Overview of CMS Home and Community Based Services Regulations

Sharing the latest from the VA Dept. of Behavioral Health and Developmental Services . . . 

In January 2014, the Centers for Medicare & Medicaid Services (CMS) issued a final rule for home and community based services (HCBS) that requires states to review and evaluate home and community based (HCB) settings, including residential and non-residential settings. The HCBS final regulation, published January 16, 2014 and available at http://www.gpo.gov/fdsys/pkg/FR-2014-01-16/pdf/2014- 00487.pdf, requires states to prepare and submit a Statewide Transition Plan. CMS asked that statewide transition plans specifically address only the settings requirements of the HCBS regulations.

According to the HCBS regulations (section 441.530), the following characteristics must be present in all settings where HCBS are provided in order for a setting to be considered HCB[1]:

  • It is integrated in and supports full access to the greater community;
  • It is selected by the individual from among a variety of setting options;
  • It optimizes autonomy and independence in making life choices;
  • It facilitates individual choice in selecting both services and service providers; and,It ensures individuals rights of privacy, dignity, respect, and freedom from coercion and restraint.

Furthermore, individuals living in provider owned or operated residential settings must:

  • Have a lease or other signed legally enforceable agreement providing similar protections;
  • Have access to privacy in their sleeping units;
  • Have entrances lockable by the individual, with keys provided to appropriate staff as needed;
  • Have a choice in selecting their roommate(s), if they share a room;
  • Have the freedom to decorate and furnish their sleeping and/or dwelling unit;
  • Have the ability to control their daily schedules and activities and have access to food at any time;
  • Be able to have visitors at any time; and,
  • Be able to physically maneuver within the setting (e.g., setting is physically accessible).

Any modifications made to any of the above criteria for provider-owned and operated residential settings must be the result of identified individual-specific needs discovered through an independent assessment, and then documented and justified in a person-centered service plan.

The HCBS regulations give states time to “transition” to meet settings requirements. States have until March 2019 to assure compliance of all settings. Virginia’s Statewide Transition Plan expects to reach full compliance by March 2019. During the period covered by the Statewide Transition Plan, Virginia can continue to operate waivers in existing settings that do not yet meet the HCBS regulation’s settings requirements.

Virginia has redesigned its Medicaid HCBS Waivers for people with intellectual or developmental disabilities (I/DD). Effective September 1, 2016, the ID Waiver became the Community Living (CL) Waiver, the Individual and Family Developmental Disabilities Support (DD) Waiver became the Family and Individual Supports (FIS) Waiver, and the Day Support Waiver became the Building Independence (BI) Waiver. These waivers are currently operating under emergency regulatory authority. The permanent regulations will require compliance with each of the setting provisions in the HCBS regulations. The permanent regulations are targeted to become effective in February 2018. Upon the effective date of the permanent regulations, all providers will need to be in full compliance with the HCBS settings requirements.

CMS requires states to report on the current compliance status of HCBS settings. Beginning in March of 2017, ALL providers of Medicaid CL, FIS or BI waiver services in impacted settings will be required to complete and submit a HCBS compliance self-assessment for each setting where they provide HCBS services. Impacted settings include: group home residential settings, sponsored residential settings, supported living settings, group day settings and group supported employment settings.

The state will provide service providers with technical assistance and guidance to assist their efforts of bringing non-compliant settings into full compliance. Providers should take the initiative to become educated on the CMS HCBS regulations’ settings provisions and requirements. There are many resources and technical assistance documents available on CMS, DBHDS and DMAS websites.

Information & Resources

Frequently Asked Questions Regarding the Heightened Scrutiny Review Process and Other Home and Community-Based Settings Information

[1] This is an abbreviated list, see CFR section 441.530 for entire list of requirements.

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