Background:

In January 2014, the deferral Centers for Medicare and Medicaid Services (CMS) published final rules defining what constitutes a home and community-based setting for Medicaid reimbursement purposes under Section 1915 (c) Home and Community-Based Services (HCBS) waivers, Section 1915(i) HCBS State Plan programs, and Section 1915(K) Community First Choice State Plan Options.  The effective date of the regulations is March 17, 2014.

CMS spent several years developing the final regulations through its rule making process, compiling and analyzing numerous comments from consumers, advocates, provider, state and local government agencies and the public.  The final regulations provide guidance about the qualities that make a setting home and community-based, rather than focusing on what settings are institutional in nature. 

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Statewide Transition Plan:

 The California Department of Health Care Services began by developing a Statewide Transition Plan that addresses how California will move forward with implementation for all of its eight waiver programs and two State Plan programs affected by the home and community-based settings requirements. The final version of the HCBS Statewide Transition Plan, submitted to CMS on December 19, 2014, is posted at www.dhcs.ca.gov/services/ltc/Pages/HCBSStatewideTransitionPlan.aspx  and includes a timeline that identifies the key phases of implementation. Full compliance with the regulations must be accomplished by March 17, 2019.

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Regulatory Standards:

Home and community-based settings must have all of the following qualities, based on the needs of individuals as indicated in their person-centered service plans:

• The setting is integrated in and supports full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive, integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

   

• The setting is selected by the individual from among setting options including non-disability-specific settings and an option for a private unit in a residential setting.  The setting options are identified and documented in the person-centered service plan and are based on the individual’s needs, preferences, and for residential settings, resources available for room and board.

   

• Ensures an individual’s rights of privacy, dignity and respect, and freedom from coercion and restraint.

   

• Optimizes, but does not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment, and with whom to interact.

   

• Facilitates individual choice regarding services and supports, and who provides them.

   

• In a provider-owned or controlled residential setting, in addition to the qualities specified above, the following conditions must also be met:

   

1. The unit or dwelling is a specific physical place that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the State, county, city, or other designated entity.

    

2. Each individual has privacy in their sleeping or living unit:

• Units have entrance doors lockable by the individual, with only appropriate staff have keys to doors.

   

• Individuals sharing units have a choice of roommates in that setting.

   

• Individuals have the freedom to furnish and decorate their sleeping or living units within the lease or other agreement.

   

1. Individuals have the freedom and support to control their own schedules and activities, and have access to food at any time.

    

2. Individuals are able to have visitors of their choosing at any time.

    

3. The setting is physically accessible to the individual. 

    

Any modifications to these additional conditions for provider-owned or controlled residential settings must be supported by a specific assessed need and justified in the person-centered service plan.  The following requirements must be documented in the person-centered service plan:

• Identify a specific and individualized assessed need.

   

• Document the positive interventions and supports used prior to any modifications to the person-centered service plan.

   

• Document less intrusive methods of meeting the need that have been tried but did not work.

   

• Include a clear description of the condition that is directly proportionate to the specific assessed need.

   

• Include regular collection and review of date to measure the ongoing effectiveness of the modification.

   

• Include established time limits for periodic reviews to determine if the modification is still necessary or can be terminated.

   

• Include the informed consent of the individual.

   

• Include an assurance that interventions and supports will cause no harm to the individual

   

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Settings That Are Not Home and Community-Based

The final regulations state that the following settings are not home and community-based settings for Medicaid reimbursement purposes under HCBS waivers or HCBS State Plan programs:

• Nursing facilities

   

• Institutions of mental diseases

   

• Intermediate care facilities for individual with intellectual disabilities

   

• Hospitals

   

• Other locations that have qualities of an institutional seeting, as determined by the Secretary of the federal Department of Health and Human Services

   

Additionally the regulations specify in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment;

• Publicly or privately owned facilities that provide inpatient treatment

   

• Settings on the ground of, or immediately adjacent to, a public institution; and

   

• Settings that have the effect of isolating individuals receiving Medicaid-funded HCBS from the broader community of individuals not receiving Medicaid-funded HCBS.

   

The first two types of settings are relatively easy to identify, but the last category of “settings that isolate” is less definite and more focused on how the setting affects the participants.  Settings that isolate may have some or all of the following characteristics:

• The setting is designed specifically for people with disabilities, and often even for people with a certain type of disability;

• The individuals in the setting are primarily or exclusively people with disabilities and the staff that provides services to them;

• The setting is designed to provide people with disabilities multiple types of services and activities on-site, including housing, day services, medical, behavioral and therapeutic services, and/or social and recreational activities;

• The individual in the setting have limited, if any, interaction with the broader community; or settings that use practices that are used in institutional settings or are deemed unacceptable in Medicaid institutional settings (e.g. seclusion or restraint).

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Implementation:

There are several major phases involved in full implementation of the home and community-based settings rules.  Each will require significant input from stakeholders.  DDS is convening an HCBS Advisory Group and stakeholder workgroups to support all aspects of implementing the home and community-based settings requirements.

The major phases include:

• Education and outreach to consumers, advocates, providers, government agencies and the public regarding the impact of the federal regulations on service delivery and program administration.

   

• Assessing state statures, regulations, policies and other written requirements for compatibility with federal home and community-based settings requirements, and determining the steps to take to achieve compliance.

   

• Developing criteria, tools and processes for assessing providers.

   

• Determining individual provider compliance through self assessments, sampling, and on-site inspections.

   

• Developing policy and procedures for providers to achieve compliance.

   

• Modifying consumer complaint and provider appeal processes to cover issues involving home and community-based settings.

   

• Performing data collection, analysis, and reporting to CMS, the California Health and Human Services Agency, the Legislature and the public.

   

• Providing ongoing technical assistance to, and compliance monitoring of, providers.