Requirements for Non-Residential Settings
In my previous post, I discussed HCBS requirements for residential settings, like group homes, supervised living, assisted living and host home or shared living settings. In this installment, we will discuss settings where other Medicaid HCBS services are provided, such as day habilitation, pre-vocational services, day treatment, clubhouses, and sheltered workshops.
“The setting is integrated in and supports full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS. “ 42 CFR 441.301(c)(4)(i)/441.710(a)(1)(i)/441.530(a)(1)(i)
So what does this mean? This complex sentence is the foundation of the new home and community based settings rules; yet, for many disability-specific service settings, it is incredibly difficult to evaluate for purposes of compliance with these rules. This is especially true for traditional ID/DD day services and sheltered work settings. While the Center for Medicare & Medicaid Services (MCS) has acknowledged that the rules must take into account the type of service being delivered (e.g. clinical versus companion type services), application of the rules to day services has caused a great deal of concern across the states, in the provider communities, and for individuals and family members.
Where are we now? For states, the new HCBS settings rules combined with the new Olmstead1 enforcement by the Department of Justice regarding access to employment services for people with intellectual and developmental disabilities are driving increased focus on both sheltered work and congregate day programs. Previously, Olmstead related enforcement by the DOJ focused on people who lived in institutions and were not able to leave without appropriate HCBS services. Now, the DOJ and private disability rights organizations are focusing on the day programs where people with disabilities may be unnecessarily segregated from people without disabilities, and, in turn, in states where those same people may not have enough access to support in order to gain integrated employment instead of going to day programs or sheltered workshops. As a result, states are working to address barriers to employment services, developing new HCBS services that require service delivery exclusively in integrated community settings (settings where people without disabilities routinely access community services) and evaluating actual service delivery in facility-based service settings.
For providers of traditional facility-based day services, there are many challenges. CMS provides some exploratory questions to assist states and providers to assess compliance with that broad aspiration of integration and access to the broader community. Examples of these exploratory questions include:
- Does the setting provide opportunities for regular meaningful non-work activities in integrated community settings for the period of time desired by the individual?
- Does the setting allow individuals the freedom to move about inside and outside of the setting as opposed to one restricted room or area within the setting? For example, do individuals receive HCBS in an area of the setting that is fully integrated with individuals not receiving Medicaid HCBS?
- Is the setting in the community/building located among other residential buildings, private businesses retail businesses, restaurants, doctor’s offices, etc. that facilitates integration with the greater community?
- Does the setting encourage visitors or other people from the greater community to be present?
- Does the setting assure that tasks and activities are comparable to tasks and activities for people of similar ages who do not receive HCBS services?
You can access the full list of exploratory questions proposed by CMS to assess compliance for non-residential programs here.
Traditional facility-based day programs face further challenges with the rules requiring optimization of initiative, autonomy and independence in making life choices. Having the ability to choose with whom to participate in activities with, when to have a snack or meal, and activities that match individual preference, skills, abilities and desires, are all difficult to accommodate in large group settings that traditionally rotate groups of people from one set activity to the next throughout the day.
What does this mean for these service settings, where tens of thousands of people with ID/DD receive services across the country? The answer is: we don’t exactly know. However, it will be crucial for providers of these services to conduct discovery activities with the people they support to learn about interests, preferences and goals. Proactively matching people who share interests will make it easier to facilitate activities in and outside the facility with small groups of people who can learn together. Optimizing learning spaces large and small to permit more variety in programming and choices for people throughout the day, will also help in conforming to these new rules. It is important to remain actively engaged with the state and advocacy organizations to advance reimbursement rates to support needed staff ratios, smaller program sizes and alternative service models to offer people receiving HCBS services different options to expand his or her weekly experiences. As options expand, people receiving services might choose to attend a traditional facility-based day program a few days a week and have community integrated supports or employment services on the others. In some states, you might see this new community service titled community-based habilitation and individualized day services.
What’s next? What we do know is that services and supports, where they are provided, and who is providing them, will continue to evolve and expand. In the meantime, the states will be tasked with supporting traditional day settings to demonstrating compliance with the new rules. States are also now working to decide which settings will undergo “heightened scrutiny,” a process by which a state must provide additional evidence to CMS to prove that a setting does in fact meet the home and community based requirements. We will discuss what heightened scrutiny involves in Part IV of this series.
1Olmstead: What is Olmstead? For a good summary see the US Department of Justice Civil Rights Division’s website here for more information and resources at https://www.ada.gov/olmstead/olmstead_about.htm. In its simplest terms, Olmstead refers to the 1999 US Supreme Court Decision Olmstead v. L.C. that found that “unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act. The Court held that public entities must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity.”
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