Public Comment Guide: Proposed Rule on Access to Home- and Community-Based Services

The Centers for Medicare and Medicaid Services (CMS) has requested public input on a new rule they have proposed that would widely benefit people receiving Home- and Community-Based Services (HCBS). Your voice is vital to this process, because changes to CMS rules don’t occur often. Thus, it is very important that CMS receive as much public feedback as possible on the proposal to ensure that the final rule is the best and most comprehensive version possible.

You don’t need to be a policy expert to provide comment, you only need to be an expert on yourself and your experiences with HCBS in Tennessee. It’s important to highlight your stories about what works in Tennessee, and certainly what doesn’t work. CMS will read and consider every comment submitted to them and respond to each and every one of them in proposing their final rule.

Overall, this is a good rule proposed by CMS. The elements found within the rule would increase access to HCBS, strengthen accountability, promote transparency and improve the quality of HCBS in Tennessee. The changes are long-overdue and stand to better the lives of Tennesseans with disabilities. I strongly encourage you to consider submitting a comment on this rule – the more comments we have in approval or even making suggestions for betterment, the more likely it is that the final rule will be as positive and impactful as possible.

The deadline for submitting a comment is July 3rd, 2023. You can submit a comment by following this link.

You can view the Tennessee Disability Coalition's full comment to CMS here by following this link

Tips for your comment:

Break down your comment by addressing parts of the proposal one at a time.
- For example, in this request for comment, one section is about workforce compensation. It’s best to include all of your thoughts about the proposal related to workforce compensation here.
Speak from your own personal experience
- Do you have stories related to the proposal? How is HCBS working now? Why do you think it works that way or what is the underlying problem? How would you make your experience with HCBS better? Will this proposal make your HCBS experience better?
Speak as a Tennessean
- Why does Tennessee need this specifically? What is good and bad about what Tennessee does?
Try to answer the questions in the proposal
- CMS has requested specific feedback on details of their proposal. For example, CMS has asked whether 80% is the appropriate portion of funding that should go to worker wages. Do you think this is high enough? Or too high? Or should they divide the funding a different way?
You don’t have to do any of the above to submit a comment
- You don’t have to comment on everything, only that which you think is most important. Evan a simple “I approve” or “I disapprove” of the proposal as a whole is ok. Details are always helpful, but not required.

Summary of the proposed rule:

Workforce compensation:
- Proposal: 80% of CMS payments to the state should go to the wages of front-line workers who provide homemaker, home health aide and personal care services
  - CMS wants to know:
    - Is 80% the right amount
    - Should this rule apply to other HCBS?
  - What we say:
    - While we approve of the effort to increase wages for DSP’s and frontline workers, we are concerned that the 80% rule might cause provider agencies to reduce their administrative capacity a and diminish their ability to hire and supervise DSP’s and provide quality HCBS
    - We believe that if the 80% rule is to stay, the rule must also include a mandate that state Medicaid agencies proportionally adjust provider payments in order to ensure continuity and avoid decreases in HCBS access and quality.
    - Should the rate stay, we think this rate should apply only to the HCBS listed in the proposal
- Proposal: TennCare must review the adequacy of their payment rates to providers and workers every 2 years
  - TennCare must reconstruct their stakeholder groups. This involves creating a new beneficiaries-only group (called BAG) to provide feedback, as well as a group of providers, health care works and beneficiaries (called MAC).
  - TennCare must consult with the BAG and MAC during the payment-rate review process
  - TennCare must make these BAG and MAC payment-rate review meetings public
  - What we say:
    - Payment rate analysis, conducted in public alongside stakeholders, helps advocates to hold TennCare accountable for providing payment rates that allow for robust provider networks and greater access
    - State Medicaid agencies must also be required to use the findings of this analysis to adjust their provider payment rates
- Proposal: TennCare must annually produce payment analysis reports that compare payment rates to MCO’s for certain types of services to Federal Medicare rates for the same services
  - What we say:
    - Standardized reporting on rates for these services would allow individuals and advocates to compare the adequacy of rates from state to state, and as compared to Medicare rates
    - This helps to advocates to hold TennCare accountable for the adequacy of their provider network
    - But, this does not require that TennCare adjust rates in comparison to Medicaid rates, which means that any rate improvements are not guaranteed
    - And this does not apply to all HCBS, especially specialty services – we would suggest that, to the extent the comparison is possible, TennCare be required to report on payment rates for all services provided

HCBS Access
- Proposal: TennCare must publicly report on a number of metrics related to access to HCBS
  - TennCare must report the size of their waiting list for HCBS services, the average amount of time beneficiaries spend on waiting lists and the average amount of time between approval for services and the start of those services
  - TennCare must report on service utilization, which is the amount of a service a person is able to receive compared to how much they are allotted to receive in their beneficiary plan
  - TennCare would be subject to national standards for maximum wait times for certain types of services and appointments (such as primary care, OBGYN, etc.)
  - TennCare would have to develop stronger monitoring and reporting of the adequacy of their provider network
  - What we say:
    - All of this public reporting is crucial, especially wait list size and time, time between approval and services and service utilization
    - National standards on maximum wait times requires that TennCare consistently address the adequacy of their network and make changes to comply if necessary - the rule would be more impactful if it was required that TennCare establish and enforce maximum wait times for all HCBS

Person-Centered Planning
- Proposal: TennCare must show that they are reassessing at least 90% of individuals continuously-enrolled in HCBS at least once per year and adjusting plans based on the reassessment
- What we say:
  - This is important because TennCare is known for automatically fading services, such as job training, whether that is the choice or need of an individual or not

Quality measures
- Proposal: CMS proposes to design and establish national, standardized HCBS quality measures and require that TennCare report their outcomes related to those quality measures
  - These standardized measures include things like percentage of people who can choose or change when and how often they get their services, percent of people reporting that workers show up and leave on time and percent of people who receive information in their preferred language, among many other measures
  - CMS plans to phase in mandated reporting over 7 years and TennCare would be required to report annually
  - CMS wants to know:
    - Is 7 years an appropriate phase-in timeline?
    - Is annual reporting appropriate?
  - What we say:
    - Mandated, standardized public reporting is vital to transparency and accountability
    - 7 years is a long runway to develop surveys and performance targets and to administer – we would prefer a shorting phase-in timeline
    - We believe annual reporting is appropriate
    - We hope that CMS will make TennCare HCBS quality reports publicly available and easily accessible

Here are some helpful resources for people who want to dig into the details a bit further