Adult Day and Similar Activities – Emergency Waiver Application Modifications to Ensure Continuing Care During COVID-19 Pandemic

This Bulletin is brought to you by AHLA’s Behavioral Health Task Force.

April 01, 2020

Anna Stewart Whites , Anna Whites Law Office

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Section 1915(c) of the Social Security Act authorizes state Medicaid agencies to request from the federal government relief from certain Medicaid requirements in order to provide certain services to specific populations. These 1915(c) waivers are often referred to as “home and community-based services waivers” (HCBS) because they allow states to treat certain Medicaid populations in home or other community-based settings rather than in institutional or long term care facilities such as hospitals or nursing homes. State HCBS waiver programs must: (a) demonstrate that providing waiver services won’t cost more than providing these services in an institution; (b) ensure the protection of beneficiaries’ health and welfare; (c) provide adequate and reasonable provider standards to meet the needs of the target population; and (d) ensure that services follow an individualized and person-centered plan of care.[1] Waiver services may include a large behavioral health component, including counseling, psychiatric care, life skills building, and case management services.[2]

In 35 states, these services include adult day care and community facility service provision to recipients during the day.[3] Services offered by state may differ, depending on population, need, and the state’s Medicaid Plan approved by the Centers for Medicare & Medicaid Services (CMS).

After COVID-19 was announced and various protections to enforce social distancing were suggested or required, this type of large group community services setting was disallowed by the executive branches in some states. This left providers and recipients scrambling to figure out how to serve a critical need in an entirely new manner. The Commonwealth of Kentucky may serve as a model for how to effectively utilize Medicaid procedures to ensure continuity of this essential care.

The Kentucky Cabinet for Health and Family Services (CHFS) issued guidance for entities or individuals who render Medicaid services to persons under a 1915(c) Home and Community Based Waiver.[4] On March 6, 2020, Kentucky’s Governor issued a State of Emergency for the entire state.[5] On March 18, 2020, Adult Day Care centers and other facilities providing the location for waiver services were ordered to close to reduce risk of transmission of COVID-19.[6]

Services were permitted to be provided inside a waiver participant’s home. As “hands on” services are only reimbursable if the participant and the service provider were face to face in the same physical location, verbal health screenings and good sanitation procedures were suggested prior to and during home visits.[7] Other services, which were typically paid only when conducted face to face or in an outside facility, are directed to be provided via telehealth. Those include:

Physical, Occupational or Speech Therapy
Supported Employment
Behavior supports and counseling services
In-home services such as Personal Care or Homemaking (cueing and prompting support only)
Case Management[8]

CHFS and the Kentucky Department for Medicaid Services (DMS) provided written guidance assuring reimbursement for those services and guidance for service provision.[9] The written guidance also permitted case managers to modify the services being provided to patients to include or be changed so that telehealth and in home visits were part of the services.[10]

The MAP-16 form, standard to Kentucky Medicaid patients, is the means of recording case notes and supporting reimbursement. Service providers must detail that the reason for telehealth or telephone service provision rather than face to face person centered service meetings was COVID-19. Similarly, service providers are supposed to fill out the Medicaid Waiver Management Application (MWMA) with detailed notes on meeting duration and contents, and COVID-19 listed as the reason for remote care.[11] DMS provided written guidelines for all providers using telehealth.[12] Documentation and recordkeeping procedures for waiver services have not changed, and providers are directed to comply with mandates for such documentation.[13]

These changes are in accordance with the flexibility CMS adopted with regard to waiver services following social distancing and other safety procedures required during the COVID-19 pandemic. The CMS changes are found in the Waiver Page Appendix K.[14] Appendix K is a standalone appendix that may be utilized by states during emergency situations to request amendment to approved 1915(c) waivers. It includes actions that states can take under the existing Section 1915(c) HCBS waiver authority in order to respond to an emergency. To date, six states have completed the template application form found in Appendix K and have had waiver applications approved and Kentucky is one of those states.

CMS notes in its FAQ on COVID-19 and waiver services that Appendix K was developed to help states “accelerate changes to their 1915(c) home and community based services waiver operations or to request emergency amendments.”[15] The Appendix K template for COVID includes an addendum that is pre-populated with commonly requested waiver services changes. CMS clearly recognizes that continuity of care is essential to waiver recipients and that states should be willing to ensure such care is provided and reimbursed. Appendix K also provides suggestions for states to include additional waiver services, not typically provided in an adult day care or facility setting, so that recipients and their families are properly supported during the crisis.[16]

Kentucky’s request under Appendix K was submitted simultaneously with the requirement that adult day care and other similar facilities close and was approved rapidly. Use of the Appendix K template allows a state to transition this vulnerable population to home based and telehealth services within as little as a week, greatly reducing both disruption to care and the behavioral health concerns that arise when recipients and their families are exposed to change and stressors, such as the COVID-19 pandemic.

This Bulletin was edited by Matt Wolfe (Parker Poe Adams & Bernstein LLP).