“Dear Administrator Berwick:

On behalf of the National Disability Leadership Alliance (NDLA) and a wide variety of allied organizations supporting the mission and goals of the disability rights movement, we write to urge you to issue a Final Rule clarifying that Home and Community Based Services must not be delivered on the grounds of an institution, in a housing complex designed expressly around an individual’s diagnosis or disability, or in a setting that has the characteristics of an institution. The National Disability Leadership Alliance (NDLA) is a coalition of 14 leading national disability organizations led by individuals living with disabilities themselves and supported by grassroots constituencies living with disabilities in all states and the District of Columbia. The Alliance prides itself on serving as a leading voice for those with disabilities and actively supporting the expansion and quality of the Medicaid Home and Community Based Services (HCBS) program. It is in this spirit that we and our allies contact you to urge you to move swiftly to issue a Final Rule in line with CMS’ stated policy positions and the clear intent of the Medicaid HCBS program.

In April of this year, CMS published a Notice of Proposed Rulemaking (CMS-2296-P) clarifying the types of settings for which Medicaid Home and Community Based Services (HCBS) waiver funding could be utilized. The proposed regulation would have clarified that a HCBS setting “must be integrated in the community; must not be located in a building that is also a publicly or privately operated facility that provides institutional treatment or custodial care; must not be located in a building on the grounds of, or immediately adjacent to, a public institution; or, must not be a housing complex designed expressly around an individual’s diagnosis or disability, as determined by the Secretary…[and] must not have qualities of an institution, as determined by the Secretary. Such qualities may include regimented meal and sleep times, limitations on visitors, lack of privacy and other attributes that limit individual’s ability to engage freely in the community.”

We are writing to reiterate our support for CMS’s proposed definition of Home and Community Based Services outlined in CMS-2296-P, and to urge you to issue a Final Rule consistent with the principles laid out in your April NPRM. The integrity of the HCBS program is essential to protecting the rights of hundreds of thousands of Americans with disabilities who receive HCBS. Twenty-one years after the Americans with Disabilities Act (ADA) and twelve years after the Supreme Court’s Olmstead v. L.C. decision, it is imperative that CMS define what can and cannot be funded utilizing HCBS waiver dollars in specific and measurable terminology. Failure to do so would undercut efforts now being undertaken by both federal and state governments as well as advocates across the country to transition people with disabilities out of institutions and into the community in accordance with current law. Without a clear and sufficiently narrow definition of HCBS that delineates it from institutional settings, the effectiveness of deinstitutionalization efforts could be seriously hindered, leaving the door open to subjective interpretations by policymakers and the likelihood of wide-ranging and inconsistent applications of the rules. As such, we urge you to move swiftly to issue a Final Rule consistent with your April NPRM, defining appropriate and inappropriate usage of HCBS waiver dollars…”

Click below to read the full text of the letter and the names of the 95 signatory organizations.

Full NDLA Letter

NDLA Steering Committee Organizations

American Association of People with Disabilities
American Council of the Blind
Association of Programs for Rural Independent Living
Autistic Self Advocacy Network
Little People of America
National Association of the Deaf
National Coalition for Mental Health Recovery
National Council on Independent Living
National Federation of the Blind
Self Advocates Becoming Empowered
Not Dead Yet
United Spinal Association

The Autistic Self Advocacy Network (ASAN) is a non-profit organization run by and for Autistic people, fighting for disability rights in the world of autism. Working in fields such as public policy, media representation, research and systems change, ASAN hopes to empower Autistic people across the world to take control of their own lives and the future of our common community