HCBS Settings Evaluation Tool Module 3 Welcome Welcome to Module 3, the third of six modules in the Home and Community-Based Services Settings Training Series. This module will focus on the additional conditions for provider-owned or controlled residential settings. In this module, we will refer to Home and Community-Based Services as HCBS. We recommend that you listen to Modules 1 and 2 before listening to Module 3. Page 1 of 24
HCBS Settings Evaluation Tool The HCBS settings evaluation tool was developed by the Ohio Department of Medicaid (or, ODM) and the Ohio Department of Aging (or, ODA) using the Centers for Medicare and Medicaid Services (or, CMS) HCBS final rule, the CMS exploratory questions, and with input from provider trade associations and other stakeholders. The HCBS Settings Evaluation Tool is registered as ODM form #10172 and is available in PDF format on the ODM website at www.medicaid.ohio.gov/resources/publications/medicaidforms.aspx. The HCBS Settings Evaluation Tool has two sections: Section 1, which addresses qualities required for all HCBS settings, and Section 2, which addresses the additional conditions required for provider-owned or provider-controlled residential settings. This presentation will focus on Section 2, the additional conditions required for all provider-owned and provider -controlled residential settings. The tool format includes a series of Yes/No questions, suggested acceptable evidence of compliance, and a request for remediation plan. As you complete the tool, please keep the following in mind: Think about what you are already doing rather than assuming a new policy or a change to an operational process is required; Remediation Plans are not intended to be punitive but rather to be a component of your setting s overall quality improvement strategy. Page 2 of 24
Qualities Required for All Home and Community-Based Services Settings In January 2014, CMS published regulations in the Federal Register implementing new requirements for Medicaid s HCBS programs furnished through a 1915(c) waiver or a 1915(i) state plan option. The regulation became effective on March 17, 2014. Any residential or non-residential setting where individuals live and/or receive HCBS must exhibit the five qualities of an HCBS setting by March 2019. An individual s private home or a relative s home where an individual resides is presumed to meet the HCBS settings requirements. However, the state is responsible for ensuring that individuals living in a private home or a relative s home have opportunities for full access to the greater community. When an individual resides in a setting that is not owned or leased by the individual or his or her relative, the setting is viewed as a provider- owned or provider controlled setting. In these situations, the setting must demonstrate compliance with the additional conditions. Page 3 of 24
What is a Provider Owned or Controlled Residential Setting? What is a provider-owned or provider controlled" residential setting? It is a specific physical place that is owned, co-owned, and/or operated by a provider of HCBS. In addition to the qualities outlined on Slide 3, provider-owned or -controlled residential settings must also comply with five additional conditions. The additional conditions are intended to support the individual s experiences of community integration, privacy, choice, and control, and ensure the setting is community not institutional. All provider-owned or -controlled residential settings, including ODA-certified Assisted Living Waiver providers, must answer the questions in Section 2 of the HCBS Settings Evaluation Tool. However. Section 2 is not applicable to providers of adult day services furnished in the Ohio Home Care, My Care Ohio, or PASSPORT waivers. Page 4 of 24
Additional Conditions Required for Provider-Owned or Controlled Residential Settings Following are three of the five additional conditions required for provider-owned or controlled residential settings: 1. Specific unit or dwelling is owned, rented, or occupied under a legally enforceable agreement; Has the same responsibilities or protections from eviction as all tenants under landlord tenant law of the state, county, city, or other designated entity; If tenant laws do not apply, the state ensures a lease, residency agreement or another written agreement is in place providing protections to address eviction processes and appeals comparable to those provided under the jurisdiction s landlord tenant law. Page 5 of 24
Additional Conditions Required for Provider-Owned or Controlled Residential Settings Continuing with the additional conditions required for provider-owned or controlled residential settings: 2. Each individual has privacy in his or her sleeping or living unit: Units have lockable entrance doors with the individual and appropriate staff, as needed, having keys to doors; Individuals sharing units have a choice of roommates; Individuals have the freedom to furnish and decorate their sleeping or living units within the lease or other agreement. Page 6 of 24
