In Part I of this series we discussed the elements of the HCBS Settings Final Rule that defined and described the requirements for all settings providing HCBS services. In this segment, we will discuss the additional requirements for provider owned or controlled residential settings operating under HCBS programs. (Source: CMS Medicaid Information on HCBS Requirements)
These additional requirements are:
- The unit is owned, rented or occupied under a legally enforceable agreement with the same responsibilities/protections from eviction as all tenants under landlord tenant law of state, county or city;
- Each individual has privacy in their sleeping or living unit;
- Units have lockable entrance doors;
- Individuals sharing units have a choice of roommates;
- Individuals have the freedom to furnish and decorate their sleeping or living units;
- Individuals have freedom and support to control their schedules and activities and have access to food any time;
- Individuals may have visitors at any time;
- Setting is physically accessible to the individual; and,
- Modifications of the additional requirements must be:
- Supported by specific assessed need;
- Justified in the person-centered service plan; and
- Documented in the person-centered service plan.
So what does this mean? While CMS did not specify a certain size or type of setting that would not be compliant with the new requirements, one can see from the requirements above that larger residential settings will face challenges achieving compliance with the experiences people will have while living in those settings. For example, the ability to support a person controlling his or her own schedule and activities in larger residential settings with a higher staff to person served ratio will be difficult if the person served requires staff supervision and support. For this very reason, group activities and set schedules are currently the norm in larger settings to manage these ratios. Similarly, large residential settings typically do not permit ready access to food at any time. If the person requires support to prepare meals or to be supervised while eating, or may welcome visitors at any time, this may interfere with the schedule of activities for the larger group of people living in the home. And, the general requirement that applies to all home and community based settings, the requirement to “optimize individual initiative, autonomy, and independence in making life choices” can be broadly applied to day-to-day activities and decisions difficult to manage in larger groups.
Where are we now? In response to the new requirements, some states have imposed size limitations for any new residential services to increase the likelihood that those settings will be compliant with the requirements. In states with larger settings, the new limitation is typically no more than six (6) people living in one setting. In other states where six (6) was already the size limit, limits are dropping to no more than four (4) people sharing a home. States are also focusing on developing new HCBS programs that provide services only in individual or family homes, or in settings like shared living, adult host homes and supported living with no more than three people sharing a home where these residential requirements are accomplished much more easily.
Many state ID/DD agencies are increasing their focus on how to support individuals and families in the family setting as more than 80% of people with intellectual and developmental disabilities are living at home with no support at all. As states struggle with waiting lists for services or simply seek to be proactive with supportive services for individuals and families, financial pressures and realities dictate that more services will need to be delivered to people where they live now, rather than creating more and more new residential settings. The same is true for older adults, who often prefer to remain in their home rather than move to a residential setting, but need increased support to do so safely. CMS also assumes that when people receive HCBS services in their home, that the home meets the characteristics of a compliant setting. And, people are more likely to stay connected, find a job or enjoy other aspects of community life if they remain in their familiar neighborhoods, towns and communities.
So what about current residential homes and settings? Each state is required to assess each setting to determine compliance with the new requirements. This task is daunting, as larger states have thousands of such settings. Most states started the process by requiring providers to “self-assess.” Not surprisingly, most provider agencies have reported that its services are largely compliant with the new rules. CMS, however, is requiring the states to validate those findings, and the public is permitted to weigh in on whether a setting is compliant or not. Public input should not be taken lightly. The state must post the results of the assessment of compliance for each type of HCBS setting in the statewide Transition Plan for public comment. All public comment must be recorded and responded to and made available for CMS. In addition, the public may also communicate to CMS directly about its assessment of individual settings or entire types of residential settings. Public comment has called a number of residential setting concerns to CMS’ attention that the state may not have identified. Some examples include supported apartment settings where a number of apartments are clustered in one apartment building or across a larger apartment complex (the concern that the grouping isolates people from the broader community), disability-specific farm settings, and group homes located very close to state institutional grounds.
Settings where there is not current evidence of compliance with the rule will be presumed to have institutional characteristics and subject to “heightened scrutiny” requiring the state to present evidence that the setting is in fact home and community based. We will discuss heightened scrutiny in greater detail in Part IV of this series.
Where do we go from here? Are there tools to help providers? CMS has provided a Toolkit to help states evaluate residential settings for compliance with the new requirements. Most states have used questions found in the Toolkit to evaluate or have providers self-assess compliance with the new requirements. The exploratory questions provided by CMS can be found here.
In reviewing these exploratory questions provided by CMS, you may recognize how traditional residential settings may have some challenges in answering the questions favorably.Some examples include:
The individual is employed or active in the community outside of the setting.
The individual has his/her own bedroom or shares a room with a roommate of choice.
The individual chooses from whom they receive services and supports.
These are just some suggested questions from CMS for states as they work to evaluate whether settings are compliant with the new rules. Many, if not all states are incorporating questions like these in order to evaluate personal experiences, focus on personal outcome measures, like those advanced by The Council on Quality and Leadership (CQL), into the state quality assurance system (licensing or certification requirements) providing the state with a mechanism to monitor on-going compliance going forward. At this stage in the five-year process to achieve compliance, I expect all providers of Medicaid HCBS services and interested stakeholders have been introduced to or have actually experienced this assessment process.
(Stay tuned for Parts 3 and 4 in the next issues of LINKS!)