In 2014, the federal Centers for Medicare & Medicaid Services (CMS) published regulations in the Federal Register that changed the definition of home and community-based settings for the 1915(c) and 1915(i) Medicaid HCBS waivers. The new definition considers a person’s experience and outcomes in addition to a setting’s location, geography or physical characteristics. CMS has given states until March 2022 to bring their systems into compliance with the new HCBS settings requirements. View the Home and Community-Based Services Rule Overview video for more information.
CMS grants final approval to statewide transition plan
CMS requires states to submit evidentiary packages for settings that CMS presumes are not home and community-based. On March 22, 2019, CMS issued guidance describing the new heightened scrutiny process for prong 1 and 2 settings (see definitions below). According to the guidance, CMS will randomly select prong 1 and 2 settings to undergo the heightened scrutiny process using a list provided by the state. DHS will submit two batches of prong 1 and 2 settings to CMS to go through their random sample process.
Prong 1 settings: Located in a hospital, nursing facility, intermediate care facility (ICF-DD) or institution for mental disease (IMD).
Prong 2 settings: Located adjacent to a public hospital, nursing facility, ICF-DD or IMD.
So far, we have solicited public input on 75 evidentiary packages in Batch 1 and 55 evidentiary packages in Batch 2. CMS conducted their random sample on Batch 1 settings and DHS submitted Batch 2 for CMS to conduct another random sample. You will find a list of these settings on the HCBS settings heightened-scrutiny process webpage.
We will also post the process to submit public comments and copies of evidentiary packages for review to the Heightened scrutiny webpage. Batch 3 evidentiary packages are now posted for public comment.
Public comment schedule:
Batch 1: Public comment period held from Feb. 6 to March 7, 2019, and submitted to CMS for random sample process.
Batch 2: Public comment period held from April 30 to June 9, 2019
Batch 3: Public comment period held from Aug. 5 to Sept. 4, 2019
Batch 4: Public comment period scheduled for October-November 2019
DHS selects members for HCBS Settings Review Panel
DHS plans to use an HCBS Settings Review Panel to review evidentiary packages of settings that CMS “presumes are not HCBS” after the public comment period but before submission to CMS, when:
DHS does not believe the setting is HCBS
Public comment raises concern that the setting has institutional or isolating qualities.
DHS has submitted its required annual report on the HCBS transition (PDF) to the Legislature. The 2015 Minnesota Legislature required DHS to submit an annual report by Jan. 15, 2016, and annually during the transition period ending by March 17, 2019. The report details the status of the implementation of the community-based settings transition plan for the HCBS waivers. Previous legislative reports can be found under the “Resources and links” section below.
New rights modification requirements
The HCBS settings rule allows the following rights to be modified when people live in settings where they receive customized living, foster care or supported living services:
Have personal privacy (including the use of the lock on the bedroom door or unit door)
Take part in activities that he/she chooses and have an individual schedule that includes the person’s preferences supported by the service provider (this right cannot be modified in customized living settings.)
Have access to food at any time
Choose his/her own visitors and time of visits.
The modification must be:
Necessary to ensure the health, safety and well-being of the person
Based on a specific and individualized assessed need that is justified in the support plan
We administered a provider attestation to assess compliance for 100% of provider-owned or -controlled settings.
Providers self-reported either full compliance with HCBS requirements or not yet in full compliance with one or more HCBS requirements.
We required all settings to submit supporting documentation as evidence of compliance. Supporting documentation included provider policies and procedure manuals, staff training documentation, activity program calendars, resident handbooks, leases or other setting-specific information.
We provided technical assistance, instructional guidance, resources and one-to-one outreach to settings that reported they are not yet in full compliance with one or more HCBS requirements.
We conducted desk audits for 100% of the 5,991 provider-submitted supporting documentation to validate setting compliance.
We provided “compliance plans” for all settings that were determined “not yet compliant,” re-reviewed supporting documentation, provided a significant amount of technical assistance (email and phone calls) and developed assurance statements.Top 3 areas of noncompliance:
We developed provider tools and resources, improved licensing policy templates and forms and developed provider expectation guidance to help providers with their transition to compliance.
