HCBS Settings Frequently Asked Questions 2-25-22

Frequently Asked Questions- 2-25-22 Policy and Evidence Submission Webinar

Compliance Concerns

1. With CMS understanding the scope of the workforce crisis, has the federal agency communicated to Medicaid Directors areas of the rule they want states to focus on effective March 2023 or are they expecting states to be comprehensively in compliance?

No. Our understanding from both HFS and our CMS Technical Assistance team is that CMS expects site validation to be completed and confirmation of site compliance with all parts of the Settings Rule by March 17, 2023.

2. Will the fact that we've operated under COVID restrictions be taken into consideration?

CMS has acknowledged limitations especially related to community integration during times of COVID. However, this does not free the provider from responsibility to fulfill the settings requirements by March 17, 2023, to their best ability. The provider should still work to revisit frequently people's interests in getting out into the community as events increase and communities open for example.

3. So, the setting rule overrides a judge's order based on establishing choice?

In a situation where a judge's order appears to conflict with the Settings Rule, the provider should consult with its legal counsel since not complying with a court order may have legal implications. For any rights modification, we encourage doing an assessment of need as well as work with the guardian and the individual to achieve an agreed upon solution.

Evidence Submission Concerns

4. What are the due dates for policy and evidence submission into the portal?

Sites 1 - 20 are due on April 20th. Sites 21 - 50 are due on May 18th. The remainder of all sites are due on June 15th.

5. Will the Division consider reviewing evidence submission prior to a provider uploading all its evidence?

In response to feedback from the field, we are offering the following: For providers with many sites to submit, if you submit 5 sites by April 1, we will review and offer feedback on one of the sites. This will not be a full desk validation, but we can provide feedback on the submitted documentation. Sites will be reviewed on a first come, first served basis.

6. Does the Settings Rule validation process need to be completed for agencies that only provide Home Based Support Services Self Directed Assistance (HBSS SDA), but not CILA and not CDS?

No. This validation process is only for provider owned or controlled ICILA, 24- hour CILA, Host Family, CLF, CGH and CDS, as well as group supported employment sites. However, all waiver funded programs must comply generally with the settings rule, so we would suggest providers supporting people in non-provider-controlled programs, review their program policies and procedures to ensure people's choice, autonomy and independence are being met.

7. Many of the evidence requirements were just made final via IB with effective dates of 7/1/22 but the evidence deadline is just 60 days. So, for instance, if we are not currently utilizing residency agreements but plan to be in compliance with the IB by 7/1/22, do we need to escalate these deadlines to be in compliance with the evidence deadline of 60 days?

No, it is not necessary to be fully compliant with the residency agreement requirement or the locked doors requirement by the 60-day deadline. For the residency agreement, providers can submit a template of their intended residency agreement for initial validation of this requirement. A provider should expect to provide confirmation on or before July 1 to DDD that residency agreements and lockable doors are in place per the IBs. DDD will follow-up to ensure compliance.

8. What are the implications for this rule on providers EHR? Do you expect at some point in the future data collection and reporting requirements for existing and new EHR?

We are aware that some agencies utilize EHRs to house the entirety of an individual's documentation (PCPs, IS', Behavior Plans, medical records, etc., which is fine. However, currently we have no plans to prescribe the use of EHRs for future data collection and reporting requirements.

9. Is evidence required for every site or just provider owned/controlled sites?

Evidence is required for every provider owned or controlled site. Evidence is not required for individually controlled sites. However, all waiver funded programs must comply generally with the settings rule, so we would suggest providers supporting people in non-provider-controlled programs, review their program policies and procedures to ensure people's choice, autonomy and independence are being met.

10. Does evidence need to be submitted from each provider? For example, CDS does not handle money or food. Is it the responsibility of the CDS to provide evidence of the areas we really have no control over?

