ACL Policy Round Up: Public charge rule, vaccine guidance, more

In this Policy Round Up, we’re bringing you:

1. Input needed: New public charge rule
2. New CMS vaccination guidance for ICF/IIDs
3. Update to SSA policy: Exclusion of COVID benefits from income for determining SSI eligibility
4. Input needed: Proposed HCBS quality measures

Input needed: New “Public Charge” rule

Bottom Line: The Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) is looking for public input to inform development of a new “public charge” rule. The new rule could bring significant changes to the way immigration decisions are made for many older adults and people with disabilities. The input of both the aging and disability networks and older adults and people with disabilities themselves is crucial, and now -- early in the rulemaking process – is a critical time to weigh in.

You can submit comments via regulations.gov (due October 22, 2021). In addition, DHS will hold two listening sessions to gather input. Register here to participate:

• September 14, 2021 at 2:00 pm ET: Listening Session for the General Public
• October 5, 2021 at 2:00 pm ET: State, Territorial, Local, and Tribal Benefits Granting Agencies and Nonprofit Organizations Only

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As discussed in our recent policy update,  the public charge policy has been used to prevent people from getting a visa or becoming a lawful permanent resident if they are determined to be likely to become a “public charge,” meaning a person who is likely to primarily rely on the government for cash assistance or Medicaid for nursing facility care. In 2019, the scope of the policy was expanded to encompass a wider range of public benefits, but that expanded rule was retracted earlier this year.. 

The Advanced Notice of Proposed Rule Making is the first step in a total rewrite of the public charge rule. An ANPRM collects information that will be used to develop a Notice of Proposed Rule Making (NPRM), which proposes regulatory language for public comment. The NPRM, in turn, will become a final rule. In the ANPRM, DHS/USCIS is looking for input on how the rule will impact older adults and people with disabilities. For example, the ANPRM asks:

• How should an applicant’s age be considered as part of the public charge inadmissibility determination?
  
• How should DHS define health for the purposes of a public charge inadmissibility determination?
• Should DHS consider disabilities and/or chronic health conditions as part of the health factor? If yes, how should DHS consider these conditions and why?
• How should the Rehabilitation Act of 1973’s prohibition of discrimination on the basis of disability be considered in DHS’s analysis of the health factor?
• What potentially disproportionate negative impacts on underserved communities (e.g., people of color, persons with disabilities) could arise from the definition of “public charge” and how could DHS avoid or mitigate them?

For complete details, see the ANPRM in the Federal Register.

New SSA Policy: COVID benefits not counted for SSI eligibility

Bottom line: The Social Security Administration (SSA) now considers many types of pandemic-related financial assistance payments, including economic impact payments or “stimulus checks,” to be “disaster assistance.” As such, they will not be included when determining Supplemental Security Income (SSI) eligibility or monthly SSI benefit amounts, and this exclusion applies indefinitely. This means:

• SSA will no longer count most types of COVID-19 financial assistance as income and resources when determining eligibility or payment amounts. 
• The 12-month limitation on the exclusion no longer applies. SSI recipients now will be able to retain their benefits, even if the money from these financial assistance programs is still in their bank accounts after 12 months.
• This change is retroactive; any benefits that were previously withheld because COVID-19 financial assistance was counted will be restored (automatically in most cases)

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In most states, eligibility for SSI results in automatic eligibility for other benefits, including Medicaid. The eligibility criteria for SSI are strict, and changes in a recipient’s income or assets can result in the individual losing SSI and other benefits. 

Initially, SSA counted many types of COVID-19 assistance as income and resources for SSI purposes. This caused some people to have their SSI benefits reduced or suspended and others to have their applications for SSI benefits denied. Last year, SSA announced that some COVID-19 financial assistance would be excluded, but only for 12 months. That meant that SSI recipients who had saved the money from the assistance payments in 2020 could have seen benefits reduced in 2021. Now, SSI recipients will be able to retain their benefits, even if the money from stimulus checks, unemployment benefits, emergency rental assistance, and other programs is still in their bank accounts.

