Current through Reg. 50, No. 13; March 28, 2025
(a) A home and community-based setting is a
setting in which an individual resides or receives DBMD Program services or CFC
services. A home and community-based setting must have all of the following
qualities based on the individual's strengths, preferences, and needs as
documented in the individual's IPP.
(1) The
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) The 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 licensed assisted living 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 licensed assisted living is provided, resources available for room and
board.
(3) The setting ensures the
individual's rights of privacy, dignity and respect, and freedom from coercion
and restraint.
(4) The 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) The setting facilitates individual choice
regarding services and supports and the service providers who provide the
services and supports.
(b) Except as provided in subsection (c) of
this section, a program provider must ensure that DBMD 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.
(c) A program
provider may provide a DBMD 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 (b) 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.
(d) A program provider must ensure that
employment readiness is not provided in the residence of an individual or
another person.
(e) In addition to
the requirements in subsection (a) of this section, a program provider must
ensure that an employment readiness location:
(1) allows an individual to:
(A) control the individual's schedule and
activities;
(B) have access to the
individual's food at any time; and
(C) have visitors of the individual's
choosing at any time; and
(2) is physically accessible and free of
hazards to an individual.
(f) If an individual's service planning team
determines that the requirements in subsection (e)(1)(A) and (B) of this
section must be modified, the service planning team must:
(1) revise the individual's IPP in accordance
with §
260.77 of this chapter (relating
to Renewal and Revision of an IPP and IPC); and
(2) document on the individual's IPP:
(A) a description of the specific and
individualized assessed need that justifies the modification;
(B) a description of any positive
interventions and supports that have been tried but did not work;
(C) a description of any less intrusive
methods of meeting the need that have been 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 program
provider's assurance that the modification will cause the individual no
harm.
(g) After
the service planning team updates the IPP as required by subsection (f) of this
section, the program provider must implement the modifications.