Yes, evidence must be submitted from each provider for each site. Although a CDS may not supply food, individuals still have the right to access the food they brought for lunch and snacks. The CDS should have policies in place and must be able to demonstrate how they accommodate an individual who indicates they are hungry and want to a quick snack, for instance. A CDS only provider must provide evidence of compliance on all parts of the Settings Rule except for those specifically indicated as residential only on the tool.

11. Is the proof of choice of services to be provided by the provider or by the ISC?

Evidence of choice of provider will be provided by the State. However, evidence of an individual's right to choose services and supports and who they would like to provide them must be provided by the site. This is more about an individual's day. Do they have options in how to spend their time and with whom? Is the site taking into consideration their preferences? Providers should also have policies to be able to record and address changes in choices both related to the current program and if the person expresses interest in alternative programs, which can then be relayed to the ISC.

12. For evidence that is submitted for the pre-COVID era, i.e., for community integrated activities, etc., how far back can / should we go?

We recommend going back to 2019 as that should be representative of how services and supports were being provided prior to the COVID lockdown.

13. If we are a CDS that serves over 100 waiver individuals how many individuals is adequate to submit evidence on? Do we have to submit evidence on 100 individuals?

No, you do not need to submit evidence for all individuals served. For CDS sites serving 50 or fewer individuals, we recommend submitting evidence on 25% of the individuals. For CDS sites serving more than 50 individuals, we recommend submitting evidence for 10% of the individuals. Please note, you should only submit the relevant portion of a document. For implementation strategies for example, we would not expect you to submit the entire set of strategies but rather the page or pages specific to the compliance item being addressed.

14. Are we submitting evidence for Intermittent CILA or just CILA?

You are submitting evidence for all provider owned and/or controlled CILAs, whether 24-hour, intermittent or host family.

15. To clarify - this validation process and policy/evidence submission is for providers who have provider-controlled or owned sites only. If a provider does not have a provider-controlled site - they don't need to participate in this validation process.

Correct. However, just to be certain that the provider agency and the Division are on the same page, it might be wise to reach out to DHS.HCBS@illinois.gov to make sure DDD doesn't have a site mis-labeled. As a reminder, all waiver funded programs must comply generally with the settings rule, so we would suggest providers supporting people in non-provider-controlled programs, review their program policies and procedures to ensure people's choice, autonomy and independence are being met.

16. We have some provider-controlled and some independently owned sites - does policy/validation need to be supplied for independently owned sites?

If, by "independently owed" you mean, independently controlled (whether owned or leased), then no, you do not need to submit evidence of compliance for those sites. If, however, the home is independently owned but the provider controls the service delivery, not the individual, you do need to submit evidence.

17. Does the portal allow for incremental submission so that if an agency were "off-track" they would have an opportunity to correct course before submitting all site policy and evidence?

Yes. A provider can submit site-by-site but all evidence for a single site must be submitted at the same time.

18. Is the Division requesting evidence related to community-based sites where Individual Competitive Integrated Employments supports, and services are rendered?

No. There is a distinct process related to Group Supported Employment. If you have questions on this, please email: casey.burke@illinois.gov

19. Can the agency provide the evidence day by day or do you want all at once?

Yes. The agency is free to submit evidence day by day. Just make sure you submit all evidence for a site at one time.

20. Are there any sample policies that can be shared for 1-8 policies?

DDD is not planning on providing sample policies but encourage providers to talk with each other. The policies should reflect the 8 to 11 areas of compliance depending on the site and do not have to be lengthy.

21. The CEOs I work with suggest adding an additional section to the Individual's Implementation Strategies that address the items associated with the Implementation Evidence Submission. I had planned on including them throughout the Strategies. Any thoughts?

DDD is in the process of updating the person-centered planning templates including the implementation strategies, which will more specifically reflect settings. You can add attachments to your strategies until the new templates are out which will happen before the end of the fiscal year.

22. Can we have a couple of sites reviewed to determine compliance before we begin submitting multiple sites? We want to make sure we are providing what the state is requiring and deems acceptable. We are trying to avoid a lot of back and forth on behalf of us and the state.

