Illinois Department of Human Services
Division of Developmental Disabilities
This Information Bulletin (IB) outlines the requirement that all individuals receiving Home and Community Based Services (HCBS) waiver-funded services, regardless of the setting, must have access to food at any time. This includes individuals receiving services in individually-controlled Community Integrated Living Arrangements (CILAs), provider owned/controlled CILAs, Community Day Service programs (CDS), Child Group Homes (CGHs), Community Living Facilities (CLF of 16 or fewer beds) and through the Home-based Support (HBS) Services program.
The Centers for Medicare and Medicaid Services (CMS) has specific rights that must be afforded individuals receiving services funded by an HCBS waiver, regardless of the setting type. Among those rights is the expectation that waiver participants are assured access to food at any time.
Details of the HCBS Settings Rule requirements may be reviewed at 42 CFR §441.301(c)(4)(i-v) (https://www.medicaid.gov/medicaid/home-community-based-services/guidance/home-community-based-services-final-regulation/index.html) and include:
6b) Individuals have access to food at any time.
Right to Access Food at Any Time
Individuals have the right to access food at any time in their homes or at a CDS site unless there is an identified and documented safety concern. In such cases, the safety concern must be based on individually assessed needs and documented in the Personal Plan and Implementation Strategy, as indicated in the Modification section of this bulletin. A parent/guardian's desire to restrict certain kinds of food does not constitute an assessed need. A doctor's order is required to restrict an individual's diet and a modification must be put into place. See the Modification of the Access to Food at Any Time Requirement section below.
No provider may have a policy or practice that prohibits the right of an individual to access food at any time unless there is an assessed, documented safety concern, in which case the provider must follow the Human Rights Committee rules and regulations for rights restrictions and the modification requirement set out in the Settings Rule and at the end of this IB.
Access to Food in the Home
- Individuals living in a waiver funded residential setting, whether individually-controlled or provider owned/contolled or living in the family home receiving HBS services must be afforded access to foods of their choosing at any time. This includes snacks and meal items.
- The residents of a home may establish a general schedule for mealtimes (e.g., Dinner is at 6:00.). However, that schedule must be fluid based on the wants and needs of the individuals residing in the home. For instance, if an individual indicates a desire for a snack before mealtime or to have dinner at a different time, they must be afforded that opportunity. Conversely, should an individual indicate they are not hungry at mealtime, staff must not insist they eat with the other housemates and must accommodate the individual should they get hungry at a later time.
- Cabinet or refrigerator doors must not be locked, requiring individuals to ask for staff or guardian assistance to access food or snacks unless there is an assessed and documented need for modification outlined in their Personal Plan. If there are multiple individuals in the house receiving waiver services, then a provider must develop and implement a plan to assure all other individuals in the home have ready access to food at any time. This could be accomplished by giving individuals a key to the locks or using a key pad where the individuals are given a code. Requiring individuals to ask for assistance from staff to access food should only be used as a last resort and should only be a temporary solution. The provider must continue to seek other mechanisms to allow for ready access to food. Those efforts must be documented and available upon request.
- Organization meal/diet programs are only allowed if they are based on individual preferences and requests. Providers must work with individuals in the home to develop meal ideas. Individuals must be able to choose their own meals.
- Please note that providers may redirect a person who wants to eat food purchased by another individual or food that was specifically purchased for a collective meal. In this case, the individual should be offered other available food options.
Access to Food at Community Day Services (CDS)
- Individuals attending a waiver funded CDS must be afforded access to foods of their choosing at any time.
- Providers are not required to provide food at the CDS. However, if an individual indicates they are hungry at a non-designated break or lunch time, the provider must ensure they have access to food items brought from home or available through a vending machine.
Modification of the Access to Food at Any Time Requirement
- Modifications are considered a deviation from the individual's right to access food at any time. It must be supported by a specific, individually assessed need and justified in the Personal Plan. Modifications also must be reviewed by the Human Rights Committee (HRC) or Behavioral Management Committee (BMC) and must comply with the process outlined in Rules 115 and 120. The HRC manual details the process for HRC reviews. The Personal Plan and Implementation Strategy should include the following:
- Specific and individualized assessed need for which the modification is required.
- Less restrictive interventions and supports attempted without success prior to imposing any modifications.
- Data collection and review of less restrictive interventions and supports. In addition, if the modification is needed due to the presence of behaviors that pose a risk to the individual or others, include collection and review of data related to the effectiveness of methods used to reduce the undesired behavior.
- Schedule of periodic reviews of data as outlined in the Behavior Intervention And Treatment Implementation And Billing for a rights restriction.
- Assurance that interventions and supports pose no harm to the individual.
- Informed consent of the individual and the individual's guardian, if applicable.
- The prospective, or current provider agency, is responsible for providing items 1-6 above and documenting these items in the Implementation Strategy. In addition, the Implementation Strategy of all other individuals living in the home must address the specific supports that will be provided to assist them to have access to food at any time.
Responsibility of the Independent Service Coordination (ISC) Agency
- The Independent Service Coordination agency (ISC) is responsible for ensuring the Personal Plan and Implementation Strategy document the modifications at the time of initial modification and are updated as appropriate per periodic review.
The ISC will work with the provider agency to provide available supporting documentation in the Personal Plan that reflects the need for modifications.
Responsibility of the Provider in the Event of an Emergent Situation
Should a situation arise where a safety concern has been identified but there is no modification dealing with the safety concern currently in place, providers should first address the immediate concern, assuring the safety of the individual. For example, if an individual with no known food allergies suddenly breaks out into hives after eating cashews, the hives should be immediately addressed and the cashews removed from the home or, at a minimum, removed from access for this individual. Once the safety concern has been addressed, the ISC should be notified of a potential need for a modification and document that the notification has been made, as well as the steps already taken to assure the individual's safety. In addition, the provider should initiate the HRC process, where appropriate. Documenting the steps that have been taken will be important should a state or federal regulator visit the site before the modification process has been completed.
The service provider is responsible for all costs associated with initial implementation and ongoing maintenance of any special locking mechanisms required due to a modification of this Settings Rule expectation. The IDHS: Adaptive Equipment, Assistive Technology, Home and Vehicle Modification Request Process (state.il.us) information bulletin outlines the process for accessing funds for qualifying disability related needs.
If an individual, guardian or concerned person does not feel an individual is receiving services compliant with the HCBS Settings Rule, they can report this to the provider or to the ISC. They can also go through the formal HCBS Settings complaint process by using the web form: IDHS: DHS DD Services Complaints (state.il.us), email: DHS.HCBScomplaints@illinois.gov or phone number: (877) 657-0005.