delivery in Washington, DC-- 
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 Centers for Medicare & Medicaid Services, 

Department of Health and Human Services, 

Room 445-G, Hubert H. Humphrey Building, 

 200 Independence Avenue, SW., 

 Washington, DC 20201 

(Because access to the interior of the 

Hubert H. Humphrey Building is not readily available 

to persons without Federal government identification, 

commenters are encouraged to leave their comments in 

the CMS drop slots located in the main lobby of the 

building. A stamp-in clock is available for persons 

wishing to retain a proof of filing by stamping in and 

retaining an extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD-- 

 Centers for Medicare & Medicaid Services, 

Department of Health and Human Services, 

7500 Security Boulevard, 

Baltimore, MD 21244-1850. 

If you intend to deliver your comments to the Baltimore 

address, please call telephone number (410) 786-7195 in 

advance to schedule your arrival with one of our staff 

members. 
CMS-2337-P 4

Comments mailed to the addresses indicated as appropriate 

for hand or courier delivery may be delayed and received 

after the comment period. 

Submission of comments on paperwork requirements. You may 

submit comments on this document's paperwork requirements 

by following the instructions at the end of the "Collection 

of Information Requirements" section in this document. 

For information on viewing public comments, see the 

beginning of the "SUPPLEMENTARY INFORMATION" section. 

FOR FURTHER INFORMATION CONTACT: 

Carrie Smith, (410) 786-4485. 

SUPPLEMENTARY INFORMATION: 

Submitting Comments: We welcome comments from the public 

on all issues set forth in this rule to assist us in fully 

considering issues and developing policies. You can assist 

us by referencing the file code CMS-2337-P and the specific 

“issue identifier” that precedes the section on which you 

choose to comment. 

Inspection of Public Comments: All comments received 

before the close of the comment period are available for 

viewing by the public, including any personally 

identifiable or confidential business information that is 

included in a comment. We post all comments received 

before the close of the comment period on the following Web 
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site as soon as possible after they have been received: 

http://www.regulations.gov. Follow the search instructions 

on that Web site to view public comments. 

 Comments received timely will also be available for 

public inspection as they are received, generally beginning 

approximately 3 weeks after publication of a document, at 

the headquarters of the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, Baltimore, Maryland 

21244, Monday through Friday of each week from 8:30 a.m. to 

4 p.m. To schedule an appointment to view public comments, 

phone 1-800-743-3951. 

I. Background 

A. Section 2401 of the Affordable Care Act

 The Patient Protection and Affordable Care Act of 2010 

(Pub. L. 111-148, enacted on March 23, 2010), as amended by 

the Health Care and Education Reconciliation Act of 2010 

(Pub. L. 111-152, enacted March 30, 2010) (collectively 

referred to as the Affordable Care Act) established a new 

State plan option to provide home and community-based 

attendant services and supports. Section 2401 of the 

Affordable Care Act, entitled “Community First Choice 

Option,” adds a new section 1915(k) of the Social Security 

Act (the Act) that allows States, at their option, to 

provide home and community-based attendant services and 
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supports under their State plan. This option, available 

October 1, 2011, allows States to receive a 6 percentage 

point increase in Federal matching payments for 

expenditures related to this option. 

 Under section 1915(k)(1) of the Act, States can 

provide home and community-based attendant services and 

supports for individuals who are eligible for medical 

assistance under the State plan whose income does not 

exceed 150 percent of the Federal Poverty Level or, if 

greater, the income level applicable for an individual who 

has been determined to require an institutional level of 

care to be eligible for nursing facility services under the 

State plan and with respect to whom there has been a 

determination that, but for the provision of such services, 

the individuals would require the level of care provided in 

a hospital, a nursing facility, an intermediate care 

facility for the mentally retarded, or an institution for 

mental diseases, the cost of which could be reimbursed 

under the State plan. The individual must choose to 

receive such home and community-based attendant services 

and supports, and the State must meet certain requirements 

set forth in section 1915(k)(1) of the Act. Section 

1915(k)(1)(A) of the Act requires States electing this 

option to make available home and community-based attendant 
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services and supports to eligible individuals, under a 

person-centered service plan agreed to in writing by the 

individual, or his or her representative, that is based on 

a functional need assessment. This assessment will 

determine if the individual requires assistance with 

activities of daily living (ADLs), instrumental activities 

of daily living (IADLs), or health-related tasks. The 

services and supports must be provided by a qualified 

provider in a home or community setting under an agencyprovider model, or through other methods for the provision 

of consumer controlled services and supports as referenced 

in section 1915(k)(6)(C) of the Act. Section 1915(k)(1)(B) 

of the Act requires that States make available additional 

services and supports including the acquisition, 

maintenance, and enhancement of skills necessary for the 

individual to accomplish ADLs, IADLs, and health-related 

tasks, back-up systems or mechanisms to ensure continuity 

of services and supports and voluntary training on how to 

select, manage, and dismiss attendants. 

 Section 1915(k)(1)(C) of the Act prohibits States from 

providing services and supports excluded from section 

1915(k) of the Act, including room and board costs for the 

individual, special education and related services provided 

under the Individuals with Disabilities Education Act 
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(Pub. L. 101-476, enacted on October 30, 1990) (IDEA) and 

vocational rehabilitation services provided under the 

Rehabilitation Act of 1973 (Pub. L. 93-112, enacted on 

September 26, 1973), assistive technology devices and 

services other than back-up systems or mechanisms to ensure 

continuity of services and supports, medical supplies and 

equipment, or home modifications. However, some, although 

not all, of these services can be covered by Medicaid under 

other authorities. Section 1915(k)(1)(D) of the Act sets 

forth services and supports permissible under section 

1915(k) of the Act that States can provide, including 

expenditures for transition costs such as rent and utility 

deposits, first month’s rent and utilities, bedding, basic 

kitchen supplies, and other necessities required for an 

individual to make the transition from a nursing facility, 

institution for mental diseases, or intermediate care 

facility for the mentally retarded to a community-based 

home setting where the individual resides. States can also 

provide for expenditures relating to a need identified in 

an individual’s person-centered plan of services that 

increase independence or substitute for human assistance, 

to the extent that expenditures would otherwise be made for 

the human assistance. 
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 Section 1915(k)(2) of the Act provides that States 

offering this option to eligible individuals during a 

fiscal year quarter occurring on or after October 1, 2011 

will be eligible for a 6 percentage point increase in the 

Federal medical assistance percentage (FMAP) applicable to 

the State for amounts expended to provide services under 

section 1915(k) of the Act (hereinafter referred to as 

“section 1915(k) services”). 

 Section 1915(k)(3)of the Act sets forth the 

requirements for a State plan amendment. States must 

develop and have in place a process to implement an 

amendment in collaboration with a Development and 

Implementation Council established by the State that 

includes a majority of members with disabilities, elderly 

individuals, and their representatives. States must also 

provide consumer controlled home and community-based 

attendant services and supports to individuals on a 

statewide basis, in a manner that provides such services 

and supports in the most integrated setting appropriate to 

the individual’s needs, without regard to the individual’s 

age, type or nature of disability, severity of disability, 

or the form of home and community-based attendant services 

and supports the individual requires in order to lead an 

independent life. 
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 In addition, for expenditures during the first full 

fiscal year of implementation, States must maintain or 

exceed the level of State expenditures attributable to the 

preceding fiscal year for medical assistance provided under 

sections 1905(a), 1915, or 1115 of the Act, or otherwise 

provided to individuals with disabilities or elderly 

individuals. States must also establish and maintain a 

quality assurance system with respect to community-based 

attendant services and supports that includes standards for 

agency-based and other delivery models for training, 

appeals for denials and reconsideration procedures of an 

individual plan, and other factors as determined by the 

Secretary. The quality assurance system must incorporate 

feedback from individuals and their representatives, 

disability organizations, providers, families of disabled 

or elderly individuals, and members of the community, and 

maximize consumer independence and control. The quality 

assurance system must also monitor the health and 

well-being of each individual who receives section 1915(k) 

services and supports, including a process for the 

mandatory reporting, investigation, and resolution of 

allegations of neglect, abuse, or exploitation in 

connection with the provision of such services and 

supports. The State must also provide information about 
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the provisions of the quality assurance required to each 

individual receiving such services. 

 States must collect and report information for the 

purposes of approving the State plan amendment, providing 

Federal oversight, and conducting an evaluation, including 

data regarding how the State provides home and 

community-based attendant services and supports and other 

home and community-based services, the cost of such 

services and supports, and how the State provides 

individuals with disabilities who otherwise qualify for 

institutional care under the State plan or under a waiver 

the choice to receive home and community-based services in 

lieu of institutional care. 

 Section 1915(k)(4) of the Act requires that States 

ensure, regardless of the models used to provide attendant 

services and supports, such services and supports are to be 

provided in accordance with the requirements of the Fair 

Labor Standards Act of 1938 and applicable Federal and 

State laws regarding the withholding and payment of Federal 

and State income and payroll taxes; the provision of 

unemployment and workers compensation insurance; 

maintenance of general liability insurance; and 

occupational health and safety. 
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 Section 1915(k)(5) of the Act sets forth the 

requirements that States provide data to the Secretary for 

an evaluation and Report to Congress on the provision of 

home and community-based attendant services and supports. 

States must provide information for each fiscal year for 

which attendant services and supports are provided, on the 

number of individuals estimated to receive section 1915(k) 

services and supports during the fiscal year; the number of 

individuals that received such services and supports during 

the preceding fiscal year; the specific number of 

individuals served by type of disability, age, gender, 

education level, and employment status; and whether the 

specific individuals have been previously served under any 

other home and community-based services program under the 

State plan or under a waiver. 

B. Background of Home and Community-Based Attendant 

Services and Supports 

The Community First Choice Option continues to move 

Medicaid toward expanding options to States and individuals 

for the provision of community-based long-term care 

services. Consistent with the decision of the United 

States Supreme Court in Olmstead v. L.C., 527 U.S. 581 

(1999), this option will support States in their mission to 

develop or enhance a comprehensive system of long-term care 
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services and supports in the community that provide 

beneficiary choice and direction in the most integrated 

setting. Since the mid-1970s, States have had the option 

to offer personal care services under their Medicaid State 

plans. The option was originally provided at the 

Secretary’s discretion, had a medical orientation and could 

only be provided in an individual’s place of residence. 

Personal care services were mainly offered to assist 

individuals in activities of daily living, and, if 

incidental to the delivery of such services, could include 

other forms of assistance (for example, housekeeping or 

chores). In the 1980s, some States sought to broaden the 

scope of personal care services to include community 

settings for the provision of services to enable 

individuals to participate in normal life activities. 

Through the Omnibus Budget Reconciliation Act of 1993 

(Pub. L. 103-66, enacted on August 10, 1993) (OBRA 93), the 

Congress formally included personal care as a separate and 

specific optional service under the Federal Medicaid 

statute and gave States explicit authorization, under a new 

section 1905(a)(24) of the Act, to provide such services 

outside the individual’s residence. This was implemented 

by final rule published in the September 11, 1997 Federal 

Register (62 FR 47896) that added a new section at §440.167 
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describing the option for States to provide a wide range of 

personal assistance both in an individual’s residence and 

in the community. In 1999, we released additional guidance 

to clarify that personal care services may include ADLs and 

IADLs that all qualified relatives, with the exception of 

“legally responsible relatives”, could be paid to provide 

personal care services and that States were permitted to 

offer the option of consumer-directed personal care 

services. 

Additionally, the Omnibus Reconciliation Act of 1989 

(Pub. L. 101-239, enacted on December 19, 1989) (OBRA 89), 

revised the Early Periodic Screening and Diagnosis and 

Treatment Benefit to include the requirement that all 

section 1905(a) services are mandatory for individuals 

under the age of 21 if determined to be medically necessary 

in accordance with section 1905(r) of the Act. 

Furthermore, before 1981, the Medicaid program 

provided limited coverage for long-term care services in 

non-institutional, community-based settings. Medicaid's 

eligibility criteria and other factors made institutional 

care much more accessible than care in the community. 

Medicaid home and community-based services (HCBS) were 

established in 1981 as an alternative to care provided in 

Medicaid institutions, by permitting States to waive 
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certain Medicaid requirements upon approval by the 

Secretary. Section 1915(c) of the Act was added to title 

XIX by the Omnibus Budget Reconciliation Act of 1981 

(Pub. L. 97-35, enacted on August 13, 1981) (OBRA 81). 