In response to feedback from the field, we are offering the following: For providers with 20 or more sites to submit, if you submit 5 sites by April 1, we will review and offer feedback on one of the sites. This will not be a full desk validation, but we can provide feedback on the submitted documentation. Sites will be reviewed on a first come, first served basis.

23. How are intermittent sites handled? Is there a difference if the provider owns the site?

Regarding the Settings Rule validation process, provider-owned or controlled intermittent CILA sites are to be handled the same as provider-owned or controlled 24-hour CILA sites.

24. Do we need to provide all the evidence for day program sites? It seems like some of the questions are geared towards residential settings and would not be applicable to day program settings.

CDS sites must provide evidence for numbers 1 - 8, as well as #11.

25. We see the reference to pictures. Can we provide a video tour of the home indicating compliance? We think that might be easier than taking multiple pictures.

Providers are free to submit their evidence in any way they choose if it is clearly labeled in terms of which piece of the Settings Rule it applies to and is contained in the zipped file for that site.

Person-Centered Planning and Choice

26. During this webinar you mentioned some agencies are using an app showing individualized schedules. Do you happen to know what app has been utilized?

Some of the HER/case management software that providers utilize allow for reporting on some of the implementation evidence we have requested, such as individualized staff/participant schedules. However, these often carry a prohibitive cost for smaller providers and are usually customized to some degree based on the provider's wants/needs. Examples would be Therap or Foothold Technologies. Please note that the Division does not directly endorse one over the other.

This website offers some comparison between software packages: Top Software at Capterra | Software & Software Reviews For Business & Nonprofit

Outside of the EHRs, there are myriad, low-cost apps which could be used to manage individualized schedules and related supports. Many are focused on "resource management" and don't easily fit into DDD providers scope, but we imagine agencies are continuously researching options and would encourage you to share those options with your peers as you identify viable software.

Residential Issues

27. What if two residents share a bedroom. One high functioning resident wants to have his bedroom locked but his roommate does not. Do we still put in a locked door?

First, the individual who wants a lock has a right to it. To attempt to reconcile this issue, you need to understand why the second roommate does not want a lock. Does he understand the concept? Is there something about a lock that concerns or frightens him? The provider should spend as much time talking with the second roommate as needed to understand his feelings about the lock and try to allay or mitigate the concerns. If, after working with the individual, he still does not want a lock on his bedroom door, you should see if there is any other living arrangement in the same house that would accommodate him and that he agrees to. If not, the ISC should be notified to work with the second roommate to find another living arrangement either within the current provider's CILA homes or with another provider.

28. Shouldn't whether a lock is appropriate on the door also be about the assessment and the individual's ability to safely be behind a locked door not just about choice?

The Settings Rule says it is an individual's right to have a lock on their door to ensure their privacy. However, the Settings Rule also sets out a process for making modifications to this right if, based on an individual's disability, there is a reason that having a lock is not in that individual's best interests. Section 11 of the Settings Rule lays out the steps that must be taken when restricting an individual's rights under the rule.

29. If the guardian is adamantly against a bedroom lock, do we still install them anyway? Can you clarify?

Remember, the Settings Rule is about the individual and the guardian role is to act in the best interest of that person. In a situation where there is a conflict the provider should work with the guardian to help them understand the individual's rights granted to them by the Settings Rule. In the absence of the any facts to indicate the contrary if the individual says they want a lock and the guardian says no, the individual has the final say. You may want to check with your legal counsel if there is a conflict between the individual and the guardian as this could have other legal implications.

30. Can you clarify if a privacy door lock is sufficient to meet the locking requirement? (Privacy locks are the type that can be easily unlocked by staff in the event of an emergency with a simple, universal tool. They're usually used on bathrooms.)

