Senators: Unclear Rule May Cause Assisted Living Move-Outs

Some assisted living residents may be forced to move under a recently finalized federal rule, causing two U.S. Senators to take action.

Sens. Susan Collins (R-Maine) and Claire McCaskill (D-Missouri), co-chairs of the Senate Special Committee on Aging, penned a letter to the Centers for Medicare & Medicaid Services (CMS), expressing their concern with a rule finalized in 2014 and set to be implemented in 2019. That rule defined “home and community-based settings,” and set parameters around how Medicaid dollars can be allocated to pay for care in these settings under waivers granted to states. The intent of the rule was to break down barriers that some seniors face in receiving home and community-based care.

However, CMS has not provided much clarity around whether certain settings will be excluded from the definition of HCHB in the rule, namely secured memory care units, assisted living communities in rural areas, or assisted living communities on the same campus or in the same building as a skilled nursing facility, Collins and McCaskill state in their letter.


Under the rule, these settings would be considered institutional and be subject to “heightened scrutiny” to be included in Medicaid waiver programs. The rule’s definition of HCBS settings could exclude settings* that are in a building that also provides inpatient institutional treatment, which are in a building or on the grounds adjacent to a public institution, or that “isolate” people receiving Medicaid-reimbursed services from the larger community.

“Many seniors may find themselves unable to locate another appropriate non-institutional setting should CMS ultimately determine that many of the assisted living settings presumed ineligible under the rule are not eligible for federal financial participation,” the letter states. “Because seniors may have needs that can no longer be met through home health care alone, they may be forced to transition into higher cost and more restrictive institutional settings, which seems contrary to CMS’ intent.”

The Senators specifically say that there is “high demand” for assisted living and similar settings, and that some seniors have chosen to live in a non-institutional assisted living environment that is close to a nursing home, in case their care needs escalate.


“We are pleased that Senators Collins and McCaskill have focused on this issue, and we applaud their leadership to honor the care needs and wants of assisted living residents,” stated Scott Tittle, executive director of the National Center for Assisted Living (NCAL), in a press release. “NCAL hopes additional guidance from CMS will bring much-needed clarity, while recognizing assisted living as an integral part of the home and community.”

NCAL is the assisted living wing of the American Health Care Association (AHCA). When the finalized version of the Medicaid rule initially was released, AHCA/NCAL praised it for addressing earlier concerns about assisted living being excluded.

“But now, as states are implementing the rule, they need more guidance and communications from CMS to properly fulfill the intent of the HCBS waiver program,” NCAL Senior Director of Policy Lilly Hummel tells Senior Housing News. “We want to ensure that CMS is not putting forth blanket definitions of ‘institutional’ that would restrict access to residents on Medicaid or discourage assisted living communities from offering services to Medicaid beneficiaries.”

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The Medicaid waiver program has emerged as an important way that assisted living providers can offer their services to less affluent seniors, AHCA President and CEO Mark Parkinson told SHN as part of a recent interview for The Leadership Series. Making sure that the waiver program covers assisted living and not just home health care requires a “constant battle in D.C.,” he said.

Written by Tim Mullaney

*Editor’s Note: This article has been updated from an earlier version that stated the rule “explicitly excludes” these types of settings.

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