Additional Conditions Required for Provider-Owned or Controlled Residential Settings The last additional conditions include: 3. Each individual has the freedom and support to control his or her own schedule including access to food at any time; 4. Each individual may have visitors at any time; 5. The setting is physically accessible. Page 7 of 24
Additional Conditions Not Applicable to Non-Residential Settings Now that we have reviewed the five additional conditions for provider-owned or provider-controlled residential settings, we will review each area of Section 2 of the evaluation tool. This slide represents page four of the settings evaluation tool with the first question being specific to conditions required for provider-owned or - controlled residential settings. The Code of Federal Regulations (or, CFR) references are listed on each slide. This section of the HCBS Settings Evaluation Tool indicates whether the setting complies with the HCBS requirement: The individual has privacy in his or her sleeping or living unit including, choice of roommates." Do the setting policies afford privacy in the individual s living or sleeping unit? A Remediation Plan is required when the response is no. Do the setting policies permit individuals who share a sleeping or living unit to choose their roommate? A Remediation Plan is required when the response is no. Are shared living units configured so that privacy is protected when assistance is provided to individuals? A Remediation Plan is required when the response is no. For ODA-certified Assisted Living Waiver providers, the existing Ohio Residential Care Facility licensure rules and the Residents Rights statute are aligned with this CMS setting requirement. In addition, ODA- certified Assisted Living Waiver providers are required by Ohio Administrative Code (or, OAC) Rule 173-39-02.16 to furnish a private living unit to any individual enrolled on the waiver and the rule outlines the conditions under which a roommate is permitted. Page 8 of 24
Additional Conditions Not Applicable to Non-Residential Settings Individual Resources This section of the HCBS Settings Evaluation Tool indicates whether the setting complies with the following HCBS requirement: The setting is selected by the individual from among setting options including non-disability specific settings and an option for a private unit in a residential setting. The setting options are identified and documented in the Person-Centered Services Plan and are based on the individual's needs, preferences, and for residential settings, resources available for room and board. Does the setting have a policy regarding how the individual will be informed when residential services are limited because of the individual s resources? A Remediation Plan is required when the response is no. The individual s initial selection of a setting, from among available options, begins with the person-centered planning process. The waiver case manager furnishes the relevant information so the individual can make an informed choice. When the individual chooses an assisted living setting, the option for a private living unit is required by Ohio Law, as outlined in OAC 173-39-02.16. The individual s choice to reside and pay room and board for the Assisted Living Waiver service is included in the person-centered service plan. The Assisted Living Waiver provider is responsible for informing the individual of the consequences of non-payment of the agreed upon room and board obligation. The decision making process to select the setting, the requirement for a private living unit, and the provider s action to inform the individual about the consequence of non-payment will result in this question being answered Yes. Page 9 of 24
Additional Conditions Not Applicable to Non-Residential Settings - Protection from Eviction This section of the HCBS Settings Evaluation Tool indicates whether the setting complies with the following HCBS requirement: The individual has a lease or other legally enforceable agreement providing similar protections. Does the agreement specify the responsibilities of the individual and the provider with respect to the setting? A Remediation Plan is required if the response is no. Does the agreement specify the circumstances under which the individual s residency may be terminated? A Remediation Plan is required if the response is no. Does the agreement address the steps an individual can follow to request a review or appeal of the termination of residency? A Remediation Plan is required if the response is no. CMS addressed this requirement in the HCBS Settings Requirement Notice dated June 26, 2015: Question: Can a residential agreement between the individual and the entity that owns or controls the property have the same protections as a lease? Answer: Yes however, the state must ensure that a lease, residency agreement or other form of written agreement will be in place for each HCBS participant, and the document provides enforceable protections that address eviction processes and appeals comparable to those provided under the jurisdiction s landlord tenant law. In Ohio, any resident, including an individual receiving Medicaid-funded assisted living services, is afforded residents rights concerning transfer or discharge in accordance with Ohio Revised Code statute Residents rights concerning transfer or discharge (ORC 3721.16) and Residential Care Facility OAC rule 3701-1-17-57. The resident agreement and/or other orientation or admission materials given to new residents must include information regarding the transfer and discharge policies. Page 10 of 24