Programs of HCBS under section 1915(c) of the Act are known 

as "waiver programs", or simply "waivers" due to the 

authority to waive certain Medicaid requirements. 

Since 1981, the section 1915(c) HCBS waiver program 

has afforded States considerable latitude in designing 

services to meet the needs of people who would otherwise 

require institutional care. In 2010, approximately 315 

approved HCBS waivers under section 1915(c) of the Act 

serve nearly 1 million elderly and disabled individuals in 

their homes or alternative residential community settings. 

States have used HCBS waiver programs to provide numerous 

services designed to foster independence; assist eligible 

individuals in integrating into their communities; and 

promote self-direction, personal choice, and control over 

services and providers. The addition of section 1915(i) of 

the Act in 2005 affords some of the same flexibility and 

service coverage through the State plan without a waiver. 

The section 1915(k) benefit does not diminish the 

State’s ability to provide any of the existing Medicaid 

home and community-based services. States opting to offer 
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the Community First Choice Option under section 1915(k) of 

the Act can continue to provide the full array of home and 

community-based services under section 1915(c) waivers, 

section 1115 demonstration programs, mandatory State plan 

home health benefits, and the State plan personal care 

services benefit. Community First Choice provides States 

the option to offer a broad service package that includes 

assistance with ADLs, IADLs, and health-related tasks, 

while also incorporating transition costs and supports that 

increase independence or substitute for human assistance. 

Another important aspect to this background is the 

passage of the Americans with Disabilities Act of 1990 

(Pub. L. 101-336, enacted July 26, 1990) (ADA), and the 

Olmstead v. L.C., U.S. Supreme Court decision. In 

particular, Title II of the ADA prohibits discrimination on 

the basis of disability by State and local governments and 

requires these entities to administer their services and 

programs, in the most integrated setting appropriate to the 

needs of qualified individuals with disabilities. In 

applying the most integrated setting mandate, the U.S. 

Supreme Court ruled in Olmstead that unnecessary 

institutionalization of individuals with disabilities 

constitute discrimination under the ADA. Under Olmstead, 

States may not deny a qualified individual with a 
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disability a community placement when: (1) community 

placement is appropriate; (2) the community placement is 

not opposed by the individual with a disability; and (3) 

the community placement can be reasonably accommodated. 

As self-direction is a key component to Community 

First Choice, this service delivery model is another 

important aspect to the background of this provision. Two 

national pilot projects demonstrated the success of 

self-directed care. During the 1990’s, the Robert Wood 

Johnson Foundation funded these projects which evolved into 

Medicaid funded programs under section 1915(c) of the Act 

and the “Cash and Counseling” national section 1115 

demonstration programs. Evaluations were conducted in both 

of these national projects. Results in both projects were 

similar – persons directing their personal care experienced 

fewer unnecessary institutional placements, experienced 

higher levels of satisfaction, had fewer unmet needs, 

experienced higher continuity of care because of less 

worker turnover, and maximized the efficient use of 

community services and supports. The Deficit Reduction Act 

of 2005 (Pub. L. 109-171, enacted on February 8, 2006) 

(DRA), established section 1915(j) of the Act which 

provided a State plan option for States to utilize this 
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self-direction service delivery model without needing the 

authority of a Section 1115 demonstration. 

II. Provisions of the Proposed Regulations 

In the following discussion, we refer to particular 

home and community-based attendant services and supports 

offered under section 1915(k) of the Act as Community First 

Choice services and supports. We refer to the "Community 

First Choice Option" when describing the collective 

requirements of section 1915(k) of the Act for the State 

plan option. 

A. Eligibility (§441.510) 

Section 1915(k)(1) of the Act requires that in order 

to receive services under the Community First Choice 

Option, individuals must be eligible for Medicaid under an 

eligibility group covered by the State plan. This section 

does not create a new eligibility group. Individuals who 

are not eligible for Medicaid under a group covered under 

the State Medicaid plan are not eligible for the State plan 

Community First Choice Option, even if they otherwise meet 

the requirements for the option. Individuals eligible 

under the State Medicaid plan whose income does not exceed 

150 percent of the Federal Poverty Level (FPL) are eligible 

for the Community First Choice Option without requiring a 

determination of institutional level of care. In 
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determining whether the 150 percent of the FPL requirement 

is met, the regular rules for determining income 

eligibility for the individual’s eligibility group under 

the State plan apply, including any income disregards used 

by the State for that group under section 1902(r)(2) of the 

Act. 

Individuals eligible under the State Medicaid plan 

whose income is greater than 150 percent of the FPL are 

eligible for the Community First Choice Option if it has 

been determined such individuals need the level of care 

required under the State Medicaid plan for coverage of 

nursing facility services. The State must determine that 

but for the provision of the home and community-based 

attendant services and supports, the individual would 

require the level of care provided in a hospital, a nursing 

facility, intermediate care facility for the mentally 

retarded or an institution for mental diseases, the cost of 

which would be reimbursed under the State plan. For 

example, section 1902(a)(10)(A)(ii)(XIII) of the Act 

defines an optional eligibility group known as working 

disabled. The income standard for this group is 250 

percent of the FPL. An individual in this eligibility 

group with income that does not exceed 150 percent of the 

FPL would be eligible for CFC services without a level of 
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care determination. An individual in the same eligibility 

group with income that exceeds 150 percent of the FPL would 

need to have a Level of care determination to be eligible 

for CFC services. Additionally, individuals who are 

eligible for Medicaid under the special home and communitybased waiver eligibility group defined at section 

1902(a)(10)(A)(ii)(VI) of the Act, for example, the special 

income level group for institutionalized individuals, could 

be eligible to receive CFC services. These individuals 

would have to receive at least 1 section 1915(c) home and 

community-based waiver service per month. We propose to 

implement this eligibility requirement at §441.510. 

As the need for a level of care determination is 

directly related to an individual’s income level in section 

1915(k)(1) of the Act, we propose to require an annual 

verification of income for all individuals receiving 

services under the section 1915(k) State plan option. We 

propose to implement this requirement at §441.510. 

B. Statewideness (§441.515)

Section 1915(k)(3)(B) of the Act requires that a State 

that chooses to provide the Community First Choice Option 

do so for individuals on a statewide basis, in a manner 

that provides such services and supports in the most 

integrated setting appropriate to the individual’s needs, 
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and without regard to the individual’s age, type or nature 

of disability, severity of disability, or the form of home 

and community-based attendant services and supports that 

the individual requires in order to lead an independent 

life. We propose at §441.515 to adopt this statutory 

language as our definition. 

C. Required Services (§441.520) 

Section 1915(k)(1)(B) of the Act provides detailed 

requirements for the services and supports included in the 

Community First Choice Option. Therefore at §441.520, we 

propose the following services must be available under the 

Community First Choice option: 

● Assistance with ADLs, IADLs, and health related 

tasks through hands-on assistance, supervision or cueing. 

● The acquisition, maintenance and enhancement of 

skills necessary for the individual to accomplish ADLs, 

IADLs, and health-related tasks. 

● Back-up systems or mechanisms to ensure continuity 

of services and supports. 

● Voluntary training on how to select, manage, and 

dismiss attendants. 

With regard to back up systems or mechanisms to ensure 

continuity of services and supports, we propose at §441.505 

that such devices may include personal emergency response 
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systems, pagers, or any other appropriate mobile electronic 

device that may be used to ensure continuity of services 

and supports. 

The Community First Choice Option requires the 

utilization of a person-centered planning process. A key 

component of the Community First Choice option is to allow 

individuals to self direct the provision of services and 

supports. Individuals must have the authority to hire, 

fire, and train attendants to provide services tailored to 

the individuals’ needs. Therefore, we propose at 

§441.520(a)(6) to require States to develop and provide a 

training program for individuals (or representative) on how 

to select, manage and dismiss attendants. Consistent with 

the philosophy of self-direction, this training must be 

voluntary, and may not be a mandatory requirement for the 

individual to receive services under this option. 

 Section 1915(k)(1)(D) of the Act provides that States 

may allow an individual to purchase permissible services 

and supports. We propose to implement this option at 

§441.520(b). At a minimum, permissible services and 

supports include expenditures for transition costs such as 

rent and utility deposits, first month’s rent and 

utilities, bedding, basic kitchen supplies, and other 

necessities required for an individual to transition from a 
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nursing facility, institution for mental disease, or 

intermediate care facility for the mentally retarded to a 

community-based home setting where the individual resides. 

We believe that the primary focus of Community First Choice 

is to remove barriers that prevent individuals from 

returning to the community or remaining in the community, 

thus avoiding unnecessary or premature 

institutionalization. Section 1915(k)(1)(D)(ii) of the Act 

permits States to make expenditures available for 

individuals to acquire items that increase independence or 

substitute for human assistance, to the extent that the 

expenditures would otherwise be made for the human 

assistance and are related to a need identified in an 

individual’s person-centered plan. Based on our experience 

with the Cash and Counseling Demonstrations, and 

authorities under sections 1915(j) and 1915(c) of the Act, 

we know that many individuals do avail themselves of and 

benefit from this option and use this flexibility to 

purchase items that allow them greater independence, such 

as non-medical transportation services, or that substitute 

for human assistance, such as a microwave oven. We propose 

at §441.520(b)(2), when individuals utilize this option 

that items purchased must relate to a need identified in 

the service plan. 
CMS-2337-P 24

 Based on our experience with Cash and Counseling, we 

found that some States limited participants’ purchases to a 

list of allowable items for which no prior approval was 

necessary. Still, other States required prior approval for 

all items, while others provided a list of allowable items 

and required prior approval for other items not on the 

list. Each permissible purchase was determined based on an 

identified goal in an individual’s service plan. Each 

State developed procedures that governed how participants 

could save an amount of their monthly budget and how and at 

what intervals the State would recoup funds that were not 

spent according to the purchase plan. The Community First 

Choice Option differs from Cash and Counseling and the 

section 1915(j) State plan Option in that an individual is 

not required to save an amount in a budget to purchase 

items that increase independence or substitute for human 

assistance. Therefore, in Community First Choice Option 

these purchases are permissible for inclusion in the 

service plan and service budget if applicable. CMS 

believes that permissible purchases will be a particularly 

useful tool for States to promote community integration. 

D. Excluded Services (§441.525)
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 In §441.525, consistent with the provisions of section 

1915(k) of the Act, we propose the following services are 

excluded from the Community First Choice Option: 

● Room and board costs (except with respect to the 

transition costs identified above). 

● Special education and related services provided 

under the IDEA. 

● Vocational rehabilitation services provided under 

the Rehabilitations Act of 1973. 

● Assistive technology devices and assistive 

technology services other than those defined in 

§441.520(a)(5). 

● Medical supplies and equipment. 

● Home modifications. 

 The exclusion of room and board costs is consistent 

with section 1905(a) of the Act, which limits Medicaid 

coverage of room and board to an inpatient setting only. 

The goal of the Community First Choice option is to provide 

attendant and support services in the community, as such, 

services provided in an inpatient setting are excluded from 

coverage. While attendant services and supports may be 

provided in a residential setting in the community, only 

the costs of the services and supports, not the room and 

board costs of the residential setting, will be covered. 
CMS-2337-P 26

 The IDEA ensures every child with a disability has 

available a free appropriate public education that includes 

special education and related services. When services are 

identified in an Individualized Education Program (IEP) or 

an Individualized Family Service Plan (IFSP), Medicaid will 

only pay for services determined to be medically necessary. 

Therefore, at §441.525, we propose that services related to 

education only are excluded from this section. 

 The Rehabilitation Act of 1973 provides for direct 

services to people with disabilities which help them to 

become qualified for employment. Vocational services are 

those that teach specific skills required by an individual 

to perform tasks associated with performing a job. 

Therefore, at §441.525, we propose the general prohibition 

established by section 1915(k) of the Act excluding 

vocational rehabilitation services provided under the 

Rehabilitation Act of 1973. 

