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The Centers for Medicare and Medicaid Services Maintains the Deadline for Community-based Housing Rules

In 2014, the Centers for Medicare and Medicaid Services (CMS) published final rules that states must abide by in their waiver programs for home and community-based services (HCBS). Since then, the implementation of the new rules has been delayed – first, so that states had more time to comply, and then later due to the pandemic. However, CMS has announced that they are holding tight to the latest deadline of March 2023.

CMS says that states have had access to additional funds via the American Rescue Plan Act of 2021 that could bolster their ability to become compliant with the new rules. Indeed, states are strongly encouraged by CMS to submit a draft version of their plan by July 31, 2022. CMS warns that if the draft is not submitted by this date, the state risks not receiving approval by the March 2023 deadline. However, the plan must be submitted by the state no later than January 1, 2023.

What, exactly, do states and provider-owned residential settings need to comply with? CMS explains that providers will need to ensure patients are afforded the following by March 2023:

  • “A lease or other legally enforceable agreement providing similar protections;
  • Privacy in their unit, including lockable doors, and freedom to furnish or decorate the unit;
  • Access to food at any time;
  • Access to visitors at any time;
  • Physical accessibility; and
  • Person-centered service plan documentation of modifications to relevant regulatory criteria.”

What are some of the rules that a state can get an extension of time on?

  • “Access to the broader community;
  • Opportunities for employment;
  • Option for a private unit and/or choice of a roommate; and
  • Choice of non-disability specific settings.”

The rules are designed so that those receiving care can hang on to their independence and dignity. Disability advocates are pleased that CMS is not delaying the implementation of the rules even further. Notably, however, the rules do not apply to nursing homes, mental health institutions, or intermediate care facilities.

Irrevocable trusts are a vital tool for attorneys that are helping clients plan for the costs of long-term care. However, proper trust design is essential to ensure the client’s goals are balanced with federal and state Medicaid rules. During this video series, we explore some of the advanced design options available to lawyers in irrevocable trust drafting and discuss how to protect special assets.

Essential Irrevocable Trust Design Considerations for Medicaid Planning

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