Addendums, which are applicable to individuals enrolled on the Assisted Living waiver, to the established resident agreement and/or the resident handbooks may be an acceptable evidence of compliance. Page 11 of 24
Additional Conditions Not Applicable to Non-Residential Settings Door Locks This section of the HCBS Settings Evaluation Tool indicates whether the setting complies with the following HCBS requirement: The individual has privacy in their sleeping or living unit including lockable doors. Can the doors to the unit be locked? A Remediation Plan is required if the response is no. Do individuals have keys to their own room? A Remediation Plan is required if the response is no. In a provider-owned or controlled residential setting, the living unit should have a lockable entrance. Door locks must: o o o o Comply with current codes, Meet all applicable state rules, Meet safety standards, and Allow for easy exit from the unit. Providers must supply the lock. The lock must be single action. CMS states: Individuals should have access to their homes at all times unless appropriate limitations have been determined and justified in the personcentered plan. An assessed need for a specific individual can provide reasons to consider limits to locks on doors. Limits will be used only when there is an assessed need (such as a health and safety risk), which is documented by the waiver case manager on the services plan after consulting with the individual and his or her care team. Page 12 of 24
Additional Conditions Not Applicable to Non-Residential Settings Appropriate Staff This section of the HCBS Settings Evaluation tool indicates whether the setting complies with the following HCBS requirement: The individual has privacy in his or her sleeping or living unit, including lockable doors. Do the setting policies permit the use of a master key or unit keys, used to enter units only in limited circumstances agreed upon with the individual? A Remediation Plan is required if the response is no. Do the setting policies describe the circumstances when the master key or unit keys may be used by staff and which staff may use the keys? A Remediation Plan is required if the response is no. CMS states, Individuals should be afforded the same respect and dignity as a person not receiving HCBS. In an urgent or emergency situation, it may be appropriate for someone providing services to enter an individual s locked room. The Person-Centered Planning Process and Plan should address the circumstances in which this might happen. Ohio recommends the categories or titles of individuals having keys, and the circumstances under which the keys would be used, be included in the residency agreement and/or the Person-Centered Services Plan. For ODA-certified Assisted Living waiver providers, the Residential Care Facility rule 3701-1-17-65 specifies the availability of a master key for emergency use. Page 13 of 24
Additional Conditions Not Applicable to Non-Residential Settings Furnish Living Unit This section indicates whether the setting complies with the following HCBS requirement: The individual has privacy in his or her sleeping or living unit including the freedom to furnish or decorate Are individuals informed that they may furnish and decorate their units as they please within the terms spelled out in the legally enforceable agreement? A Remediation Plan is required if the response is no. OAC Rule 3701-17-65 supports all residents right to furnish and decorate their units. The individual may decide how to decorate the bedroom or living unit. For example, an individual might want to bring his or her own bed and dresser rather than use the supplied furniture. An individual who is leaving a nursing home to reside in an ODA-certified assisted living setting may also use the Community Transition Service, available through either a waiver or the HOME Choice program, to assist with this, as well. Page 14 of 24
Additional Conditions Not Applicable to Non-Residential Settings Schedule and Activities This section of the HCBS Settings Evaluation Tool indicates whether the setting complies with the HCBS requirement: The individual controls his or her own schedule including access to food at any time. The evaluation includes access to not only the individual's unit, but includes access to areas within the facility, which are accessible to all residents. Does the setting make clear to individuals that they are not required to adhere to a set schedule for walking, bathing, eating, exercising, or activities? A Remediation Plan is required if the response is no. Do individuals have access to typical home areas such as cooking and dining, laundry, and living and entertainment areas? A Remediation Plan is required if the response is no. The setting may not have a policy or practice that does not allow an individual s schedule to vary from those of other residents. For an individual residing in an ODA-certified assisted living setting, the Person-Centered Services Plan may outline the individual s schedule and activity preferences. Page 15 of 24
