Virginia Updates for Home and Community Based Services Final Rule

1. Home & Community Based Services Final Rule: Virginia Updates Katie Morris, Department of Medical Assistance Services and Amie Brittain, Department of Behavioral Health and Developmental Services

2. Home and Community Based Services The Home and Community-Based Services (HCBS) settings regulations (previously known as the “Final Rule”) was published in the Federal Register on 1/16/14, and became effective on 3/17/14. States must reach full compliance with the Final Rule in order to keep the federal reimbursement for HCBS services. 2

3. Audit Authority  DMAS and DBHDS have the authority to conduct these reviews pursuant to: 1. Virginia’s Statewide Transition Plan that received final approval from CMS 2. Virginia’s Community Waiver Regulations (Administrative Code) DD waiver regulations (12VAC30 122-120) "13. Agree to furnish information and record documentation on request and in the form requested to DMAS, DBHDS, the Attorney General of Virginia or his authorized representatives, federal personnel (e.g., Office of the Inspector General), and the State Medicaid Fraud Control Unit. The Commonwealth's right of access to provider premises and records shall survive any termination of the provider participation agreement." 3

4. Setting is integrated & Supports Full Access to the Community Rights of Privacy Dignity, Respect & Freedom from Coercion & Restraint Values, Principles, Common Language HCBS Requirements Optimize, but does not regiment individual initiative & autonomy Additional Conditions for Residential Settings Facilitates choice regarding services and supports and who provides them 4

5. Additional Rights in HCBS Residential Locations:  Individuals should have a lease or other legally enforceable agreement; Privacy in bedroom with lockable doors; Choice of roommates; Freedom to furnish and decorate the unit; Freedom and support to control schedules and activities; Access to food any time; Right to have visitors at any time; Have an accessible environment.        5

6. Lease/ Residency Agreement  Individuals should have a lease or other legally enforceable agreement.  Follow the VA Landlord Tenant Act.  Address eviction procedures.  Not be in conflict with HCBS agency policies.  Virginia Department of Housing and Community Development 6

7. Privacy and Locks  Privacy in bedroom and lockable doors.  Doors should have locks with keys, but key pad locks are acceptable if an individual is able to use a key pad lock.  Staff and other individuals knock before entering AND wait for permission to access.  Doors can be closed when the individual is in their room. An individual can use the phone, computer, etc. in the privacy of their room with the door closed. 7

8. Bedrooms  If a room is shared, the individuals must choose with whom they share the room. Document this choice.  Freedom to furnish and decorate the unit. Examples include: bedroom paint color, bedspreads, décor, pictures, furniture, TVs, technology, etc. 8

9. Bedrooms  The individual should be asked for their preference in decorating the room.  If the individual shows no specific interest in decorations, then the residential provider should strive to decorate the individual’s room in a manner that fits the individual’s personality/interests and not only the interests or preferences of the provider, family, etc. 9

10. Schedules  Individuals should be able to wake up and sleep when they want.  Choose to stay home or go on outings.  Have the option to use public transportation instead of the van.  Participate in preferred activities in and out of the home.  Freedom and support to control schedules and activities. 10

11. Access to Food  Have access to food at any time.  Eat what, when they want and where they want.  Individuals should have input in menu choices and have the ability to choose to eat something different than what is on the menu.  Individuals should have the choice to eat earlier or later than established meal times, and have a snack when they want. 11

12. Accessibility  Have a key to the entrance door of their home.  Right to an accessible home. Ability to access all common areas, bedroom and bathroom. Accessible entrances and exits of the home.  No staff restrooms.  Common areas –loft, living rooms, office, laundry room, decks/patios, kitchen, basement, etc.  As a reminder, the right to an accessible environment CAN NOT be modified! 12

13. Visitors  Right to have visitors at any time.  Ability to have overnight visitors.  Visitors are not limited to family.  Visitors can be friends, co-workers, and significant others.  Visitors do not need to be pre- screened or have a background check. 13

14. Modifications • As a provider, you are required to have included a specific modification section in your HCBS policy. You are responsible for following your own policy. • Ongoing staff training on modifications and theHCBS policy will improve consistency in all settings owned or operated by the provider. • The modification process does not negate any required Human Rights process. Please reach outto your local Human Rights advocate if you have questions regarding the Human Rightsregulations. 14