We also propose at §441.525 that Community First 

Choice would not include services furnished through another 

benefit or section under the Act. Per section 

1915(k)(1)(C) of that Act, we propose at §441.525 the 

exclusion of the following services: Assistive technology 

(other than what is described in §441.520(a)(5); Medical 

supplies and equipment; and home modifications. 
CMS-2337-P 27

The statute specifically excludes assistive technology 

devices and assistive technology services (other than backup systems or mechanisms), medical equipment and home 

modifications. However, the statute does not define such 

items and furthermore, the statute provides that the 

excluded services and supports are “subject to subparagraph 

(D)” which defines permissible services and supports to 

include expenditures relating to a need identified in an 

individual’s person-centered plan of services that increase 

independence or substitute for human assistance. In 

general, the terms “assistive technology devices” and 

“assistive technology services” may be broadly interpreted 

to include items and services necessary for an individual 

to make the transition from an institution to a 

community-based setting, or that increase independence or 

substitute for human assistance. In addition, some medical 

equipment and environmental adaptations may make the 

provision of human assistance feasible when it would not 

otherwise be provided. These types of items could be 

covered under sections 1915(k)(1)(D)(i)and(ii) of the Act. 

For example, eating and cooking utensils can be fitted with 

oversized handles for easier gripping. These “assistive 

devices” can enable an individual with limited hand 

function to continue to prepare meals for himself for 
CMS-2337-P 28

herself. Further examples would include items such as 

bedside controls for lights and other appliances to 

increase the ability of mobility impaired individuals to 

control the lighting, temperature or other conditions of 

their home without getting out of bed. Wheelchair lifts 

and stair-climbs can provide an individual with full access 

and mobility throughout a multi-level home. Other selfdirection programs have permitted the inclusion of certain 

items that could be broadly defined as assistive 

technology, medical equipment, and home modifications. To 

ensure that items or services that could be covered under 

sections 1915(k)(1)(D)(i)or(ii) of the Act are not 

excluded, we interpret the provision to prohibit service 

plans from identifying assistive technology or services, 

medical equipment or home modifications as the only needed 

service in an individual’s plan of services or supports. 

Therefore, we are proposing that in Community First Choice 

some items or services that could be classified as 

assistive technology devices or services, medical equipment 

or home modifications may be covered, but only when based 

on a specific need in the person-centered service plan, 

when used in conjunction with other home and communitybased attendant services. We invite comment on this 

proposal. We further propose to allow States to determine 
CMS-2337-P 29

at what point the amount of funds to purchase such devices 

and adaptations places them in the statutorily excluded 

categories. We also invite comments on this proposal. 

E. Setting (§441.530)

Section 1915(k)(1)(A)(ii) of the Act provides that a 

home and community-based setting does not include a nursing 

facility, institution for mental diseases, or an 

intermediate care facility for the mentally retarded. We 

propose at §441.530 to adopt this statutory language in our 

regulations. 

In the June 22, 2009 Federal Register (74 FR 29453), 

we published the Home and Community-Based Services (HCBS) 

Waivers Advance Notice of Proposed Rulemaking (ANPRM) to 

seek public input on strategies to define home and 

community with regard to waivers under section 1915(c) of 

the Act. We recognize the important role that Medicaid 

plays in States’ efforts to ensure compliance with the ADA 

and the Olmstead v. L.C., 527 U.S. 581 (1999) U.S. Supreme 

Court decision. In the Olmstead decision, the Court 

affirmed a State’s obligation to serve individuals in the 

most integrated setting appropriate to their needs. The 

Court held that the unjustified institutional isolation of 

people with disabilities is a form of unlawful 

discrimination under the ADA. We seek to assist States’ 
CMS-2337-P 30

objective to meet these ADA and Olmstead obligations. 

However, a State’s Olmstead obligations under the ADA and 

section 504 of the Rehabilitation Act are not defined by, 

or limited to, the scope or requirements of the Medicaid 

program and nothing in this regulation should be construed 

as limiting a State’s obligation to comply with the 

integration requirements under the ADA or section 504 of 

the Rehabilitation Act. 

Notwithstanding our continuing efforts to gain 

stakeholder input on the nature of HCBS settings, we are 

proposing to clarify that certain settings are clearly 

outside of what would be considered home and communitybased because they are not integrated into the community. 

Section 1915(k)(1)(A)(ii) of the Act provides that services 

must be provided in a home or community setting, which 

excludes nursing facilities, institutions for mental 

diseases, and intermediate care facilities for the mentally 

retarded. However, there may be instances in which 

individuals reside in alternative or subsidiary residential 

settings on the grounds of or located adjacent to such 

institutional facilities, which are not licensed as 

institutions for the purpose of Medicaid reimbursement or 

under State licensing rules. We are proposing to clarify 

that home and community settings may not include a building 
CMS-2337-P 31

that is also a publicly or privately operated facility 

which provide inpatient institutional treatment or 

custodial care; or in a building on the grounds of, or 

immediately adjacent to, a public institution or 

disability-specific housing complex, designed expressly 

around an individual’s diagnosis that is geographically 

segregated from the larger community, as determined by the 

Secretary. To maintain consistency across the Medicaid 

program, we anticipate adopting this same clarification for 

services provided under section 1915(c) of the Act and 

other authorities permitting coverage of home and 

community-based services under Medicaid. 

F. Assessment of Need (§441.535)

 Section 1915(k)(1)(A)(i) of the Act requires that 

States conduct an assessment of individuals’ functional 

need on which to base the person-centered service plan. We 

propose to implement this requirement at §441.535. An 

assessment of an individual's needs, strengths, and 

preferences is crucial because it forms the basis for the 

identification of the needed services and supports that 

will be authorized in the individual's subsequent 

person-centered service plan. The assessment should 

include a determination of whether there are any persons 

available to support the individual, including family 
CMS-2337-P 32

members. These persons may be able to provide unpaid 

personal assistance, or fulfill the more formal roles such 

as acting in the capacity of a paid provider of attendant 

services or as an individual’s representative. We propose 

to require in §441.535 that the assessment include a 

face-to-face meeting with the individual ("individual" 

meaning in this context, if applicable, the individual and 

the individual's authorized representative when 

appropriate). 

For consistency among Medicaid program benefits and in 

keeping with our decisions for implementation of the 

Self-directed Personal Assistance Services State plan 

Option under section 1915(j) of the Act, we do not 

prescribe the assessment tool to be used by States, but we 

expect that the assessment will include a standardized set 

of data elements, key system functionality, and workflow 

that will be sufficiently comprehensive to support the 

determination that an individual would require attendant 

care services and supports under the Community First Choice 

State Option and the development of the individual’s 

subsequent service plan and budget. We propose at 

§441.535(a), as in section 1915(j) of the Act, that the 

assessment include information about an individual's health 

condition, personal goals and preferences for the provision 
CMS-2337-P 33

of services, identified functional limitations, age, school 

participation status, employment, household, and other 

factors that are relevant to the authorization and 

provision of services, and support the finding for need of 

home and community-based attendant services and supports 

and development of the service plan and budget. We are 

currently working to determine universal core elements to 

include in a standard assessment for consistency across 

programs. As these elements are identified, it is expected 

States will incorporate these elements in the assessment of 

need to be used for Community First Choice. We invite 

comments on the elements that should be included in this 

list. 

Finally, in §441.535(c), we propose to require that 

the assessment of need is conducted at least every 

12 months and as needed when the individual’s needs and 

circumstances change significantly, or as requested by an 

individual or their representative, in order to revise the 

service plan. 

G. Service Plan (§441.540)

Section 1915(k)(1)(A)(i) of the Act require a personcentered approach to establishing a service plan, based on 

an assessment of need, developed in collaboration with an 

individual ("individual" meaning in this context, if 
CMS-2337-P 34

applicable, the individual and the individual's authorized 

representative) choosing to receive home and communitybased attendant services and supports under the Community 

First Choice State Option. In §441.540, we propose to 

require that based on the assessment of need specified in 

§441.535, the State must develop (or approve, if the Plan 

is developed by others) a written service plan, in 

collaboration with the individual (including, for purposes 

of this paragraph, the individual and the individual’s 

authorized representative if applicable). The service plan 

must be created using a person-centered and directed 

planning process. 

For clarification and consistency among programs, our 

expectation regarding person-centered services and supports 

is that the plan reflects what is important to the 

individual and important for his or her health and welfare. 

The person-centered approach is a process, directed by the 

individual with long-term support needs, or by another 

person important in the life of the individual who the 

individual has freely chosen to direct this process, 

intended to identify the strengths, capacities, 

preferences, needs, and desired outcomes of the individual. 

The person-centered process includes the opportunity for 
CMS-2337-P 35

the individual to choose others to serve as important 

contributors to the planning process. 

 These participants in the person-centered planning 

process enable and assist the individual to identify and 

access a personalized mix of paid and non-paid services. 

This process and the resulting service plan will assist the 

individual in achieving personally defined outcomes in the 

most integrated community setting in a manner that reflects 

what is both important for the individual to meet 

identified support needs and what is important to the 

individual to ensure delivery of services in a manner that 

reflects personal preferences and choices and assures 

health and welfare. The individual identifies planning 

goals to achieve these personal outcomes in collaboration 

with those that the individual has identified. The 

identified personally-defined outcomes, preferred methods 

for achieving them and the training supports, therapies, 

treatments, and other services the individual needs to 

achieve those outcomes become part of the written services 

and support plan, also known as plan of care. 

Based on our experience with States’ self-direction 

waivers and demonstrations, we are aware that States have 

historically implemented the person-centered planning 

process differently. Based on the above clarification of 
CMS-2337-P 36

person-centered planning and to promote consistency among 

programs, we propose to require, at §441.540(a), a personcentered planning process. We propose that the personcentered planning process would: 

● Include people chosen by the individual; 

● Provide necessary support to ensure that the 

individual has a meaningful role in directing the process; 

● Occur at times and locations of convenience to the 

individual; 

● Reflect cultural considerations of the individual; 

● Include strategies for solving conflict or 

disagreement within the process, including clear guidelines 

for the management of conflict of interest concerns among 

planning participants; 

● Include opportunities for periodic and ongoing plan 

updates as needed or requested by the individual; and 

● Offer choices to the individual regarding the 

services and supports they receive and from whom. 

 We propose at §441.540(b) that the plan resulting from 

this process must reflect the services that are important 

for the individual to meet individual services and support 

needs as assessed through a person-centered functional 

assessment, as well as what is important to the person with 

regard to preferences for the delivery of such supports. 
CMS-2337-P 37

Commensurate with the level of need of the individual, the 

plan must reflect the individual’s strengths and 

preferences, as well as clinical and support needs (for 

example, as identified through a person-centered functional 

assessment). The plan should include individually 

identified goals, which may include goals and preferences 

related to relationships, community participation, 

employment, income and savings, health care and wellness, 

education, and others. 

 The plan should reflect the services and supports 

(paid and unpaid) that will assist the individual to 

achieve identified goals and who provides them. The plan 

should reflect risk factors and measures in place to 

minimize them including back-up strategies when needed. 

The plan should be signed by all individuals and providers 

responsible for its implementation, should be 

understandable to the individual receiving services and the 

individuals important in supporting him or her, and should 

include a timeline for review. The plan should identify 

the individual or entity responsible for monitoring the 

plan and should be distributed to everyone involved 

(including the participant) in the plan. The plan should 

also be directly integrated into self-direction where 

individual budgets are used and should prevent the 
CMS-2337-P 38

provision of unnecessary or inappropriate care. We invite 

comment on the person-centered process and planning 

elements of this proposed rule.

We would also propose at §441.540(c) a minimum list of 

policies and procedures associated with service plan 

development that must be completed and included by the 

State. We believe these are necessary to ensure the proper 

administration and development of the service plan. 

Policies and procedures should ensure that the 

responsibilities for assessment of need and service plan 

development are identified, the planning process is timely, 

the participant’s needs are assessed and services meet the 

needs. When determining the timeframe in which the 

planning process should occur, we expect States to 

establish guidelines that support a timeframe that responds 

to the needs of the individual, thus allowing access to 

needed services as quickly as possible. Additionally, the 

State must ensure the conflict of interest standards for 

assessment of need and service plan development apply to 

all individuals and entities, public or private. These 

standards at a minimum must ensure that the individuals and 

entities conducting the assessment of need and developing 

the service plan are not related by blood or marriage to 

the individual or to any paid caregiver of the individual, 
CMS-2337-P 39

financially responsible for the individual, empowered to 

make financial or health-related decisions on behalf of the 

individual, and would not benefit financially from the 

provision of assessed needs and services. 

Section 1915(k)(1)(A)(i) of the Act requires that the 

service plan be agreed to in writing by the individual or, 

as appropriate, the individual’s representative. We 

propose at §441.540(d) to require that the service plan 

must be finalized and agreed to in writing by the 

individual or, as appropriate, the individual’s 

representative and that a copy of the plan must be provided 

to the individual.