Additional Conditions Not Applicable to Non-Residential Settings - Food This section of the HCBS Settings Evaluation Tool indicates whether the setting complies with the following HCBS requirement: The individual controls his or her own schedule including access to food at any time. Are provisions made for food to be available between and after regularly scheduled meal times? A Remediation Plan is required if the response is no. Can individuals eat in locations other than the dining area? A Remediation Plan is required if the response is no. For all ODA-certified Assisted Living Waiver providers, OAC Rule 173-39-02.16 requires meals be made available to individuals. In addition, the Residential Care Facility rule 3701-1-17-60 addresses the availability of resident snacks at the facility. The individual may also have access to a sink, microwave, and refrigerator, which could indicate compliance with this HCBS setting requirement. Page 16 of 24
Additional Conditions Not Applicable to Non-Residential Settings - Visitors This section of the HCBS Settings Evaluation Tool indicates whether the setting complies with the following HCBS requirement: The individual can have visitors at any time. Are there limitations on visiting hours or the number of visitors allowed at one time? A Remediation Plan is required if the response is yes. If visiting hours are addressed in the legally enforceable agreement, are the individuals made aware of limitations before moving into the residential settings? A Remediation Plan is required if the response is no. CMS addressed this requirement in the HCBS Settings Requirement Notice dated June 26, 2015: Question: How will this regulation s requirement that an individual in a provider-owned or -controlled setting have access to visitors at any time be balanced against the rights and desires of others living in that setting? Answer: The regulation requires that individuals in a provider-owned or -controlled setting experience the community in the same manner as individuals not receiving Medicaid-funded HCBS. While no restrictions on the ability to have visitors should be imposed for convenience purposes, the regulation does not supersede orders of protection or other parameters governing the movement or actions of individuals visiting the setting that may arise under landlord, tenant or other laws or the terms of the lease or rental agreement. In accordance with OAC 3710-17-51 (G), all ODA-certified assisted providers are required to demonstrate compliance with the Residents Rights statute (ORC 3721.13 (A)(21), which address this issue. Page 17 of 24
Additional Conditions Not Applicable to Non-Residential Settings - Mobility This section of the HCBS Settings Evaluation Tool indicates whether the setting complies with the HCBS requirement: The setting is physically accessible. Are mobility supports provided, such as grab bars, shower seats, or hand rails? A Remediation Plan is required if the response is no. Are there gates, locked doors, or other barriers preventing access to or exit from areas in the setting? A Remediation Plan is required if the response is yes. This requirement is not limited only to the living units certified for use in the waiver but is applicable to the entire building. In the event a building houses both a skilled nursing facility and a licensed residential care facility, the requirement is only applicable to the licensed residential care facility. The delayed egress function is not acceptable evidence of compliance of the lack of barriers in a setting. Barriers to access to or exit from areas in the setting pertain to the typical home areas and are not inclusive of the areas associated with the building operation and maintenance. When an ODA-certified assisted living provider setting physical environment includes adaptations to provide a safe environment for individuals with cognitive impairments, including a special care unit, this question would be answered yes. The remediation plan should describe how the setting ensures the physical environment is accessible for individuals whose person-centered plans do not include modifications to ensure health and safety. Example: An assisted living setting includes a memory-care unit which requires the use of a key code to access and exit the area. The key code is given to individuals, without memory-care needs, who reside in the setting so that they are able to access and exit the area independently. For ODA-certified Assisted Living Waiver providers, Ohio s Residential Care Facility rule 3701-17-57 requires the provider to disclose the facility s ability to accommodate residents with disabilities or potential residents with Page 18 of 24
