In January 2014, after a series of Notice for Public Rule Making, the Centers for Medicare and Medicaid promulgated a rule, 1915(i) State Plan Home and Community-Based Services, 5-Year Period for Waivers, Provider Payment Reassignment, Setting Requirements for Community First Choice, and 1915(c) Home and Community-Based Services Waivers - CMS 2249-F and 2296-F, now referred to as "the home and community-based settings rule" (CMS, 2014). The purpose of the rule was to establish a definition for settings in Medicaid funding authorities that qualify as home and community-based for reimbursement purposes. Five main tenets of the rule are:
The setting is integrated in and supports full access of individuals receiving Medicaid HCBS 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 not receiving Medicaid HCBS.
The setting is 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.
Ensures an individual's rights of privacy, dignity and respect, and freedom from coercion and restraint.
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.
Facilitates individual choice regarding services and supports, and who provides them.
The rule is more focused on "the nature and quality of the individual's experience" rather than what the setting is not. The rule also establishes a set of qualities that provider controlled settings must adhere to in order to keep their HCBS funding status (441.301(c)(4)(A) through (E). Because this is the most significant change to the waiver programs since they were established in 1982, states have five years, until March 2019, to implement the requirements of the rule. All states were required to submit transition plans describing their current array of residential and day services and the extent to which the settings comport with the rule, and if they do not, the changes the state would make to bring the settings into compliance.
The rule does not establish separate requirements for older or younger beneficiaries. Settings are to accommodate the individual needs and preferences of Medicaid beneficiaries and these preferences are determined through a person-centered service planning process, the structure of which is also described in the rule (441.301(1)(i) through (v) and 441.301(2)(i) through (xiii).
An additional aspect of the person-centered planning requirement which is significant in the context of services for individuals of any age with dementia or Alzheimer's disease is eight required elements for modifying an individual's person entered service plan for a "specific, assessed need" (441.301(2)(xiii)(A) through (G). An example of how this section might be applied is establishing protections for individuals who experience wandering behavior. In an assisted living environment or adult day setting serving seniors or younger individuals with IDD, the provider must tailor restrictions or safety protections in response to individual behaviors, and not lock an entire unit or section, thereby restricting several beneficiaries' movements whose needs and behaviors are different.
The settings rule is important in the context of this discussion because some current services and day services in particular may not meet the requirements of the rule, particularly for younger individuals with IDD. For example, nationally there is a concerted effort to improve the employment outcomes for individuals with disabilities, and current day settings do not provide the supported employment services that enable people to work in the community in typical jobs. Likewise, there are seniors who may also want to continue working though they reside in an assisted living facility or attend a day service to have medical or therapy needs met. The implication for day services is that in order to meet the requirements of the rule for continued reimbursement, providers may need to retool some of their practices toward greater flexibility and more varied supports that enable beneficiaries to be more integrated in their communities.
Source: Patricia D. Nobbie, Ph.D., Program Specialist, Office of Policy Analysis and Development, Administration for Community Living (2015)