The Voices of People with Disabilities and Older Adults

Participant Rights

No.5 Getting the Services You Need from the Waiver

Nancy Thaler, Senior Policy Advisor

Administration for Community Living

Jill Jacobs, Commissioner, Administration on Disabilities

Administration for Community Living

Elizabeth Edwards, Senior Attorney 

National Health Law Program

Elizabeth Priaulx, Legal Specialist

National Disability Rights Network

Title: Participant Rights

No. 5 Getting the Services You Need from the Waiver

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Welcome

This is 5th in the Administration for Community Living’s (ACL) Webinar Series on the role of stakeholders in ensuring high quality in Home and Community Based Services (HCBS) services. 

In this session we are going to dive into the Medicaid Waiver Application, focusing on the section related to participant rights.

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Webinar Logistics

Participants will be muted during this webinar. You can use the chat feature in Zoom to post questions and communicate with the hosts. 

Toward the end of the webinar, our speakers will have an opportunity to respond to questions that have been entered into chat.

The webinar will be live captioned in English.

Live English captions can be accessed by clicking the “CC” button at the bottom of your Zoom screen. 

This live webinar includes an evaluation poll at the end of the session. 

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Agenda

The Medicaid Waiver application – an Overview

Participant Rights: Appendix F

Questions and Answers

Closing Comments and Evaluation Poll  

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Why the Waiver Application is Important

States describe

Who and how many people they will serve  

What services they will provide and how much

What protections are in place

Whether people can self-direct and family members can be paid

How they will follow the HCBS Rule

When CMS approves the application, the state must implement it as approved. Only what is in the waiver can be provided. 

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The application describes the proposed waiver’s design and must include sufficient information to permit CMS (acting on behalf of the Secretary of Health and Human Services) to determine that the waiver meets applicable statutory and regulatory requirements. 

The approved waiver application specifies the operational features of the waiver. A state must implement the waiver as specified in the approved application. If the state wants to change the waiver while it is in effect, it must submit an amendment to CMS for its review and approval. All requests for new waivers, waiver renewals and amendments must be submitted by the state Medicaid agency.

This is not an exhaustive list of what is in the waiver application. For example, there is no mention of the person- centered planning process- development, implementation and monitoring. No mention regarding rate methodology, etc.

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1915(c) v. Other Authorities

Many states operate HCBS that are 1915(c) – this Webinar only discusses requirements in 1915(c) waivers.

States may provide similar programs under authorities like Section 1115 Demonstrations but they may have similar, but not identical requirements as 1915(c) waivers. Look to the approved document

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The Waiver Application

Basic Information: 

Identifies level of care

Describes geographic limits 

Describes public input

Signature agreeing to meet the assurances. 

Appendix A – Waiver Administration and Operation

Appendix B – Access and Eligibility

Appendix C – Participant Services

Appendix D – Participant-Centered Service Planning

Appendix E – Participant Direction

Appendix F – Participant Rights

Appendix G – Safeguards

Appendix H – Quality

Appendix I – Financial Accountability

Appendix J – Cost Neutrality

Appendix F Participant Rights

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Fair Hearing

Dispute Resolution

Grievance/Complaint

Required vs. Optional

Required

Fair Hearing 

     42 CFR § 431.210; 

42 CFR § 438 subpart F 

	(managed care) 

Optional

Dispute Resolution

Grievance/Complaint System

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Note: Different Requirements for Managed Care and Fee for Service

Fee for Service:

State fair hearing

Managed Care Plans: 

Adverse Action

Grievance

Requirement to go through informal appeal

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Fair Hearing: Triggers

Participants can request a fair hearing when:

Services denied, suspended, reduced or terminated

Includes termination from waiver and involuntary termination of self-directed services

Services not provided with reasonable promptness

Denial of eligibility

Waiver App. F-1:

Not providing choice of HCBS as alternative to institutional care

Denying an individual the services or provider of their choice;

Services denied, suspended, reduced or terminated

Other hearing requirements: timelines, case file, accessibility, language, expedited review

42 C.F.R 431 subpart E

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Decision on services includes when participant budget functions as a limit on the amount of waiver goods and services

Decision to not allow self-direction is not subject to fair hearing process b/c CMS says services are unaffected

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Review Criteria Fair Hearing

Must specify how individuals are informed about the Hearing process during entrance to the waiver.

