Global HCBS Waiver Person-Centered Planning and Settings Rule - Information

The Department has revised its original notice of rulemaking pertaining to its Global Home and Community-Based (HCBS) Waiver Person-Centered Planning and Settings Rule to include a remote public hearing – the Department’s Notice can be found below or by clicking here. 

This is the rule that will implement changes to the system as a result of the federal HCBS Settings Rule.  This rule likely affects you and/or someone about whom you care.  The Proposed Rule itself can be found by clicking here.

People who have carefully reviewed this rule have discovered a few concerns, which you may have as well.  Here they are.

1. The rules as written should be considered ‘Major-Substantive’.  It meets the definition because it materially alters the lives of the people in the system, and materially changes the paradigm by which they are served.  Moreover, if implemented as written, the rules will increase costs considerably.
2. The assessment tools are from a contractor that does not understand the existing regulations and procedures in Maine.  As a result, the tools imply everything is the responsibility of a housing provider or a community supports provider.
3. The rule needs to be rewritten. Much of this rule assumes the availability of all kinds of choices that may not actually exist in the relevant community.
4. The rules imply that the only suitable living environment is one in an urban setting.  “curb cuts, proximity to malls, library etc.” do not imply the choice of rural (and more affordable) living.  In fact 63% of Maine is considered rural. The real issue here is how those standards will be implemented.  The assessments used to determine compliance initially completed by providers coupled with the responses and tone of the contractors’ feedback, that Maine’s implementation goes well beyond the scope of what the federal regulation requires.  In particular, this regulation is intended to ensure that a member has access to his or her community in the same way as nondisabled individuals have access to that community.  That means that if someone in a rural community in northern Maine is in a group home, they have the same access to the services available in the vicinity as their neighbor who is not disabled.  That does not mean that someone in a small town will have the same opportunities for community integration or community activities as somebody in Portland would. 
5. The rules as written indicate a significant increase in staffing and transportation resources.  There should be a study commissioned by DHHS to determine if Maine can support these rules given the limited availability of staff. Moreover, there should be a fiscal note estimating the cost to implement the rules. 
6. The rules as written do not assign responsibility.  Much of the requirements in the assessment tool are actually done by Case Managers, yet the assessments imply that all the responsibility is either associated with providers of home supports, or providers of community supports.  It also places a significant amount of PCP responsibilities on the person.  Are we to assume that he/she should be scheduling meetings and ensuring the tasks are assigned? 
7. The rule as written greatly exceeds the requirements of the CMS final rule, apparently unnecessarily.  The CMS rules only mention the word employment once, but in Maine’s interpretation the theme of employment is thoroughly embedded throughout.
8. The rule should clearly indicate that it is not the responsibility of providers to create alternatives for housing or community supports.
9. The assessments do not recognize that not all tenants are identical nor even in some instances similarly situated.  Providers have no objection to a properly documented written lease, rental, or residency agreement providing protections from eviction.  Careful attention must be paid, however, to other rules already in place concerning cessation of services or termination of placements that would have no comparable applicability for an ordinary market-rate apartment occupied by a tenant who is not receiving any services from the landlord or anyone else.  The analogy to the typical apartment rental has its limits in this application. It is important to note that the “rent” charged by Providers ($700 per month +/-) is significantly below market rent for the area.  Providers do this to accommodate individuals’ incomes, which are limited by social security.  The only way that that is economically feasible to do, particularly when serving this population, is when services are integrated in the home.  The federal regulations and the proposed rules here require that individuals be given a lease with “at a minimum, the same responsibilities and protections from eviction that tenants have under landlord/tenant law in Maine….”  This provision on its face sounds reasonable, until one recognizes that under other parts of Maine’s regulations, a provider cannot evict a member if there is no place for that person to go.  In general landlord/tenant law, it is not the landlord’s responsibility to find substitute housing, nor is the eviction contingent on the person finding a place to go.
10. The rules need to designate the difference between a “roommate” and a “housemate”.
11. As it relates to controlling one’s own schedule, that is entirely contingent on the location of the activity and the availability of transportation and staff.  If the State wants to appropriate enough money to pay high enough wages to attract as many people as are needed and to buy as many vehicles as are needed to let every member have unfettered choice of activities and locations, every provider would be happy to accommodate those choices.  This appears to language to implement an agenda to expand Shared Living at the expense of existing group homes. ​