I. What is a home and community-based services (HCBS) waiver?

In 1981, a change was made to federal regulations allowing states to ask the federal Medicaid agency for permission to waive -or disregard- certain regulations that only allowed the state to use Medicaid funds for institutional or hospital programs. This new program, authorized under section 1915(c) of the Social Security Act as the Home and Community-Based Services (HCBS) Waiver allowed states to use funds that would have been used to pay for nursing home or other institutional care, for a wide variety of home and community-based services for individuals who lived in institutions or were at risk of entering institutions.

Congress created the Medicaid Program. In 1965, Congress approved Title XIX of the Social Security Act which enacted Medicaid, a publicly financed national health insurance program intended to provide basic health insurance for low income families and individuals who received cash welfare payments. Medicaid has expanded far beyond the original group and now serves as health insurance for many more individuals, including many children and adults with developmental disabilities.

Medicaid is a partnership between the states and the federal government. The state and the federal government share the costs of providing services under the Medicaid program. The state pays a portion of the costs of Medicaid and the federal government then "matches" the state payments at a rate determined through a formula for each state.

In order to receive federal funds states must offer a set of mandatory or required services such as physician and hospital care. But states can also decide to offer other non-required services or programs such as the HCBS waiver.

Each state has flexibility around Medicaid eligibility. While each state has some flexibility about who is eligible for a Medicaid card, states generally include low income families and individuals and people with disabilities, typically those who qualify for federal disability payment such as Supplemental Security Income (SSI). Individuals who are eligible get a Medicaid card that gives them access to medically necessary services.

Massachusetts has had an approved HCBS waiver since 1985 operated by the Department of Developmental Services. Today, thousands of adults with intellectual disabilities* receive their services and funding for those services through one the Department's HCBS waiver programs.

States use the HCBS waiver because it helps fund services. As noted above, the Medicaid program is a state-federal partnership that provides federal "match" money to states. States can use the federal money to refinance services that were once paid for solely with state funds. This allows the state to collect federal money and potentially save state funds. These saved funds can be used for other services, programs or populations in the state. In many states the refinancing has been a means to expand services or has helped hold the line against cuts in programs. The more federal funds a program brings into the state, the better the case for getting new state funds to increase services.

All fifty states have waiver programs-and in some states the waiver funding accounts for close to 100% of the funding used for home and community services to people with developmental disabilities.

Waiver mandate - Because the waiver program brings federal funds into the services system, many states have a "waiver mandate". This means that the waiver is the first source of funding for services for anyone who is--or can become--eligible for the waiver. Because the waiver covers the same types of services as would be covered by state funds, it makes sense to get federal money for those same services. And it makes financial sense for a state to get as much federal funding as possible for services, allowing the state to use their state funds for individuals or services not allowable under the HCBS waiver, or to save those funds for other uses in the state.

States must apply. The state must apply to the federal Medicaid agency, the Centers for Medicare and Medicaid Services (CMS), for permission to run a waiver program. The state must fill out an extensive application that describes who will be served, what services the state will offer, who is allowed to provide those services and how the state will make sure people are safe and assured of their rights. CMS reviews the application and may ask for changes or for more information before approving the application. The state then has permission to operate the waiver for three years, at which time the state must renew the program. Every five years thereafter, the state must renew the program.

Centers for Medicare and Medicaid Make the Rules. As noted above, the federal Medicaid agency, the Centers for Medicare and Medicaid (CMS) requires states to fill out an application for the permission to operate a HCBS waiver. CMS has many requirements that a state must agree to including who can be served by HCBS waivers, how the state must determine eligibility for the waiver, how the federal Medicaid funds can be used, and how the state will assure that individuals served by the waiver are healthy and safe. When a state chooses to offer self-directed services, the federal waiver rules require the state to have a fair and equitable process to assign individual budgets and a system to provide support to people who choose to direct their own services. The federal rules also require the state to assure that individuals have certain rights such as freedom of choice of which providers they use (as long as the provider is qualified). The state Medicaid agency, the Office of Medicaid, makes decisions about what groups of people are eligible for a Medicaid card, and within the larger group of Medicaid eligible individuals, what groups can be eligible for waiver services. The Department gathers input from stakeholders when developing the waiver application.

This information is provided by the Department of Developmental Services.