DAR File No. 42635

Health, Health Care Financing, Coverage and Reimbursement Policy

Rule R414-519

Settings for Home and Community-Based Services

Notice of Proposed Rule

(New Rule)

DAR File No.: 42635
Filed: 03/05/2018 09:08:49 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to implement Medicaid policy that governs federal setting requirements for home and community-based services (HCBS).

Summary of the rule or change:

This new rule implements setting requirements for HCBS that enforce and protect individual initiative, autonomy, and independence. These provisions also promote better living conditions and accessibility.

Statutory or constitutional authorization for this rule:

• 42 CFR 441.301
• Section 26-1-5
• Section 26-18-3

Anticipated cost or savings to:

the state budget:

The Department of Health anticipates costs in transportation, case management, patient accessibility, provider training, compliance, and costs associated with assisted living facilities. Nevertheless, there is not sufficient nor cost effective data available to determine what those expenses will be.

local governments:

Local governments will see increased costs in utilization for hourly case management services (specifically for area agencies on aging). Nevertheless, there is not sufficient nor cost effective data available to determine what those expenses will be.

small businesses:

There are both costs and revenue associated with this federal requirement in the areas of transportation, case management, patient accessibility, provider training, compliance, and effects on assisted living facilities. Nevertheless, there is not sufficient nor cost effective data available to determine what those costs and revenue will be.

persons other than small businesses, businesses, or local governmental entities:

There are both costs and revenue associated with this federal requirement in the areas of transportation, case management, patient accessibility, provider training, compliance, and effects on assisted living facilities. Nevertheless, there is not sufficient nor cost effective data available to determine what those costs and revenue will be.

Compliance costs for affected persons:

A single participant, business, assisted living facility, or Medicaid provider will see costs associated with this federal requirement in the areas of transportation, case management, patient accessibility, provider training, and compliance. Nevertheless, there is not sufficient nor cost effective data available to determine what those costs will be.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are both costs and revenue associated with this federal requirement in the areas of transportation, case management, patient accessibility, provider training, compliance, and effects on assisted living facilities. Nevertheless, there is not sufficient nor cost effective data available to determine what those costs and revenue will be.

Joseph K. Miner, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Health
Health Care Financing, Coverage and Reimbursement Policy
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Craig Devashrayee at the above address, by phone at 801-538-6641, by FAX at 801-538-6099, or by Internet E-mail at cdevashrayee@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/01/2018

This rule may become effective on:

05/08/2018

Authorized by:

Joseph Miner, Executive Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2018	FY 2019	FY 2020
State Government	Undetermined	Undetermined	Undetermined
Local Government	Undetermined	Undetermined	Undetermined
Small Businesses	Undetermined	Undetermined	Undetermined
Non-Small Businesses	Undetermined	Undetermined	Undetermined
Other Persons	Undetermined	Undetermined	Undetermined
Total Fiscal Costs:	Undetermined	Undetermined	Undetermined
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	Undetermined	Undetermined	Undetermined
Non-Small Businesses	Undetermined	Undetermined	Undetermined
Other Persons	Undetermined	Undetermined	Undetermined
Total Fiscal Benefits:	Undetermined	Undetermined	Undetermined
Net Fiscal Benefits:	Undetermined	Undetermined	Undetermined

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

There are both costs and revenue associated with this federal requirement to the 182 home and community-based service providers in the areas of transportation, case management, patient accessibility, provider training, compliance, and effects on assisted living facilities. Nevertheless, there are not sufficient nor cost effective data available to determine what those costs and revenue will be.

The Executive Director of the Department of Health, Joseph K. Miner, M.D., has reviewed and approved this fiscal analysis.

 

 

R414. Health, Health Care Financing, Coverage and Reimbursement Policy.

R414-519. Settings for Home and Community-Based Services.

R414-519-1. Introduction and Authority.

Settings for h ome and community-based services (HCBS) must include all the qualities defined in 42 CFR 441.301(c)(4)(5), based on the needs specified in an individual's person-centered service plan. For purposes of this rule, "individual" shall also refer to the individual's legal representative or guardian if the individual has one.

 

R414-519-2. HCBS Setting Requirements.