We responded to nearly 7,000 requests for technical assistance via phone and through our dedicated email box.
We conducted monthly targeted outreach to providers.
99% of settings are complaint with the HCBS settings requirements.
We will make it a priority to revalidate the 1% of settings that remain noncompliant through provider enrollment.
The HCBS provider toolkit contains frequently asked questions, guidance and examples of provider practices that support choice and autonomy for people who receive HCBS. We encourage providers to use this toolkit to help them generate ideas on how we can all better serve older adults and people with disabilities.
On May 9, 2017, CMS announced that states have until March 2022 (three additional years) to bring their systems into compliance with the HCBS settings requirements. Read more about the deadlines and requirements in the Phase 1 and Phase 2 provider attestation webpages. The new deadline of March 2022 is the deadline for the state to demonstrate that the entire system is compliant with the HCBS settings rule; the sooner we put the new requirements in place, the more time providers will have to transition fully, as needed.
What does this mean for Minnesota?
The new deadline of March 2022 will allow DHS more time to conduct site visits and allow enough time for CMS heightened scrutiny and subsequent transitions of people, if needed.
The sooner we put new requirements in place, the more time providers will have to fully transition, as needed.
This extension gives us time to implement the new standards fully. It also allows us to develop and implement future day services, as well as the tiered standards for services, such as customized living for younger people with disabilities.
What does this mean for provider attestation?
The new deadline of March 2022 is the deadline for the state to demonstrate that the entire system is compliant with the HCBS settings rule and that all people are receiving services in settings that are compliant. Note: Individual providers must be in compliance well ahead of this date.
The provider-attestation process lays the foundation for all site-specific work. This includes assessment, validation and remediation.
The provider-attestation process is a starting point for working with providers that are "presumed not to be HCBS" and will need to go through "heightened scrutiny" (meaning the settings must be submitted to CMS for approval).
A statewide transition plan is a document that outlines how Minnesota will ensure compliance with the HCBS Settings Rule. CMS requires the transition plan to include three main components:
Systemic and site-specific assessment
State action steps
In Minnesota, the statewide transition plan applies to the following home and community-based waivers:
A significant component of DHS’ public engagement includes collaboration with the HCBS rule advisory group. The advisory group represents experts from county government, service providers, managed care organizations and advocates. We will work with the advisory group throughout the remainder of the transition period as we make the transition plan part of our operations.
DHS has and will continue to use a number of strategies to provide information and seek input from stakeholders throughout the transition period. These stakeholders include people who receive services and their family members, providers, lead agencies (counties, health plans and American Indian tribes), advocacy organizations and other interested parties. We will use the following communication strategies:
Electronic mailing lists
Provider focus groups
Videoconferences and webinars
Plan submissions and revisions
Since the January 2015 submission of the initial statewide transition plan, CMS has provided all states with additional guidance and technical assistance trainings. Based on additional CMS guidance, we made significant amendments to Minnesota’s statewide transition plan to address gaps in the initial plan, specifically in the areas of site-specific assessment, validation and remediation.
On June 2, 2017, CMS gave its initial approval to Minnesota's statewide transition plan to bring settings into compliance with the federal HCBS regulations. To read more, see the June 2 letter from CMS to DHS (PDF).
As part of its May 15, 2017, response to CMS questions, DHS updated the following documents:
The CMS website contains more information about the CMS rule and requirements. The guidance documents are located within the “Settings Requirements Compliance Toolkit” section of the webpage.
HCBS Advocacy is a platform for the aging and disability communities to post information, and state and national resources regarding the new HCBS settings rule. The right-hand column of this webpage contains a helpful three-part toolkit on the rule.
Mail Minnesota Department of Human Services, Disability Services Division, Attention: HCBS Rule Transition Plan, P.O. Box 64967, St. Paul, MN 55164-0967
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