Current through Reg. 49, No. 38; September 20, 2024
(a) A home and
community-based setting is a setting in which an individual receives TxHmL
Program services or CFC services. A home and community-based setting must have
all of the following qualities, based on the needs and preferences of an
individual as documented in the individual's PDP.
(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 the individual from among setting options, including
non-disability specific settings. The setting options are identified and
documented in the PDP and are based on the individual's needs and
preferences.
(3) The setting
ensures an 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 TxHmL 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 TxHmL 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.
