Setting Assessments (HCS)

People have a choice regarding the services they receive and by whom the services are provided. The Centers for Medicare & Medicaid Services require the following in any setting in which waiver services are delivered:

  • Participants can choose from options that include non-disability specific settings and private units.
  • Participants have the individual rights of privacy, dignity and respect, and freedom from coercion and restraint.
  • Participants can be independent and autonomous when making life choices without regimenting such things as daily activities, physical environment and with whom they interact.

Self-assessment Sample

As part of a 5-year plan to bring HCBS principles into intellectual and developmental disability programs, the agency surveyed a selected sample of providers. The document below is a copy of that survey which is being provided for informational purposes only.

 

Impact of Federal HCBS Rules on DADS 1915(c) Waiver Programs

View this document in PDF format.

HCBS Rules Section by Topic and Page (Rule 1)

HCBS settings exclude locations that have qualities of an institutional Setting (pg. 333)

Rule Prohibits:

  • Nursing Facility
  • Institution for mental diseases
  • ICF for individuals with IDD
  • Hospitals
  • Any public or private setting that provides inpatient institutional treatment
  • Any other locations that have qualities of an institutional setting as determined by the Secretary. Community-based (other than residential) settings must also be:
    • non- institutional;
    • integrated; and
    • Person Directed.

Compliance in the waiver and rule

Note: CMS clarified that respite provided outside of the home can be provided in settings that would otherwise be precluded such as nursing facilities and intermediate care facilities.

Community Living Assistance and Support Services (CLASS) Impact

In accordance with Section 45.404(a)(1) (related to Suspension of CLASS Program Services With Advance Notice), CLASS is in compliance with the current requirement to exclude the following settings (Nursing facility, ICF/IID, Hospital, ALF), except as noted below.

Deaf-Blind Multiple Disabilities (DBMD) Impact

In accordance with Section 42.242(a)(1) (related to Suspension of DBMD program services with advance notice), DBMD is in compliance with the current requirement to exclude the following settings (Nursing facility, ICF/IID, ALF, Facility licensed by DSHS), except as noted below.

Home and Community-based Services (HCS) Impact

In accordance with Section 9.155(a)(5) (related to the Eligibility Criteria) HCS is in compliance with the current requirement to exclude the settings outlined in the HCBS CMS rule.

Also Section 9.174(a) (42) (D) (relating to respite) HCS prohibits the provision of respite in an institutional setting.

Texas Home Living (TxHmL) Impact

In accordance with Section 9.553 (28) (A)-(H) (related to definitions) TxHmL is in compliance with the current requirement to exclude the settings outlined in the HCBS CMS rule.

In accordance with Section 9.556 (a) (9) (related to Eligibility Criteria) TxHmL has no residential option and requires an individual to reside in their own home/family home excluding institutional settings.

Medically Dependent Children (MDCP) Impact

In accordance with Section 51.203 all individuals served in MDCP live in their own/family home or DFPS foster care home (no more than 4 children). No individual lives in a provider owned or operated residential setting.

The proposed Section 51.419 (a)(1) requires that an individual be suspended from services when temporarily admitted to a hospital, nursing facility, SSLC, ICD/IID; a state mental health facility or rehabilitation center for a purpose other than respite.

Program settings that may require remediation.

Note: Many waivers offer day habilitation services and the HCBS rules require day programs to comply with HCBS settings requirements. CMS has stated that more guidance will be provided to states clarifying how HCBS settings requirements should be implemented in day programs.

CLASS

CLASS offers pre-vocational services. These services are often provided at day habilitation sites.

DBMD

In accordance with 42.630 (related to residential services) allows the provision of DBMD services in an assisted living (ALF). An ALF setting could have qualities of an institution.

  • DBMD offers day habilitation services.

HCS Impact

HCS offers day habilitation services.

TxHmL

TxHmL offers day habilitation services.

MDCP

MDCP flexible family support and respite services may be delivered in a daycare setting. The daycare settings could be out of compliance with the HCBS community based settings outlined in the HCBS rule. The daycare could be in a facility where the parent works (i.e. hospital) and the facility may provide day care.

