HCBS Settings Rule: 2017 Update

Posted on September 7, 2017

Recently the Centers for Medicare and Medicaid Services (CMS) informed state governors that it was extending the timeframe for states to achieve compliance with the new settings provisions governing Home and Community Based (HCBS) services outlined in the 2014 Rule. This summary will provide an update of the impact this decision will have on HCBS settings, and clarify existing expectations that have not changed based on postponement of enforcement of the settings provisions. This information is based on written communication from CMS, information shared at a webinar hosted by CMS and personal conversations held at the CMS conference in Baltimore August 28 – 31, 2017.

What are the “Settings” requirements in the Rule?

The 2014 HCBS Rule delineated 5 requirements for provider-controlled settings where HCBS services are rendered:

1. The individual has a lease or other legally enforceable agreement providing similar protections;
2. The individual has privacy in their unit including lockable doors, choice of roommates and freedom to furnish or decorate the unit;
3. The individual controls his/her own schedule including access to food at any time;
4. The individual can have visitors at any time; and
5. The setting is physically accessible.

Why is CMS postponing enforcement of these requirements?

CMS indicated their decision to extend the transition period to demonstrate compliance with the settings requirements was in response to the “difficult and complex nature of this task (achieving compliance)”. States now have until March 17, 2022 to demonstrate compliance, though CMS has made it clear that they expect states to continue working on State Transition Plan (STP) activities.

What is the status of Illinois’ State Transition Plan?

Illinois is one of 16 states still awaiting Initial Approval from CMS for its STP. The Illinois STP being reviewed by CMS indicated that nearly 92% of HCBS sites were fully or near-fully compliant with the requirements of the 2014 Rule. We await to see whether CMS will accept that assessment, or as they have done with other states, require a more vigorous review of HCBS settings (both day and residential), to validate the states’ findings.

Is CMS postponing the requirements for Person-Centered Planning (PCP) or Conflict-Free Case Management (CFCM)?

No, CMS has made it very clear that postponement of enforcing the settings requirements does not extend to the provisions for person-centered planning or conflict-free case management, both of which were included in the 2014 Rule. CMS used the 2014 Rule to clarify existing expectations for PCP and CFCM for HCBS services and emphasized that these are not new expectations so there is no postponement of enforcement.

How is Person-Centered Planning and Conflict-Free Case Management working in Illinois?

Effective 7/1/17, Individual Service Coordination (ISC) agencies are responsible for completing PCP for people receiving HCBS (CILA, DT, HBS, Children’s Residential) services. The process includes Discovery and Assessment and the development of a Personal Plan, that reflects outcomes important to the person and developed in collaboration with others the person wants involved in the planning process. ISC agencies share the Personal Plan with community providers selected by the person and their guardian (if applicable) to determine if they can support the person to pursue his/her outcomes.

Who should be involved in the person-centered planning process?

The person and his/her guardian (if applicable) should decide who they want involved in the planning process. If a person doesn’t have a guardian, he/she may still want family members involved in the process, others who know him/her well and may choose to have people such as their QIDP from a community agency be a part of the planning process.

What if an agency cannot support a person to pursue his/her outcomes?

If an agency cannot fully support a person to pursue an outcome(s), they will discuss with the ISC and person/guardian what elements of the Personal Plan they can support. The person can then decide whether what the agency can do is acceptable or whether they want to look for services at a different agency. The ISC will help the person to find out about and connect with other agencies to see if they can support the outcomes in the Personal Plan.

How can I learn more about the person-centered planning process?

The HCBS-ACT Project is planning a webinar for people receiving services and families to share more information about this process and how you can make sure the outcomes that are important to you are included in your Personal Plan. We’ll be sharing details within the next few weeks on when this webinar will occur and how you can register.

Who should I talk to if I still have questions?

If you are receiving services already and have questions, your ISC or someone at the agency providing services to you is a good resource. If you’re not receiving services, you can email representatives of the HCBS-ACT Project and we’ll try to answer your question or connect you with someone who can.

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