HCBS Settings Rule: Final Residency Agreement

Illinois Department of Human Services

Division of Developmental Disabilities

Information Bulletin

DD.23.008 (Replaces DD.22.005)

Purpose:

This Information Bulletin (IB) outlines the requirement for Developmental Disability Home and Community Based Services (HCBS) Waiver residential providers to ensure a residency agreement with the individual and guardian, if applicable, when the individual resides in a provider-owned or controlled setting.

Background:

The Federal Centers for Medicare and Medicaid Services has determined that HCBS settings must have all of the qualities specified in 42 CFR §441.301(c)(4)(i-v), based on the needs of the individual as indicated in their Personal Plan. For provider-owned or controlled residential settings that serve individuals who are enrolled in a Division of Developmental Disabilities (DDD) Waiver program, additional conditions specified in 42 CFR §441.301(c)(4)(vi)(A) through (E) must be met. Specifically, 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. For settings in which landlord tenant laws do not apply, the State must ensure that a lease, residency agreement or other form of written agreement will be in place for each HCBS participant, and that the document provides protections that address eviction processes and appeals comparable to those provided under the jurisdiction's landlord tenant law. For individually controlled units, tenants are expected to sign leases with landlords.

Definitions:

Residency Agreement

An agreement between a provider and an individual that outlines the expectations and responsibilities for individuals who reside in provider-owned or controlled Community Integrated Living Arrangements (CILA), Community Living Facility (CLF), and Child Group Home (CGH) settings.

Provider-owned or controlled setting

A provider-owned or controlled setting is a physical setting in which the individual resides

  1. that is owned, co-owned, leased or rented by a provider of HCBS providing services onsite; or
  2. that is owned, co-owned, leased or rented by a third party that has a direct or indirect financial relationship with a provider of HCBS; or
  3. where receipt of support services is limited to a specific provider while living at the site.

A setting that meets this definition is a provider-owned or controlled setting, regardless of whether a residency agreement is signed by the individual and guardian, if applicable. The existence of a residency agreement does not transfer ownership or control from the provider to the individual and/or guardian, if applicable.

Provider Expectations:

  1. When a residential setting is owned or controlled by a provider agency, as defined above, the provider must ensure a residency agreement is in place for each individual served in the setting. This applies to the following residential settings:
    1. CILA
    2. CLF, 16 beds or less
    3. CGH. For CGH, residency agreements are applicable only to waiver participants 18 years of age and older.
  2. The Division has developed a residency agreement template that may be found on the HCBS Settings webpage. Providers may modify this residency agreement or choose to use their own agreement. However, the agreement must include all components of the Division's residency agreement template.
  3. The agreement should accompany the Rights of Individuals form [IL462-1201].

Components of a Residency Agreement:

  1. The residency agreement must contain all rights as specified in this IB, and inform the individual, guardian, if applicable, and providers of their responsibilities under the agreement. It must include:
    1. Amount and due date for rent or room/board, if applicable, limited to the CILA rate payment. The provider should use a specific amount of money individualized to the person. The Division is not requiring that providers use a specific methodology. Providers can use the rent amount, and if it is less than the unearned income minus $60, indicate, per DDD policy, that remaining funds will be used for services. Providers can also use the total unearned income minus $60 and indicate that this includes rent/room/board and potentially per DDD policy funds for services.
    2. The individual's responsibilities (i.e., maintaining his/her living space and not engaging in activities that disrupt or potentially cause harm to other residents).
    3. Statement that the residential provider may end the residency agreement in accordance with 59 IAC 115 under which a provider can initiate an involuntary termination of the agreement.
    4. The individual's appeal rights information Rights of Individuals form [IL462-1201].
    5. Space for provider, individual and guardian, if applicable, to sign and date the document.
    6. Note: No provisions of the residency agreement can be contrary to rights under 42 CFR §441.301(c)(4)(i-v) HCBS-required resident rights.
  2. The residency agreement may include other resident responsibilities (e.g., no smoking in the home or no pets) provided those responsibilities are consistent with local and state tenant lease laws.

The residential provider must:

