Home and Community Based Settings Rule Refresher
The Home and Community Based Services (HCBS) Settings Rules, released by the Centers for Medicare & Medicaid Services (CMS) in January 2014, is meant to ensure that programs funded with HCBS dollars provide people with disabilities opportunities to live, work, and receive services in integrated, community settings where they can fully engage in community life.
The HCBS rule applies to all Medicaid authorities, including: 1915(c), 1915(i), 1915(k), 1115. The HCBS Settings Rules apply to both residential and non-residential settings. The rule defines settings by the nature and quality of individuals’ experiences. Their purpose is to ensure that individuals receiving HCBS have full access to the benefits of community living, enhance the quality of HCBS, and provide additional protections to participants. The Rules are based on thousands of public comments, received over a six year period of rulemaking.
Significant aspects of the HCBS Settings Rules include:
- Ensuring that HCBS settings provide people with disabilities access to the broader community and facilitate relationships with people without disabilities (other than paid providers and staff).
- Ensuring that HCBS settings provide people with disabilities control over daily life decisions like what to eat, when to go to sleep, and who can visit; with opportunities for competitive integrated employment; and with choices about what services they receive and who provides them.
- Assist states with coming into compliance with the obligation under the Americans with Disabilities Act and the Supreme Court’s decision in Olmstead v. L.C. to provide services in the most integrated setting.
When the Rule was released in March of 2014, it included a five-year transition period for states to come into compliance with the rule, ending on March 17, 2019. However, in May of this year CMS extended the timeline for bringing settings into compliance to March 17, 2022. The timeline for the states to have their plans approved remains March of 2019, but full compliance has been extended to 2022.
Trends from State Plan Approvals:
For Initial Approval– Initial approval is approval of a state’s systemic assessment. The plan that identifies necessary revisions to a state’s policies, regulations, procedures and practices to come into compliance with the HCBS rule.
Initial approval is the first step towards full approval; the only state with full approval is Tennessee. In response to states who have received approval of the systemic assessment, or initial approval, CMS has asked states to address several issues including but not limited to:
- A comprehensive site-specific assessment of EVERY HCBS setting, including necessary strategies for validating results.
- Draft remediation strategies with a timeline for the remediation strategies that align with the end of the HCBS transition period (May 17, 2019).
- Site specific remediation strategies
- Identifying a heightened scrutiny process for settings that are identified as presumed to be institutional.
- Identify a process for communicating with beneficiaries who may be impacted by changes, closures, etc.
- Establish ongoing monitoring and quality assurance processes.
- Process to evaluate privately-owned homes, can’t assume they don’t have characteristics that isolate.
- Plans to ensure that there is adequate capacity in the state for non-disability specific settings
- No reliance on reverse integration for non-residential services.
- Transforming models for facility-based day services to a hub-and-spoke model, where individuals may start their day in one place, but from there go out to do things in the community.
- Phasing out sheltered workshops
- Expanding the capacity of competitive, integrated employment
- Funding help to bring providers into compliance through model changes
- Tennessee identified sheltered workshops and day habitation as “settings that isolate” that will have to go through the heightened scrutiny process.
- A state may establish that certain settings currently in use in a home and community-based services waiver may continue within the waiver, as long as they will be able to meet the minimum standard set in the rule on or before the end of the transition period, but the state may suspend admission to the setting or suspend new provider approval or authorizations for those settings. Simultaneously, the state may establish or promote new or existing models of service that more fully meet the state’s standards for home and community-based services. This arrangement, though established through the transition plan, may continue beyond the transition period.
The Rule requires that HCBS participants have a choice of not only settings specifically for people with disabilities but also a “non-disability specific setting” option. This standard will expand the types of services that most people want but may still not be available in some states – particularly for people with the most significant disabilities and those in rural areas. The Rule centers on choice and autonomy; it focuses almost entirely on ensuring that people receiving HCBS are able to make the same choices as everyone else, like the choice of who they live with, when they eat or visit with friends and family, and how they spend their day. The thoughtful implementation of the Rule at the state level is imperative to systems change in the service system for people with disabilities.
 Medicaid HCBS programs include 1915(c) waivers, 1915(i) State Plan HCBS, and 1915(k) Community First Choice Option.
This guest blog post was written by Nicole Jorwic, the director of rights policy at The Arc.