Finally, in §441.540(e), we propose to require that 

the service plan be reviewed and revised upon reassessment 

of need at least every 12 months, when the individual’s 

circumstances or needs change significantly and at the 

individual’s request. 

H. Service Models (§441.545)

Section 1915(k)(1)(A)(iii) of the Act requires that 

the Community First Choice Option be provided under an 

agency-provider model or other model. Section 

1915(k)(6)(C)(ii) of the Act defines other models to mean 

methods, other than the agency-provider model, for the 

provision of consumer controlled services and supports. 
CMS-2337-P 40

The statute provides that such models may include vouchers, 

direct cash payments, or use of a fiscal agent to assist in 

obtaining services. 

We propose at §441.545 that a State may choose one or 

more of the service delivery models defined in the statute. 

In §441.545(a) and (b), we have categorized these models 

into two main groups, the Agency Model and the Selfdirected Model with Service Budget. We have elected the 

use of the term self-directed rather than consumer 

controlled to be consistent with terminology in other 

regulatory provisions that offer this type of service 

delivery model including sections 1915(i) and 1915(j) of 

the Act. In §441.545(a), we propose to reflect the 

statutory definition of the agency model as a service 

delivery method in which services and supports are provided 

by entities through a contract. 

Based on our experience with self-directed programs, 

we are aware that States may choose to allow individuals to 

self-direct services under a traditional agency model or an 

“agency with choice” model, which utilizes a co-employment 

relationship between the individual and an agency. Under 

the traditional agency model, the individual retains hiring 

and firing authority of personal care attendants. The 

“agency with choice” utilizes a co-employment relationship 
CMS-2337-P 41

between the individual and the agency. We interpret the 

definition of “agency-provider model” in section 

1915(k)(6)(C)(i) of the Act to include such delivery 

options as allowable under Community First Choice as the 

agency model. 

In §441.545 (b)(1),(b)(2) and (b)(3), we propose to 

further define the categories within the Self-directed 

Model with Service Budget to include the models specified 

in the statute including financial management entity, 

direct cash, and vouchers. We have elected to use the term 

financial management entity rather than fiscal agent to be 

consistent with other regulatory provisions that offer this 

type of service delivery model. 

In §441.545(b)(1), we propose to require that the 

financial management entity perform specific functions that 

include, but are not limited to, the following: collect 

and process timesheets of the individual’s workers; process 

payroll, withholding, filing and payment of applicable 

Federal, State and local employment related taxes and 

insurance; maintain a separate account for each 

individual’s budget; track and report disbursements and 

balances of individual’s funds; process and pay invoices 

for services in the service plan; and provide to the 

individual periodic reports of expenditures and the status 
CMS-2337-P 42

of the approved service budget. We propose to adopt these 

functions to be consistent with section 1915(j) of the Act 

in which a self-directed service delivery model is also 

defined. We propose in §441.545(b)(1)(vii) that States may 

perform the functions of a financial management entity 

internally or use a vendor organization that has the 

capabilities to perform the required task in accordance 

with the applicable IRS requirements. Again, we propose 

this provision to be consistent with flexibility offered in 

section 1915(j) of the Act. 

We propose in §441.545(b)(2) that the State have the 

option of disbursing cash prospectively to individuals 

self-directing their Community First Choice Option. This 

Direct Cash option is specified in section 

1915(k)(6)(C)(ii) of the Act. To be consistent with the 

option under section 1915(j) of the Act, which also allows 

for the direct payment of cash, we further propose that if 

a State elects this option, it must meet the following 

requirements: ensure compliance with all applicable 

requirements of the Internal Revenue Service, including but 

not limited to, retaining required forms and payment of 

FICA, FUTA and State unemployment taxes; permit 

individuals, or their representatives as applicable, using 

the cash option to choose to use the financial management 
CMS-2337-P 43

entity for some or all of the functions; make available a 

financial management entity to an individual who has 

demonstrated, after additional counseling, information, 

training, or assistance that the individual cannot 

effectively manage the cash option described in this 

section. If the cash option is the only model offered by 

the State for Community First Choice, then the State may 

require an individual to utilize the financial management 

entity services under the cash option, but must provide the 

conditions under which this would be enforced after 

additional counseling, information, training or assistance 

are unsuccessful. 

In §441.545(b)(3), we propose that the State also have 

the option of issuing vouchers as a self-directed service 

delivery model. We propose that if the State elects this 

option that it must ensure compliance with all applicable 

requirements of the Internal Revenue Service. 

I. Additional Service Plan Requirements for Self-directed 

Model with Service Budget (§441.550)

Section 1915(k)(1)(A)(i) of the Act requires that the 

Community First Choice Option be provided through a personcentered plan of services and supports that is based on an 

assessment of functional need. While the general 

requirements of the service plan are proposed in §441.550, 
CMS-2337-P 44

to clarify our expectations for a service plan when the 

State elects the option of a Self-Directed Service Model 

with Service Budget and to be consistent with the selfdirected service delivery model under section 1915(j) of 

the Act, we propose that the service plan convey authority 

to the individual to perform, at a minimum, specific tasks. 

In §441.550, we propose these tasks include the ability to 

recruit, hire (including specifying worker qualifications), 

fire, supervise, and manage workers in the provision of 

Community First Choice Option services and supports. We 

propose that the expectations for managing workers include 

determining worker duties, scheduling workers, training 

workers in assigned tasks, and evaluating workers’ 

performance. In addition, we propose that the service plan 

describe the ability of the individual to determine the 

amount paid for a service, support, or item, as well as the 

ability to review and approve provider invoices. It is the 

approval of the service plan that authorizes the individual 

to undertake these activities as part of the self-directed 

service delivery model. The service plan must encompass 

both the general decision-making authority that an 

individual has and outline the individualized services and 

supports to address the individual’s needs, abilities, 

preferences and choices. In our experience with self-
CMS-2337-P 45

directed programs these components of the service plan have 

been critical elements in the implementation of successful 

programs. Therefore, we propose to adopt the same elements 

in this provision of self-directed services. 

J. Support System (§441.555)

Based on our experience with self-direction programs, 

we are aware that the support system provided by the State 

is a critical element of the service delivery model. 

Therefore, to maintain consistency and to reflect our 

policy relating to self-direction, in §441.555 we propose 

the requirement that the State have in place a support 

system. While we do not prescribe the way States are to 

design their support system, in order to allow flexibility, 

based on our experience, we include in the proposed 

regulation a minimum list of activities for which 

individuals may need information, counseling, training, or 

assistance, but States may offer additional activities. 

Generally, the activities requiring support include 

participant rights information and how the self-directed 

model of service delivery operates. 

K. Service Budget Requirements (§441.560)

While section 1915(k) of the Act does not specifically 

address the requirement for an individual to have authority 

over a budget, in §441.560 we have proposed specific 
CMS-2337-P 46

service budget requirements based on experience with the 

section 1915(j) self-directed service delivery model which 

utilizes the options of financial management entities and 

direct cash payments. The requirements of section 1915(j) 

of the Act were supported by the experience of section 1115 

demonstrations and proven to be successful models for 

implementation of a self-directed service model with a 

service budget. The service budget amount is the cap on 

the amount of funds available to an individual with which 

to purchase self-directed Community First Choice Option 

services and supports. Therefore, in §441.560(a), we 

require that a service budget be developed and approved by 

the State and include specific items such as the specific 

dollar amount, how the individual is informed of the 

amount, and the procedures for how the individual may 

adjust the budget. 

In §441.560(b), we propose that the budget methodology 

set forth by the State meet certain criteria such as being 

objective and evidence based, be applied consistently to 

individuals in the program, and be included in the State 

plan. In addition, we propose the budget methodology 

include calculations of the expected costs of Community 

First Choice Option services and supports if those services 

and supports were not self-directed. We recognize in 
CMS-2337-P 47

§441.560(b)(5) that States may place monetary or budgetary 

limits on self-directed Community First Choice Option 

services. Therefore, if a State does so, we would require 

that the State have a process in place that describes the 

limits and the basis for the limits, and any adjustments 

that will be allowed and the basis for the adjustments, 

such as an individual’s health and welfare. 

Additionally, we propose to require certain 

beneficiary safeguards in light of these possible 

limitations. First, we propose that States have procedures 

to adjust a budget when a reassessment indicates a change 

in a participant’s medical condition, functional status, or 

living situation to ensure that the budget amount is 

appropriate to the individual’s current needs. Second, we 

propose that States have a method of notifying participants 

of the amount of any limit that applies to an individual’s 

Community First Choice Option services and supports. 

Finally, we propose that the budget not restrict access to 

other medically necessary care and services furnished under 

the State plan and approved by the State but not included 

in the budget. Based on our experience in other 

self-directed programs like those specified in section 

1915(j) of the Act, these components of the budget and the 
CMS-2337-P 48

budget methodology are critical elements of a successful 

program. We invite comments on this approach. 

L. Provider Qualifications (§441.565)

Section 1915(k)(1)(A)(iv)(III) of the Act requires 

that Community First Choice State Option services and 

supports be provided by individuals, including family 

members, who are qualified to provide such services. We 

reflect these requirements in the proposed regulation at 

§441.565. We propose in §441.565(a) to require that States 

provide assurance that necessary safeguards have been taken 

to protect the health and welfare of the enrollees in the 

Community First Choice State Option by provision of 

adequate standards for all types of providers of attendant 

services and supports under the option. States must define 

qualifications for providers of attendant services and 

supports under the agency model. 

 Self-direction is an integral component of the 

Community First Choice State Option. This is reflected in 

§441.565(b) through (d). To ensure that individuals 

maintain the ability to participate in and control the 

provision of Community First Choice Option attendant 

services and supports, we propose in §441.565(b) that 

individuals can choose any qualified provider, including 

family members, to provide such services. In §441.565(c), 
CMS-2337-P 49

we propose that individuals retain the right to train their 

workers in the specific areas of attendant services and 

supports needed by the individual and to perform the needed 

assistance in a manner that comports with participants’ 

personal preferences, as well as their needs, which we 

believe is an important component of self-direction based 

on our experience with the self-direction waiver and 

demonstration programs. In this way, workers benefit from 

clear instructions about how to effectively and 

appropriately deliver the attendant services, and any 

potential dissatisfaction with the way services are being 

delivered can be averted. We further propose, at 

§441.565(d), that individuals retain the right to establish 

additional staff qualifications based on their needs and 

preferences. Again, we believe that the individual is in 

the best position to set forth the particular staff 

qualifications needed to meet the particular preferences of 

the individual. For example, if the individual 

communicates best using American Sign Language (ASL), the 

individual may require the worker to be able to communicate 

using ASL. 

M. State Assurances (§441.570)

Section 1915(k)(3)(C) of the Act requires that, for 

the first full fiscal year in which the State plan 
CMS-2337-P 50

amendment is implemented, the State must maintain or exceed 

the level of expenditures for services provided under 

sections 1905(a), section 1915, or section 1115 of the Act, 

or otherwise, to individuals with disabilities or elderly 

individuals attributable to the preceding fiscal year. We 

interpret this requirement to mean that, for the first 12 

months the State chooses to offer this option in the State 

plan, the State’s share of Medicaid expenditures for 

individuals with disabilities or elderly individuals must 

remain at the same level or be greater than expenditures 

from the previous year. We also interpret this requirement 

to be limited to personal care attendant services. We 

propose to implement this requirement at §441.570. States 

will need to identify the existing programs for individuals 

with disabilities and elderly individuals and the related 

expenditures to be monitored for this requirement and 

calculation. We will provide future guidance on the format 

of this reporting requirement. 

Section 1915(k)(4) of the Act requires States that 

elect this option to comply with certain laws in the 

provision of the Community First Choice Option regardless 

of which service delivery model the State elects. 

Specifically, the statute requires that services and 

supports are provided in accordance with the Fair Labor 
CMS-2337-P 51

Standards Act of 1938 and applicable Federal and State laws 

regarding withholding and payment of Federal and State 

income and payroll taxes; provision of unemployment and 

workers compensations insurance; maintenance of general 

liability insurance; and occupational health and safety. 

We propose to include these assurances as specified in the 

statute at §441.570(b). 

