The CMS (Centers for Medicare and Medicaid Services) approved a transition plan for implementing the new Home and Community-Based settings rule for North Dakota that included providing Home and Community-Based Services (HCBS) on the grounds of an institution. Residents live in cottages near the institution and receive HCBS funding through Medicaid Waivers that pay for day services as well as services in their homes. The settings rule requires “heightened scrutiny” by states and the CMS to ensure that certain settings are not isolating and provide access to the broader community.
The rationale given below could also apply to any congregate setting of 4 or more individuals with disabilities who live or participate in activities together, including people with autism and other disabilities who live in planned communities. This is believed to be the first ruling by the CMS using the “heightened scrutiny” review.
The North Dakota plan, on pages 27 and 28, includes these responses to commenters:
“One commenter disagrees with the Department [North Dakota Department of Human Services] determination that Aged and Disabled adult residential care settings can fully comply while serving between 10 and 36 individuals each, contending that even with remedial strategies and timelines just based on size these are ‘mini institutions’. Commenter believes … that individuals should be able to receive service in their own home or apartment.”
Response from DHS: “As stated in the CMS’s summary of these regulations, the intent of the HCBS settings rule is to create a more outcome-oriented definition of home and community-based settings, rather than one based solely on a setting’s location, geography, or physical characteristics. When assessing compliance of adult residential service settings DHS focused on the recipient’s experience rather than the size of the facility. Individuals can access other wavered services to meet their assessed needs. Consumers and their families make the decisions about what type of services they wish to participate in and who will provide the care; including the decision to use residential services.”
“…on-site visits were conducted of the settings in question which validated the Department’s position that these settings are not isolating and do have HCBS qualities and characteristics. Some individuals living on the grounds of the State ICF have been unable to successfully secure housing or services off the grounds of the State ICF, which is less restrictive than living in the State ICF. Other individuals/guardians have made the choice, including tours/visits, to determine if they would like to move…”
Response to two more commenters opposing HCBS funding on the grounds of an ICF/IID:
“In addition to the information provided in the Statewide Transition Plan …on-site visits were conducted of the settings in question which validated the Department’s position that these settings are not isolating and do have HCB qualities an characteristics. The individuals are assessed at least annually to determine if alternate service settings are available and are afforded the choice, including tours/visits, to determine if the would like to receive services at another location….”
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