Heightened Scrutiny Review Process

The federal Centers for Medicare & Medicaid Services (CMS) presumes some settings have qualities that are institutional or isolating in nature. CMS requires states to submit evidence demonstrating that these settings are able to overcome the presumption and meet requirements of the federal Home and Community Based Services (HCBS) Settings Rule. These settings must go through a heightened scrutiny review by CMS.

CMS presumes that the following types of settings have institutional or isolating qualities:

  • Prong 1 settings: Located in a hospital, nursing facility, intermediate care facility for individuals with an intellectual disability or related condition (ICF/IID) or institution for mental disease (IMD).
  • Prong 2 settings: Located adjacent to a public hospital, nursing facility, ICF/IID or IMD.
  • Prong 3 settings: Have the effect of isolating people from the broader community of people who do not receive HCBS.

CMS requires states to identify settings that meet the criteria above and submit to CMS a list of settings that the state believes can overcome the institutional or isolating presumption. The list must include:

  • The prong that each setting falls into for heightened scrutiny
  • A summary of how each setting has or will overcome the institutional or isolating presumption and
  • The state’s plan for remediation to ensure compliance with the regulations by March 17, 2023.

Assisted Living Facilities in STAR+PLUS HCBS

HHSC will submit all assisted living facilities participating in the STAR+PLUS HCBS program for heightened scrutiny review. HHSC posted a description of the heightened scrutiny process and an initial list of settings for public comment in October 2021 at Heightened Scrutiny (PDF).

In May 2022, HHSC posted an updated list (PDF) of settings and a summary of non-compliance issues and remediation activities necessary for ALFs to comply with the HCBS Settings Rule.

An evidence packet must be completed for each assisted living facility to provide evidence that the setting does, or can, comply with requirements of the HCBS Settings Rule. If an ALF is not compliant with any of the requirements of HCBS Settings Rule, the ALF will work with the MCO to develop a remediation plan. All remediation activities identified on the evidence packet remediation plan must be completed by Nov. 30, 2022.

HHSC has published a Heightened Scrutiny FAQ for ALFs (PDF) in the STAR+PLUS HCBS program.

Individualized Skills and Socialization

HHSC is preparing to implement a new service, called individualized skills and socialization, in the Home and Community-based Services (HCS), Texas Home Living (TxHmL), and Deaf Blind with Multiple Disabilities (DBMD) programs. Individualized skills and socialization will replace day habilitation in these programs. Individualized skills and socialization will include an on-site component and an off-site component.

The heightened scrutiny process will be required if a setting in which on-site individualized skills and socialization is provided:

(1) is located in a building in which a state supported living center or a certified intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) operated by a LIDDA is located but is distinct from the state supported living center or the certified ICF/IID operated by a LIDDA;

(2) is located in a building that is on the grounds of or immediately adjacent to a state supported living center or a certified ICF/IID operated by a LIDDA;

(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 that is 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.

If heightened scrutiny is required, a provider must complete the heightened scrutiny process and receive written approval from HHSC before submitting an application to become licensed as a day activity and health services facility with a special designation for individualized skills and socialization.

Read more about the heightened scrutiny process for individualized skills and socialization in Information Letter 22-53, Requirements for Providers Seeking to Deliver New Individualized Skills and Socialization Services (PDF).

Questions

If you have questions about the heightened scrutiny process or whether it applies to you, email MCS_Heightened_Scrutiny_Review@hhs.texas.gov.

Federal Guidance on Heightened Scrutiny

CMS has published guidance and resources for states and providers regarding the heightened scrutiny review process.

HHSC Webinars