N. Development and Implementation Council (§441.575)

Under this State plan option, the statute requires a 

State to consult and collaborate with a Development and 

Implementation Council during the development and 

implementation of a State plan amendment under this 

subsection. Section 1915(k)(3)(A) of the Act requires that 

the council include a majority of members with 

disabilities, elderly individuals, and their 

representatives. We recognize that stakeholder input is an 

important piece of the Medicaid program and agree that this 

council will provide additional opportunities for 

stakeholder collaboration. We propose to set forth this 

requirement as defined by the statute at §441.575. We 

invite comment on how States can achieve robust stakeholder 

input including transparency in the selection process and 

the activities of the council. 

O. Data Collection (§441.580)
CMS-2337-P 52

Section 1915(k)(5)(B) of the Act requires that States 

provide CMS with information regarding the provision of 

home and community-based attendant services and supports 

under The Community First Choice Option for each fiscal 

year for which such services and supports are provided. 

The statute requires States to provide data including the 

number of individuals who are estimated to receive 

Community First Choice Option services and supports during 

the fiscal year, the number of individuals that have 

received such services and supports during the preceding 

fiscal year, the specific number of individuals served by 

type of disability, age, gender, education level and 

employment status, and whether the specific individuals 

have been previously served under any other home and 

community-based services program under the State plan or 

under a waiver. We propose to adopt these requirements as 

detailed in the statute at §441.580. We will provide 

future guidance on the format of this reporting 

requirement. Section 1915(k)(3)(E) of the Act requires 

States to collect and report information for the purposes 

of approving the State plan amendment, providing Federal 

oversight and conducting an evaluation of the provision of 

the Community First Choice State Option. The data 

collected through this requirement and the quality 
CMS-2337-P 53

assurance system will help determine how States are 

currently providing home and community-based services, the 

cost of those services, and whether States are currently 

offering individuals with disabilities who otherwise 

qualify for institutional care under Medicaid the choice to 

instead receive home and community-based services, as 

required by the U.S. Supreme Court in Olmstead v. L.C.

(1999). We will provide future guidance on the format of 

this reporting requirement. 

P. Quality Assurance System (§441.585)

We propose in §441.585 the requirements for the 

comprehensive continuous quality assurance system that the 

State must establish and maintain as set forth in section 

1915(k)(3)(D) of the Act. The system must employ measures 

for program performance and quality of care, standards for 

delivery models, mechanisms for discovery and remediation, 

and quality improvements proportionate to the benefit and 

number of individuals served. The system must also include 

a quality improvement strategy that reflects the nature and 

scope of the benefit the State will provide. The statute 

also requires stakeholder input and feedback to be 

incorporated in the quality assurance system and for 

information regarding quality assurance to be provided to 

each individual receiving Community First Choice State 
CMS-2337-P 54

Option services. We propose to adopt these requirements in 

§441.585(a)(4) and §441.585(b). We will review the State’s 

description of the quality assurance system and improvement 

plan when we review the State’s Medicaid plan amendment 

electing the Community First Choice State Option. 

In §441.585(a)(1), we propose to require States to 

have program performance measures, appropriate to the scope 

of the benefit, designed to assess the State’s overall 

system for providing home and community-based attendant 

services and supports. 

In §441.585(a)(2), we propose to require States to 

have quality of care measures that may be used to measure 

individual outcomes associated with the receipt of 

community-based attendant services and supports, such as 

function indicators and measures of individual 

satisfaction. These measures must be made available to CMS 

upon request and must include a process for the mandatory 

reporting, investigation, and resolution of allegations of 

neglect, abuse, or exploitation in connections with 

provision of Community First Choice services as well as 

quality indicators approved or prescribed by the Secretary. 

In §441.585(a)(3), we propose to require States to 

have standards for agency-based and other delivery models 
CMS-2337-P 55

for training, appeals for denials and reconsideration 

procedures on an individual service plan. 

Q. Increased Federal Financial Participation (§441.590)

Unlike similar programs such as those specified under 

sections 1915(c) and 1915(j) of the Act, section 1915(k) of 

the Act does not allow States to choose only specific 

categories or types of home and community-based attendant 

services and supports to be included in the overall service 

benefit. Recognizing the section 1915(k) option is a more 

robust service package, section 1915(k)(2) of the Act 

requires States to receive an increased FMAP of 6 percent 

for the provision of services under the Community First 

Choice Option effective October 1, 2011, or later under an 

approved State plan amendment. We propose to implement 

this requirement at §441.590. 

III. Collection of Information Requirements 

 Under the Paperwork Reduction Act of 1995, we are 

required to provide 60-day notice in the Federal Register

and solicit public comment before a collection of 

information requirement is submitted to the Office of 

Management and Budget (OMB) for review and approval. In 

order to fairly evaluate whether an information collection 

should be approved by OMB, section 3506(c)(2)(A) of the 
CMS-2337-P 56

Paperwork Reduction Act of 1995 requires that we solicit 

comment on the following issues: 

● The need for the information collection and its 

usefulness in carrying out the proper functions of our 

agency. 

● The accuracy of our estimate of the information 

collection burden. 

● The quality, utility, and clarity of the 

information to be collected. 

● Recommendations to minimize the information 

collection burden on the affected public, including 

automated collection techniques. 

We are soliciting public comment on each of these 

issues for the following sections of this document that 

contain information collection requirements (ICRs): 

A. ICRs Regarding Assessment of Need (§441.535)

 Proposed §441.535 would require States to conduct 

face-to-face assessments of the individual’s needs, 

strengths and preferences. Specifically, the face-to-face 

assessments may use one or more processes and techniques to 

obtain information about an individual, including but not 

limited to the information listed in proposed 

§441.535(a)(1) through (8). In addition to the initial 

face-to-face assessment, proposed §441.535 would require 
CMS-2337-P 57

States to conduct face-to-face assessments at least every 

12 months as needed. The burden associated with this 

requirement would be the time required for a State to 

conduct a face-to-face assessment. We estimate that all 

States that elect this option will comply with this 

requirement. We further estimate that it will take each 

State 1 hour to perform a face-to-face assessment; however, 

we know that the number of assessments will vary according 

to the number of participants in each State under this 

State plan option. Because we cannot accurately quantify 

the number of assessments per State, we are soliciting 

public comment pertaining to the per State volume and will 

reevaluate this issue and the associated burden estimate in 

the final rule stage of rulemaking. 

B. ICRs Regarding Service Plan (§441.540)

As stated in proposed §441.540(a), the State must 

develop a person-centered planning process resulting in a 

service plan, based on the assessment of need, in 

collaboration with the individual and the individual’s 

authorized representative, if applicable. Proposed 

§441.540(b) lists the minimum components of a personcentered service plan, while proposed §441.540(c) lists the 

requirements of a service plan. Proposed §441.540(d) would 

require that a service plan must be agreed to in writing by 
CMS-2337-P 58

the individual or the individual’s representative, if 

applicable. In addition, States must provide a copy of the 

plan to the individual. 

The burden associated with the aforementioned 

requirements is the time and effort necessary for a State 

to both develop and finalize a written service plan for 

each individual. We estimate that it will take each State 

an average of 2 hours to develop and finalize a service 

plan. Because we cannot accurately quantify the number of 

service plans per State, we are soliciting public comment 

pertaining to the per State volume and will reevaluate this 

issue and the associated burden estimate in the final rule 

stage of rulemaking. 

In addition to the burden associated with developing 

and finalizing service plans, proposed §441.540 also 

imposes a disclosure requirement. As part of the 

finalization process, States are required to give each 

individual a copy of the service plan. We estimate that it 

will take each State 30 minutes to produce and disseminate 

a copy of a finalized report to an individual. The total 

estimated burden associated with this disclosure 

requirement will vary according to the number of 

participants in each State under this State plan option. 

Because we cannot accurately quantify the number of plan 
CMS-2337-P 59

copies each State will need to distribute to the 

individuals in the State plan option, we are soliciting 

public comment pertaining to the number of plan copies 

distributed per State and will reevaluate this issue and 

the associated burden estimate in the final rule stage of 

rulemaking. 

Proposed §441.540(e) would require States to review 

each service plan at least every 12 months. We estimate 

that it will take each State 1 hour to annually review and 

revise (upon reassessment of need or at the individual’s 

request) a single written service plan. The total 

estimated burden associated with this requirement will vary 

according to the number of participants in each State under 

this State plan option. Because we cannot accurately 

quantify the number of plans each State will need to review 

annually, we are soliciting public comment pertaining to 

the number of plans each State must review annually and 

will reevaluate this issue and the associated burden 

estimate in the final rule stage of rulemaking. 

C. ICRs Regarding Service Models (§441.545)

 Proposed §441.545 would require State to choose one or 

more service delivery models by which to provide selfdirected home and community-based attendant services and 

supports. Specifically, a State may choose one or more of 
CMS-2337-P 60

the models discussed in proposed §441.545(a) through (b). 

While we acknowledge that the service models discussed in 

proposed §441.545(a) through (b) contain information 

collection requirements, it is difficult for us to 

accurately quantify both the number of States that will 

avail themselves of these models and the time associated 

with the information collection requirements contained 

therein. As a result, because we are unable to estimate 

both the total number of participating States and the 

burden associated with these requirements, we are 

soliciting public comment pertaining to this burden and 

will reevaluate this issue in the final rule stage of 

rulemaking. 

D. ICRs Regarding Support System (§441.555)

 As stated in proposed §441.555, for the self-directed 

model with a service budget, States must provide or arrange 

for the provision of a support system. Proposed 

§441.555(a) would require a support system to appropriately 

assess and counsel an individual or the individual’s 

representative, if applicable, before enrollment. Proposed 

§441.555(b) would require that the support system to 

provide appropriate information, counseling, training and 

assistance to ensure that an individual is able to manage 

the services and budgets. In addition, proposed 
CMS-2337-P 61

§441.555(b) would require that the information be 

communicated to the individual in a manner and language 

understandable by the individual. 

The burden associated with proposed §441.555 would be 

the time and effort necessary for the State or the provider 

of the support system to meet the aforementioned disclosure 

requirements. We estimate that it will take each State 2 

hours to provide or arrange for the provision of a support 

system that meets the necessary requirements. However, we 

cannot estimate the frequency with which a State will 

provide or arrange for the provision of support systems, as 

it will vary by State depending on the number of 

participants that are assessed to need this service. 

Because we cannot accurately quantify the frequency with 

which a State will provide or arrange for the provision of 

support systems, we are soliciting public comments on this 

issue and will reevaluate the associated burden estimate in 

the final rule stage of rulemaking. 

E. ICRs Regarding Service Budget Requirements (§441.560)

 Proposed §441.560(a) would require, for the selfdirected model with a service budget, that a service budget 

be developed and approved by the State based on the 

assessment of need and service plan. The budget must 

include all of the information listed in §441.560(a) 
CMS-2337-P 62

through (b). The burden associated with this requirement 

is the time and effort put forth by the State to develop a 

service budget. We estimate that it will take each State 3 

hours to develop a service budget; however, the total 

number of budgets each State must prepare will depend on 

the number of individual’s utilizing the self-directed 

model in each State. Because we are unable to estimate the 

total number of service budgets each State would be 

required to develop, we are soliciting public comments 

pertaining to this issue and will reevaluate the burden 

estimate in the final rule stage of rulemaking. 

Proposed §441.560(c) would require States to have 

procedures in place that will provide safeguards to 

individuals when the budgeted services amount is 

insufficient to meet the individual’s needs. The burden 

associated with this requirement is the time and effort it 

would take for a State to develop and maintain its 

procedures. We estimate that will take each State 16 hours 

to develop these procedures. Similarly, we estimate that 

all States that elect this State plan option will comply 

with this requirement. We believe this requirement imposes 

a one-time burden; therefore, we have not assigned any 

future burden to this requirement. We cannot estimate the 

total annual burden associated with this requirement 
CMS-2337-P 63

because it will vary by State. Because we cannot quantify 

the aforementioned burden, we are soliciting public 

comments pertaining to this issue and will reevaluate the 

burden estimate in the final rule stage of rulemaking.

Proposed §441.560(d) would require a State to have a 

method of notifying individuals of the amount of any limit 

that applies to an individual’s Community First Choice 

Option services and supports. The burden associated with 

this requirement is the time and effort it would take for 

each State to develop and distribute a notice to each 

individual. We estimate that all States that elect this 

option must comply with this notification requirement. We 

further estimate it would take each State 15 minutes to 

develop and distribute a single notice. The total number 

of notices each State must distribute will vary depending 

on the number of individual’s utilizing the self-directed 

model in each State. Therefore, we are unable to estimate 

the burden associated with this requirement. We are 

soliciting public comments pertaining to this issue and 

will reevaluate the burden estimate in the final rule stage 

of rulemaking.

