DOH Issues Guidance to ACFs Regarding Federal HCBS Settings Rule

The Department of Health (DOH) recently issued a Dear Administrator Letter (DAL) addressed to all adult care facilities (ACFs) regarding the implementation of the federal home and community-based settings (HCBS) rule. The DAL was issued to provide ACFs with guidance on how to comply with certain aspects of the rule and explains that any ACF serving at least one person in receipt of Medicaid-funded HCBS must comply with the rule. The Department indicates that providers have until March 17, 2022 to comply. Click here for more background on DOH's application of the rule to ACFs in New York.

The DAL provides guidance on developing an HCBS-compliant person-centered planning process and directs providers to contact DOH's Elizabeth Beverly via email at acfhcbs@health.ny.gov with any questions.

LeadingAge NY has reviewed the guidance and posed questions to DOH regarding the below passage. Given that case management is a core function of ACF and assisted living services, it is unclear how the Department expects providers to comply with New York State regulations and the guidance below:

Providers of Home and Community-Based Settings (HCBS) for the individual, or those who have an interest in or are employed by a provider of HCBS for the individual must not provide case management or develop the person-centered service plan, except when the State demonstrates that the only willing and qualified entity to provide case management and/or develop person-centered service plans in a geographic area also provides HCBS. In these cases, the State must devise conflict of interest protections including separation of entity and provider functions within provider entities, which must be approved by CMS. Individuals must be provided with a clear and accessible alternative dispute resolution process.

We have also asked for additional information regarding conflict of interest guidelines.

We will keep members apprised of any developments with this issue or clarifications received.

Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828