Region III
Health Care Financing Administration
P.O. Box 7760, Mailstop 13
Philadelphia. P4 19101
DEPARTMENT OF HEALTH and HUMAN SERVICES
March 6, 1997
MEDICAID LETTER NUMBER: 97-10
SUBJECT: Guidelines Regarding What Constitutes an ICF!MR Level of Care Under a Home and Community-Based Services Waiver
The flexibility afforded under the waiver program has allowed States to pursue strategies for controlling cost and utilization One such strategy is reducing or limiting funding for institutional case by expanding the availability of home and community-based services programs to care for individuals in less restrictive settings. This enables States to offer a broader range of ser at a lower per capita cost
Prior to l981 , the only long term care available under the Medicaid Program to individuals with mental retardation or a developmental disability was provision of services in an intermediate case facility for the mentally retarded or persons with related conditions (ICF/MR). Prior to the inception of the waiver program, individuals in institutions exhibited a broad range of functional abilities. As the balance of care has subsequently shifted from institutional to home and community-based care, the more severely disabled in have tended to remain in institutions. Moreover, because community-based services tend to be more accessible to higher functioning individuals, these consumers have beer more inclined to choose community-based care services over institutional care. As a result, the profile of individuals receiving home and community-based care may differ from those served in institutions. However, it would be a mistake to conclude that certain high functioning individuals would not require ICF/MR services merely because their functional abilities exceed the levels ordinarily seen in 1CFs/ nowadays.
It is important to note that Section 1915(c) of the Social Security Act does not require that individuals served under the waiver "resemble" individuals who remain in the institution. Section. 19159c) requires that" home and community-based services ... are provided …to individuals 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 (an) intermediate care facility for the mentally retarded the cost of which would be reimbursed under the State plan . (emphasis added.) Thus, the basic question is whether the individual applicant requires an ICFMR level of care (LOC) which would be reimbursed under the State plan.
The State establishes the ICF/MR LOC consistent with regulations at 42 CF 440 150 and 483.440. For purposes of the waiver, an evaluation of whether the individual requires an ICF/MR LOC under the State plan is made by using the same LOC assessment criteria used to determine the need for care in an institution. A state may use an evaluation form which differs from that used in the institution to make this determination.
If, however, the State uses a different form, regulations at 42 CFR 441303(c)(2) require the State to describe how and why it differs and provide an assurance that the outcome of the new evaluation form is reliable, valid, and fully comparable to the form used for institutional placement. Thus, evaluation for ICF/MR LOC under the waiver can be no less stringent than that used for institutional placement.
A State does not necessarily need to use the same persons to make the LOC determinations under the waiver that it uses to make determinations for the institution (in many cases this would be impractical). However, the State should utilize evaluators who are comparably educated and trained to make LOC determinations. In addition, evaluators making LOC determinations under the waiver should employ the same guidelines used to determine LOC for placement in an institution. We recommend that States monitor these processes to ensure that consistent determinations of LOC are being reached for both ICF/MR and community-based care.
Federal regulations for the ICF/MR program require that individuals residing in ICFs/MR receive a continuous active treatment program. Active treatment is defined as aggressive consistent implementation of a program of specialized and generic training, treatment, health services and related services that is directed toward the acquisition of the behaviors necessary for the individual to function with as much self determination and independence as possible; and the prevention or deceleration of regression or loss current optimal functional status. Active treatment does not include services to maintain generally independent individuals who are able to function with little supervision or in the absence of a continuous active treatment program. While regulations in 42 CFR 483 Subpart I are cross-referenced through §441.302(c) and §440.150, there is no requirement for implementing regulations that an individual in need of ICF/MR services receive active treatment under the 1915(c) waiver. The active treatment concept is based on the assumption that art individual is a resident in an institution (which is required to provide all necessary care and services for that individual). The applicability of active treatment, therefore, is limited to the institutional setting. Federal Law requires that individuals served under the waiver would be eligible, in the absence of the waiver, to receive active treatment in an institution (in this case, an ICF/MR).
Under a home and community-based services waiver, the State must assure that necessary safeguards have been taken to protect the health and welfare of the recipients of waiver services ( 441.302(a)). Therefore, we believe it is reasonable to conclude that a person with developmental disabilities (who would receive active treatment if institutionalized) could only receive care and services which ensure his or her health and welfare when a program of activities is made available which meets his or her developmental needs and provides the individual the opportunity and encouragement to progress to or maintain his or her highest attainable level Accordingly, the State must be able to demonstrate that through the use of waiver services and other community-based resources, the needs of the individual in the waiver program are being met. As in the institution, determining what the individual's needs are and how they should be met should take into consideration the individual's age and include opportunities for client choice and self-development.
In conclusion, we believe waiver programs should assure that:
- the process for evaluating an individual's need for an institutional LOC under the waiver is comparable to the process used by the State for evaluating an individual's need for institutional services, and that the process is likely to achieve the same outcome as the process used for institutional placement,
- the care plan process identifies the individual service needs, and those needs are appropriate for the individual's age/life stage, and
- individuals served under the waiver program receive the appropriate supports and services to achieve the goals identified in their individual plans of care.
If we can be of any assistance in this area, please contact Bill Davis at (215) 596-1020.
Dennis Gallagher, Chief Medicaid Operations Branch
Division of Medicaid