F. ICRs Regarding Provider Qualifications (§441.565)

 Proposed §441.565 would require States to provide 

assurances that necessary safeguards have been taken to 
CMS-2337-P 64

protect the health and welfare of enrollees in the 

Community First Choice State Option. In addition, the 

States must define in writing the adequate qualifications 

for providers in the agency model of Community First Choice 

services and supports. The burden associated with the 

aforementioned requirements is the time and effort 

necessary to develop system safeguards that include written 

adequacy qualifications for providers. We estimate that it 

will take each State 16 hours to comply with this 

requirement; however, the total estimated annual burden 

associated with these requirements will vary by State. We 

are unable to estimate the total number of written 

assurances that will be required; therefore, we are seeking 

public comment pertaining to this issue and will reevaluate 

the burden estimate in the final rule stage of rulemaking. 

G. ICRs Regarding Data Collection (§441.580)

 Proposed §441.580 would require a State to provide 

information regarding the provision of home and communitybased attendant services and supports under the Community 

First Choice Option for each fiscal year for which such 

services are provided. Specifically, States must submit 

the information contained in proposed §441.580(a) through 

(f). We estimate that it will take each State 24 hours to 

submit the required information. We also estimate that all 
CMS-2337-P 65

States that elect this State plan option must comply with 

this requirement. The total estimated annual burden 

associated with this requirement is 24 hours at a cost of 

$576 per State for the initial year.

H. ICRs Regarding Quality Assurance System (§441.585)

 Proposed §441.585 would require each State to 

establish and maintain a comprehensive, continuous quality 

assurance system, detailed in the State plan amendment, 

that includes a quality improvement strategy and employs 

measures for program performance and quality of care, 

standards for delivery models, mechanisms for discovery and 

remediation, and quality improvements proportionate to the 

benefit and number of individuals served. Specifically, 

the quality assurance system must include but not be 

limited to the components listed in proposed §441.585(a) 

through (c). The burden associated with this requirement 

is the time and effort necessary for a State to develop and 

maintain a quality assurance system. We estimate that it 

will take 100 hours for each State to comply with the 

initial requirement to develop a quality assurance system. 

The total estimated annual burden associated with 

developing a quality assurance system is 100 hours per 

State, at a cost of $2,400. Similarly, we estimate that 

each State will incur an annual burden of 16 hours to 
CMS-2337-P 66

review and maintain its quality assurance system. The 

total estimated annual burden associated with reviewing a 

quality assurance system is 16 hours at a cost of $384 for 

each participating State. 

If you comment on these information collection and 

recordkeeping requirements, please do either of the 

following: 

 1. Submit your comments electronically as specified 

in the ADDRESSES section of this proposed rule; or 

 2. Submit your comments to the Office of Information 

and Regulatory Affairs, Office of Management and Budget, 

 Attention: CMS Desk Officer, [CMS-2337-P] 

 Fax: (202) 395-6974; or 

 Email: OIRA_submission@omb.eop.gov 

IV. Response to Comments 

Because of the large number of public comments we 

normally receive on Federal Register documents, we are not 

able to acknowledge or respond to them individually. We 

will consider all comments we receive by the date and time 

specified in the "DATES" section of this preamble, and, 

when we proceed with a subsequent document, we will respond 

to the comments in the preamble to that document. 

V. Regulatory Impact Analysis 

A. Statement of Need
CMS-2337-P 67

 This proposed rule implements section 2401 of the 

Affordable Care Act of 2010, as amended by the Health Care 

and Education Reconciliation Act of 2010. The Secretary is 

to establish a new State plan option to provide home and 

community-based attendant services and supports at a 

6 percentage point increase in Federal matching payments 

for expenditures related to the provision of services under 

this option. Section 2401 of the Affordable Care Act, 

entitled “Community First Choice Option,” adds a new 

section 1915(k) of the Act that allows States, at their 

option, to provide home and community-based attendant 

services and supports under their State plan beginning 

October 1, 2011. 

B. Overall Impact 

We have examined the impacts of this rule as required 

by Executive Order 12866 on Regulatory Planning and Review 

(September 30, 1993), Executive Order 13563 on Improving 

Regulation and Regulatory Review (February 2, 2011), the 

Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. 

L. 96-354), section 1102(b) of the Social Security Act, 

section 202 of the Unfunded Mandates Reform Act of 1995 

(Pub. L. 104-4), Executive Order 13132 on Federalism 

(August 4, 1999), and the Congressional Review Act (5 

U.S.C. 804(2)). 
CMS-2337-P 68

Executive Order 12866 directs agencies to assess all 

costs and benefits of available regulatory alternatives 

and, if regulation is necessary, to select regulatory 

approaches that maximize net benefits (including potential 

economic, environmental, public health and safety effects, 

distributive impacts, and equity). A regulatory impact 

analysis (RIA) must be prepared for major rules with 

economically significant effects ($100 million or more in 

any 1 year). The proposed rule is estimated to have an 

economic impact of approximately $1,585,000,000 in the 

fiscal year beginning on October 1, 2011. Therefore, we 

estimate that this rulemaking is economically significant 

as measured by the $100 million threshold, and hence also a 

major rule under the Congressional Review Act. 

Accordingly, we have prepared an RIA below that to the best 

of our ability presents the costs and benefits of the 

rulemaking. 

The RFA requires agencies to analyze options for 

regulatory relief of small entities if a rule has a 

significant impact on a substantial number of small 

entities. For purposes of the RFA, small entities include 

small businesses, nonprofit organizations, and small 

governmental jurisdictions. Most hospitals and most other 

health care providers and suppliers are small entities, 
CMS-2337-P 69

either by being nonprofit organizations or by meeting the 

SBA definition of a small business and having revenues of 

less than $7 million to $34.5 million in any 1 year. (For 

details, see the Small Business Administration's Table of 

Size Standards at 

http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=2465b064ba6965cc1fbd2eae60854b11&rgn=div8&vi

ew=text&node=13:1.0.1.1.16.1.266.9&idno=13.) Individuals 

and States are not included in the definition of a small 

entity. We are not preparing an analysis for the RFA 

because we have determined, and the Secretary certifies, 

that this proposed rule would not have a significant impact 

on a substantial number of small entities. 

In addition, section 1102(b) of the Act requires us to 

prepare a regulatory impact analysis if a rule may have a 

significant impact on the operations of a substantial 

number of small rural hospitals. This analysis must 

conform to the provisions of section 603 of the RFA. For 

purposes of section 1102(b) of the Act, we define a small 

rural hospital as a hospital that is located outside of a 

metropolitan statistical area and has fewer than 100 beds. 

We are not preparing an analysis for section 1102(b) of the 

Act because the Secretary has determined that this proposed 
CMS-2337-P 70

rule will not have a significant impact on the operations 

of a substantial number of small rural hospitals. 

Section 202 of the Unfunded Mandates Reform Act of 

1995 (UMRA) also requires that agencies assess anticipated 

costs and benefits before issuing any rule whose mandates 

require spending in any 1 year of $100 million in 1995 

dollars, updated annually for inflation. In 2011, that 

threshold is approximately $136 million. Because this rule 

does not mandate State participation in section 1915(k) of 

the Act, there is no obligation for the State to make any 

change to their Medicaid program. As a result, there is no 

mandate for the State. Therefore, we estimate this rule 

will not mandate expenditures in the threshold amount of 

$136 million in any 1 year. 

Executive Order 13132 establishes certain requirements 

that an agency must meet when it promulgates a proposed 

rule (and subsequent final rule) that imposes substantial 

direct requirement costs on State and local governments, 

preempts State law, or otherwise has Federalism 

implications. As stated above, this proposed rule would 

not have a substantial effect on State and local 

governments. 

C. Anticipated Effects

1. Overview 
CMS-2337-P 71

This proposed rule provides States with additional 

flexibility to finance home and community based services by 

establishing a new Community First Choice Option at an 

increased Federal financial participation for attendant 

services and supports. Because of this enhanced 

flexibility, and the fact that a majority of States may 

already provide attendant services and supports through 

optional medical assistance services in its Medicaid State 

plan, HCBS waiver programs or both, we anticipate that each 

State will likely compare and decide which vehicle provides 

greater benefits and stability to their overall Medicaid 

program. As such, at this time it is very difficult to 

accurately predict how many States will choose to adopt the 

Community First Choice (CFC) Option, and how a State’s 

election to exercise this option will influence other parts 

of its Medicaid program. However, for purposes of this 

RIA, we assume a gradual growth in the number of States 

adopting this option, so that, by FY 2015, 25 percent of 

eligible persons who would want this coverage would reside 

in States that offer it. 

2. Effects on Medicaid Recipients

We anticipate that a large number of Medicaid 

recipients will be affected. We believe the optional 

expansion of settings where attendant care services and 
CMS-2337-P 72

supports may be furnished at the increased Federal Medical 

Assistance Percentage (FMAP) will likely have significant 

positive effects on Medicaid recipients, particularly on 

their demand for these services. We anticipate that the 

provisions of the proposed rule will likely increase State 

and local accessibility to services that augment the 

quality of life for individuals through a person-centered 

plan of service and various quality assurances, all at a 

potentially lower per capita cost relative to alternative 

care-settings. 

3. Effects on other Providers 

 We anticipate that this proposed rule will increase 

the demand for attendant care services and supports. We 

believe this effect will be beneficial to providers, 

particularly providers of attendant care services and 

supports. Additionally, if the increase in demand for such 

services is sufficient, the number of providers of such 

services may increase. 

4. Effects on the Medicaid Program Expenditures 

 Table 1 provides estimates of the anticipated Medicaid 

program expenditures associated with furnishing attendant 

care services and supports. The estimates were made using 

various assumptions about increases in service utilization 

and costs, as well as assumptions about the induced 
CMS-2337-P 73

utilization that may result from the CFC option. We have 

taken into account the varying costs for those who have a 

need for an institutional level of care as opposed to those 

who do not. We have allowed for possible State incentives 

due to the increased FMAP rate, as well as for the 

possibility of savings due to beneficiaries being diverted 

from nursing facility use. Given these assumptions and 

based on prior program experience, our estimate is shown in 

Table 1. We estimate the following costs to the Medicaid 

program: 

TABLE 1: ATTENDANT CARE SERVICES AND SUPPORTS 

Medicaid Cost Estimates (in millions)1

Services FY 2011 FY 2012 FY 2013 FY 2014 FY2015

Federal Share N/A $1075 $1475 $2425 $3420 

State Share N/A $510 $615 $1085 $1540 

Total N/A $1585 $2090 $3510 $4960 

5. Effects on States 

 Varying State definitions of personal care services 

and rules concerning who may furnish them make it difficult 

to estimate accurately the potential increases in 

expenditures for States that choose to adopt the CFC option 

under section 1915(k) of the Act. Therefore, in light of 

the provisions of this proposed rule, we welcome comments 

 

1 Figures are rounded to the nearest $1 million and assume increased State participation per fiscal year. 
CMS-2337-P 74

about the number of States that are likely to participate 

in the CFC program. 

D. Alternatives Considered 

Section 2401 of the Affordable Care Act is the 

legislation that we are required to implement. Therefore 

we considered no other alternatives. 

E. Accounting Statement 

As required by OMB Circular A-4 (available at: 

http://www.whitehouse.gov/sites/default/files/omb/assets/om

b/circulars/a004/a-4.pdf), we have prepared an accounting 

statement showing the classification of expenditures 

associated with the provisions of this rule and discussed 

earlier in the RIA. This statement, to the best of our 

ability, captures the anticipated distributional effects of 

section 1915(k) services offered by qualified providers in 

the Medicaid program. 
CMS-2337-P 75

TABLE 2: Accounting Statement: Classification of Estimated 

Expenditure from FY 2011 to FY 2015 (in millions) 

 CATEGORY 

BENEFITS: 

Qualitative: Provision of the CFC option will increase State and 

local accessibility to services that increase the quality of life for 

individuals through a person-centered plan of service and various 

quality assurances, and reduce the financial strain on States and 

Medicaid participants.

COSTS Administrative costs included in the Paperwork Reduction Act 

section of the preamble. 