Yes. Any locking mechanism that meets the following Fire Marshal requirements is acceptable:

OSFM Considerations

  • All door locking mechanisms and systems for individual rooms and spaces must also comply with NFPA 101 Life Safety Code, Chapter 7 and Chapters 32.2 or 33.2 for small residential board and care.
  • Chapter 7 permits a door to have a locking device provided it allows the door to be easily unlocked / opened from within the room or space for the purpose of egress.
  • A single-cylinder lock utilizing a button pressed into the doorknob to lock from the inside, and when turn the knob to exit the room or space, the door automatically unlocks.
  • This type of lock is allowed to have a key, fob, code pad, keycard, etc. to unlock from the outside the facility or room by individual room occupant and any other authorized persons.
  • This type of lock cannot utilize any key, special tools, or knowledge to unlock from the egress side:
    • Special tools would involve a fob, keycard, etc.
    • Special knowledge would be a code, more than one process to unlock, etc.
  • Locks not meeting NFPA 101, Life Safety Code requirements and not permitted would include:
    • Ordinary double-cylinder locks that require keys on both sides of the door to lock and unlock.
    • Chain locks, slide bolts, hasps mounted on the inside, and other type latches if they cannot be unlocked from outside the door by authorized persons during an emergency.

The lock you describe meets these requirements if it allows the door to be easily unlocked/opened from the egress side (for example, a push button lock on the bedroom side).

31. What about the quarterly environmental checks that we are required to complete? This would include each individual bedroom area as well, correct?

Living arrangements that are provider owned or controlled must meet local life/safety and building codes and per current rule, documentation must exist which demonstrates that the provider has assured basic comfort and safety on a quarterly basis. Providers must balance the autonomy of residents with the procedures to conduct such assurance activities.

32. Can a residential agreement include a time at night when the housemates all agree that there will be no personal company at the CILA if all housemates agree to it?

This would be more appropriate for house rules where the individuals (not the site) agree on these kinds of things. A residential agreement could reference roommates working together to establish agreed-upon and developed house rules but as people and preferences can change, it would be best not to put the specifics of a set of house rules into the residential agreement itself.

33. What do you do if an individual wants a pet, but it might cause an allergy for another individual in the residential site?

First, is there a known allergy among the other individuals living in the home? If not, is there a way to ascertain whether anyone is potentially allergic, like speaking with family members? Assuming a pet would cause an allergic reaction is probably not the way to go. If there are no known allergies and all housemates agree that it's OK to have a pet, the individual should be allowed to get one. However, it is important that the individual understand that if an allergy should arise, either the pet will have to find a new home, or the individual (and their pet) will.

If there is a known allergy in the home, staff should talk with the individual about the negative consequences to their housemate if a pet was introduced into the home. Are there other options to meet the individual's desire to have a pet, like a fish? Or is there an opportunity to this individual to volunteer at an animal shelter where he can interact with dogs and cats? If, in the end, having a pet of his own is too important to him, it will be time to notify the ISC of the situation and ask that they work with the individual to find a new home that can accommodate both him and a pet.

34. If a provider owns a HUD site and a deposit is required per HUD - How does a provider navigate that issue?

We are checking on this issue.

35. How should bed checks be completed for individuals that have locked doors during the night?

First, it is important to understand why the 15-minute bed check is occurring. If it is because of a regulatory requirement of finding, the provider should work with the person to find a compromise.

If it is a DCFS requirement for a Child Group Home, the key requirement doesn't apply for anyone under 18 years of age and the provider should continue to conduct the bed checks as is currently happening. For young adults 18+, the provider/staff should meet with the individual to come up with an agreement on how best to conduct the checks while promoting the individual's privacy and ensuring their safety.

Similarly, if an adult in a CILA has a particular reason related to their disability that requires frequent overnight bed checks, the provider/staff should meet with the individual and come to an agreement on how those checks will be accomplished. If the individual has no disability-related reason for frequent bed checks, the staff should stop doing them.

Any agreements should be noted in the Implementation Strategy.

36. Will there be a template for the lease agreement that we can use?

There is a Residency Agreement Template for CILA, CLF and CGH under Developmental Disabilities waivers (remember, this isn't a lease, but a residency agreement designed to protect the individual's rights) at the DHS DDD website.

