From CMS: The new HCBS rule and State Assessments for Residential Settings

The federal Centers for Medicare and Medicaid Services (CMS) issued a document called "Exploratory Questions to Assist States in Assessment of Residential Settings".  This is part of the “Settings Requirements and Compliance Toolkit” which is found on the Website of hcbsadvocacy.org. This is the best place I have found to find information about the Home and Community-Based Services rule issued by CMS in January 2014. It includes state-by-state information on transition plans and CMS interpretations of the rule so far.
 
The "Exploratory Questions..." document begins with this statement: “This optional tool is provided to assist states in assessing whether the characteristics of Medicaid Home and Community-based Services, as required by regulation, are present. The information is organized to cite anticipated characteristics and to provide suggested questions to determine if indicators of that characteristic are present.”

Many of he questions assume that the individual is capable of making and expressing the choices that are set out in the document, but if the individual has a court-appointed legal guardian, the guardian makes decisions to the exent authorized by the court.  See “…HCBS rule confirms decision-making authority”.

The HCBS rule does not define many of the terms that are used to determine whether the setting is considered “too institutional” according to CMS, starting with the terms “community” and "access". The second set of questions are characterized by this statement: “The individual participates in unscheduled and scheduled community activities in the same manner as individuals not receiving Medicaid HCBS services.” How do people not receiving HCBS services participate in community activities? I don’t have a clue how to answer that question and neither does anyone else.

There are no “right” answers for any particular question. For example, a "yes" answer to “Can the individual close and lock the bedroom door?” is intended to indicate that the person has some privacy.  For my sons, who cannot manipulate a lock and do not know what a lock is for, a locked door that prevents the group home staff from responding to an immediate need for help or allows someone to lock themselves in the room with my sons is a clear danger to their safety with no advantages to them at all. A "no" answer without qualification does not convey other considerations for their safety and well-being.

The advantage of reading through the “Exploratory Questions” is that it will give individuals and families a better idea of the choices that should be offered. This could be very helpful in expanding the possibilities that one considers in determining an appropriate residential setting.