Advocacy Issues in Implementing
the HCBS Settings Rule
Eric Carlson
Melissa Harris
Becky Kurtz
November 6, 2015
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Identifying Settings Likely to Isolate
• Relatively easy to identify settings that
– Share building with nursing facility, or
– Share property with public institution such as state hospital.
• Not so easy to identify “setting that has the effect of
isolating individuals receiving Medicaid HCBS from the
broader community of individuals not receiving Medicaid
HCBS.”
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“Private” Ownership Not
Automatic Compliance
• E.g., CMS letter to Mississippi:
–“Private home dwellings” may not automatically
meet the characteristics of HCBS if all services
are provided in that setting, or if residents are all
or almost all persons with disabilities.
• Similar language in CMS letter to Washington.
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Aren’t Many Settings Likely to Isolate?
• E.g., Day programs.
• Assisted living facilities.
• Suggestion: see this process as an opportunity to
improve the quality of care, rather than as a risk of
“losing” existing service providers.
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What Is Integration?
• Regulation refers to isolation of persons
receiving Medicaid HCBS, from persons
not receiving Medicaid HCBS.
–Integration must be with broader community,
and not just with service recipients who are
paying privately.
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How to Determine Integration
• Geomapping?
–Locating settings near institutions.
–Locating settings near each other.
• Surveys.
–But are surveys smart enough to get at the truth
of isolation?
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E.g., California Provider Survey (1 of 3)
• “Do participants regularly receive
information regarding services in the
broader community and access
options, such as public bus/light rail,
taxi/van services, special
transportation providers, etc.?”
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E.g., California Provider Survey (2 of 3)
• “Does the setting utilize access to the
community as part of its plan for
services?”
• “Does the setting offer participants an
opportunity to seek employment in
competitive integrated settings?”
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E.g., California Provider Survey (3 of 3)
• “Does the setting encourage visitors
or other people from the community
to visit the setting?”
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How Can Beneficiary Surveys
Identify Isolation?
• Limitation: Beneficiary surveys are meant to
validate provider surveys.
–But difficult for beneficiary surveys to track
provider surveys.
• A good question for a provider likely is not a good
question for a beneficiary.
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How to Determine Actual Integration?
• Suggestion: Focus more on what happens,
rather than on theoretical rights:
–E.g., When was the last time you left your home?
–When was the last time you left your home to
visit with a friend or family member?
–What have you done outside the home in the
last 30 days?
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Reverse Integration
• Not enough to bring community members
from the “outside” into the setting.
–See, e.g., CMS’s response letter to Idaho:
• Test is whether beneficiaries have access to the
community, not whether community has access to
beneficiaries.
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Consumer Choice
Does Not Justify Segregation
• Beneficiary autonomy is important, but a
beneficiary’s choice of a setting does not
mean that the setting is community-based.
• CMS letter to NY:
–“… beneficiary choice of the setting does not
mitigate the requirement for the setting to
comply with all provisions of the settings rule.”
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Eviction Protections
• Eviction protections in provider-controlled
settings must be at least as good as those in
landlord/tenant law.
• Questions:
–Is landlord/tenant law the best goal?
–Are leases effective vehicles to raise standards?
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Issues for Discussion
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Dementia Care;
Locked or “Delayed Egress” Settings
• In Q and A re: locked doors or alarms,
CMS references modifications based on
assessed needs.
• On the other hand, heightened scrutiny
evidence is supposed to focus on the
setting, not on severity of disabilities.
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Size of Setting
• Size not determinative.
• States may choose to set size restrictions.
–CMS, Questions and Answers Regarding
Home and Community-Based Settings, Q #5
of Questions re: Residential Settings.
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Assessments (1 of 2)
• Assessments should have broad reach:
–All HCBS providers.
–Mandatory.
• See, e.g., CMS letter to Alaska, asking for
details on how state will get info from
additional 79% of settings.
• Also CMS letter to MT, requiring follow-up
when provider fails to respond to survey.
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Assessments (2 of 2)
• Public should have access to assessment
results.
–See, e.g., Oregon Transition Plan:
• Amending Transition Plan to include assessment
results, analysis, plan for remediation activities, and
identification of sites for which state will be
requesting heightened scrutiny review.
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Ongoing Enforcment
• Being compliant is not enough; setting
must remain in compliance.
• Not enough that state laws do not conflict
with HCBS regulations; state laws and
procedures must ensure continued
compliance.
– See, e.g., SC wrongfully focusing on laws that are “barrier.”
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Questions
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