TRANSFERS PRIMARY ESTIMATE 

Federal Annualized Monetized 

($millions/year) 

3 percent Discount Rate

$1630.6 

7 percent Discount Rate

$1568.6 

From Whom to Whom? Federal Government to Qualified Providers 

State Annualized Monetized 

($millions/year) 

$728.4 $700.8 

From Whom to Whom? State Governments to Qualified Providers 

In accordance with the provisions of Executive Order 12866, 

this regulation was reviewed by the Office of Management 

and Budget. 
CMS-2337-P 76

List of Subjects in 42 CFR Part 441 

Aged, Family planning, Grant programs-health, Infants 

and children, Medicaid, Penalties, Reporting and 

recordkeeping requirements 
CMS-2337-P 77

 For the reasons set forth in the preamble, the Centers 

for Medicare & Medicaid Services proposes to amend 42 CFR 

Chapter IV as set forth below: 

PART 441--SERVICES: REQUIREMENTS AND LIMITS APPLICABLE TO 

SPECIFIC SERVICES 

1. The authority citation for part 441 continues to 

read as follows: 

Authority: Sec 1102 of the Social Security Act 

(42.U.S.C 1302) 

2. Part 441 is amended by adding subpart K to read as 

follows: 

Subpart K –- Home and Community-based Attendant Services 

and Supports State Plan Option (Community First Choice) 

Sec. 

441.500 Basis and scope. 

441.505 Definitions. 

441.510 Eligibility. 

441.515 Statewideness. 

441.520 Required services. 

441.525 Excluded services. 

441.530 Setting. 

441.535 Assessment of need. 

441.540 Person-centered service plan. 

441.545 Service models. 
CMS-2337-P 78

441.550 Service plan requirements for self-directed 

model with service budget. 

441.555 Support system. 

441.560 Service budget requirements. 

441.565 Provider qualifications. 

441.570 State assurances. 

441.575 Development and Implementation Council. 

441.580 Data collection. 

441.585 Quality assurance system. 

441.590 Increased Federal financial participation. 

Subpart K –- Home and Community-based Attendant Services 

and Supports State Plan Option (Community First Choice) 

§441.500 Basis and Scope. 

(a) Basis. This subpart implements section 1915(k) of 

the Act concerning the Community First Choice Option to 

provide home and community-based attendant services and 

supports through a State plan. 

(b) Scope. The Community First Choice Option is 

designed to make available home and community-based 

attendant services and supports to eligible individuals, as 

needed, to assist in accomplishing activities of daily 

living (ADLs), instrumental activities of daily living 
CMS-2337-P 79

(IADLs), and health-related tasks through hands-on 

assistance, supervision, or cueing. 

§441.505 Definitions. 

As used in this subpart: 

Activities of daily living (ADLs) means basic personal 

everyday activities including, but not limited to, tasks 

such as eating, toileting, grooming, dressing, bathing, and 

transferring. 

Agency-provider model means, with respect to the 

provision of home and community-based attendant services 

and supports, a method of providing self-directed services 

and supports under which entities contract for the 

provision of these services and supports. 

Backup systems and supports means electronic devices 

used to ensure continuity of services and supports. These 

items may include pagers, personal emergency response 

systems, and other mobile communication devices. Persons 

identified by an individual can also be included as backup 

supports.

Health-related tasks means specific tasks related to 

the needs of an individual, which can be delegated or 

assigned by licensed health-care professionals under State 

law to be performed by an attendant. 
CMS-2337-P 80

Individual’s representative means a parent, family 

member, guardian, advocate, or other authorized 

representative of the individual. 

Instrumental activities of daily living (IADLs) means 

activities related to living independently in the 

community, including but is not limited to, meal planning 

and preparation, managing finances, shopping for food, 

clothing, and other essential items, performing essential 

household chores, communicating by phone or other media, 

and traveling around and participating in the community. 

Other models means methods, other than an agencyprovider model, for the provision of self-directed services 

and supports. These models may include the provision of 

vouchers, direct cash payments, or use of a fiscal agent to 

assist in obtaining services. 

Self-directed means a consumer controlled method of 

selecting and providing services and supports that allow 

the individual, or where appropriate, the individual’s 

representative, maximum control of the home and communitybased attendant services and supports, regardless of who 

acts as the employer of record. 

§441.510 Eligibility. 
CMS-2337-P 81

To receive Community First Choice services under this 

section, an individual must meet the following 

requirements: 

(a) Be eligible for medical assistance under the State 

plan. 

(b) Have an income that meets one of the following 

thresholds as determined annually: 

(1) Is equal to or less than 150 percent of the 

Federal poverty level (FPL). 

(2) Is greater than 150 percent of the FPL, and is 

eligible for nursing facility services under the State plan 

and for whom it has been determined that in the absence of 

home and community-bases attendant services and supports, 

the individual would otherwise require a Medicaid covered 

level of care furnished in a hospital, a nursing facility, 

an intermediate care facility for the mentally retarded or 

an institution for mental diseases. 

(3) Qualifies for Medicaid assistance under the 

special home and community-based waiver eligibility group 

defined at section 1902(a)(10)(A)(ii)(VI) of the Act, and 

is receiving at least one home and community-based waiver 

service per month. 

(c) In determining whether the 150 percent of the FPL 

requirement is met, States must apply the same income 
CMS-2337-P 82

disregards in accordance with section 1902(r)(2) of the Act 

as they do under their Medicaid State plan. 

§441.515 Statewideness. 

States must provide the Community First Choice Option 

to individuals: 

(a) On a Statewide basis. 

(b) In a manner that provides such services and 

supports in the most integrated setting appropriate to the 

individual’s needs, and without regard to the individual’s 

age, type or nature of disability, severity of disability, 

or the form of home and community-based attendant services. 

(c) In a manner that provides the supports that the 

individual requires in order to lead an independent life. 

§441.520 Required services. 

(a) If a State elects to provide the Community First 

Choice Option, the State must provide all of the following 

services: 

(1) Assistance with ADLs, IADLs, and health-related 

tasks through hands-on assistance, supervision, or cueing. 

(2) Acquisition, maintenance, and enhancement of 

skills necessary for the individual to accomplish ADLs, 

IADLs, and health related tasks. 
CMS-2337-P 83

(3) Back-up systems or mechanisms to ensure continuity 

of services and supports, as defined in §441.505 of this 

subpart. 

(4) Voluntary training on how to select, manage, and 

dismiss attendants. 

(b) The State may provide permissible services and 

supports which include the following: 

(1) Expenditures for transition costs such as rent and 

utility deposits, first month’s rent and utilities, 

bedding, basic kitchen supplies, and other necessities 

required for an individual to transition from a nursing 

facility, institution for mental diseases, or intermediate 

care facility for the mentally retarded to a communitybased home setting where the individual resides. 

(2) Expenditures relating to a need identified in an 

individual’s person-centered plan of services that increase 

a participant’s independence or substitute for human 

assistance, to the extent that expenditures would otherwise 

be made for the human assistance. 

(3) The services and supports that are purchased must 

be linked to an assessed need or goal established in the 

individual’s person-centered service plan. 

§441.525 Excluded services. 
CMS-2337-P 84

The Community First Choice Option may not include the 

following: 

(a) Room and board costs for the individual, except 

for allowable transition services described in 

§441.520(b)(1) of this subpart. 

(b) Special education and related services provided 

under the Individuals with Disabilities Education Act that 

are related to education only, and vocational 

rehabilitation services provided under the Rehabilitation 

Act of 1973. 

(c) Assistive devices and assistive technology 

services other than those defined in §441.520(a)(5) of this 

subpart or those that are based on a specific need 

identified in the service plan when used in conjunction 

with other home and community-based attendant services. 

(d) Medical supplies and equipment. 

 (e) Home modifications. 

§441.530 Setting. 

 States must make available attendant services and 

supports in a home or community setting, which do not 

include the following: 

(a) A nursing facility. 

(b) An institution for mental diseases. 
CMS-2337-P 85

(c) An intermediate care facility for the mentally 

retarded. 

(d) Any settings located in a building that is also a 

publicly or privately operated facility that provides 

inpatient institutional treatment or custodial care. 

(e) A building on the grounds of or immediately 

adjacent to, a public institution or disability-specific 

housing complex, designed expressly around an individual’s 

diagnosis that is geographically segregated from the larger 

community, as determined by the Secretary. 

§441.535 Assessment of need. 

 States must conduct a face-to-face assessment of the 

individual’s needs, strengths, and preferences in 

accordance with the following: 

 (a) States may use one or more processes and 

techniques to obtain information about an individual 

including the following: 

(1) Health condition. 

(2) Personal goals and preferences for the provision 

of services. 

(3) Functional limitations. 

(4) Age. 

(5) School. 

(6) Employment. 
CMS-2337-P 86

(7) Household. 

(8) Other factors that are relevant to the need for 

and authorization and provision of services. 

(b) Assessment information supports the determination 

that an individual requires the Community First Choice 

Option and also supports the development of the personcentered service plan and, if applicable, service budget. 

(c) The assessment of need must be conducted at least 

every 12 months, as needed when the individual’s support 

needs or circumstances change significantly necessitating 

revisions to the service plan, or at the request of the 

individual, or the individual’s representative, as 

applicable. 

§441.540 Person-centered service plan. 

(a) Person-centered planning process. The personcentered planning process must include the following 

criteria: 

(1) Includes people chosen by the individual. 

(2) Provides necessary support to ensure that the 

individual has a meaningful role in directing the process. 

(3) Occurs at times and locations of convenience to 

the individual. 

(4) Reflects cultural considerations of the 

individual. 
CMS-2337-P 87

(5) Includes strategies for solving conflict or 

disagreement within the process, including clear conflictof-interest guidelines for all planning participants. 

(6) Offers choices to the individual regarding the 

services and supports they receive and from whom. 

(7) Includes a method for the individual to request 

updates to the plan. 

(b) The person-centered plan. The person-centered 

plan must reflect the services that are important for the 

individual to meet individual services and support needs as 

assessed through a person-centered functional assessment, 

as well as what is important to the person with regard to 

preferences for the delivery of such supports. 

Commensurate with the level of need of the individual, the 

plan must include the following criteria: 

(1) Reflect the individual’s strengths and 

preferences. 

(2) Reflect clinical and support needs as identified 

through a person-centered functional assessment. 

(3) Include individually identified goals, which may 

include, as desired by the individual, items related to 

relationships, community participation, employment, income 

and savings, health care and wellness, education, and 

others. 
CMS-2337-P 88

(4) Reflect the services and supports (paid and 

unpaid) that will assist the individual to achieve 

identified goals and the providers of those services and 

supports. 

(5) Reflect risk factors and measures in place to 

minimize them, including back-up strategies when needed. 

(6) Be signed by all individuals and providers 

responsible for its implementation. 

(7) Be understandable to the individual receiving 

services and the individuals important in supporting him or 

her. 

(8) Include a timeline for review. 

(9) Identify the individual and/or entity responsible 

for monitoring the plan. 

(10) Be distributed to everyone involved (including 

the participant) in the plan. 

(11) Be directly integrated into self-direction where 

individual budgets are used. 

(12) Prevent the provision of unnecessary or 

inappropriate care. 

(c) Requirements of the plan. All of the State’s 

applicable policies and procedures associated with the 

person-centered service plan development must be carried 
CMS-2337-P 89

out and must include, but are not limited to, the following 

policies and procedures: 

(1) Ensure the responsibilities for assessment of need 

and service plan development are identified. 

(2) Ensure the planning process is timely. 

(3) Ensure the individual’s needs are assessed and the 

services and supports meet the individual’s needs. 

(4) Establish conflict of interest standards for 

assessment of need and the service plan development process 

that apply to all individuals and entities, public or 

private. At a minimum, these standards must ensure that 

the individuals or entities involved in the person-centered 

assessment of need and service plan development process are 

not: 

(i) Related by blood or marriage to the individual, or 

to any paid caregiver of the individual. 

(ii) Financially responsible for the individual. 

(iii) Empowered to make financial or health-related 

decisions on behalf of the individual. 

(iv) Individuals who would benefit financially from 

the provision of assessed needs and services. 

(d) Finalizing the person-centered service plan. The 

service plan must be finalized and agreed to in writing by 

the individual or, as appropriate, the individual’s 
CMS-2337-P 90

representative and a copy of the plan must be provided to 

the individual. 

(e) Reviewing the person-centered service plan. The 

service plan must be reviewed, and revised upon 

reassessment of need, at least every 12 months, when the 

individual’s circumstances or needs change significantly, 

and at the request of the individual or the individual’s 

representative, as applicable. 

