On March 17, 2014, the Centers for Medicare and Medicaid Services (CMS) issued a final rule for home and community-based services that requires states to review and evaluate current Home and Community-Based Services (HCBS) settings, including residential and non-residential settings. States are required to analyze all HCBS settings where HCBS participants receive services, determine if the current settings comply with the final rule, and demonstrate how compliance will be achieved for those settings that do not meet the HCBS settings requirements. Settings that are HCBS compliant must be integrated in and support 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.
To read the HCBS Settings Final Rule click here
You can email your questions, concerns, or comments regarding the HCBS Settings compliance process to firstname.lastname@example.org
The final rule requires that all home and community-based settings have the following qualities:
- The setting is integrated in and supports full access to the greater community;
- The setting is selected by the individual from among setting options;
- The setting ensures individual rights of privacy, dignity and respect, and freedom from coercion and restraint;
- The setting optimizes autonomy and independence in making life choices; and
- The setting facilitates choice regarding services and who provides them.
In addition, the final rule also includes provisions for provider-owned or controlled home and community-based residential settings. The requirements include:
- The individual has a lease or other legally enforceable agreement providing similar protections;
- The individual has privacy in their unit including lockable doors, choice of roommate and freedom to furnish or decorate the unit;
- The individual controls his/her own schedule;
- The individual can have visitors at any time; and
- The setting is physically accessible.
Modifications to these requirements for provider-owned or controlled home and community-based settings must be supported by a specific assessed need and justified in the person-centered service plan.
The final rule also specifies that certain settings are not considered home and community-based. These excluded settings include nursing facilities, institutions for mental disease, intermediate care facilities for people with intellectual disabilities, and hospitals.
The final rule identifies other settings that are presumed to have qualities of an institution. These settings include those in a publicly or privately owned facility that provide inpatient treatment; on the grounds of, or immediately adjacent to, a public institution; or that have the effect of isolating individuals receiving Medicaid-funded HCBS from the broader community. CMS will presume these settings not to be community-based unless CMS determines through a process of “heightened scrutiny” that the setting is community-based and does not have the qualities of an institution.
1915(c) Waivers impacted by the HCBS Settings Rule include:
•AR.0195 DAAS - ARChoices in Homecare (ARChoices) Waiver
•AR.0400 DAAS - Living Choices Assisted Living (LCAL) Waiver
•AR.0188 DDS - Alternative Community Services (ACS) Waiver
•AR.0936 Partners for Inclusive Communities - Autism Waiver
Types of residential/non-residential settings impacted:
- Assisted Living Facilities – Residential settings
- Provider owned or controlled apartments and group homes - Residential settings
- Adult Day Care Facilities - nonresidential settings 42 CFR 441.301(c)(4)(i)-(v)
- Adult Day Health Care Facilities - Nonresidential settings 42 CFR 441.301(c)(4)(i)-(v)
Division of Aging and Adult Services
The Division of Aging and Adult Services (DAAS) is the operating agency for two 1915(c) waivers impacted by the HCBS Settings Rule. These include:
- ARChoices in Homecare (AR Choices)
- Living Choices Assisted Living (LCAL)
ARChoices was implemented starting January 1, 2016. It combined the previous Elder Choices (EC) and Alternatives for Adults with Physical Disabilities (AAPD) waivers.
Most waiver participants in EC and AAPD, and subsequently ARChoices, reside in private homes in the community and receive HCBS services in their homes. The home may be the person's home, the home of a family member or a friend, or a staff member that provides direct care to the beneficiary living in a private home. It is expected that waiver beneficiaries who live in their own home, the home of a family member or friend, or with a staff member that provides direct care to the beneficiary living in a private home receive services in a home that meets the setting requirements found at 42 CFR 441.301(c)(4).
Division of Developmental Disabilities Services
The Division of Developmental Disabilities Services (DDS) is the operating agency for one 1915(c) waiver impacted by the HCBS Settings Rule: ActiveRecord.0188 DDS - Alternative Community Services (ACS) Waiver. The purpose of this waiver is to support individuals of all ages who have a developmental disability and choose to receive services within their community. The person-centered service plan offers an array of services that allow flexibility and choice for the participant. Services are provided in the person’s home and community.
Individuals served by the ACS Waiver can choose to reside in a private home in the community and receive HCBS services in their home. The home may be the person’s home, the home of a family member or friend, or a staff member that provides direct care to the beneficiary living in a private home. The remainder lives in either a group home or a provider owned or controlled apartment. It is expected that people who live in their own home, the home of a family member or friend, or with a staff member that provides direct care to the beneficiary in a private home receive services in a setting that complies with requirements found at 42 CFR 441.301(c)(4).
Statewide Transition Plan
Each state is required to submit a Statewide Transition Plan to CMS that will act as a roadmap to guide our actions as the states move toward compliance with the HCBS Settings final rule. Arkansas submitted the first in a series of transition plans to CMS in June 2015. Subsequent transition plans were submitted in September 2015, December 2015, and September 2016. CMS provided feedback to the state in October 2016 and requested that the state clarify a few areas within the Statewide Transition Plan. The Statewide Transition Plan was resubmitted in early November 2016, resulting in CMS granting Arkansas initial approval of the Statewide Transition Plan.
