(a) Any setting where Medicaid HCBS are delivered must have all the following qualities and meet all the following conditions based on the needs and goals of the individual receiving HCBS as identified in his/her person-centered service plan:

1. (1) The setting must be integrated and support full access of individuals receiving HCBS to the broader community. It must support opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community with the same degree of access as the broader community.
2. (2) The setting must be selected by the individual from among setting options, including non-disability specific settings, and an option for a private home or private bedroom in a residential setting, where applicable. The setting options must be identified and documented in the person-centered service plan or other planning/service related documents and must be based on the individual’s needs, preferences and, for residential settings, resources available for room and board.
3. (3) The setting must ensure the individual’s rights of privacy, dignity, and respect, and freedom from coercion and restraint.
4. (4) The setting must optimize, and not regiment, individual initiative, autonomy, and independence in making life choices including, but not limited to, the individual’s decisions regarding daily activities, physical environment, and with whom to interact.
5. (5) The setting must facilitate individual choice regarding services and supports and who provides them.
6. (6) The individual must have freedom and support to control his or her own schedules and activities, consistent with the same or similar settings for the broader community.
7. (7) The individual must have access to food at any time, consistent with the same or similar settings for the broader community.
8. (8) The individual must be able to have visitors of his or her choosing at any time, consistent with the same or similar settings for the broader community.
9. (9) The setting must be physically accessible to the individual.

(b) In addition to those qualities and conditions described in paragraphs (a)(1) through (9) of this section, all the following conditions must be met in OPWDD-operated or provider owned or controlled residential settings:

1. (1) The individual’s residence must be 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 applicable landlord/tenant law. For a residence in which landlord/tenant laws do not apply, there must be a lease, residency agreement, or other form of written agreement for the individual that provides for eviction processes and appeals comparable to those provided under applicable landlord/tenant law.

2. (2) The individual must have privacy in his or her residence and bedroom to the extent applicable.

   1. (i) Residences and bedrooms within residences must have entrance doors lockable by the individual, with only appropriate parties having keys/access to doors as needed.
   2. (ii) The individual sharing a bedroom in an OPWDD-operated, provider owned or controlled, or certified residential setting must have a choice of roommates in that setting. In non-certified provider owned or controlled residential settings, individuals must freely choose to share their residence and have a choice of roommates in the residence and in bedrooms, where applicable.
   3. (iii) The individual must have freedom to furnish and decorate his or her residence and bedroom within the lease or other agreement.

(c) In OPWDD-operated or certified settings and other provider owned or controlled residential and non-residential settings, any modification to the qualities or conditions in paragraph (a)(6), (7), or (8) or subdivision (b) of this section must be supported by a specific assessed need, justified, and documented in the individual’s person-centered service plan or other internal guidance document(s) pursuant to section 636-1.4 of this Part. The Medicaid HCBS provider agency must maintain such documentation as required by OPWDD.

Note:

Providers subject to section 633.16 of this Title must consult that section for additional documentation requirements concerning person-centered behavioral intervention. Providers subject to section 633.4 of this Title must consult that section for documentation requirements concerning modifications of rights of individuals receiving services that are not duplicated in paragraphs (a)(6), (7), (8) and subdivision (b) of this section.

(d) HCBS settings do not include the following:

1. (1) a nursing facility;
2. (2) an institution for mental diseases;
3. (3) an intermediate care facility for individuals with intellectual disabilities (ICF/IID);
4. (4) a hospital providing long-term care services;
5. (5) a sheltered workshop that is not integrated (on or after March 17, 2022);
6. (6) a private residential school; or
7. (7) any other setting that does not pass a heightened scrutiny review process as prescribed and determined by the Centers for Medicare and Medicaid Services (CMS), DOH, and/or OPWDD.