The Changing Landscape of Home and Community Based Services – What the CMS Settings Rule Means to You

/ September 20, 2016

By Carrie Guiden

Carrie Guiden is the executive director of the Arc Tennessee. Carrie has 22 years of experience working with people with intellectual and developmental disabilities in Indiana, Arizona and Tennessee through chapters of The Arc in these states. Her areas of concentration have included employment, secondary transition, positive behavior supports, person-centered planning, habilitation, grassroots advocacy, public policy and systems change.

On March 14, 2016, something called the new Federal Settings Rule for Home and Community Based Services took effect. The rule was issued by the Center for Medicare and Medicaid Services (CMS) in 2014 and affects those Medicaid long-term services and supports that are provided outside of an institutional setting.

Every state was required to submit a Transition Plan to the Center for Medicare and Medicaid Services that demonstrated how that state planned to comply with the new rule. Tennessee was the first state to have its Transition Plan approved in April of this year.   While states technically have until March 2019 to be in full compliance, states have been encouraged to come into compliance as quickly as possible.

So, what, exactly does the “settings rule” mean? What is a “setting”? How will it impact home and community based services in Tennessee? What waivers are impacted? How will it impact me or my loved one?

Two Aspects of the Settings Rule

The settings rule essentially has two important aspects:

  • The person centered planning process, which increases the input into how services are selected and planned and what is included in the Individual Support Plan (ISP), which is similar to an Individualized Education Program for a child in school. (See What is Person Centered Planning? And Why Does It Matter?)
  • Home and community based settings, which increases the protections relating to where a person receives HCBS to ensure that the services are being provided in a true community environment

What HCBS Waivers are Impacted?

It is important to understand that the settings rule applies to ALL HCBS waivers. It applies to all the 1915c waivers administered by TennCare and managed by the Department of Intellectual and Developmental Disabilities (DIDD), including the Comprehensive Aggregate Cap Waiver (formerly the Arlington Waiver); the Statewide Waiver; and the Self-Determination Waiver. It also applies to the CHOICES Waiver administered by TennCare and managed by the managed care organizations (MCOs) that supports people who are elderly or who have physical disabilities. Lastly, it applies to the new Employment and Community First (ECF) CHOICES Waiver administered by TennCare and managed by the MCOs for those with intellectual or developmental disabilities.

Person Centered Planning Process

Tennessee already has a fairly “person-centered” philosophy when it comes to service planning for individuals receiving HCBS. The settings rule takes this philosophy a few steps further by ensuring that the individual receiving services leads his or her planning meeting to the greatest extent possible; that he or she has control over who attends the planning meeting (and who doesn’t); that the meeting is held at a time and location convenient to the individual; and that the plan contains the following information:

  • Strengths and preferences
  • Both clinical and support needs (medical or behavioral needs and HCBS needs)
  • Goals and desired outcomes
  • Services and supports (paid and unpaid) that will help the person to meet his or her goals
  • Risk factors and how those risks will be minimized
  • Back-up plans
  • The setting in which the person lives/will live, which was chosen by the person and which supports the person’s opportunities to live and work in their community

The outcome of this enhanced person-centered planning process should be people with IDD living the lives they want to live with the supports they need to be safe, healthy and engaged in their communities to the greatest extent possible.

What is a “Setting” Exactly?

As it relates to the new federal rule, a setting is any location where a person receives home and community based services (HCBS) that Medicaid pays for. Settings include supported living and residential group homes, employment sites, day programs, and sheltered workshops. HCBS settings must be integrated into the community—meaning that the people who receive services are able to spend time with other people who don’t have disabilities and access community services the same way that people without disabilities do. The setting should not look or feel like an institution. Nor should people with disabilities be segregated from those without disabilities.

 What Does this Focus on “Settings” Mean for Tennessee?

To comply with the federal rule, Tennessee developed a Transition Plan that outlined the process for implementing person centered planning and for addressing the settings in which HCBS is provided. As part of the plan, TennCare, the MCOs, DIDD, and all providers of HCBS took self-assessments to determine if they meet the requirements of the settings rule. These self-assessments included reviews of policies, procedures and the locations in which services are provided. Corrective Action Plans were required to outline how anything out of compliance would be brought into compliance. People receiving HCBS also completed an individual experience assessment to gauge if people are living the lives they want to live with the supports they need to be fully engaged in their communities.

Sheltered Workshops

Another part of TennCare’s transition plan included the eventual closure of sheltered workshops. Unofficial feedback seemed to indicate that this piece in particular helped Tennessee’s plan get approved. Given Tennessee’s focus on supported employment, customized employment and self-employment as alternatives to sheltered work, including the closure of sheltered workshops in the Transition Plan was a natural progression, though it understandably has many families and individuals with intellectual disabilities concerned. For many, the concern is losing a predictable schedule. For others, it is missing out on the opportunity to see their friends on a daily basis. And, there is the overarching concern that some people with ID “aren’t capable” of working in a supported employment situation at competitive wages. These concerns are all valid. However, providers have time to implement the changes, and the person centered planning process should help identify strategies for easing the transition.

Day Programs

“Day programs” (non-work based programs) will also be affected, but in a different way. The biggest change will be that individuals with ID will no longer have the option of being in one facility-based program all day, every day. Day programs will be expected to incorporate community-based activities into the days of the people supported. For example, if individuals worked on arts and crafts in a facility, under the new settings rule that activity will occur in the community at a recreation center, community center, YMCA, or other place. If individuals worked on “simulated independent living skills” (e.g. grocery shopping), this activity will occur at a grocery store in the community. Other activities include finding volunteer opportunities (e.g. helping out at the local animal shelter, weeding a community garden, stuffing envelopes at a local church, delivering meals to elderly people, etc.). What many families do not realize is that many day programs already incorporate these activities into their day programs, so the change may not be as extreme as people are expecting.

Residential Settings

In terms of residential services such as group homes, supported living, etc., there are many things that the settings rule requires. In simplest terms, however, the goal is for the residence to truly reflect the character of the individual living there. When walking into a residential setting, it should be clear that it looks like a “home” to the greatest extent possible. The people living there should have had input into decorating. They should have privacy. There should be a sense of ownership. The residence should NOT look institutional.

Final Thoughts and Where to Find More Detailed Information

Change is never easy, even if those changes ultimately mean more fulfilled lives for people receiving home and community based services. Change was difficult when we first began moving people out of large institutions into smaller facilities. Many people thought that individuals with intellectual disabilities couldn’t live in community settings, that they wouldn’t be “safe.” But overwhelmingly, people with ID were not just “safe” in the community – they have thrived. Change was difficult when we shifted from small facility based settings to home and community based services. Again, there was fear that giving people with ID even more access to the community through home ownership, supported employment, volunteer activities and more would impact their safety. Once again, people with ID demonstrated that when we have high expectations, they rise to the occasion. People with intellectual and developmental disabilities belong in the community and should have the same opportunities as people without disabilities. Will there be challenges along the way? Most definitely. Will it sometimes feel like we are taking three steps back before taking one forward? Absolutely. But, isn’t that life? At the heart of the CMS settings rule is the desire to push the HCBS system in the direction of ensuring that people are truly part of their communities living the lives that they want to live and getting the supports they need to make it happen. When HCBS is done “right,” people often end up with a broader network of natural supports. One very good national resource is here.

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