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HCBS Settings Rule Issue Briefs

This week’s In Focus section highlights four briefs written by Health Management Associates (HMA) in collaboration with the National Council on Assisted Living that address key areas of compliance with the Centers for Medicare & Medicaid Services (CMS) home and community-based services (HCBS) settings final rule. The briefs are intended to inform states and Assisted Living (AL) communities on common challenges facing AL communities, the strategies for compliance available, and the steps states have taken to address them in their approved statewide transition plans. To create the briefs, HMA analyzed the regulations, CMS guidance, and the statewide transition plans that had received final approval from CMS at the time of writing. State plans reviewed were: Arkansas, District of Columbia, Delaware, Kentucky, Oklahoma, Tennessee, and Washington.

In 2014, CMS issued a final rule defining the settings in which home and community-based services could be delivered under Medicaid waiver or other HCBS programs. For the first time, CMS defined the characteristics and beneficiary experiences it expected in community-based settings. Until then, HCBS had been defined as services provided in locations other than those classified as institutions, like nursing facilities. The rules require that Medicaid HCBS settings are integrated in and facilitate full access to the community; are selected by the individual as part of a person-centered planning process; ensure the rights to privacy, dignity and respect, and freedom from coercion or restraint; optimize individual initiative, autonomy, and independence in making life choices; and facilitate choice. Provider owned or controlled residential settings (like assisted living) have additional requirements regarding privacy, freedom to control schedules, and ability to receive visitors.

These changes were applauded by disability and aging advocates. However, they constituted a notable change in the delivery of Medicaid HCBS and CMS allowed a significant implementation period, which has recently been extended to 2022.

The briefs cover four topics of particular challenge or concern to the Assisted Living industry, including meeting choice and privacy requirements as provider-owned residential settings, legacy co-location of AL communities in the same building as nursing facilities (and state regulations that may encourage such co-location), the challenges faced by AL communities when state regulations contradict the federal rules, and issues specific to serving individuals with Alzheimer’s and other dementias.

  • Ensuring Individual Choice and Privacy describes the choice and privacy provisions of the rules and steps states and AL communities have taken to ensure these critical components of the rule. The brief describes how states have monitored and documented choice and privacy in AL communities, including the meaningful choice of the AL from a set of options (including a non-disability-specific option); how AL communities can document the choices offered to and made by residents, such as through availability of private dining and roommate choice; and the privacy elements of AL community policies and practices, including private communications and protection of personal and medical information.
  • Community Integration Options and Resident Choice Are Key in Assessment of Co-Located Assisted Living Communities and Inpatient Facilities addresses the specific issue of AL communities located in the same building as inpatient facilities, including nursing homes. These settings may demonstrate compliance with the rule by differentiating the purpose, design, and programmatic features of the setting; demonstrating the degree of physical, programmatic, and financial disconnect between the settings; and demonstrating how the resident’s experience complies with the rule, including through valid consumer experience surveys.
  • Resolving Differences Between State Assisted Living Licensure Requirements and HCBS Settings Rule provides information for AL communities in states whose state requirements may not match or comply with the Settings rule. Differences include regulations regarding staffing, which may require or encourage co-mingling and cross training of AL and nursing facility staff; discharge, which require discharge of an individual who has reached a higher level of care; and regulations that require controlled egress or other limitations for people with dementia. To date, CMS has approved transition plans that do not change state regulatory language that is counter to the rule, but the plans promise future changes or clarification in provider manuals and other official communications.
  • An Effective Person-Centered Planning Process is Key for Memory Care Units describes the crucial importance of a person-centered planning process to ensure that individuals with dementia receive high quality services. This includes the meaningful choice of setting (including one with controlled egress), ensuring that any modifications to the protections of the rule are based on a person-centered process and respond to a specific individual need, and how best practices in dementia care can assist with compliance with the rule and improve overall care.

The briefs represent actions and strategies identified in states with final approved statewide transition plans as of November of 2017. Information and strategies will continue to evolve as more states finalize their plans and move toward full compliance with the HCBC Settings Rule in 2022.


An Effective Person-Centered Planning Process Is Key for Memory Care Units

Community Integration Options and Resident Choice Are Key in Assessment of Co-Located Assisted Living Communities and Inpatient Facilities

Ensuring Individual Choice and Privacy

Resolving Differences Between State Assisted Living Licensure Requirements and HCBS Settings Rule