Current through Register Vol. 49, No. 18, September 16, 2024
PURPOSE: This rule implements federal regulatory
requirements promulgated by the United States Department of Health and Human
Services, Centers for Medicare and Medicaid Services at
42 CFR
441.301(c)(4) establishing
the requirements that must be met for settings in which home and
community-based services are provided under a 1915(c) HCBS Waiver Program.
1915(c) Home and Community-Based Services (HCBS) Waiver Programs are programs
that provide home and community based services to individuals who, in the
absence of those services, require the level of care provided in a hospital, a
nursing facility, or an ICF/IID. To offer a 1915(c) HCBS Waiver Program the
state must submit a waiver application for approval to the Centers for Medicare
and Medicare Services, who, on behalf of the Secretary of Health and Human
Services, determines if the waiver meets the statutory and regulatory
requirements found in 42 CFR 441.301-441.310.
(1) Home and Community-Based Setting
Requirements. Home and community-based settings must have all of the following
qualities based on the needs of individuals as indicated in their
person-centered service plans:
(A) The
setting is integrated in and supports full access of individuals receiving
Medicaid Home and Community-Based Services (HCBS) to the greater community,
including providing 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
not receiving Medicaid HCBS;
(B)
The setting is selected by the individual from 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;
(C) The setting ensures the
individual's rights of privacy, dignity, and respect, and freedom from coercion
and restraint;
(D) The setting
optimizes, but does not regiment, individual initiative, autonomy, and
independence in making life choices, including but not limited to, daily
activities, physical environment, and with whom to interact;
(E) The setting facilitates individual choice
regarding services and supports, and who provides them; and
(F) In a provider-owned or controlled
residential setting, in addition to the qualities at 13 CSR 70-3.290(1)(A)
through (E), the following additional conditions must be met:
1. The unit or dwelling is a physical place
that can be owned, rented, or occupied under a legally enforceable agreement by
the individual receiving services, and the individual has, at a minimum, the
same responsibilities and protections from eviction that tenants have under the
landlord/tenant law of the State of Missouri, county, city, or other designated
entity. For settings in which landlord/tenant laws do not apply, a lease,
residency agreement, or other form of written agreement must be in place for
each HCBS participant, and that document must provide protections that address
eviction processes and appeals comparable to those provided under the
jurisdiction's landlord tenant law;
2. Individuals have privacy in their sleeping
or living unit including:
A. Units have
entrance doors lockable by the individual, with only appropriate staff having
keys to doors;
B. Individuals
sharing units have a choice of roommates in that setting;
C. Individuals have the freedom to furnish
and decorate their sleeping or living units within the lease or other
agreement;
3. Individuals
have the freedom and support to control their own schedules and activities, and
have access to food at any time;
4.
Individuals are able to have visitors of their choosing at any time;
5. The setting is physically accessible to
the individual; and
6. Any
modification of the additional conditions, under (1)(F)1. through 4. of this
rule, must be supported by a specific assessed need and justified in the
person-centered service plan. If any modifications are made, the following
requirements must be documented in the person-centered service plan:
A. A specific and individualized assessed
need;
B. Positive interventions and
supports used prior to any modifications to the person-centered service
plan;
C. Less intrusive methods of
meeting the need that have been tried but did not work;
D. A clear description of the condition that
is directly proportionate to the specific assessed need;
E. Regular collection and review of data to
measure the ongoing effectiveness of the modification;
F. Established time limits for periodic
reviews to determine if the modification is still necessary or can be
terminated;
G. The informed consent
of the individual; and
H. An
assurance that interventions and supports will cause no harm to the
individual.
(2) Settings that are not Home and
Community-Based. Home and community-based settings do not include the
following:
(B) An institution for mental
diseases;
(C) An intermediate care
facility for individuals with intellectual disabilities;
(E) Any other locations that have qualities
of an institutional setting, as determined by the Department of Social Services
(DSS) or its designee.
(3) Heightened Scrutiny process. Any setting
that is located in a building that is also a publicly or privately operated
facility that provides inpatient institutional treatment, or in a building on
the grounds of, or immediately adjacent to, a public institution, or any other
setting that has the effect of isolating individuals receiving Medicaid HCBS
from the broader community of individuals not receiving Medicaid HCBS, will be
presumed to be a setting that has the qualities of an institution and is not a
home and community based setting. The provider may submit information to DSS or
its designee as evidence that the setting does have the qualities of a home and
community-based setting. If DSS or its designee, based on the information
presented by the provider, determines that the setting does have the qualities
of a home and community-based setting, the evidence will be sent to the Centers
for Medicare and Medicaid Services to make the final determination as to
whether the evidence is sufficient to overcome the presumption that the setting
has the qualities of an institution.
(4) Provider Enrollment.
(A) Prior to enrolling with MO HealthNet,
HCBS providers will need to certify in writing on forms provided by the
Missouri Medicaid Audit and Compliance Unit (MMAC) that they understand and
will comply with the requirements of this rule. Providers will certify by the
signature of an authorized agent of the business as part of their MO HealthNet
application documentation. Providers that refuse to certify shall be denied
enrollment with MO HealthNet.
(B)
HCBS providers shall be subject to a pre-enrollment site visit per
13 CSR
65-2.020(9)(B)(2)(B). Enrolling HCBS
providers who are non-compliant with sections (1)-(3) of this rule shall be
denied enrollment with MO HealthNet.
1.
Providers who request in writing an extension to their application process in
order to become compliant with sections (1)-(3) of this rule shall be granted
thirty (30) calendar days to become compliant, without paying an additional
application fee per 13 CSR
65-2.020(5). This thirty- (30-) day
time period is in accordance with the provisions of
13 CSR
70-3.020(2)(D) and MMAC shall notify
the provider in writing of the thirty- (30-) day extension accordingly. If, at
the end of the thirty- (30-) day extension, the provider is still
non-compliant, the provider shall be denied
enrollment.
(5)
Provider Revalidation. All MO HealthNet providers must revalidate in accordance
with 13 CSR
65-2.020(4). HCBS providers must be
compliant with sections (1)-(3) of this rule upon revalidation or they shall
not be entitled to continued MO HealthNet participation. If an enrolled HCBS
provider is found to be out of compliance during its revalidation process, the
provider shall be granted thirty (30) days to come into compliance or shall be
denied continued enrollment in the MO HealthNet program.
(6) Providers enrolled with MO HealthNet on
or after March 17, 2014, must be in compliance and maintain continued
compliance with all the requirements of this regulation upon publication of the
regulation.
(7) Providers enrolled
with MO HealthNet prior to March 17, 2014, that do not meet the requirements of
this regulation, must come into compliance within ninety (90) days of the
publication of this regulation or submit and have approved a remediation plan
to come into compliance with the requirements of this regulation. The
remediation plan must be submitted and approved by DSS or its designee. All
providers must be in compliance with the requirements of this regulation no
later than March 17, 2022.
(8)
Sanctions. Enrolled providers that are non-compliant with sections (1)-(7) of
this rule, during their participation with MO HealthNet, are subject to
sanctions per 13 CSR 70-3.030.
(A) DSS or its designee shall inform enrolled
providers of non-compliance in writing by e-mail or U.S. Mail.
(B) Enrolled providers shall submit a plan to
remediate areas of non-compliance ("transition plan") to DSS or its designee
within forty-five (45) calendar days of the notice of non-compliance.
(C) Remediation must be complete within one
hundred twenty (120) days of the notice of non-compliance or the provider shall
be subject to sanctions per
13 CSR
70-3.030(5)(A).