§441.545 Service models. 

A State may choose one or more of the following as the 

service delivery model to provide self-directed home and 

community-based attendant services and supports: 

(a) Agency model. (1) The agency model is a delivery 

method in which the services and supports are provided by 

entities under a contract. 

(2) Under the agency model for the Community First 

Choice option, individuals maintain the ability to hire and 

fire the providers of their choice for the services 

identified in their person-centered service plan.

(b) Self-directed model with service budget. A selfdirected model with a service budget is one in which the 

individual has both a service plan and service budget based 

on the person-centered assessment of need. 
CMS-2337-P 91

(1) Financial management entity. States must make 

available financial management services to all individuals 

with a service budget. The financial management entity 

performs functions including, but not limited to, the 

following services: 

(i) Collect and process timesheets of the individual’s 

workers. 

(ii) Process payroll, withholding, filing, and payment 

of applicable Federal, State and local employment related 

taxes and insurance. 

(iii) Maintain a separate account for each 

individual’s budget. 

(iv) Track and report disbursements and balances of 

each individual’s funds. 

(v) Process and pay invoices for services in the 

service plan. 

(vi) Provide individual periodic reports of 

expenditures and the status of the approved service budget. 

(vii) States may perform the functions of a financial 

management entity internally or use a vendor organization 

that has the capabilities to perform the required tasks in 

accordance with applicable IRS requirements. 

(2) Direct cash. States may disburse cash 

prospectively to individuals self-directing their Community 
CMS-2337-P 92

First Choice Option services and supports and must meet the 

following requirements: 

(i) Ensure compliance with all applicable requirements 

of the Internal Revenue Service, including but not limited 

to, retaining required forms and payment of FICA, FUTA and 

State unemployment taxes.

(ii) Permit individuals, or their representatives as 

applicable, using the cash option to choose to use the 

financial management entity for some or all of the 

functions described in paragraph (b)(1)(ii) of this 

section. 

(iii) Make available a financial management entity to 

an individual who has demonstrated, after additional 

counseling, information, training, or assistance that the 

individual cannot effectively manage the cash option 

described in this section. 

 (iv) If the cash option is the only model offered by 

the State for Community First Choice, the State may require 

an individual to use the financial management entity 

services under the cash option, but must provide the 

individual with the conditions under which this option 

would be enforced. 
CMS-2337-P 93

(3) Vouchers. (i) States have the option to issue 

vouchers to individuals who self-direct their Community 

First Choice Option services and supports. 

(ii) States that choose to offer the vouchers must 

ensure compliance with all applicable requirements of the 

Internal Revenue Service.

§441.550 Service plan requirements for self-directed model 

with service budget. 

An approved self-directed service plan conveys 

authority to the individual to perform, at a minimum, the 

following tasks: 

(a) Recruit and hire workers to provide self-directed 

services, including specifying worker qualifications. 

(b) Fire workers. 

(c) Supervise workers in the provision of Community 

First Choice Option services and supports. 

(d) Manage workers in the provision of Community First 

Choice Option services and supports, which includes the 

following functions: 

(1) Determining worker duties. 

(2) Scheduling workers. 

(3) Training workers in assigned tasks. 

(4) Evaluating workers performance. 
CMS-2337-P 94

(e) Determining the amount paid for a service, 

support, or item. 

(f) Reviewing and approving provider invoices. 

§441.555 Support system. 

For the self-directed model with a service budget, 

States must provide, or arrange for the provision of, a 

support system that meets all of the following conditions: 

(a) Appropriately assesses and counsels an individual, 

or the individual’s representative, if applicable, before 

enrollment. 

(b) Provides appropriate information, counseling, 

training, and assistance to ensure that an individual is 

able to manage the services and budgets. 

(1) This information must be communicated to the 

individual in a manner and language understandable by the 

individual. 

(2) The support activities must include at least the 

following: 

(i) Person-centered planning and how it is applied. 

(ii) Range and scope of individual choices and 

options. 

(iii) Process for changing the person-centered service 

plan and service budget. 

(iv) Grievance process. 
CMS-2337-P 95

(v) Risks and responsibilities of self-direction. 

(vi) The ability to freely choose from available home 

and community-based attendant providers. 

(vii) Individual rights. 

(viii) Reassessment and review schedules. 

(ix) Defining goals, needs, and preferences. 

(x) Identifying and accessing services, supports, and 

resources. 

(xi) Development of risk management agreements. 

(xii) Development of a personalized backup plan. 

(xiii) Recognizing and reporting critical events. 

(xiv) Information about an advocate or advocacy 

systems available in the State and how an individual, or 

individual’s representative, if applicable, can access the 

advocate or advocacy systems. 

§441.560 Service budget requirements. 

(a) For the self-directed model with a service budget, 

a service budget must be developed and approved by the 

State based on the assessment of need and service plan and 

must include all of the following requirements: 

(1) The specific dollar amount an individual may use 

for Community First Choice Option services and supports. 
CMS-2337-P 96

(2) The procedures for informing an individual of the 

amount of the service budget before the service plan is 

finalized. 

(3) The procedures for how an individual may adjust 

the budget including the following: 

(i) The procedure for an individual to freely change 

the budget. 

(ii) The circumstances, if any, that may require prior 

approval by the State before a budget adjustment is made. 

(4) The circumstances, if any, that may require a 

change in the service plan. 

(5) The procedures that govern the determination of 

transition costs and expenditures, relating to a need in 

the service plan, that increase independence or substitute 

for human assistance to the extent that expenditures would 

otherwise be made for human assistance. 

(6) The procedures for an individual to request a fair 

hearing under §441.300 of this part if an individual’s 

request for a budget adjustment is denied or the amount of 

the budget is reduced. 

(b) The budget methodology set forth by the State to 

determine an individual’s service budget amount must meet 

all of the following criteria: 
CMS-2337-P 97

(1) The State’s method of determining the budget 

allocation is objective and evidence based utilizing valid, 

reliable cost data. 

(2) Be applied consistently to individuals. 

(3) Be included in the State plan. 

(4) Includes a calculation of the expected cost of 

Community First Choice Option services and supports, if 

those services and supports are not self-directed. 

(5) The State has a process in place that describes 

the following: 

(i) Any limits it places on Community First Choice 

Option services and supports, and the basis for the limits. 

(ii) Any adjustments that are allowed and the basis 

for the adjustments. 

(c) The State must have procedures in place that will 

provide safeguards to individuals when the budgeted service 

amount is insufficient to meet the individual’s needs. 

(d) The State must have a method of notifying 

individuals of the amount of any limit that applies to an 

individual’s Community First Choice Option services and 

supports. 

(e) The budget may not restrict access to other 

medically necessary care and services furnished under the 
CMS-2337-P 98

State plan and approved by the State but which are not 

included in the budget. 

(f) The State must have a procedure to adjust a budget 

when a reassessment indicates a change in an individual’s 

medical condition, functional status, or living situation. 

§441.565 Provider qualifications. 

(a) The State must provide assurances that necessary 

safeguards have been taken to protect the health and 

welfare of enrollees in the Community First Choice State 

Option, and must define in writing adequate qualifications 

for providers in the agency model of Community First Choice 

services and supports. 

(b) An individual has the option to permit family 

members, or any other individuals, to provide Community 

First Choice attendant services and supports identified in 

the service plan provided they meet the qualifications to 

provide the services and supports. 

(c) An individual retains the right to train workers 

in the specific areas of attendant care needed by the 

individual and to perform the needed assistance in a manner 

that comports with the individual's personal, cultural, or 

religious preferences. 
CMS-2337-P 99

(d) An individual retains the right to establish 

additional staff qualifications based on the individual’s 

needs and preferences. 

§441.570 State assurances. 

A State must assure the following requirements are 

met: 

(a) For the first full fiscal year in which the State 

Plan amendment is implemented, a State must maintain, or 

exceed, the level of expenditures for services provided 

under sections 1115, 1905(a), and 1915, of the Act, or 

otherwise to individuals with disabilities or elderly 

individuals attributable to the preceding fiscal year. 

(b) All applicable provisions of the Fair Labor 

Standards Act of 1938. 

(c) All applicable provisions of Federal and State 

laws regarding the following: 

(1) Withholding and payment of Federal and State 

income and payroll taxes. 

(2) The provision of unemployment and workers 

compensation insurance. 

(3) Maintenance of general liability insurance. 

(4) Occupational health and safety 

§441.575 Development and Implementation Council. 
CMS-2337-P 100

(a) States must establish a Development and 

Implementation Council primarily comprised primarily of 

individuals with disabilities, elderly individuals, and 

their representatives. 

(b) States must consult and collaborate with the 

Council when developing and implementing a State plan 

amendment to provide home and community-based attendant 

services and supports.

§441.580 Data collection. 

A State must provide the following information 

regarding the provision of home and community-based 

attendant services and supports under the Community First 

Choice Option for each fiscal year for which the services 

and supports are provided: 

(a) The number of individuals who are estimated to 

receive the Community First Choice under this State plan 

option during the fiscal year. 

(b) The number of individuals that received the 

services and supports during the preceding fiscal year. 

(c) The number of individuals served broken down by 

type of disability, age, gender, education level, and 

employment status. 
CMS-2337-P 101

(d) The specific number of individuals who have been 

previously served under sections 1115, 1915(c) and (i) of 

the Act, or the personal care State plan option. 

(e) Data regarding how the State provides the 

Community First Choice State option and other home and 

community-based services. 

(f) The cost of providing Community First Choice State 

option and other home and community-based services and 

supports. 

(g) Data regarding how the State provides individuals 

with disabilities who otherwise qualify for institutional 

care under the State plan or under a waiver the choice to 

receive home and community-based services in lieu of 

institutional care. 

§441.585 Quality assurance system. 

States must establish and maintain a comprehensive, 

continuous quality assurance system, detailed in the State 

plan amendment, that includes a quality improvement 

strategy and employs measures for program performance and 

quality of care, standards for delivery models, mechanisms 

for discovery and remediation, and quality improvements 

proportionate to the benefit and number of individuals 

served. 
CMS-2337-P 102

(a) Details of the quality assurance system. Details 

of the quality assurance system must include the following: 

(1) Program performance measures. The States’ quality 

assurance system must be designed to measure and provide 

evidence of program performance related to the following: 

(i) Health and welfare. 

(ii) Provider qualifications. 

(iii) Choice of institution or community. 

(iv) Choice of services, supports and providers 

(v) Cost of services and supports. 

(2) Quality of care measures. The State’s quality 

assurance system must be designed to measure individual 

outcomes associated with the receipt of community-based 

attendant services and supports, particularly with respect 

to the health and welfare of recipients of this service. 

These measures must be made available to CMS upon request 

and must include a process for the mandatory reporting, 

investigation, and resolution of allegations of neglect, 

abuse, or exploitation in connection with the provision of 

community based attendant services and supports, as well as 

quality indicators approved or prescribed by the Secretary. 

(3) Standards for delivery models. The States’ 

quality assurance system must include standards for agencybased and other delivery models for training, appeals for 
CMS-2337-P 103

denials and reconsideration procedures on an individual 

service plan. 

(4) Choice and control. The quality assurance system 

will employ methods that maximize consumer independence and 

control and will provide information about the provisions 

of quality improvement and assurance to each individual 

receiving such services and supports. 

(b) Stakeholder feedback. The State must elicit and 

incorporate feedback from key stakeholders to improve the 

quality of the community-based attendant services and 

supports benefit. 

(c) Collection and evaluation. The State must collect 

and report on monitoring, remediation, and quality 

improvements related to information defined in the State’s 

quality improvement strategy. 

§441.590 Increased Federal financial participation. 

Beginning October 1, 2011, the FMAP applicable to the 

State will be increased by 6 percentage points, for the 

provision of the Community First Choice Option home and 

community-based attendant services, under an approved State 

plan amendment. 
CMS-2337-P 

Authority: (Catalog of Federal Domestic Assistance Program 

No. 93.778, Medical Assistance Program) 

Dated: December 1, 2010.

 _______________________________ 

Donald M. Berwick, 

Administrator,

Centers for Medicare & Medicaid 

Services

Approved: January 31,2011.

 __________________________________ 

Kathleen Sebelius, 

Secretary,

Department of Health and Human 

Services 

BILLING CODE 4120-01-P 
CMS-2337-P 105

[FR Doc. 2011-3946 Filed 02/22/2011 at 8:45 am; Publication 

Date: 02/25/2011]