15. Modifications • A modification should not be used because the providerbelieves that the individual is incapable of exercisinghis/her/their HCBS rights. HCBS rights are inherent Human Rights. • A modification is not to be used to restrict people fromdoing things the provider is uncomfortable with. • A modification is only to be used for health and safetyreasons. • A modification must follow the process outlined in thesettings regulation (modifications are justified and documented, with alternatives, consent given, and revisited regularly by the provider.) • As providers, we are there tosupport individuals and help them to build skills. 15

16. Modifications • If a modification is required, it is not expected to remain in placeforever. • A provider is required to collect data on the intervention andreview the modification on an ongoing basis. • Data collection and review must measure the ongoingeffectiveness of a modification. • Modifications must be reviewed at time limits that are establishedby the provider (ex-monthly, quarterly, etc.). At this review, the ability to terminate the modification must be discussed. • The modification must be documented in the SafetyRestriction Form located inWaMS. This is included in the provider ISP section. • The modification process does not negate any requiredHuman Rights process. Please reach out to your localHuman Rights advocate if you have questions regardingthe Human Rights regulations. 16

17. HCBS Setting Validations Update  Residential settings –due 12/24/2025 –We have 4084 active settings • 2486 have been completed • 701 are in progress / remediation • 897 left  Day settings –due 06/30/2024 –We have 370 active settings • 289 have been completed • 62 are in progress / remediation • 19 left 17

18. Mythbusters  Locking up common household items (laundry detergent, toothpaste, shampoo, etc.). Menus need to be posted on the refrigerator. Visitors (for the individual, overnight or otherwise) need to have a background check. All individuals have to be in “line of sight” or have constant staff supervision regardless of what is in their plan. Multiple postings other than the provider’s current license and emergency phone numbers and evacuation procedures (i.e., staff schedules, activity calendars, medications, employment and DOL posters) Individuals without a medical contraindication cannot have alcohol. Bed checks and other medical charting without a need being indicated in the plan No knives allowed for anyone in the residence        18

19. Common Remediation Areas for Providers  HCBS rights not being understood or distinguished from Human Rights  Individual inability to access or spend own money  Documentation not showing community involvement, choice, autonomy and independence  Providers not understanding TRUE Community engagement  Activities not individualized, supports happening in large groups – no individual outings  Documents not using person- centered language –don’t use client, resident, participant  Excessive signage in the person’s home  Individuals not having keys to bedroom doors and front door of home  No evidence of transportation options  Modifications to HCBS rights not being documented in Part V  Accessibility –individuals need access to all common areas of the home (basement, lofts, office, laundry room)  Provider lease agreements/residential agreements not addressing reason for eviction 19

20. CMS Findings During Site Visits  All outings planned as a group – activities not individualized.  Medication schedules/Individual information posted in home – excessive signage and does not consider dignity of individuals in the home.  Individuals get a weekly allowance and have little control over finances.  Staff unaware of HCBS regulations  Token system where individuals get to do things for good behavior.  Staff wear uniforms - institutional  Lease in place but vague on eviction protections and appeal rights for the individuals.  Setting has visiting hours  Staff walking in individuals’ rooms without asking permission or knocking.  Individuals did not have control over their schedules or activities  Plans indicate many modifications and restrictions without any supporting documentation.  Cameras without consent and policy reviewed by Human Rights. 20

21. Non-Compliance If a provider is unable to reach full compliance, their provider participation agreement will be removed. What does that mean? **The provider will no longer be able to bill for waiver supports.** Support Coordinators, CSBs, individuals and their guardians will be contacted of non-compliance, so that discussions and arrangements can be made of possible relocation. 21

22. Full Compliance  Once a setting has achieved full compliance, a letter will be sent to the provider.  Reaching HCBS compliance is not a one-time achievement. A provider must maintain their compliance status which will be monitored on an ongoing basis through:  The DBHDS Office of Licensing  The Office of Human Rights  DMAS QMR  Support Coordination and other quality monitoring reviews. 22

23. HCBS Resources Statewide Waiver Transition Plan for review: http://www.dmas.virginia.gov/Content_pg s/HCBS.aspx 23

24. HCBS Resources The Toolkit can be located on the DMAS Website: https://www.dmas.virginia.gov/for-providers/long- term-care/waivers/home-and-community-based- services-toolkit/ You may also reach out directly to DMAS hcbscomments@dmas.virginia.gov 24

25. HCBS Resources Additional questions can be sent to your regional CRC All Regions – RonnittaClements ronnitta.clements@dbhds.virginia.gov 25

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