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Nonprofits Must Consider ‘Community Rule’

By Jennifer Butler

Jennifer Butler

Jennifer Butler

Nonprofit organizations face a multitude of compliance issues every day, and keeping up with them can be a challenge. Because compliance failures may result in the loss of funding, organizations need to know what the current applicable regulations are and make sure their programs conform to them.

For providers of home and community-based services, that means understanding the Centers for Medicare and Medicaid Services’ (CMS) updated regulations and ensuring their programs comply with them. Referred to collectively as the ‘community rule,’ the CMS regulations are intended to provide individuals receiving long-term services and supports with full access to the benefits of community living and the opportunity to receive services in the most integrated settings possible.

All providers who operate home and community-based services (HCBS) programs under sections 1915(c), 1915(i), and 1915(k) of the Medicaid statute, in both residential and non-residential settings, are subject to the rule.

While much of the community rule focuses on states’ responsibilities, providers are responsible for bringing their programs into compliance with the regulations in two key areas: settings requirements and person-centered planning. Providers who operate residential programs must also ensure that their programs satisfy the additional requirements specific to provider-owned or -controlled residential settings.

Home and Community-based Settings Requirements

All HCBS providers must ensure their programs meet certain settings requirements outlined in the community rule. The goal of the rule’s settings requirements is to maximize participants’ access to the benefits of community living and enable them to receive services in the most integrated setting. Per the rule, HCBS settings must:

• Be integrated in and support full access to the greater community;
• Allow the individual to select the setting from among setting options, including non-disability specific settings and an option for a private unit in a residential setting;
• Provide individuals with opportunities to seek employment and work in competitive integrated settings, engage in community life, and control personal resources;
• Ensure the individual receives services in the community to the same degree of access as individuals not receiving Medicaid home and community-based services;
• Ensure the individual’s rights of privacy, dignity, respect, and freedom from coercion and restraint;
• Optimize individual initiative, autonomy, and independence in making life choices; and
• Facilitate individual choices regarding services and supports, and who provides them.

Additional Requirements for Provider-owned Residential Settings

In addition to the general settings requirements, the community rule imposes further requirements on providers operating programs in provider-owned or -controlled residential settings. Per the rule, residential settings must:

• Provide the individual with a lease or other legally enforceable agreement providing similar protections;
• Ensure the individual has privacy in their unit, including lockable doors, choice of roommates, and freedom to furnish or decorate the unit;
• Allow the individual to control his or her own schedule, including access to food at any time;
• Provide that the individual can have visitors at any time; and
• Be physically accessible.

Any modification of the additional requirements for residential settings must be supported by a specific assessed need and justified in a person-centered service plan. For example, if the provider determines that it would be unsafe for a particular individual in its care to have lockable doors, the provider must document that need in the service plan.

Person-centered Planning

Finally, the community rule requires that service plans be developed for all program participants through a person-centered planning process which results in a plan that reflects his or her unique goals and preferences.  The person-centered planning process must:

• Be driven by the individual;
• Include people chosen by the individual;
• Reflect cultural considerations and use plain language;
• Offer choices to the individual regarding services and supports the individual receives and from whom;
• Include strategies for solving disagreement;
• Provide a method to request updates;
• Identify the strengths, preferences, needs (clinical and support), and desired outcomes of the individual; and
• Include individually identified goals and preferences related to relationships, community participation, employment, income and savings, healthcare and wellness, and education.

Additional planning-process requirements, as well as specific requirements for person-centered service plans, are also outlined in the rule.

All providers of community-based programs should carefully review them to make certain they fully comply with the community rule. Some requirements of the rule, such as the provision regarding leases, may raise complex legal issues that are best addressed by an attorney. Providers are encouraged to consult with counsel if they have any questions about bringing their HCBS programs into compliance with the community rule.

Jennifer Butler, Esq. specializes exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

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