Home and Community-Based SettingMAUREEN FITZGERALDTHE ARC, DIRECTOR DISABILITY RIGHTSAPRIL 2, 2014

January 16, 2014 Final Rule Support compliance with ADA, Section 504, and Olmstead

Support access to the community

Qualities of HCB settings

One definition of HCB Setting across HCBS authorities

Transition planning timeline for states

Effective March 17, 2014

http://www.gpo.gov/fdsys/pkg/FR-2014-01-16/pdf/2014-00487.pdf

What else does the rule do? Implement expanded Section 1915(i) state plan HCBS

Person-centered planning requirements under Sections 1915(c) and (i)

Option to combine target populations under Section 1915(c)

5-year cycle for waivers and demonstrations covering Duals

1915(i) Conflict of Interest provisions

An Evolving Definition of HCB Setting

2008 – NPRM 1915(i)

2009 – ANPRM 1915(c)

2011 – NPRM 1915(k)

2011 – NPRM 1915(c)

2012 – NPRM 1915(i) and 1915(k)

HCB Setting Characteristics•HCB Settings must be integrated in, and support full access 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 without disabilities

•HCB Settings must be 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

HCB Setting Qualities cont’d•HCB Settings must ensure rights of privacy, dignity, and respect, and freedom from coercion and restraint

•HCB Settings must optimize, but not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to:

◦ Daily activities◦ Physical environment◦ With whom to interact

•HCB Settings must facilitate individual choice of services and providers

Provider-owned or controlled residential settings – additional requirements

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

Privacy in sleeping or living unit

Entrance doors lockable by the individual with only appropriate staff having keys

Individuals sharing units have a choice of roommates in that setting

Furnish and decorate sleeping or living units within the lease or other agreement

Control own schedule and activities

Access food at any time

Visitors of individual’s choosing at any time

Physically accessible

Additional Requirements cont’d.Any modifications of the additional conditions must be:• Identified by specific and individualized assessed need• Justified in the person-centered plan, including:• Identify a specific and individualized assessed need• Document positive interventions and supports used prior to modifications• Document less intrusive methods of meeting need that have been tried but failed• Include clear description of the condition that is directly proportionate to the specific assess need• Include regular collection and review of data to measure effectiveness• Include established time limits for periodic reviews to determine if modification is still necessary or can be terminated• Include informed consent of the individual• Include assurance that interventions and supports will cause no harm

Settings that are NOT HCBSNursing facilityIMDICF/IDHospitals Locations that have qualities of an institutional setting as determined by the Secretary

Rebuttable PresumptionHeightened scrutiny, if the setting is:

Located in a building that is a publicly or privately operated facility that provides inpatient institutional treatment

Located in a building on the grounds of or immediately adjacent to a public institution

Any setting that has the effect of isolating individuals receiving HCBS from the broader community of individuals not receiving HCBS

Non-residential settingsHCB settings, including residential, day or other, must be delivered in settings that meet HCB setting requirements

CMS to issue further guidance on non-residential HCBS settings, including employment settings

Transition Up to 5 years

Renewal of waiver or amendment to waiver or state plan before March 16, 2015◊ Transition plan for bringing specific waiver or SPA into compliance◊ Within 120 days, statewide transition plan for all 1915(c) and 1915(i) HCBS programs

No renewals or amendments within first year, March 17, 2014 - March 16, 2015◊ Transition plan for all 1915(c) and 1915(i) HCBS programs by March 17, 2015

Transition plans subject to 30-day notice and public comment period requirement

New 1915(c), 1915(i), and 1915(k) applications must be in compliance

Transition plans subject to public notice and comment

Provider Qualifications - Conflict of Interest (1915(i))

Ensure independence of individual and agency agentso Evaluation of eligibilityo Assessment of need for serviceso Development of service plan

Agents must not beo Related to the individual or paid caregivero Financially responsible for individualo Financial or health decision makero Hold financial interest in service-provider agency

Resources CMS, Home and Community-Based Services (www.medicaid.gov/HCBS)

Final Regulation Key Provisions of Final Rule Changes to 1915(c) Program Key Provisions of 1915(i) Program Webinars Guidance and technical assistance materials*

The Arc, The 2014 Federal Home and Community-Based Services Regulation: What You Need to Know http://www.thearc.org/what-we-do/public-policy

Maureen Fitzgeraldfitzgerald@thearc.org