37. Do we have to use the template?

No. You are free to use a template of your own. However, it is recommended that you compare your template to the Division's as the Division's was designed to ensure that all requirements under the Settings Rule are included. You need to make sure yours does as well.

38. If people develop house rules, is this acceptable even if the "house rules" end up having things like agreed upon visiting hours or no pets in them? When you say house rules shouldn't limit things, do you mean house rules created by the organization NOT house rules created by the people that live at the site?

House rules are voluntary and are intended to identify ways that individuals who share a home may live respectfully with each other. House rules that are followed by the individuals living in the home but not enforced by staff are allowable. Individuals living in the home must have the opportunity to provide input into any house rules that are established. To be compliant with the Settings Rule, house rules must:

  • Ensure an individual's right of privacy, dignity and respect and freedom from coercion and restraint.
  • Optimize but…not regiment individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment and with whom to interact; and
  • Facilitate individual choice regarding services and supports and who provides them.

To be compliant with the Settings Rule, the following house rules are prohibited:

  • Rules that limit certain rights through broad-based requirements that everyone waive certain rights.
  • Rules that use improper qualifiers (e.g., visitors are allowed during "reasonable" hours only or only with "prior approval").
  • Rules that use arbitrary cutoffs to the exercise of rights; and
  • Rules that deny access to appropriate areas of the home.

If there are disagreements between residents about issues such as timing of visitors, then the provider should support conflict resolution efforts and individuals can discuss with their ISCs about possible changes to their services or housing.

39. Speaking of drugs, DHS does not allow the use of THC in the homes, what if an individual wants to use it recreationally?

Providers are subject to both state and federal law. In Illinois, the state and federal law are conflicting as both recreational and medical marijuana remain a Schedule 1 drug under the federal law but are permissible under State law. Federal law supersedes any state law. Under state law, the residents in the group home should be allowed to have and use both recreational and medical marijuana, however the individuals as well as the provider remain at risk of federal action. If the provider receives federal funding of any kind, the funding may be at risk. Further, the provider and residents may be at risk of prosecution by federal authorities,

In addition to risking federal prosecution or the loss of federal funds, CILAs may be opening themselves up to other liabilities if choosing to assist residents in obtaining and administering medical marijuana. The Illinois Medical Cannabis Program allows patients, with a qualifying condition, to access medical marijuana. Medical marijuana patients receive a medical marijuana card. They may also get a caregiver medical marijuana card that would enable them to name a caregiver who can purchase medical marijuana on their behalf. All patients in the program are allowed to purchase 2.5 ounces of medical marijuana every two weeks. They choose what form of medical marijuana (i.e., flower, edibles, pills, drops, etc.), and the potency. Medical marijuana patients are not given a prescription with instructions on how much or what type of medical marijuana the residents should ingest. Because of the way the medical marijuana program works, we are concerned that if CILA employees assist with medical marijuana they may be liable in the event of any potential problems.

Illinois State Law:

2014: Authorized Medical Cannabis Pilot program enacted. Statewide program that allows patients access to medical marijuana who meet one of the qualifying conditions.

2018: Enacted law to make the Medical Marijuana program permanent.

2020: Legalized recreational marijuana for consumers over the age of 21 who purchase from a licensed dispensary.

*Nothing in Illinois state law would prevent individuals in residential homes from using or possessing marijuana for either recreational or medical purposes. However, federal law does prohibit it.

Federal Law:

2009: Department of Justice (DOJ) advised federal prosecutors to focus on prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks and should not be focused on individuals who are following existing state laws for the use of medical marijuana.

2013: DOJ advised, via memo, prosecutors to use discretion, but that there is no safe harbor, immunity or guarantee that federal authorities will not prosecute marijuana offenses even if the individual is following existing state laws. The memo included a list of priorities for federal prosecutors and the list did not include the use of medical marijuana under state law.

Until the conflict between state and federal law resolves, providers, after consulting with their own attorney, will need to assess all risk factors and make the best decision for their clients and business.

