1. HCBS Final Rule: Current Issues and Future Directions

2. 2014 HCBS Final Rule Published January 2014 – Effective March 17, 2014
Addressed CMS Requirements across HCBS provided through:
1915(c) waivers, 1915(i) state plan, 1915(k) Community First Choice, and
1115 Demonstration Waivers
Some requirements were effective immediately, others were given a transition period in order to allow states sufficient time to come into compliance.
Guidance issued in May 2017 extended the transition period for settings in existence as of the effective date of the final regulation from March 2019 to March 17, Extension of the transition period recognized the significant reform efforts underway and is intended to help states ensure compliance activities are collaborative, transparent and timely.
This session does not cover all aspects of the Final Rule; in today’s presentation we will focus specifically on the regulation’s impact on home and community-based settings.
(Taken from the 2017 HCBS Final Rule Intensive slides)
The guidance that extended the transition period extended the time frame that states have to come into compliance, states are still expected to achieve final approval of their STPs by the original March 2019 date.

3. Key Themes
The regulation is intended to serve as a catalyst for widespread stakeholder engagement on ways to improve how individuals experience daily life.
The rule is not intended to target particular industries or provider types
Federal financial participation (FFP) is available for the duration of the transition period
The rule provides support for states and stakeholders making transitions to more inclusive operations
The rule is designed to enhance choice
(Taken from the 2017 HCBS Final Rule Intensive slides)

4. Home and Community-Based Settings Criteria
Is integrated in and supports access to the greater community
Provides opportunities to seek employment and work in competitive integrated settings, engage in community life and control personal resources
Ensures the individual receives services in the community to the same degree of access as individuals not receiving Medicaid HCBS
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
(Taken from the Assisting Providers in Ensuring Settings Facilitate Community Engagement slides)
Quick review of the settings criteria:
While the regulations are probably second nature, let’s do a quick refresher and look at the components of the settings criteria which can be found at
42 CFR (c)(4)(i) through (v).
The home and community-based settings requirements establish an outcome-oriented definition that focuses on the nature and quality of individuals’ experiences.
The final rule establishes:
Mandatory requirements for the qualities of home and community-based settings including discretion for the Secretary to determine appropriate qualities.
Settings that are not home and community-based.
Settings presumed not to be home and community-based.
State compliance and transition requirements.

5. Home and Community-Based Settings Criteria (cont.)
The setting options are identified and documented in the person-centered service plan
The setting options 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, respect and freedom from coercion and restraint
Optimizes individual initiative, autonomy, and independence in making life choices
Facilitates individual choice regarding services and supports and who provides them
(Taken from the Assisting Providers in Ensuring Settings Facilitate Community Engagement slides)

6. Provider-Owned or Controlled Settings: Additional Criteria (1 of 4)
Unit/dwelling is a specific physical space owned, rented, or occupied under legally enforceable agreement
Same responsibilities/protections from eviction as all tenants under landlord tenant law of state, county, city or other designated entity
If tenant laws do not apply, state ensures lease, residency agreement or other written agreement is in place, providing protections to address eviction processes and appeals comparable to those provided under the jurisdiction’s landlord tenant law
(Taken from the Assisting Providers in Ensuring Settings Facilitate Community Engagement slides)
Provider-owned or controlled settings are different from living in one’s own home. In these settings someone else besides the individual is making the rules and setting expectations.
As a consequence, CMS included high level requirements and additional criteria for provider-owned or controlled settings that establish the components of a good tenancy agreement aimed at protecting the rights of individuals residing there.

7. Provider-Owned or Controlled Settings: Additional Criteria (2 of 4)
Each individual has privacy in their sleeping or living unit
Units have entrance doors lockable by the individual, with only appropriate staff having keys to doors as needed
Individuals sharing units have a choice of roommates
Individuals have the freedom to furnish and decorate their sleeping or living units within the lease or other agreement
Individuals have freedom and support to control their schedules and activities and have access to food any time
Individuals may have visitors of their choosing at any time
Setting is physically accessible to the individual
(Taken from the Assisting Providers in Ensuring Settings Facilitate Community Engagement slides)
The regulations identify criteria to ensure that individuals living in provider-owned or controlled settings enjoy the same protections/rights afforded to anyone under the terms of a lease or agreement including privacy, lockable doors, choice of roommates and the ability to furnish or decorate their living units within the parameters of the lease.
These protections/requirements ensure that the setting is physically accessible, that individuals have support to control their own schedules, have access to food and choice of visitors at any time.

8. Provider-Owned or Controlled Settings: Additional Criteria (3 of 4)
Modifications of the additional criteria must be:
Supported by specific assessed need
Justified in the person-centered service plan
Documented in the person-centered service plan
(Taken from the Assisting Providers in Ensuring Settings Facilitate Community Engagement slides)
Before any of these criteria are modified, the reason for the modification must be supported by a specific, assessed need which is justified and documented in the person-centered service plan.