- CMS Feedback and Initial Approval Letter
- Final STP Approved by CMS
- AR STP Final Approval Letter From CMS
In the first half of 2015, DAAS staff identified policies, provider manuals and certification requirement changes needed to comply with settings regulations. HCBS settings policy was integrated into the ARChoices provider manual to be effective January 1, 2016. This manual went through public comment from August 3, 2015 through September 1, 2015, as part of promulgation. The ARChoices provider manual governs Adult Day and Adult Day Health Centers. Also, the Living Choices Assisted Living (LCAL) provider manual is in the process of being promulgated with an effective date of October 1, 2016. HCBS settings policy has been incorporated into this manual. The public comment period for this change was October 23, 2015 through November 21, 2015. CMS approved the renewal on July 25, 2016. It will go to the Public Health and Rules and Regulations Committees for review and approval in September 2016. Once these rules are established in the provider manuals, certification procedures will be adjusted to comply with the new rules by July 1, 2017.
During the first half of 2016, DAAS performed a more formal and extensive crosswalk of statutes, licensing regulations, policies and procedures governing Level II Assisted Living Facilities and Adult Day Care and Adult Day Health Care facilities. A different crosswalk was completed for each facility-type and reflects the level of compliance for each regulatory standard, and what must be changed to meet compliance. See Appendix C for more details. Statutes and licensing regulations for these facilities govern all Level II Assisted Living Facilities and Adult Day Care and Adult Day Health Care facilities, regardless of whether the facility is a Medicaid waiver provider or not. Licenses are granted by the Office of Long Term Care in the Division of Medical Services. Since non-Medicaid providers are not required to meet the HCBS settings rules, the HCBS settings requirements will not be implemented in the statutes or licensing regulations governing these facilities. If a provider of one of these licensed non-Medicaid facilities wants to become a Medicaid waiver provider, they must then enroll as a Medicaid provider and be certified as a Medicaid waiver provider by DAAS. DAAS is incorporating HCBS settings requirements into the provider manuals, as stated in the previous paragraph, and in all certification and assessment applications and inspections. All new providers must meet the HCBS settings requirements before they can be certified as a waiver provider.
DDS staff has reviewed and identified policies, provider manual, and certification requirement changes needed to comply with the federal HCBS settings regulations. The following documents were reviewed and a detailed policy crosswalk is included in this STP: DDS Certification Standards for ACS Waiver Services, Medicaid Manual for DDS ACS Waiver, ACS Waiver renewal application, DDS Policy 1091 Certifications for non-center based services. Each of these documents will be amended to comport with the federal requirements. The revised documents will require legislative approval and go through a 30 day public comment period as part of promulgation. New providers are expected to be compliant with the Final Rule at the time of application.
An inter-agency HCBS Settings working group has met regularly since 2014 and will continue to meet during the implementation of the statewide transition plan. The working group consists of representatives from the Division of Aging and Adult Services, Division of Developmental Disabilities, and the Division of Medical Services within the Arkansas Department of Human Services. The working group initially met to review the new regulations and to develop the initial statewide transition plan and corresponding timeline. The group has met with external stakeholders to discuss the new regulations. These stakeholders include: assisted living providers, aging providers, intellectual and developmental disability providers, advocates, consumers, and associations representing the aforementioned groups.
The group continues to meet to discuss assessment activities, including provider self-assessment surveys, site visits, and ongoing compliance with the HCBS Settings rule. The HCBS Settings working group reviewed the provider self-assessment surveys, developed an on-site assessment tool to validate provider self-assessments, and will analyze compliance over the coming months.
DHS staff representing the Division of Aging and Adult Services, the Division of Developmental Disabilities Services, and the Division of Medical Services were assigned to a site visit team. These employees received training on the site visit survey tool and the beneficiary survey tool, as well as training on the HCBS Settings final rule and sensitivity training.
Site visits were conducted between April and August 2016. Site visits included rounds with an administrator or senior staff, interviews with waiver beneficiaries, and a review of supporting documents, including but not limited to the admission/occupancy agreement, resident bill of rights, grievance policy, etc.
Resources & Reports
Arkansas HCBS Non-Residential Beneficiary Survey
Arkansas HCBS Non-Residential Site Review Survey Tool
Arkansas HCBS Residential Beneficiary Survey
Arkansas HCBS Residential Site Review Survey
HCBS Provider Self-Assessment
Self Assessment Exploratory Questions
CMS Fact Sheet on HCBS
CMS Information on HCBS
FAQs HCBS General
FAQs Planned Construction and Person Centered Planning
FAQs Unsafe Wandering and Exit Seeking Behavior
HCBS Advocacy website
HCBS Contact Information
HCBS Coverage Area Information
Overview of the HCBS Setting Rule
Responding to the Wandering and Exit-seeking Behaviors of People with Dementia
Settings that Isolate
Summary of the HCBS Setting Final Rule
Update on HCBS Settings-Timeline and Heightened Scrutiny
Assessment of Arkansas HCBS Non-Residential Settings Report December 2015
Assessment of Arkansas HCBS Residential Settings Report December 2015
DAAS Non-Residential Settings Policy Crosswalk
DAAS Residential Settings Policy Crosswalk
DDS Provider Owned-Controlled Residential Settings Policy Crosswalk