The final Home and Community-Based Services (HCBS) regulations stipulate requirements for Medicaid authorities under which states can provide long-term community-based services and supports, and the transition deadline for full state compliance was March 17, 2023. The HCBS Settings Rule was created to ensure that every person receiving Medicaid-funded HCBS has full access to the benefits of community living and to protect individuals’ autonomy to make choices and to control the decisions in their lives.
In late 2022, the Centers for Medicare & Medicaid Services (CMS) visited settings in multiple states that were identified as having the qualities of an institution as outlined at 42 CFR § 441.301(c)(5) and required a CMS-conducted heightened scrutiny review to determine their compliance with the HCBS settings criteria. Many concerns were identified by CMS including those related to residency agreements and regulatory criteria.
According to 42 CFR § 441.301(c)(4), the “unit or dwelling is a specific physical place that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the State, county, city or other designated entity.”
CMS found that not all settings differentiated between assisted living and skilled nursing facility residents. This presented challenges when reviewing residency agreements and resident handbooks. For example, a resident handbook said that “daily rates will be charged to hold a bed vacant” if a resident leaves for an extended period of time, but the handbook did not differentiate between assisted living and skilled nursing facility residents. CMS was therefore unable to determine if this requirement applied to both levels of residents.
Another facility used a “Daily Care Contract” as its residency agreement, and included requirements for renter’s insurance and stipulated that residents provide their own transportation to medical care. The agreement provided no resident protection from eviction, notice, or appeals. Almost all of the agreements reviewed by CMS needed to be revised to provide protections against eviction as those provided under landlord/tenant law.
Other agreements were vague on eviction protections and appeal rights for residents, or favored the provider as landlord with many opportunities for immediate discharge of the resident. One facility’s residency agreement stated that if the tenant wanted to break the agreement, he/she had to give 60 days’ notice, but if the landlord wanted to break the agreement, their time frame was only 30 days’ notice.
All states and provider-owned and controlled residential settings must be fully compliant with the following regulatory settings criteria that are not impacted by the COVID-19 PHE, including any exacerbation of the workforce shortage as follows:
- A lease or other legally enforceable agreement providing similar protections;
- Privacy in resident units, including lockable doors, and freedom to furnish or decorate the unit;
- Access to food at any time;
- Access to visitors at any time;
- Physical accessibility; and
- Person-centered service plan documentation of modifications to relevant regulatory criteria.
The joint statement from CMS and the Administration for Community Living (ACL) can be found here, and the final regulation can be accessed here.
Compliance Perspective
Issue
The Home and Community Based Services (HCBS) Settings Rule was created to ensure that every person receiving Medicaid-funded HCBS has full access to the benefits of community living. It is designed to protect individuals’ autonomy in making choices and controlling their life decisions, to include controlling personal resources; being treated with privacy, dignity, respect, and freedom from coercion and restraint; deciding what and when to eat; having visitors; being able to lock doors; and having the protections of a lease or other legally enforceable agreement. The rule requires a person-centered process for planning HCBS, which means that individuals receiving services direct the planning process and the plan reflects their own preferences and goals they have set for themselves. CMS will provide greater scrutiny of residency agreements and rights implementation going forward.
Discussion Points
- Review policies and procedures to ensure that each level of care your organization provides is addressed separately where appropriate. Assisted living providers participating in the HCBS waiver program should review their residency agreements and update as necessary to comply with the revised HCBS regulations.
- Train all appropriate staff on the HCBS requirements and their roles in ensuring compliance. Document that these trainings occurred, and file the signed training document in each employee’s education file.
- Audit to ensure that HCBS Waiver program requirements are added to related policies and procedures and implemented as required if your company participates in this service area.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
