DOH Holds Webinar on Conflict of Interest Rule for NHTD/TBI Waivers
The Department of Health (DOH) held a webinar on Sept. 6th to shed light on the current state of implementation of the federal Home and Community-Based Services (HCBS) Conflict of Interest (COI) Rule for Nursing Home Transition and Diversion (NHTD)/Traumatic Brain Injury (TBI) waiver providers. The webinar included an extensive question and answer (Q&A) session, and the Department will be providing a Frequently Asked Questions (FAQ) document. The webinar slides are available here. Note that “case management” refers to service coordination (SC).
The COI requirement calls for a pulling apart of SC and waiver services delivered in the program. According to the Department, the rule has not changed, but implementation is more flexible to some degree with the definition of the application of “only willing and able provider” under the waiver.
The Centers for Medicare and Medicaid Services (CMS) and DOH now allow the “only willing and able provider” exemption to be applied to all areas, rather than rural or frontier areas.
Agencies may provide both SC and waiver services, but they may not provide both to the same person, unless there is no other “willing and able provider” to do so. Service coordinators engage in the vetting of the only willing and able provider exemption and bring it to the Regional Resource Development Center (RRDC) for approval. This must be done on a case-by-case basis for each waiver participant. If there is not a willing and able provider due to lack of qualification or distance, a participant may access a service coordinator affiliated with or the same as the waiver services provider. Preference (and Person-Centered Service Planning) does not override the COI requirement if a participant prefers a certain service coordinator based on familiarity, quality, or other preference, if that service coordinator is affiliated with their waiver services provider. Exemption is only allowed based on the “only willing and able provider” test, which could involve lack of proximity, lack of qualification for services, and possibly other aspects of the term. Firewalls must be in place if an exemption is allowed. Further, exemptions are allowed for one year and must be reviewed annually, and service coordinators and their SC supervisors are subject to firewalls from direct waiver services providers. Upper-level management may be shared between SC and direct services.
Only direct services are subject to the COI rule, not indirect services such as assistive technology, home-delivered meals, environmental modifications, etc. It is not a conflict to provide both direct and indirect services.
Plans may be grandfathered to some extent. The COI requirement is effective Nov. 11, 2023. Plans with a conflict may be approved up to Nov. 11th under the existing (no COI) protocol until their next annual plan approval. Upon their next renewal, they must be compliant with the rule.
Providers of both SC and direct services must have a plan in place if they are choosing to terminate the services they currently provide.
LeadingAge NY will be sure to provide additional information, including the FAQ, as it becomes available.
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