Home and Community-Based Setting

1. Home and Community-Based Setting Maureen Fitzgerald The Arc, Director Disability Rights April 2, 2014

2. January 16, 2014 Final Rule • Support compliance with ADA, Section 504, and Olmstead • Support access to the community • Qualities of HCB settings • One definition of HCB Setting across HCBS authorities • Transition planning timeline for states • Effective March 17, 2014 http://www.gpo.gov/fdsys/pkg/FR-2014-01-16/pdf/2014-00487.pdf

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

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

5. HCB Setting Characteristics • HCB 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 without disabilities • HCB 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

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

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

8. Additional Requirements 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 assess 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

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

10. Rebuttable Presumption 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

11. Non-residential settings • HCB settings, including residential, day or other, must be delivered in settings that meet HCB setting requirements • CMS to issue further guidance on non-residential HCBS settings, including employment settings

12. Transition • Up to 5 years • Renewal of waiver or amendment to waiver or state plan before March 16, 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 16, 2015 • Transition plan for all 1915(c) and 1915(i) HCBS programs by March 17, 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

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

14. Resources • CMS, Home and Community-Based Services (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/what-we-do/public-policy

15. Maureen Fitzgerald fitzgerald@thearc.org