1938.1 All Supported Living, Supported Living with Transportation, Host Home, Respite Daily, Residential Habilitation, Day Habilitation, Small Group Day Habilitation, Individualized Day Supports, Supported Employment, Small Group Supported Employment and Employment Readiness settings must:

1. (a) Be chosen by the person from HCBS settings options including non-disability settings;
2. (b) Ensure people's right to privacy, dignity, and respect, and freedom from coercion and restraint;
3. (c) Be physically accessible to the person and allow the person access to all common areas;
4. (d) Support the person's community integration and inclusion, including relationship-building and maintenance, support for self-determination and self-advocacy;
5. (e) Provide opportunities for the person to seek employment and 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;
10. (j) Provide opportunities for the person to engage in community life;
11. (k) Provide opportunities to receive services in the community to the same degree of access as individuals not receiving Medicaid HCBS;
12. (l) Control over his or her personal funds and bank accounts; and

(m) Allow visitors at any time.

1938.2 All Supported Living, Supported Living with Transportation, Host Home, Residential Habilitation, and Respite Daily, settings must:

(a) Be integrated in the community and support access to the greater community;

(b) Allow full access to the greater community;

(c) 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 relevant landlord/tenant law. This applies equally to leased and provider owned properties.

(d) 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 that are lockable by the person (with staff having keys as needed);

(2) Freedom to furnish and decorate his or her personal space (with the exception of Respite Daily);

(3) Privacy for telephone calls, texts and/or emails; or any other form of electronic communication, e.g. FaceTime or Skype; and

(4) Access to food at any time.

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

(a) Privacy for personal care, including when using the bathroom;

(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; 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(d) and § 1938.3 must be supported by a specific assessed need, justified in the person’s person-centered Individualized Support Plan, and reviewed and approved as a restriction by the Provider’s Human Rights Committee (HRC). There must be documentation that the Provider’s HRC review included discussion of the following elements:

1. (a) What the person's specific individualized assessed need is that results in the restriction;
2. (b) What prior interventions and supports have been attempted, including less intrusive methods;
3. (c) Whether the proposed restriction is proportionate to the person's assessed needs;
4. (d) What the plan is for ongoing data collection to measure the effectiveness of the restriction;
5. (e) When the HRC or the person's support team will review the restriction again;
6. (f) Whether the person, or his or her substitute decision-maker, gives informed consent; and
7. (g) Whether the HRC has assurance that the proposed restriction or intervention will not cause harm.

SOURCE: Final Rulemaking published at 63 DCR 10445 (August 12, 2016).