This change in policy is retroactive, meaning it applies to any payments going back to the beginning of the pandemic. SSA is now reviewing SSI applications, redeterminations, appeals, and other records going back to the beginning of the COVID-19 pandemic in March 2020, to restore SSI payments for people whose SSI was affected by receiving any of the assistance that is now excluded. If the person has an appointed representative or a representative payee, SSA will also send this information to the representative. If SSA needs additional information from the person before they can restore their SSI benefits, or if they need to take a new SSI application, they will mail a letter. The letter will explain that SSA needs to talk with the person at a scheduled appointment. Generally, this appointment will take place by telephone.

Letters will be mailed to the current addresses on file, so if a recipient has moved, they should contact their local Social Security office to update their address.

Why this is significant: Many people with disabilities and older adults rely on SSI, either as their only source of income, or as an important supplement to other income. In December 2019, 57% of SSI recipients had no income other than their SSI payment, and 33% percent of SSI recipients received both SSI and Social Security benefits.

About 8.1 million people received federally administered payments in December 2019, with 28% of recipients being 65 or older. You can find more statistics under the “highlights” section on this page on the Social Security Administration (SSA)’s website.

More information:

• The full list of COVID-19 financial assistance that no longer counts against SSI eligibility or SSI payment amounts can be found about halfway down this page on the SSA website.
• ACL’s National Center on Law and Elder Rights (NCLER) has developed a “Practice Tip” with additional information on this change and its legal implications. 

New CMS Vaccination Guidance for ICFs/IDD

Bottom line: In May, the Center for Medicare and Medicaid Services (CMS) released a final rule requiring vaccination education, access and reporting for the residents and staff of nursing facilities and intermediate care facilities for people with intellectual and developmental disabilities (ICF/IID). Last week, CMS sent a memo to the agencies in each state that are responsible for inspecting and accrediting ICFs/IID to provide detailed implementation guidelines for the new rule. This guidance provides information about the responsibilities of ICFS/IID under the new rule and may be helpful if as you counsel and educate residents of ICFs/IID, their families and caregivers and advocate for them with facilities..

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The Center for Medicare and Medicaid Services (CMS) requires nursing facilities and Intermediate Care Facilities for the Intellectually and Developmentally Disabled (ICF/IID) to provide COVID-19 vaccine education to all residents and staff. Facilities are likewise required to provide a vaccine to residents and staff that wish to receive one and, in the case of nursing facilities, must report vaccination status to the Centers for Disease Control. (ICFs/IID are encouraged, but not required to report vaccination status). For more information on the rule that established these requirements, read our recent blog post.

On August 23, CMS provided further guidance to ICFs/IID on their responsibilities under the new rule. For example:

Education: Facilities must provide education on potential benefits and side effects of the COVID-19 vaccine to staff who work there regularly and residents “in a manner they can understand.” This includes information in different languages and formats. The guidance refers to resources from the Immunization Action Coalition, FDA, CDC for best practices to build confidence in the COVID-19 vaccine among residents with disabilities and staff members.

Access to a COVID-19 vaccine: The ICF/IID may provide staff and residents the vaccine directly or the facility can partner with an outside pharmacy or other distributor to provide it. If a facility does not have access to the vaccine (for example due to shortages), it must provide CMS with evidence that it made an effort to get it. After administration, the facility must monitor residents and staff and report any adverse events to the Vaccine Adverse Event Reporting System per FDA requirements. Finally, a resident’s medical record must include, at a minimum, documentation of education provided about the vaccine, whether the vaccine was accepted, refused or not administered due to medical contraindications.