(1) An HCBS setting must be integrated and support community access to services that include opportunities for an individual to:

(a) seek employment and to work in competitive integrated settings;

(b) engage in aspects of community life;

(c) control personal resources; and

(d) receive community services with the same degree of access afforded to individuals who do not receive HCBS.

(2) An individual shall select the setting from among setting options that include non-disability specific settings and an option for a private unit in a residential setting.

(3) Setting options are identified and documented in the person-centered service plan based on the following:

(a) Individual need and preference; and

(b) Resources available for room and board in residential settings.

(4) An HCBS setting must ensure the following:

(a) Individual rights of privacy;

(b) Dignity and respect; and

(c) Freedom from coercion and restraint.

(5) An HCBS setting must optimize, but not regiment, individual initiative, autonomy, and independence through life choices that include daily activities, physical environment, and personal interaction.

(6) An HCBS setting must facilitate individual choice in relation to services and support.

(7) In addition to the qualities described in 42 CFR 441.301(c)(4)(i) through (v), a provider-owned or controlled residential setting must meet the following conditions:

(a) The unit or dwelling must be owned, rented, or occupied under a legally enforceable agreement by an individual who receives HCBS;

(b) An individual must possess the same responsibilities and protections from eviction that tenants have under the landlord and tenant law of the state, county, city, or other designated entity; and

(c) For settings in which landlord tenant laws do not apply, the State must ensure that a lease, residency agreement, or other form of written agreement is in place for each HCBS participant, and that the document provides protections which address eviction processes and appeals comparable to those provided under the landlord tenant law within the jurisdiction.

(8) An HCBS setting must afford privacy to each individual in a sleeping or living unit and the following provisions shall apply:

(a) Units must have lockable entrance doors and only authorized staff may possess the keys;

(b) An individual who shares a unit may have a choice of roommates in that setting;

(c) An individual may furnish and decorate his sleeping or living unit within the lease or other agreement;

(d) An individual may control his own schedule and activities, and access food at any time;

(e) An individual may have his choice of visitors at any time;

(f) An individual must be able to physically access the setting;

(g) Any modification of the additional conditions, under 42 CFR 441.301(c)(4)(vi)(A) through (D), must be supported by a specific assessed need and justified in the person-centered service plan. HCBS providers shall document that the plan meets the following requirements:

(i) The plan identifies a specific and individualized assessed need;

(ii) The plan documents the positive interventions and supports used before any modifications to the person-centered service plan;

(iii) The plan documents less intrusive, but unsuccessful methods of meeting an individual need;

(iv) The plan includes a clear description of the condition that is directly proportionate to the specific assessed need;

(v) The plan includes a regular collection and review of data to measure the ongoing effectiveness of the modification;

(vi) The plan includes established time limits for periodic reviews to determine whether the modification is still necessary or may be terminated;

(vii) The plan includes the informed consent of the individual; and

(viii) The plan includes an assurance that interventions and supports will cause no individual harm.

 

R414-519-3. Limitations.

(1) Home and community-based settings do not include the following:

(a) A nursing facility;

(b) An institution for mental diseases;

(c) An intermediate care facility for individuals with intellectual disabilities;

(d) A hospital; or

(e) Any other locations that have qualities of an institutional setting, as determined by the Centers for Medicare and Medicaid Services (CMS). Any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment, or in a building on the grounds of, or immediately adjacent to, a public institution, or any other setting that has the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS will be presumed to be a setting that has the qualities of an institution unless CMS determines through heightened scrutiny, based on information presented by the Department or other parties, that the setting does not have the qualities of an institution and that the setting does have the qualities of home and community-based settings.

(2) If, upon initial assessment, or any time thereafter, the Department determines that a setting does not comply with 42 CFR 441.301(c)(4)(5), the Department, or its designee, shall utilize an approved method to inform the individual of alternative settings that would comply with these requirements. If the individual elects to remain in, or receive services at a setting that does not meet these requirements, and the provider has not demonstrated compliance with the Department's corrective action plan for meeting such requirements, the individual shall not receive services under Utah home and community-based waiver programs.

(3) The Department shall assess compliance with 42 CFR 441.301(c)(4)(5) as part of its process for credentialing and re-credentialing providers.

 

KEY: Medicaid

Date of Enactment or Last Substantive Amendment: 2018

Authorizing, and Implemented or Interpreted Law: 26-1-5; 26-18-3