If service denied, reduced, suspended individuals must again be notified of right to hearing. The description must specify: 

how notice is made 

the entity or entities responsible for issuing the notice; and, 

the assistance (if any) that is provided to individuals in pursuing a fair Hearing

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--emphasize continued benefits; time restrictions; fear of recoupment

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Criteria for Fair Hearing, continued

“Aid Paid Pending”: Must specify how the participant is informed that services will continue during the period while the participant’s appeal is under consideration 

unless the state is not required to continue the services in accordance with 42 CFR §431.230

Must specify where notices of adverse actions and the opportunity to request a Fair Hearing are kept.

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What is Missing?

Interplay with person centered planning

What is offered to a person

Budgeting issues

Protections against discouragement

Education to individuals

Assistance to individuals

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Assistance to individuals: do notices have contact information for legal services and the P&A? K.W. case 

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Review Criteria When There is Dispute Resolution

Identify the state agency that operates the dispute mechanism

Describe the types of disputes that can be addressed, including the process and timelines.

When a participant elects to make use of the dispute mechanism, the participant must be informed that the dispute resolution mechanism is not a pre-requisite or substitute for a Fair Hearing 

Note: except in managed care.

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Remember, this is  optional

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Managed Care 

Required informal appeal 

Grievance system

Similar names for potentially difference processes can create confusion!

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more common for participant-directed waiver services to include both employer AND budget authority.

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Review Criteria When There is Grievance/Complaint System

The state must describe the types of complaints that can be addressed, the process and timelines.

When a participant elects to file a grievance or make a complaint, the participant is informed that doing so is not a pre-requisite or substitute for a Fair Hearing.

Note: except in managed care

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Remember this is optional

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NC Example

Managed care for behavioral health services, including I/DD waiver

Settlement of litigation, L.S. v. Wos  led to changes in due process implementation

Issues with use of notices and opportunity for fair hearing related to assignments of budgets

Notice of noncompliance led to communication bulletin

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More on NC Example

Revision of materials regarding the use of the SIS score

Clear that families are encourage to request the waiver services they need, not strictly within assigned budgets

No discouragement allowed, with sample language provided in the bulletin

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NC Sample Language in Bulletin

Denial or partial denial could not be based on rationales such as:

“The assigned budget would typically meet the needs of someone with similar support needs.”

“It was determined that [name] is not an outlier to his assigned category.”

“Documentation shows needs consistent with the assigned budget category.”

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NC Sample Language, Cont.

Denial or partial denial could be based on rationales such as:

“The information/assessments provided do not justify an increase in service hours.”

“the information provided does not indicate that the individual would benefit from the combination of services hours requested.”

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NC Innovations Waiver App. F-1

Describes the program as being under managed care

Participants receive info explaining appeal rights, including how to access a fair hearing, continuing benefits, and contact numbers for state agency and free legal assistance

Requirement to go through informal appeal/grievance procedure

Copies of notices maintained at originating agency

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F-3 explains LME/MCO grievances/complaints and identifies categories as including: 

Complaint Reporting Categories include: (1) Abuse, neglect and exploitation (2) Access to services (3) Administrative issues (4) Authorization/payment/billing (5) Basic needs (6) Client rights (7) Confidentiality/HIPAA (8) PIHP services (9) Medication (10) Provider choice (11) Quality of care (12) Service coordination between providers (13) Other to include any complaint that does not fit the previous areas. 

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How You Can Influence What Services are in the Waiver 

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Get copies of the proposed application and distribute it to others

Show up in person and give public comment – ask questions

Submit written comments from your organization

Coordinate templates for others to use in submitting comments

Consult partners about submitting joint comments

Hold discussions about proposed services compared to what people need

Meet with the state agency to learn more about the application

Effective Storytelling/Comments

Provide examples of problems and the role of waiver policies, such as limits, restrictions, or discouragement without hearing rights

Explain why complaint systems feel ineffective

Explain if the process lacks an opportunity to request what is needed

Make comments relevant to subject under consideration. Try to be solution focused 

Manage your expectations of changes

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State Waiver Applications

Access proposed and approved waivers for all states at

https://www.medicaid.gov/medicaid/section-1115-demo/demonstration-and-waiver-list/index.html?f%5B0%5D=waiver_state_facet%3A991#content#content

Access the application form, technical guide and other

related materials at CMS Waiver Applications Portal:

https://www.medicaid.gov/medicaid/home-community-based-services/home-community-

based-services-authorities/home-community-based-services-1915c/index.html

Click on 1915(c) Waiver Application in the box on the right

On the left click on 1915(c) Application download version. 

Will download as a zip file. 

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Please put any questions in the chat and give us your honest feedback in the on-screen poll.Thank you.

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