disabilities and the facility's policy regarding transferring residents to units that accommodate residents with disabilities. Page 19 of 24
Additional Conditions Required Not Applicable to Residential Settings IDP Modifications This section indicates whether the setting complies with the following HCBS requirement: Any modification of the additional conditions, under 42 CFR Section 441.301(c)(4)(vi)(A) through (D), must be supported by a specific assessed need and justified in the Person-Centered Services Plan. Does the setting have a process or policy for notifying the case manager when required modifications of the residential settings are needed for individuals? A Remediation Plan is required if the response is no. This setting requirement reflects the expectation for provider and case manager communication when modifications to any of the additional conditions for provider-owned or controlled settings are needed. Modifications of the additional concerns may not be implemented without the involvement of the individual and the waiver case manager. There is an existing requirement for providers to contact the Assisted Living waiver case manager or the MyCare waiver services coordinator when there is an issue regarding the individual s Person-Centered Services Plan or an incident involving the individual or a change of condition. When a modification to one or more additional conditions is made, the waiver case manager is responsible for documenting the following elements must be in the Person-Centered Services Plan: 1. Identify a specific and individualized assessed need. 2. Document the positive interventions and supports used prior to any modifications to the Person- Centered Services Plan. 3. Document less intrusive methods of meeting the need that were tried but were unsuccessful. 4. Include a clear description of the condition that is directly proportionate to the specific assessed need. 5. Include regular collection and review of data to measure the ongoing effectiveness of the modification. Page 20 of 24
6. Include established time limits for periodic reviews to determine if the modification is still necessary or can be terminated. 7. Include the informed consent of the individual. 8. Include assurance that the interventions and supports will cause no harm to the individual. Page 21 of 24
For Current Providers of Medicaid HCBS Services CMS requires the state to conduct site-specific assessments of settings where individuals live and or receive Medicaid HCBS services. Based on the State s regulatory review, the physical location of each service setting, and an analysis of paid claims, each setting was assigned one of two categories of compliance: Category B Setting -- Meets with modifications, or Category C Setting -- Presumed to have the effect of isolating individuals. In April 2016, current ODA-certified providers of the Assisted Living Service, current ODM-approved providers of the Adult Day Health Service, and current ODA-certified providers of the Adult Day Health Service were notified of their setting s category of compliance and were requested to complete a self-evaluation using the HCBS Settings Evaluation Tool. For Category B providers, validation of the setting s self-assessment and the implementation and effectiveness of its remediation plan will be incorporated into the established provider oversight processes conducted by ODM and ODA, or their designees. For Category C providers, beginning in October 2016, ODM and ODA will conduct an on-site evaluation of the setting to do the following: o o Validate the setting s self-assessment; Assess the implementation and effectiveness of the remediation plan; o Gather additional information needed to determine whether the setting demonstrates the qualities of an HCBS setting; and, o If the setting is residential, determine if it complies with the additional conditions required for providerowned or -controlled residential settings. Page 22 of 24
For more information CMS s web pages provide resource materials to determine if a setting possesses the characteristics of a home and community-based setting. The websites are as follows: Final Regulation The website address for the Settings Requirements Compliance Toolkit is https://www.federalregister.gov/articles/2014/01/16/2014-00487/medicaid-program-state-plan-home-andcommunity-based-services-5-year-period-for-waivers-provider https://www.medicaid.gov/medicaid-chip-program-information/by-topics/long-term-services-and- Supports/Home-and-Community-Based-Services/Home-and-Community-Based-Services.html In addition, the OAC Rule 5160-44-01 titled Nursing facility-based level of care home and community-based services programs: home and community-based settings will be effective July 1, 2016. And, the ODA Provider Conditions of Participation OAC Rule 173-39-02 can be found at: http://www.aging.ohio.gov/resources/publications/173-39-02_final.pdf Page 23 of 24
Thank you This concludes Module 3: Additional Conditions for Provider -Owned or -Controlled Settings. Thank you for listening! Page 24 of 24