9. Provider-Owned or Controlled Settings: Additional Criteria (4 of 4)
Documentation in the person-centered service plan of modifications of the additional criteria includes:
Specific individualized assessed need
Prior positive interventions and supports including less intrusive methods
Description of condition proportionate to assessed need
Ongoing data measuring effectiveness of modification
Established time limits for periodic review of modifications
Individual’s informed consent
Assurance that interventions/supports will not cause harm
(Taken from the Assisting Providers in Ensuring Settings Facilitate Community Engagement slides)
The criteria for restricting individual rights in a provider-owned or controlled setting ensures that on-going monitoring occurs, that the need for the restriction has been assessed, that less restrictive, positive interventions have already been tried, that the conditions for the restriction are not excessive, but are proportionate to the need, that the modification is measured on an on-going basis with established time limits for review, to ensure that it is working and to determine when it is no longer needed, that the individual has given informed consent and that the supports will cause no harm.
These requirements must be documented in the person-centered service plan.

10. HCBS STPs: Status of STP Review and Implementation Activities
As of August 22, 2018
9 States have final approval: AK, AR, DC, DE, KY, OK, TN, WA, WY
42 States have initial approval: AL, AK, AR, AZ, CA, CO, CT, DC, DE, GA, HI, ID, IN, IA, KY, LA, MD, MI, MN, MS, MO, MT, NE, NH, NM, NC, ND, OH, OK, OR, PA, RI, SC, SD, TN, UT, VT, VA, WA, WV, WI, WY
UPDATE PRIOR TO CONFERENCE
2017 HCBS Conference Stats
Four states have received final approval from CMS (TN, KY, AR, OK).
35 states have received Initial Approval.
The majority of states who have not yet received Initial Approval are scheduled to update their STPs and resubmit to CMS within the next 6 months
9 states are still pending initial approval: FL, IL, KS, MA, ME, NJ, NY, NV, TX

11. Timelines for Approvals
States should continue progress in assessing existing operations and identifying milestones for compliance that result in final Statewide Transition Plan approval by March 17, 2019.
The transition period for states to demonstrate compliance with the home and community based settings criteria has been extended until March 17, 2022 for settings in which a transition period applies.

12. Review of the Criteria for Initial Approval
Identification of all settings subject to the rule in the Statewide Transition Plan (STP);
Systemic assessment completed, including outcomes;
Remediation strategies outlined, with timelines, and actively worked on;
Draft STP widely disseminated for 30-day public comment period; comments responded to, summarized and submitted to CMS.
(Taken from The Process for Final Approval of the STP slides)
Let’s begin with a quick review of CMS’ expectations for Initial Approval:
The state has identified all settings subject to the rule in the Statewide Transition Plan (STP).
The state has completed its systemic assessment:
Which is the extent to which its regulations, standards, policies, licensing requirements, and other provider requirements ensure settings are in compliance;
Has included the outcomes of this assessment in the STP:
State must assure that each element under the home and community-based services federal regulations is adequately addressed in each relevant state standard for which the specific federal requirement is applicable;
Has clearly outlined remediation strategies to rectify issues that the systemic assessment uncovered, such as legislative/regulatory changes and changes to vendor agreements and provider applications:
Has determined level of compliance for existing standards, including analysis/explanation in the STP for each standard found to be noncompliant, partially compliant or silent.
Included milestones with specific, reasonable timelines/dates for completion of each remedial action;
Identified potential barriers to completion and identified actions to address the barriers.
Is actively working on those remediation strategies;
Submitted the draft STP for a 30-day public comment period; made sure information regarding the public comment period was widely disseminated;
Responded to and summarized the comments from the public comment period in the STP submitted to CMS.

13. Key Elements in the Process for Final Approval
Summary of completed and validated site-specific assessments, including aggregated outcomes completed;
Draft remediation strategies with timelines for resolution by the end of the transition period (March 17, 2022);
Detailed plan for identifying and evaluating those settings presumed to have institutional characteristics;
(Taken from The Process for Final Approval of the STP slides)
In order to receive final approval, CMS has identified the following criteria that should be included in all STPs:
A comprehensive summary of completed site-specific assessments of all settings in which HCBS are being provided, validation of those assessment results, and inclusion of the aggregate outcomes of these activities:
Including the type and number of settings that fully comply; do not comply and require modifications; cannot meet requirements and require removal from the program and/or transition of beneficiaries; are presumptively not home and community-based and will be submitted for heightened scrutiny;
Draft remediation strategies, including milestones and a corresponding timeline for resolving issues that the site-specific settings assessment process and subsequent validation strategies identified by the end of the home and community-based settings transition period (March 17, 2022);
A description of the state’s heightened scrutiny process is needed for final approval. The state should include a detailed plan for identifying settings presumed to have institutional characteristics, as well as the proposed process for evaluating these settings and preparing for submission to CMS for review under heightened scrutiny. The state must clearly lay out its process for identifying settings that are presumed to have the qualities of an institution. The state should only submit those settings under heightened scrutiny that the state believes will overcome any institutional characteristics and can comply with the federal settings criteria. The state should include further details about the criteria or deciding factors that will be used consistently across reviewers to make a final determination regarding whether or not to move a setting forward to CMS for heightened scrutiny review.