  1. Explain the terms of the residency agreement to the individual and guardian, if applicable, prior to any party signing.
    1. This must be done in a format and language the individual and guardian, if applicable, can easily understand.
    2. For potential residents, this should be done before the individual moves in, so they can make an informed decision about where they want to live.
    3. For individuals who already live in a setting, this should be done within 90 days of this IB being moved to final.
  2. Sign the residency agreement and have the individual and guardian, if applicable, sign it as well. If an individual or guardian does not respond, please record the agency's efforts to get a signature.
  3. Provide the individual and guardian, if applicable, a signed copy of the residency agreement and file the document in the individual's record.
  4. Explain the individual's Waiver rights, as outlined on Rights of Individuals form [IL462-1201].
  5. The ISC is required to complete the Rights of Individuals form [IL462-1201] document with the individual and/or guardian, if applicable, signing the document annually but providers are also required to share the IL462-1201 form and offer education and as needed.
  6. Designate the specific unit where the individual will reside (including a description of the specific bedroom).
  7. Provide information about rights in the resident handbook if one exists. Such information may address but is not limited to the following topics:
    1. Pets
    2. Smoking
    3. Use of cannabis (both medical and recreational)
    4. Weapons
    5. Respecting the rights of other residents
  8. The residency agreement should be signed annually. If an individual or guardian, if applicable, is refusing to sign it, the provider should document they have explained the document and tried to get them to sign it. The initial residency agreement may have an expiration date less than one year after signing to allow the provider to align the expiration dates of all residency agreements for a specific home. The residential provider must offer to renew the residency agreement each year. The expiration of a residency agreement is not a reason for termination of the agreement or for discharge from services.
  9. The provider can add resident responsibilities consistent with Illinois Landlord/Tenant law. However, if damage to the property is included in the resident responsibilities, the provider is required to go through the Human Rights Committee (HRC) to approve requested damages from the individual. The guardian is not to be held liable for damages done by an individual. The provider cannot evict the person for those damages or refuse to send an annual residency agreement.

The residential provider is prohibited from:

  1. Requiring an individual to move out without providing written notice explaining why and the right to appeal in accordance with The Notice of Individual's Right to Appeal a Medicaid Determination(PDF) and 59 ILCS 120.
  2. Requiring an individual to move to a different residential setting owned or controlled by the same provider unless the individual agrees to the move.
  3. Using a residency agreement to force an individual to waive/modify certain rights outside the formal rights restriction process. Examples include but are not limited to:
    1. Restricting visiting hours
    2. Preventing individuals from accessing food at any time
    3. Restricting individuals to their rooms during specific hours
    4. Mandating specific services such as employment or community day services
    5. Mandating that services (other than residential supports) be provided by a specific provider or provider-directed vendor
    6. Requiring church attendance or group outings
    7. Requiring the individual be away from the home during specified hours or days
    8. Limit an individual's ability have overnight visits at their family or friend's homes.
  4. Charging a security deposit unless required by Housing and Urban Development or other entity funding that housing.
  5. Requiring that the provider must be the rep payee.
  6. Requiring direct deposit for rent.
  7. Requiring the individual take responsibility for the rent/room and board for the whole house through the residency agreement.
  8. Moving to evict because the individual or guardian has not sent back and signed the residency agreement. The provider is responsible for updating and reviewing the residency agreement each year as well as documenting they have reached out to the individual or guardian, if applicable, to sign the document.
  9. Requiring payment of damages to the house prior to signing a new residency agreement.
  10. Charging for previous damages prior to the initial residency agreement.

Modification of the Requirements

  1. Per the Settings requirements, any modification of the residency agreement requirements must be supported by a specific assessed need and justified in the Personal Plan, Implementation Strategy(ies), and Human Rights Committee processes.
  2. If a modification of an individual's rights in the residency agreement is deemed required, it must be justified through the Person Centered Plan and Implementation Strategies and the provider's Human Rights Committee must review the restriction.
  3. A provider agency should not restrict all individuals in a residential setting because one individual in the setting needs to have a modification put in place. Rights modifications should apply only to the individual with the need for the modification. In addition, no rights modification should be implemented solely because it is convenient for the provider or guardian, if applicable. Implementing a modification without consent of the individual and guardian, if applicable, is prohibited.

Terminating a Residency Agreement and Appeal Process

  1. Prior to a provider determining they will issue a termination of a residency agreement, the provider is expected to go through the conflict resolution process with the ISC and the resident.
  2. If the provider determines they can no longer offer their provider controlled or owned setting and associated services to an individual, they will notify the individual, and guardian, if applicable, they are terminating the residency agreement in accordance with Rule 115 of the Administrative Code and give a 60 day notice and information about the individual's right to appeal the decision. The individual will be required to move unless they successfully appeal the termination of the Residency Agreement and resulting discharge. The provider must maintain the individual's placement pending the outcome of the appeal process. This process follows the discharge process as outlined in Rule 115, Rule 120 and information bulletins.
  3. In situations where the individual is documented to be a current and on-going danger to self and/or others, and/or is a significant adverse health risk, the provider agency, the individual, when possible, the guardian, if applicable, the ISC, and a Division representative will work together to identify an alternative waiver setting per Rule 115.215 and Rule 120. The provider must maintain the individual's placement pending the identification of an alternative waiver setting.

The information contained herein should not be considered a substitute for the appropriate official statutes, rules, regulations, or the advice of legal counsel.

Effective Date:

10/10/23