HCBS settings heightened-scrutiny process

The Centers for Medicare & Medicaid Services requires states to submit evidentiary packages for settings that CMS presumes are not home and community-based to undergo a heightened-scrutiny process. Evidentiary packages include information gathered during on-site visits and the provider-attestation process. On March 22, 2019, CMS issued Frequently Asked Questions Regarding the Heightened Scrutiny Review Process and Other Home and Community-Based Settings Information (PDF) (see definitions below). CMS randomly selected prong 1 and 2 settings to undergo the heightened-scrutiny process using a list provided by the state. The guidance also addresses the process for settings presumed to be isolating (Prong 3).

Update: CMS extends timelines for regulation of HCBS settings

On July 14, 2020, the federal Centers for Medicare & Medicaid Services (CMS) released guidance (in a letter [PDF]) announcing an extension to the implementation of the HCBS regulation timelines. In this letter, CMS extended the deadline for states to bring their systems into compliance with the HCBS settings requirements by a year (from March 17, 2022, to March 17, 2023).

For more information, visit the HCBS settings transition plan page.

Heightened scrutiny
Public comment
Batch 1
Batch 2
Batch 3
Batch 4

Heightened scrutiny

CMS presumes the following types of settings to have institutional / isolating qualities:
- 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.
- Prong 3 settings: Have the effect of isolating people from the broader community of people who do not receive HCBS.
CMS will use the list provided by the state to compile a random sample of settings to go through heightened-scrutiny review. Before CMS’s review of the selected sample of settings, all settings need to go through a 30-day public comment period. So far, we have solicited public input on seven evidentiary packages in Batch 1, 55 evidentiary packages in Batch 2, 41 evidentiary packages in Batch 3 and 57 evidentiary packages in Batch 4.

The public comment process for Batch 5 can be found in the public comment tab.

For more information about the heightened-scrutiny process, see the CMS guidance document, Frequently Asked Questions Regarding the Heightened Scrutiny Review Process and Other Home and Community-Based Settings Information (PDF).
Public comment

Submit comments about any of the evidentiary packages below by completing the Public comments on HCBS rule setting-specific evidentiary packages survey.

If you need help to complete the survey or would like to request an alternative format to submit public comments, use one of the following options to contact us:
- Contact form: Submit a question on the DSD contact form.
- Mail: ATTN: HCBS settings public comment
  Minnesota Department of Human Services
  Disability Services Division
  P.O. Box 64967
  St. Paul, MN 55164-0967
Comments are due to DHS by 11:59 p.m. May 30, 2022.

Note: Settings noted with @ are Prong 1 settings. All other settings are Prong 3 settings.

Settings that provide adult day services
Settings that provide customized living
Settings that provide day training and habilitation
- Ita Bel Koo
Settings that provide foster care
Settings that provide supported living services
Batch 1 random sample

On March 22, 2019, CMS issued guidance describing the new heightened-scrutiny process for prong 1 and 2 settings (PDF). CMS will randomly select prong 1 and 2 settings to undergo the heightened scrutiny process using a list provided by the state.

Seventy-four evidentiary packages (Batch 1, prongs 1 and 2) went through the 30-day public period and were submitted to CMS for their random-sample process. On May 17, 2019, CMS sent the list of randomly selected settings. These settings are noted with the at symbol (@) in the list below. DHS will apply CMS feedback on a particular setting to similarly situated settings. The state will use the CMS feedback to remediate settings not included in the CMS review sample. DHS has notified all randomly selected Batch 1 providers of their status.

Settings that provide adult day services
Settings that provide customized living services
Batch 2 random sample

Fifty-four evidentiary packages (Batch 2, prongs 1 and 2) went through the 30-day public period and were submitted to CMS for their random-sample process. On Aug. 13, 2019, CMS sent the list of randomly selected settings. These settings are noted with the at symbol (@) in the list below. DHS will apply CMS feedback on a particular setting to similarly situated settings. The state will use the CMS feedback to remediate settings not included in the CMS review sample. DHS has notified all Batch 2 providers of their status.

Settings that provide adult day services
Settings that provide customized living services
Batch 3

Forty-one evidentiary packages for HCBS settings (Batch 3, Prong 3) went through a 30-day public period from Aug. 5 to Sept. 4, 2019. DHS supports that all settings in Batch 3 overcome the isolating presumption and meet the requirements of a home and community-based setting. Additionally, the public supports DHS’ determination (as a result of the 30-day public comment period). These settings will not go through the heightened scrutiny process.

Settings that provide foster care
Settings that provide adult day
- Edgewood Hermantown Adult Day (PDF)
Settings that provide customized living
We will submit batches of evidentiary packages to CMS quarterly. We will send out an eList announcement at the start of each 30-day public comment period.
Batch 4

Forty-one evidentiary packages for HCBS settings went through a 30-day public comment period from Dec. 2, 2019, to Jan. 2, 2020. Evidentiary packages for settings noted with an @ symbol will be submitted to CMS after the public comment period for Batch 5 ends.

Settings that are not noted with a @ are supported by DHS for overcoming the presumption of isolating and meeting the requirements of a home and community-based setting. Additionally, the public supports DHS’ determination (as a result of the 30-day public comment period). These settings will not go through the heightened scrutiny process.

Settings that provide adult day services
- All Season's Adult Day (PDF) @
- Ridgeview Le Sueur Senior Day Program (PDF) @
Settings that provide customized living
Settings that provide foster care
Settings that provide prevocational/structured day services
- Stepping Stones for Living (PDF)