The facility also should document that each staff member was provided education on and access to a COVID-19 vaccine and whether the vaccine was refused, accepted or not administered for medical reasons

Residents and representatives have the right to refuse a COVID-19 vaccine and facilities cannot take any adverse action against the client or representative for doing so, including social isolation, denied visitation, or involuntary discharge. Under CMS and EEOC guidelines, staff are also able to refuse a COVID-19 vaccine, however, state and local requirements may require staff to be vaccinated.

Reporting: ICFs/IID are encouraged to report COVID-19 vaccine status of staff and residents to the CDC’s National Healthcare Safety Network (NHSN), they are not required to do so at this time.

Input needed: HCBS Quality Measures

Bottom Line: The National Quality Forum (NQF) is seeking input on 14 quality measures for home- and community-based services (HCBS). These measures are a subset of the National Core Indicators for Intellectual and Developmental Disabilities HCBS Measures.

The measures, and the assessment of them by the NQF’s Patient Experience and Function Standing Committee, can be reviewed in the committee’s draft report. Comments may be submitted through the NQF website (requires registration) until Friday, September 17 at 6:00 PM ET. Any aspect of the report can be commented on including the scope of the measures, the quality of the measure development process, the importance of the measures, their utility in HCBS programs, etc. 

Why this is important: Development of standardized measures of quality for HCBS has lagged behind development of similar measures for health care. That has hamstrung efforts to assess and improve the quality (and consistency of quality across states) of the services that make community living possible.

NQF endorsement is an independent validation of a measure of quality. It reflects scientific and evidence-based review, input from consumers and their families, and the perspectives of people throughout the health care and HCBS industries. That’s why input from the aging and disability networks, and of older adults and people with disabilities is so important.

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The National Core Indicators for Intellectual and Developmental Disabilities HCBS Measures (NCI) are standard measures used across states to assess the outcomes of services provided to individuals and families. Developed as a collaborative effort between the National Association of State Directors of Developmental Disabilities Services (NASDDDS) and the Human Services Research Institute (HSRI), the indicators address key areas of concern including employment, rights, service planning, community inclusion, choice, and health and safety.

The 14 NCI measures recommended for NQF endorsement collectively comprise NQF Measure #3622. They are spread across four of NQF’s 11 HCBS domains, and are as follows:  

Person-Centered Planning (PCP) and Coordination

• #PCP-1 The proportion of people who express they want a job who have a related goal in their service plan (Community Job Goal)
• #PCP-2 The proportion of people who report their service plan includes things that are important to them (Person-Centered Goals)
• #PCP-3 The proportion of people who express they want to increase independence in functional skills (activities of daily living [ADLs]) who have a related goal in their service plan (ADL Goal)
• #PCP-4 The proportion of people who report they are supported to learn new things (Lifelong Learning)
• #PCP-5 The proportion of people who report satisfaction with the level of participation in community inclusion activities (Satisfaction With Community Inclusion Scale)

Community Inclusion

• #CI-1 The proportion of people who reported that they do not feel lonely often (Social Connectedness)
• #CI-2 The proportion of people who reported that they have friends who are not staff or family members (Has Friends)
• #CI-3 The proportion of people who report adequate transportation (Transportation Availability Scale)
• #CI-4 The proportion of people who engage in activities outside the home (Community Inclusion Scale)

Choice and Control

• #CC-1 The proportion of people who reported they chose or were aware they could request to change their staff (Chose Staff)
• #CC-2 The proportion of people who reported they could change their case manager/service coordinator (Can Change Case Manager)
• #CC-3 The proportion of people who live with others who report they can stay home if they choose when others in their house/home go somewhere (Can Stay Home When Others Leave)
• #CC-4 The proportion of people who report making choices (independently or with help) in life decisions (Life Decisions Scale)

Human and Legal Rights

• #HLR-1 The proportion of people who report that their personal space is respected in the home (Respect for Personal Space Scale)

The Patient Experience and Function Standing Committee will convene on Friday, October 15 from 2:00 - 5:00 PM ET to review and adjudicate comments.

Please contact NQF’s All-Cause Admissions and Readmissions Team with any questions.