Rights and Modifications to Those Rights

40. If we have locks on cabinets that have been approved through HRC/BMC does that suffice for restricting food?

Locks on cabinets constitute a right restriction under the Settings Rule and will require a modification to the person-centered plan of the individual the restriction is there for. Approval through the HRC is no longer sufficient. In addition, if all individuals living in the home do NOT require this restriction, the site must take steps to ensure that everyone else has access to food at any time. To clarify - this validation process and policy/evidence submission is for providers who have provider-controlled or owned sites only. If a provider does not have a provider-controlled site - they don't need to participate in this validation process.

41. Will diets established by a physician require rights restrictions, since limits choice?

Rights modifications require an assessment of need. A doctor's order regarding a medical issue that might impact diet should be noted and considered a modification. However, encouraging health dietary choices such as healthy eating, exercise and general weight loss might not rise to the level of modification when assessing the need. In these situations, we encourage the provider to take other steps including health education, access to exercise opportunities and increased access to healthy snacks.

42. How do we correlate these principles on a job site where there are expectations regarding eating when you have a break or lunch?

If an individual is working in an integrated job site where there are set break and lunch times and all employees are expected to adhere to those set times, there is no violation of the Settings Rule. The test is whether all employees, those with and without disabilities, are being treated the same.

43. What if restrictions are for medical reasons and having food that is restricted can cause serious harm. That restriction will never change.

The settings rule is very clear that modifications should be temporary and frequently revisited. This should be at least yearly through the person centered plan but also with the provider throughout the year to note if there are any less restriction options to try.

44. What should a provider do when a guardian does not want a restriction lifted, specifically around locks on cabinets and fridge?

The settings rules do not speak to guardians' choice or rights but rather to the person's choice and rights. A provider should attempt to educate the guardian on the Settings Rule and the rights it confers to people with disabilities in waiver settings. In particular, the provider should let the guardian know that if there is no specific disability-related reason for a restriction, leaving a restriction in place places the provider in violation of the Settings Rule which could impact its funding and ability to continue providing services. there is a conflict between the individual and their guardian provider should consult with their legal counsel.

45. How do we handle situations where the individuals we are serving are cognitively unable to understand their rights and choices under the Settings Rule?

In a situation such as this, the most important thing is that the provider and the ISC Case Manager, through the Person-Centered planning process which engages the person, attempt to explain this to an individual in their preferred form of communication. The provider and Case Manager could also look for clues as to what an individual's preference might be. For instance, someone who seems to prefer to spend their free time alone might be more inclined toward desiring a private bedroom than another individual who is more social. Or the provider might try explaining rights via pictures to engage the individual. In the end, though, the important thing is to try to explain the rights to the individual and document those efforts.

46. I want to make sure I understood the access to food for CDS. Each individual brings their lunch and snacks. We currently have breaks and lunch. Do we need to always offer access to their lunch box or offer a snack machine that can be used anytime during the day? I assume if the individual has an eating plan in place this would not apply.

The Settings Rule is clear that individuals should have full access to food. This means an individual who indicates they are hungry during a non-scheduled lunch or break time should be allowed access to their lunch box or snack machine. If an "eating plan" restricts this right to access to food at any time, it must be specifically related to their disability or health issue and documented in the person-centered plan and implementation strategy with a modification in place. This modification must be periodically revisited to ensure that the restriction is still needed and that there isn't a less intrusive means of accomplishing it.

Training Concerns

47. Will the Division be holding any trainings or education opportunities for families/guardians to learn more about the HCBS settings requirements?

The Division is looking into opportunities for training and education for families/guardians and hopes to have more information about that soon. In the meantime, Guardianship and Advocacy has put together a training for all new guardians about their role.

***Please note: The questions and answers are not intended to be exhaustive and do not constitute legal advice for your question, issue, or concern. The information provided does not, and is not intended to, constitute legal advice; instead, all information and content, are for general informational purposes only. Providers should contact their attorney to obtain advice with respect to any legal matter.