Current through Reg. 49, No. 38; September 20, 2024
(a) A home and
community-based setting is a setting in which an individual receives CLASS
Program services or CFC services. A home and community-based setting must have
all of the following qualities based on the needs of the individual as
documented in the individual's person-centered service plan.
(1) A home and community-based setting is
integrated in and supports the individual's access to the greater community to
the same degree as a person not enrolled in a Medicaid waiver program,
including opportunities for the individual to:
(A) seek employment and work in a competitive
integrated setting;
(B) engage in
community life;
(C) control
personal resources; and
(D) receive
services in the community.
(2) A home and community-based setting is
selected by an individual from among setting options, including non-disability
specific settings and an option for a private unit in a setting in which SFS or
CFS is provided. The setting options are identified and documented in an
individual's IPP and are based on the individual's needs, preferences, and, for
settings in which SFS or CFS is provided, resources available for room and
board.
(3) A home and
community-based setting ensures an individual's rights of privacy, dignity and
respect, and freedom from coercion and restraint.
(4) A home and community-based setting
optimizes, not regiments, individual initiative, autonomy, and independence in
making life choices, including choices regarding daily activities, physical
environment, and with whom to interact.
(5) A home and community-based setting
facilitates individual choice regarding services and supports, and the service
providers who provide the services and supports.
(b) In addition to the requirements in
subsection (a) of this section, a DSA must ensure that a group setting in which
prevocational services are provided:
(1)
allows an individual to:
(A) control the
individual's schedule and activities related to prevocational
services;
(B) have access to the
individual's food at any time; and
(C) receive visitors of the individual's
choosing at any time; and
(2) is physically accessible and free of
hazards to an individual.
(c) If a DSA becomes aware that a
modification to a requirement described in subsection (b)(1) of this section is
needed based on a specific assessed need of an individual:
(1) the DSA must:
(A) notify the case manager of the needed
modification; and
(B) provide the
case manager with the information described in paragraph (2)(A) of this
subsection as requested by the case manager; and
(2) the case manager must, if notified by the
DSA of a needed modification, convene a service planning team meeting in person
or by videoconferencing to update the individual's IPP to include the
following:
(A) a description of the specific
and individualized assessed need that justifies the modification;
(B) a description of the positive
interventions and supports that were tried but did not work;
(C) a description of the less intrusive
methods of meeting the need that were tried but did not work;
(D) a description of the condition that is
directly proportionate to the specific assessed need;
(E) a description of how data will be
routinely collected and reviewed to measure the ongoing effectiveness of the
modification;
(F) the established
time limits for periodic reviews to determine if the modification is still
necessary or can be terminated;
(G)
the individual's or LAR's signature evidencing informed consent to the
modification; and
(H) the DSA's
assurance that the modification will cause no harm to the individual;
and
(3) the DSA may
implement the modification after the service planning team updates the IPP as
required by paragraph (2) of this subsection.
(d) Except as provided in subsection (e) of
this section, a program provider must ensure that CLASS Program services and
CFC services are not provided in a setting that is presumed to have the
qualities of an institution. A setting is presumed to have the qualities of an
institution if the setting:
(1) is located in
a building in which a certified ICF/IID operated by a LIDDA or state supported
living center is located but is distinct from the ICF/IID;
(2) is located in a building on the grounds
of, or immediately adjacent to a certified ICF/IID operated by a LIDDA or state
supported living center;
(3) is
located in a building in which a licensed private ICF/IID, a hospital, a
nursing facility, or other institution is located but is distinct from the
ICF/IID, hospital, nursing facility, or other institution;
(4) is located in a building on the grounds
of, or immediately adjacent to, a hospital, a nursing facility, or other
institution except for a licensed private ICF/IID; or
(5) has the effect of isolating individuals
from the broader community of persons not receiving Medicaid HCBS.
(e) A program provider may provide
a CLASS Program service or a CFC service to an individual in a setting that is
presumed to have the qualities of an institution as described in subsection (d)
of this section, if CMS determines through a heightened scrutiny review that
the setting:
(1) does not have the qualities
of an institution; and
(2) does
have the qualities of home and community-based settings.