14. Key Elements in the Process for Final Approval, cont.
Process for communicating with beneficiaries who are currently in settings that cannot or will not come into compliance by March 17, 2022;
Description of ongoing monitoring and quality assurance to ensure all settings remain in full compliance with the settings criteria;
Updated version of the STP is posted for minimum 30-day public comment period.
(Taken from The Process for Final Approval of the STP slides)
(continued):
A process for communicating with beneficiaries currently receiving services in settings that the state has determined cannot or will not come into compliance with the home and community-based services settings criteria by March 17, 2022;
A description of ongoing monitoring and quality assurance processes that will ensure all settings providing home and community-based services continue to remain fully compliant with the federal settings criteria in the future.
Prior to submitting the updated version of the STP for consideration of final approval, the state will need to post the STP for a minimum 30-day public comment period.
To date, 8 states have received Final Approval: AR, DE, D.C., KY, OK, TN, WA, WY
**May need to update prior to the Conference

15. Settings that are not Home and Community-Based
Settings that are not home and community-based include:
A Nursing Facility;
An Institution for Mental Diseases;
An Intermediate Care Facility for Individuals with Intellectual Disabilities;
A Hospital; or
Any other locations that have qualities of an institutional setting, as determined by the Secretary.
(Taken from The Process for Final Approval of the STP slides)
The regulations identify which settings are not home and community-based:
A Nursing Facility;
An Institution for Mental Diseases;
An Intermediate Care Facility for Individuals with Intellectual Disabilities;
A Hospital;
Any other locations that have qualities of an institutional setting, as determined by the Secretary.
42 CFR (c)(5)(i)-(v)

16. Three Categories of Presumptively Institutional Settings
Settings Presumed NOT to be Home and Community-Based:
Category I: Settings in a publicly or privately operated facility that provides inpatient institutional treatment.
Category II: Settings in a building on the grounds of, or adjacent to, a public institution.
Category III: Settings with the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS.
(Notes taken from The Process for Final Approval of the STP slides)
The settings regulations describe three settings that are presumed not to be home and community-based:
Category I: Settings in a publicly or privately operated facility that provides inpatient institutional treatment.
Category II: Settings in a building on the grounds of, or adjacent to, a public institution.
Category III: Settings with the effect of isolating individuals receiving Medicaid home and community-based services from the broader community of individuals not receiving Medicaid home and community-based services.
These settings will be presumed to be a setting that has the qualities of an institution unless the Secretary determines through heightened scrutiny, based on information presented by the state or other parties, that the setting does not have the qualities of an institution and that the setting does have the qualities of home and community-based settings.
42 CFR (5)(i)-(v)

17. Promising Practices for Ongoing Monitoring
Based on stakeholder feedback, CMS suggests that states follow the steps below to ensure ongoing setting adherence to regulatory requirements:
Periodic review of person-centered plans, both across a setting and over time, to ensure plans reflect individual preferences.
Interviews with individuals, families and providers to ensure fidelity in implementation of person-centered plans.
Develop a process of communicating with CMS if the state wants to receive Medicaid funding for HCBS in new presumptively institutional settings.

18. Training and Technical Assistance
Upcoming trainings will be announced through list serv
Workshops
Technical Assistance Available
Clarify the settings criteria included in the settings rule
Issue(s)/barrier(s) in meeting the Home and Community Based Settings criteria
TA Requests from states have included stakeholder engagement, ongoing monitoring, heightened scrutiny process (for state identification of settings), direct questions related to heightened scrutiny and non-residential HCBS services for individuals when they live in a non Medicaid funded, non compliant residential setting

19. Resources
Central Office Contact—Division of Long Term Services and Supports: HCBS Settings Technical Assistance:

20. Resources, cont.
HCBS Training and Resources on Medicaid.gov: Home & Community Based Settings Requirements Compliance Toolkit Home & Community Based Services Training Series Statewide Transition Plans
Add any recently released guidance such as heightened scrutiny FAQs.