HCBS Rules Section by Topic and Page (Rule 2)

Rule requires that each individual’s privacy is protected (pg. 332)

Rule Requires:

  • Lockable doors used by individual in bed room.
  • Choice of roommates
  • Freedom to decorate bedroom
  • Control of their own schedules and activities(including access to food at any time)
  • Visitors of their choosing at any time
  • Physically accessible

Note: Modifications to the above must be justified in the PCP

Compliance in the waiver and rule

CLASS Impact

Individuals in CLASS program live in their own home/family home.

DBMD Impact

In accordance with Section 42.630 (a)(14) and (c)(1)(C) , Licensed Home Health Assisted Living Facilities and ALFs must be physically accessible and document that the individual is able to move safely and efficiently within home and community settings.

HCS Impact

In accordance with Section 9.173 (a) and (b)-Rights of individuals.

HCS is in compliance with the provisions of individual privacy.

TxHmL Impact

Individuals in TxHmL program live in their own home/family home

MDCP Impact

Individuals in MDCP program live in their own home/ family home. The only exception is the provision of host family services.

At this time, no individuals receive services in a host family.

Program settings that may require remediation

CLASS Impact

No compliance issues identified.

DBMD Impact

DBMD waiver and rules do not reflect any of the six requirements.

HCS Impact

No compliance issues identified.

TxHmL Impact

No compliance issues identified.

MDCP Impact

Host family services provided in a DFPS foster care family home.

HCBS Rules Section by Topic and Page (Rule 3)

Barriers (modification s) to individual privacy must be addressed in the following manner (pg. 332)

  • Identify the assessed need
  • Document positive interventions prior to modifications
  • Document less intrusive methods that have been tried or unsuccessful
  • Clear description of the condition that is directly proportionate to the assessed need.
  • Regular and ongoing monitoring for effectiveness of modification
  • Time limits
  • Informed consent
  • Assurance interventions will cause no harm

Compliance in the waiver and rule

CLASS Impact

Individuals in CLASS program live in their own home/family home. This section only applies to HCBS residential settings.

DBMD Impact

Compliance issues identified below.

HCS Impact

In accordance with Section 9.173. (b) (15) (19) (20) and (21) an individual’s rights are protected through the service planning process as the implementation plan for services is modified. Section 9.190.(e) (8)and (9) requires that a service coordinator must ensure that the individual’s person directed plan is revised as needed.

TxHmL Impact

Individuals in TxHmL program live in their own home/family home. This section only applies to HCBS residential settings.

MDCP Impact

Individuals in MDCP program live in their own home/family home except when receiving host family services.

At this time, no individuals receive services in a host family.

Program settings that may require remediation.

CLASS

N/A

DBMD

DBMD Waiver and Rule do not outline a process for determining right restrictions as outlined in this section of the HCBS rules.

HCS

N/A

TxHmL

N/A

MDCP

Rules governing host family services need to outline a process for rights restrictions if applicable.

HCBS Rules Section by Topic and Page (Rule 4)

Residential settings to include a private unit option for individuals (pg. 331)

Rule Requires:

  • Integrated setting (provides opportunity to access community, employment and services)
  • Setting selected by the individual from among options
  • Ensures an individual’s rights of privacy, dignity and respect (freedom from coercion and restraint)
  • Optimizes autonomy and independence

Residential Settings Owned by Program Provider:

  • Individual has same responsibilities and protections from eviction

Compliance in the waiver and rule

CLASS Impact

Individuals in the CLASS program live in their own home/family home.

DBMD Impact

In accordance with Section 42.404(f), which requires the program provider to offer individual choices and opportunities for accessing and participating in community activities, including employment opportunities and experiences available to peers without disabilities, and provide supports necessary for the individual to participate in such activities consistent with an individual's or LAR's choice and the individual's IPC and IPP.

HCS Impact

In accordance with 40 TAC Chapter 9 Subchapter D, HCS is in compliance with the provisions of residential settings.

TxHmL Impact

Individuals in the TxHmL program live in their own home/family home.

MDCP Impact

Individuals in the MDCP program live in their own home/family home, except when receiving host family services.

At this time, no individuals receive services in a host family.

Program settings that may require remediation

CLASS

No compliance issues identified.

DBMD

DBMD Waiver and Rule need to be amended to ensure: (1) individuals’ rights of privacy, dignity and respect, and freedom from coercion and restraint; and (2) optimizing autonomy and independence.

HCS

No compliance issues identified.

TxHmL

No compliance issues identified.

MDCP

Rules governing host family services need to outline a process to ensure privacy, freedom from eviction and optimize autonomy and independence.