HCBS Settings Rule: FAQs

The federal Centers for Medicare & Medicaid Services (CMS) requires all states that operate Medicaid home and community-based services waivers to comply with a federal rule. The purpose of the HCBS settings rule is to ensure that people receiving services through HCBS waiver programs have access to the benefits of community living and are able to receive services in the most integrated setting.

Since Wisconsin operates several programs under Medicaid HCBS waivers, DHS is required to implement the new rule. Approximately 81,000 people in Wisconsin receive services under HCBS waiver programs. The ability of DHS to continue to provide home and community-based services depends on assuring compliance with the rule. States are given time to become compliant with the rule. Wisconsin’s plan for meeting the rule’s requirements is described in the Statewide Transition Plan for Compliance with the Medicaid Home and Community-Based Settings Requirements, P-01839 (PDF).

The settings rule does not change the funding for institutions, such as nursing homes and intermediate care facilities for individuals with intellectual disabilities. These institutions are funded through the Medicaid State Plan. Institutions have never been allowable settings for long-term residential care under 1915(c) waiver authority.​

No. The process of assessing settings for compliance with the home and community-based services settings rule will not affect licensure or certification. Other programs that do not rely on HCBS waiver funding may use those settings for their program participants.

The rule does not prohibit all disability-specific settings (that is, settings that only serve people with disabilities). However, the rule does require that people receiving home and community-based services have a choice of a non-disability-specific setting. Medicaid waiver programs have a responsibility to meet the requirements of the rule by offering choices to individuals during the person-centered planning process.

Settings must provide opportunities for participants to:

• Seek employment.
• Work in competitive integrated settings.
• Engage in community life.
• Receive services in the community.
• Interact with peers who do not have disabilities.
• Participate in community events and activities.
• Access and control personal resources.

The goal of DHS is to assist settings to come into compliance with the rule through the remediation process. If a setting cannot, or chooses not to, make changes that will allow compliance, the waiver program will work with people in that setting to provide other options that are in compliance with the rule.

The FAQs about Door Locks in Adult Long-Term Care Residential Settings, P-01817 (PDF) provides guidance to home and community-based services residential providers regarding the locks requirement in accordance with 42 C.F.R., Part 441.

Is it acceptable for a provider to just obtain the resident’s legal representative’s verbal or written consent for a resident not to have his or her own key?

No. With respect to a resident’s personal choice and privacy, the resident must be involved, to the extent they are capable, in any decisions regarding their personal possession and use of a key. Conditions that would prevent a resident from having a key must be specific to the resident’s assessed needs, and must be justified and documented in the resident’s individual support and service plan, adult family home service plan, or member-centered plan, as applicable. The resident may choose to involve others, such as parents, a legal representative, or a significant other, in the decision. If a resident does not have possession of the key, it does not negate the resident’s right to lock his or her living unit when leaving the setting in order to safeguard belongings and ensure privacy.

If a resident loses a key, what can the resident be charged for a replacement key?

Costs to the resident for key replacement should be reasonable (for example, actual cost of key copy or replacement, plus a small administrative fee). The cost must not be so prohibitive that a resident cannot afford to have a key. The process for, and cost of, replacing a key should be discussed, agreed to, and reflected in the resident’s key agreement.

As a general rule, when a resident loses a key, replacement of an entire lock should not be necessary unless there is a clear risk that a resident’s safety and privacy will otherwise be violated. This risk must be discussed with the resident. Any plans developed or actions taken must be documented in the resident’s individual support and service plan, adult family home service plan, or member-centered plan.

If a resident is prone to misplacing or losing the key, it does not negate the resident’s right to have a key to lock his or her living unit when leaving the setting in order to safeguard belongings and ensure privacy. In consultation with the resident and his or her care management team, the setting may incorporate a procedure into the resident’s individual support and service plan, adult family home service plan, or member-centered plan, as applicable, to hold the key in a safe place for the resident to use to enter his or her living unit at any time.

The FAQs about Access to Personal Funds and Resources in Adult Long-Term Care Residential Settings, P-02254 (PDF) provides guidance to residential providers concerning the requirement in accordance with 42 C.F.R., Part 441.

Information about resident rights training options can be accessed in several ways:

1. If you are a contracted provider, contact your managed care organization (PDF). The type and extent of training offered by each managed care organization varies.
2. Contact your county health and human services department. The type and extent of training offered by county human and social services departments vary.
3. Take the DHS Client Rights online training. There are two choices: a certificate module and a no-certificate module, both available at no cost. To print a certificate of completion, use your WAMS ID or go to the Wisconsin Access Management System to obtain an ID. Note: These modules provide information in the context of an inpatient facility rather than a community-based entity. However, the training content is consistent with resident rights standards. Also, content speaks more to client rights specialists than to service providers or direct caregivers.