1. Home and Community-Based Services Settings Rule Marty Ford Senior Executive Officer, Public Policy The Arc of the United States February 5, 2015

2. HCBS Final Rule January 16, 2014 Support compliance with ADA, Section 504, and Olmstead Support access to the community Qualities of HCBS settings One definition of HCBS Setting across HCBS authorities Transition planning timeline for states Effective March 17, 2014 http://www.gpo.gov/fdsys/pkg/FR-2014-01-16/pdf/2014-0487.pdf 2

3. 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 3

4. An Evolving Definition of HCBS Setting 2008 – NPRM 1915(i) 2009 – ANPRM 1915(c) 2011 – NPRM 1915(k) 2011 – NPRM 1915(c) 2012 – NPRM 1915(i) and 1915(k) 4

5. HCBS Setting Characteristics HCBS 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 not receiving Medicaid HCBS HCBS 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 5

6. HCB Setting Qualities, cont’d HCBS settings must ensure rights of privacy, dignity, and respect, and freedom from coercion and restraint HCBS 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 HCBS settings must facilitate individual choice of services and providers 6

7. 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 7

8. Provider-Owned or Controlled Settings, 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 assessed 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 8

9. Settings that are NOT HCBS  Nursing facility  IMD  ICF/ID  Hospitals  Locations that have qualities of an institutional setting as determined by the Secretary 9

10. Heightened Scrutiny Heightened 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 10

11. Guidance on Settings That Isolate People Possible characteristics: –Designed specifically for people with disabilities –People are primarily or exclusively disabled, with staff on-site providing services –Multiple types of activities/services on-site –Limited interaction with broader community –Use of institutional or unacceptable interventions or restrictions Examples: Farmstead or disability-specific farm community; gated/secured “community” for people with disabilities; residential school 11

12. Non-residential settings  HCBS settings, including residential, day or other, must be delivered in settings that meet HCB setting requirements –CMS issued guidance on such settings available at: http://www.medicaid.gov/medicaid-chip- program-information/by-topics/long-term- services-and-supports/home-and-community- based-services/downloads/exploratory-questions- non-residential.pdfhttp://www.medicaid.gov/medicaid-chip- program-information/by-topics/long-term- services-and-supports/home-and-community- based-services/downloads/exploratory-questions- non-residential.pdf12

13. Exploratory Questions for Non-Residential Settings Work in concert with previous guidance, Exploratory Questions on residential HCBS settings, and Frequently Asked Questions Considerations for states as they assess whether non-residential settings meet the Medicaid HCBS settings requirement Context matters: short-term rehabilitation setting vs. competitive, integrated employment setting, for example 13

14. HCB Setting Characteristics Review -- HCBS 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 not receiving Medicaid HCBS HCBS 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… 14

15. HCBS Setting Qualities, cont’d -- And -- HCBS settings must ensure rights of privacy, dignity, and respect, and freedom from coercion and restraint HCBS 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 HCBS settings must facilitate individual choice of services and providers 15

16. Transition Up to 5 years Renewal of waiver or amendment to waiver or state plan by March 15, 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 15, 2015 ◊ Transition plan for all 1915(c) and 1915(i) HCBS programs by March 15, 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 16

17. Provider Qualifications - Conflict of Interest [1915(i)] Ensure independence of individual and agency agents o Evaluation of eligibility o Assessment of need for services o Development of service plan Agents must not be o Related to the individual or paid caregiver o Financially responsible for individual o Financial or health decision maker o Hold financial interest in service-provider agency 17

18. Resources CMS, Home and Community-Based Services (www.medicaid.gov/HCBS)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/document.doc?id=4596 http://www.thearc.org/document.doc?id=4596 www.hcbsadvocacy.org 18