|(a) A home and community-based setting is a setting
in which an individual resides or receives HCS Program services or
CFC services. A home and community-based setting must have all of
the following qualities, based on the needs and preferences of an
individual as documented in the individual's PDP.
(1) The setting is integrated in and supports the individual's
access to the greater community to the same degree as a person not
enrolled in a Medicaid waiver program, including opportunities for
the individual to:
(A) seek employment and work in a competitive integrated
(B) engage in community life;
(C) control personal resources; and
(D) receive services in the community.
(2) The setting is selected by the individual from
among setting options, including non-disability specific settings
and an option for a private unit in a setting in which residential
support, supervised living, or host home/companion care is provided.
The setting options are identified and documented in the PDP and are
based on the individual's needs, preferences, and, for settings in
which residential support, supervised living, or host home/companion
care is provided, resources available for room and board.
(3) The setting ensures an individual's rights of privacy,
dignity, and respect, and freedom from coercion and restraint.
(4) The setting optimizes, not regiments, individual
initiative, autonomy, and independence in making life choices, including
choices regarding daily activities, physical environment, and with
whom to interact.
(5) The setting facilitates individual choice regarding
services and supports and the service providers who provide the services
(b) Except as provided in subsection (c) of this section,
a program provider must ensure that HCS Program services and CFC services
are not provided in a setting that is presumed to have the qualities
of an institution. A setting is presumed to have the qualities of
an institution if the setting:
(1) is located in a building in which a certified ICF/IID
operated by a LIDDA or state supported living center is located but
is distinct from the ICF/IID;
(2) is located in a building on the grounds of, or
immediately adjacent to, a certified ICF/IID operated by a LIDDA or
state supported living center;
(3) is located in a building in which a licensed private
ICF/IID, a hospital, a nursing facility, or other institution is located
but is distinct from the ICF/IID, hospital, nursing facility, or other
(4) is located in a building on the grounds of, or
immediately adjacent to, a hospital, a nursing facility, or other
institution except for a licensed private ICF/IID; or
(5) has the effect of isolating individuals from the
broader community of persons not receiving Medicaid HCBS.
(c) A program provider may provide an HCS Program service
or a CFC service to an individual in a setting that is presumed to
have the qualities of an institution as described in subsection (b)
of this section, if CMS determines through a heightened scrutiny review
that the setting:
(1) does not have the qualities of an institution;
(2) does have the qualities of home and community-based