National Association of State Head Injury Administrators Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, May 25 -- Rebeccah Wolfkiel, executive director of the National Association of State Head Injury Administrators, Alabaster, Alabama, has issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Medicaid Program: Preadmission Screening and Resident Review". The comment was written on May 20, 2020, and posted on May 21, 2020:

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The National Association of State Head Injury Administrators (NASHIA) appreciates the opportunity to respond to the Proposed Rule: Preadmission Screening and Resident Review (PASRR) published in the Federal Register February 20, 2020. Our organization represents state employees administering Medicaid home and community-based services (HCBS) and other state programs that provide an array of rehabilitative and long-term community services and supports for individuals with acquired/traumatic brain injury (ABI/TBI).

We commend the Centers for Medicare and Medicaid Services (CMS) for considering a specific alternative regarding inclusion of ABI/TBI in the PASRR process, regardless of age at the time of injury. While we would like to include individuals regardless of the age at the time of injury, we do believe that a legislative change is in order to include these individuals and to specify a state agency which would be responsible for screening, case management and provision of services. However, we believe that the interests of individuals with ABI/TBI who may be eligible could be better addressed by providing language in Sec. 483.106 that provides basic rules and responsibilities for the State Medicaid Agency (SMA), the SMHA, and the SIDA, in implementing PASRR by directing them to collaborate with state and community ABI/TBI programs and resources in assessing needs and defining specialized services needed to transition and maintain functioning in community settings.

Largely due to decreases in insurance coverage for inpatient rehabilitation following a brain injury over the past two decades, individuals who sustain this injury are increasingly likely to receive much of their rehabilitation in skilled nursing facilities with non-specialized therapy teams. This poorly impacts outcomes and increases the likelihood that individuals will continue in these facilities for long term care rather than returning home or to the community. According to the July 2013 study titled, "Medicaid Expenditures for Persons with Traumatic Brain Injury while residing in Maryland Nursing Facilities: A follow-up Study," the Hilltop Institute at University of Maryland Baltimore County found that approximately 3,000 Maryland Medicaid beneficiaries with a history of brain injury had nursing facility (NF) stay during the Fiscal Year (FY) 2010 to FY 2012 study period.

The prevalence rate of Medicaid beneficiaries with ABI/TBI in Maryland nursing facilities was 13 percent in FY12. FY12 Medicaid costs for persons with a TBI and/or anoxia diagnosis while residing in a nursing facility were $16,000 higher per person than those of their non-TBI diagnosed counterparts. For nursing facility patients with TBI who had longer stays (>11 months), the average per person total annual costs were $91,443. Higher annual costs were associated with higher non- nursing facility costs (e.g., inpatient hospital, emergency department services, medicine). In FY 2012, the ratio of persons under age 65 to those 65 and older for persons with a TBI diagnosis was nearly even at 5:5; the same ratio for nursing facility users with no TBI diagnosis was 2:8. This implies that individuals with brain injury enter nursing facilities at a much younger age than individuals who have not sustained a brain injury.

Providing the necessary community supports in lieu of nursing facility care within the structures of existing state government has been difficult with many federal and state resources directed specifically to individuals with intellectual and developmental disabilities (I/DD), mental health conditions, or who are older adults. To address gaps in service delivery, states have enacted legislation and appropriated funding for services and supports that are more tailored to the cognitive, behavioral, emotional and physical needs of individuals with ABI/TBI-related disabilities. These state ABI/TBI programs are generally housed in the state health, vocational rehabilitation or education agency with some state programs housed in the state behavioral health or Medicaid agency. However, as these resources are limited, in most states, individuals with ABI/TBI are also served in State Mental Health Agency (SMHA) and the State Intellectual Disability Agency(SIDA) systems when individuals with brain injury meet the definition of I/DD or have a co-occurring behavioral health disorder.

One promising program is the Money Follows the Person (MFP) Demonstration Program which a few states have partnered with their state Medicaid agency to identify individuals with ABI/TBI in nursing facilities and transitioned them to more appropriate community alternatives. This program has allowed states to transition people out of nursing facilities regardless of age of onset of injury.

PASRR could be an important tool to prevent people with ABI/TBI from being unnecessarily placed in Medicaid-funded nursing facilities in keeping with the U.S. Supreme Court's Olmstead decision. There have been lawsuits in two states regarding the housing of individuals with ABI/TBI in nursing homes and institutional settings. In 2008, two lawsuits were settled in favor of plaintiffs with ABI/TBI seeking community services in lieu of nursing and institutional settings in the Commonwealth of Massachusetts. Massachusetts implemented the MFP program and two HCBS waiver programs to be in compliance with the court decision, thus transitioning individuals from nursing facilities and offering an array of HCBS. In 2001, a U.S. District Court upheld the rights of several people with disabilities, including an individual with TBI, who lived at Laguna Honda Hospital and alleged that the City and County of San Francisco violated their civil rights by denying access to community-based long-term care services to avoid unnecessary institutionalization in nursing facilities.

In closing, thank you again for this opportunity to weigh in on the PASRR process as it applies or potentially applies to individuals with ABI/TBI. Should you have additional questions or wish further information, please do not hesitate to contact our organization.

Sincerely,

Rebeccah Wolfkiel

Executive Director

[email protected]

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=CMS-2020-0015-0002

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