1938

HOME AND COMMUNITY-BASED SETTING REQUIREMENTS

1938.1

All Supported Living, Supported Living with Transportation, Host Home Without Transportation, Residential Habilitation, Day Habilitation, Small Group Day Habilitation, Individualized Day Supports, Companion, Supported Employment, Small Group Supported Employment and Employment Readiness settings must:

(a) Be chosen by the person from HCBS settings options including non-disability settings. For residential settings, this includes, but is not limited to, ensuring that:

(1) People select their home and know that they have protections against eviction;

(2) People choose their roommates and know how to request a roommate change; and

(3) People who have a roommate are offered the choice of available residential settings with a private bedroom, if they have the ability to pay.

(b) Ensure people's right to privacy, dignity, and respect, and freedom from coercion and restraint. This includes, but is not limited to, ensuring that:

(1) People are provided personal care assistance in private, as appropriate;

(2) Information is provided to people on how to make an anonymous complaint;

(3) People's health and other personal information (e.g., mealtime protocols, therapy schedules) are kept private;

(4) Staff do not talk about people's private information in front of other people who do not have a right and/ or need to know; and

(5) Staff address people by their names or preferred nicknames.

(c) Be physically accessible to the person and allow the person access to all common areas. For residential settings, this includes, but is not limited to, ensuring that:

(1) People have full access to the kitchen, dining area, living room, laundry, and all other

common areas of their home; and

1. (2) The home is fully accessible to meet the needs of the people living there, including all common areas and supports as needed, such as grab bars and ramps.
2. (d) Support the person's community integration and inclusion, including relationship-building and maintenance, support for self-determination and self-advocacy;
3. (e) Provide opportunities for the person to seek employment and meaningful non-work activities in the community. This is evidenced in part by the following:
4. (1) People who desire to work are supported to pursue work in the community; and
5. (2) People engage in meaningful non-work activities in the community.
6. (f) Provide information on individual rights;
7. (g) Optimize the person's initiative, autonomy, and independence in making life choices including, but not limited to, daily activities, physical environment, and with whom to interact;
8. (h) Facilitate the person's choices regarding services and supports, and who provides them;
9. (i) Create individualized daily schedules for each person receiving supports, that includes activities that align with the person's goals, interests and preferences, as reflected in his or her ISP, in accordance with DDS guidance;
10. (j) Provide opportunities for the person to engage in community life, as evidenced in part by people being able to shop, attend religious services, schedule appointments, have lunch with friends and family, etc. in the community, as they choose;
11. (k) Provide opportunities to receive services in the community to the same degree of access as individuals not receiving Medicaid HCBS, as evidenced in part by people using community resources, such as parks, recreational centers, community health clinics, etc.;

(l) Control over his or her personal funds and bank accounts, as evidenced in part by people being able to access their funds, when they want to, and without advanced notice;

(m) Allow visitors at any time within the limits of the lease or other residency agreement;

(n) Be integrated in the community and support access to the greater community. This is evidenced in part by the following:

(1) People receive the supports they need to see family and friends and spend time doing activities of their choosing in the community; and

(2) People are encouraged to learn travel skills so that they can use public transportation.

(o) Allow full access to the greater community.

1938.2 All Supported Living, Supported Living with Transportation, Host Home Without Transportation, and Residential Habilitation settings must:

(a) Be leased in the names of the people who are being supported. If this is not possible, then the provider must ensure that each person has a legally enforceable residency agreement or other written agreement that, at a minimum, provides the same responsibilities and protections from eviction that tenants have under the relevant landlord/tenant law for that jurisdiction. This includes a responsibility to ensure that each person knows their rights regarding housing, as explained by their lease or written residency agreement, including when they could be required to relocate, and understand the eviction process and appeals rights. This provision applies equally to leased and provider owned properties;

(b) Develop and adhere to policies which ensure that each person receiving services has the right to the following:

(1) Privacy in his or her personal space, including entrances to living spaces that are lockable by the person (with staff having keys as needed). This is evidenced in part by staff knocking and receiving permission prior to entering a person's living space;

(2) Freedom to furnish and decorate his or her personal space, as evidenced in part by people's living space reflecting their taste and preferences (e.g., furniture, linens and other household items reflect people's choices), within the limits of the lease or other residency

agreement or consistent with the governing Human Care Agreement;

(3) Privacy for telephone calls, texts and/or emails, or any other form of electronic communication, e.g. FaceTime or Skype, with or without support, based on person’s preference; and

(4) Access to food at any time, as evidenced in part by:

A. Each person has meals at the time and place of his or her choosing;

B. People can request an alternative meal, if desired; and

C. Snacks are available and accessible at any time unless there is documentation of a medical condition that requires restrictions.

1938.3 All Day Habilitation, Small Group Day Habilitation, Individualized Day Supports, Supported Employment, Small Group Supported Employment, Companion and Employment Readiness settings must develop and adhere to policies which ensure that each person receiving services has the right to the following:

(a) A secure place to keep their belongings;

(b) Access to snacks at any time;

(c) Privacy for telephone calls, texts and/or emails, or any other form of electronic communication, e.g. FaceTime or Skype, with or without support, based on the person’s preference; and

(d) Meals at the time and place of a person’s choosing.

1938.4 Any deviations from the requirements in §§ 1938.1(l) and (m), 1938.2(b) and § 1938.3 must be supported by a specific assessed need, justified and documented in the person’s person-centered Individualized Support Plan, as well as reviewed and approved as a restriction by the Provider’s Human Rights Committee (HRC). There must be documentation that the Provider’s HRC review and person-centered planning meeting included discussion of the following elements:

(a) What the person’s specific individualized assessed need is that results in the restriction;

(b) What prior interventions and supports have been attempted, including less

intrusive methods;

(c) Whether the proposed restriction is proportionate to the person's assessed needs;

(d) What the plan is for ongoing data collection to measure the effectiveness of the restriction;

(e) When the HRC and the person's support team will review the restriction again;

(f) Whether the person, or his or her substitute decision-maker, gives informed consent; and

(g) Whether the HRC and the person's support team has assurance that the proposed restriction or intervention will not cause harm.

SOURCE: Final Rulemaking published at 63 DCR 10445 (August 12, 2016); as amended by Final Rulemaking published at 65 DCR 2190 (March 2, 2018).