On March 17, 2014, the Centers for Medicare and Medicaid (CMS) published final regulations in the Federal Register, implementing new requirements for Medicaid's home and community-based services (HCBS) programs furnished either through a 1915(c) waiver or through a 1915(i) state plan option. The federal rule establishes the qualities that demonstrate the setting is a home and community-based setting and does not possess the characteristics of an institution.
Services available through 1915(c) waiver programs may not be furnished in an institutional setting. The federal rule includes a transition period for the State to evaluate the settings where individuals live and/or receive Medicaid waiver services possess the required qualities of a home and community-based setting. When a setting does not fully meet the final HCBS rule definition, the State may work with the setting to develop a plan to bring their program into compliance.
Heightened Scrutiny Review Option
There are some settings that are identified by the federal regulation as "presumed to be institutional". These settings include any setting that is located in a building that is also a publicly or privately-operated facility that provides inpatient institutional treatment, a building on the grounds of or adjacent to a public institution or any other setting that as the effect of isolating individuals receiving Medicaid HCBS from the broader community.
For settings that are presumed not to possess the required home and community based (HCBS) characteristics, the state may submit evidence to CMS requesting a heightened scrutiny review. The request must include sufficient evidence to demonstrate the setting does not possess the characteristics of an institution and evidence a public comment period has been held to obtain public input on the identified settings.