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

The federal Centers for Medicare and Medicaid Services (CMS) issued a set of “Exploratory Questions to Assist States in Assessment of Non-Residential Home and Community-Based Service (HCBS) Settings". These are similar to the Exploratory Questions for Residential Settings also issued by the CMS. These questions apply to programs such as sheltered (center-based) work programs, day habilitation programs, pre-vocational programs, etc.

According to the document, its purpose "...is to offer considerations for states as they assess whether non-residential settings meet the Medicaid HCB settings requirements. The optional questions for non-residential settings are organized by each HCB setting regulation requirement… These questions serve as suggestions to assist states and stakeholders in understanding what indicators might reflect the presence or absence of each quality in a setting. These questions are not designed to be a score sheet and not all questions relate to every HCBS or every individual served….”

It goes on to say that, “In some cases, especially when the service provided is highly clinical/medical in nature, e.g., medical adult day programs, the nature of the service will impact how the state addresses the HCB settings requirements. The state’s determinations about these settings and the extent to which changes in the settings are necessary to comply with the requirements may be different than state decisions/actions for a setting that is less medical/clinical in nature.

“States should consider carefully the extent to which settings compliance is met due to the nature of the service and/or the HCB qualities. For example, for individuals seeking supports for competitive employment, the state should consider whether the right service is being appropriately provided to achieve its goal...or whether the provision of a different type of service would more fully achieve competitive employment in an integrated setting for the individual, in addition to whether the setting meets the HCB settings requirements. Or, in another example, a service that is primarily rehabilitative (offers physical, speech, occupational and other therapies), but also offers respite to family caregivers, may be short-term in duration and requires by definition that all participants have a disability. Another type of service may be designed to primarily offer personal care, social recreational supports and respite for family caregivers, and is more long-term in duration. The manner in which each of these services meets the HCB settings requirements may vary.“ [emphasis added]
 
There are no “right” answers to the questions and no specific characteristics of a non-residential setting that automatically disqualifies a setting from being considered appropriate for an individual  with a developmental or other disability. It is useful to read through the questions - they may alert you to possibilities that you had not considered before. For instance, the questions concerning “an individual’s rights of privacy, dignity, and respect, and freedom from coercion and restraint. 42 CFR 441.301(c)(4)(iii)/ 441.710(a)(1)(iii)/441.530(a)(1)(iii)...", would apply to any setting and offer an opportunity to correct deficiencies in this area, wherever the individual receives services.

The problem with the HCB settings rule is that it does not emphasize or restate part of the Americans with Disabilities Act referring to individual need. The ADA and its regulations require these three things that are especially relevant to determining where a person lives or receives services: 

• No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
• A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
• Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.

The HCB settings rule and its varying interpretations do not change the requirements of the ADA.

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The Community Choice Coalition has information on State Transition Plans and what you can do to assure choice and that states maintain a full array of residential and service options.

This website has links to documents on the final HCBS Rule and clarifications from CMS.