1. (1) home and community-based settings do not include the following:

   1. (a) a nursing facility;
   2. (b) an institution for mental diseases;
   3. (c) an intermediate care facility for individuals with intellectual disabilities;
   4. (d) a hospital;

   5. (e) any other locations that have qualities of an institutional setting, as determined by the Centers for Medicare and Medicaid Services (CMS)such as:

      1. (i) any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment; and
      2. (ii) a building on the grounds of, or immediately adjacent to, a public institution;
2. (2) A setting that has the effect of isolating individuals who receive Medicaid HCBS from the broader community of individuals who do not receive Medicaid HCBS, is presumed to be a setting that has the qualities of an institution unless CMS determines through heightened scrutiny, based on information presented by the Department or other parties, that the setting does not have the qualities of an institution and that the setting does have the qualities of home and community-based settings.
3. (3) If, upon initial assessment, or any time thereafter, the Department determines that a setting does not comply with 42 CFR 441.301(c)(4)(5), the Department, or its designee, shall utilize an approved method to inform the individual of alternative settings that would comply with these requirements. If the individual elects to remain in, or receive services at a setting that does not meet these requirements, and the provider has not demonstrated compliance with the Department's corrective action plan for meeting such requirements, the individual shall not receive services under home and community-based waiver programs.
4. (4) The Department shall assess compliance with 42 CFR 441.301(c)(4)(5) as part of its process for credentialing and re-credentialing providers.

KEY: Medicaid

Date of Last Change: November 10, 2023

Notice of Continuation: May 22, 2023

Authorizing, and Implemented or Interpreted Law: 26B-1-213; 26B-3-108