CMS Final Settings Information

CMS Final Settings Information for DDS Qualified Providers
In 2014 the Centers for Medicare and Medicaid Services (CMS) issued a final rule for home and community-based services (HCBS) that requires states to review and evaluate home and community based settings, including residential and non-residential settings to determine that such settings allow for, and facilitate the integration of residents into their community. 
CMS has recently clarified the requirements of the settings rule and have communicated that states must be in compliance with the rule by March 2023.
In June of 2018, in partnership with the single state Medicaid agency, the Department of Social Services (DSS) and DDS submitted a statewide transition plan to CMS for approval.  The plan was approved and confirmed (as of that time), that all current DDS settings meet or could meet the expectations of the final settings rule.
For new settings created after June 2018, DDS must ensure the setting meets the requirements outlined by CMS. DDS Point of Service qualified providers are contractually obligated to meet the final settings requirements.
The final rule requires that all home and community-based settings meet certain qualifications. These include:
  • The setting is integrated in and supports full access to the greater community;
  • Is selected by the individual from among setting options;
  • Ensures individual rights of privacy, dignity and respect, and freedom from coercion and restraint;
  • Optimizes autonomy and independence in making life choices; and
  • Facilitates choice regarding services and who provides them.

The final rule also includes additional requirements for provider-owned or controlled home and community-based residential settings.  These requirements include:

  • The individual has a lease or other legally enforceable agreement providing similar protections;
  • The individual has privacy in their unit including lockable doors;
  • The individual has a choice of roommates;
  • The individual has the freedom to furnish or decorate the unit;
  • The individual controls his/her own schedule including access to food at any time;
  • The individual can have visitors at any time; and
  • The setting is physically accessible.
Any modification to these additional requirements for provider-owned home and community-based residential settings must be supported by a specific assessed need and justified in the person-centered service plan.
The final rule excludes certain settings as permissible settings for the provision of Medicaid home and community-based services. These excluded settings include nursing facilities, institutions for mental disease, intermediate care facilities for individuals with intellectual disabilities, and hospitals. Other Medicaid funding authorities support services provided in these institutional settings.
The final rule identifies other settings that are presumed to have institutional qualities, and do not meet the threshold for Medicaid HCBS. These settings include those in a publicly or privately-owned facility that provides inpatient treatment; on the grounds of, or immediately adjacent to, a public institution; or that have the effect of isolating individuals receiving Medicaid-funded HCBS from the broader community of individuals not receiving Medicaid-funded HCBS. For those settings presumed to have the qualities of an institution, DDS may decide to implement a heightened scrutiny assessment and submit a heightened scrutiny evidence package to CMS for review.   If the state seeks to include such settings in Medicaid HCBS programs, the state may conduct a heightened scrutiny assessment and submit a heightened scrutiny evidence package to CMS in order to demonstrate that such setting does not have the qualities of an institution.
CMS Resources:
DDS/DSS Resources:
For questions on the final settings rule please contact:
Krista Ostaszewski
DDS Health Management Administrator