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Overview

On January 16, 2014, the Center for Medicare and Medicaid Services (CMS) published the final rule

related to Home and Community Based Settings (HBCS) for Medicaid-funded long term services and

supports provided in non-institutional residential settings under the following authorities of the Social

Services Act: 1915(c), 1915(i) and 1915(k). This rule implements a number of changes to home and

The final rule took effect March 17, 2014. States are required to submit transition plans to CMS within

one year of the effective date indicating how they intend to comply with the new requirements within a

reasonable time period. If states amend or renew any waivers or state plan amendments in place prior

to the effective date, that action serves as a trigger for the state to submit a transition plan for all its

waivers under 1915(c), as well as any state plan amendments under 1915(i) or 1915(k) within 120 days

of the initial amendment/renewal submission.

The following is New York State’s statewide transition plan pursuant to this requirement.

Background

New York State operates 12 1915(c) waivers across the four major offices that oversee programs and

services to individuals who are aged and/or physically, behaviorally, mentally, developmentally or

state plan amendment.

The following 1915(c) waivers are currently operating in New York State:

Long Term Home Health Care Program Waiver

Nursing Home Transition and Diversion Waiver

Traumatic Brain Injury Waiver

Care at Home Waivers (I, II, III, IV, and VI)

Bridges to Health (B2H) Waivers (B2H Serious Emotional Disturbances, B2H Developmental

Disabilities and B2H Medically Fragile)

OPWDD Home and Community Based Services

OMH/SED (Serious Emotional Disturbances) Children’s Waiver

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1915(k) authorities and understand that CMS does intend to apply the rule to 1115 demonstration

Most individuals receiving services through these waivers are living in their own homes or those of

family members, certain group homes or other adult care facilities where they enjoy the qualitative

benefits of receiving services in the community as opposed to in an institution. However, there are

Implementation Cabinet, which met with over 160 stakeholder groups and reviewed over 100 position

papers before releasing its report in October 2013 laying out recommendations for New York

policymakers to continue efforts to ensure that individuals with disabilities are provided the services and

supports they need that reflect their choice and support their goals to live an independent and fully

integrated life in the community.

Consistent with these efforts, New York State convened an interagency workgroup in 2014 to address

how best to comply with the requirements of the new settings rule. The group met a number of times

to ensure that a cohesive statewide transition plan was developed to address the unique needs of

individuals across a wide variety of community-based settings. The interagency workgroup includes

representatives from the Executive Chamber, DOH, OMH, OPWDD, OCFS, and OASAS. Four meetings

greater community, including opportunities to seek employment and work in competitive integrated

(ii) The setting is selected by the individual from among setting options, including non-disability specific

settings and an option for a private unit in a residential setting. The setting options are identified and

documented in the person-centered service plan and are based on the individual's needs, preferences,

and, for residential settings, resources available for room and board.

(iii) Ensures an individual's rights of privacy, dignity and respect, and freedom from coercion and

restraint.

(iv) Optimizes but does not regiment individual initiative, autonomy, and independence in making life

choices, including but not limited to, daily activities, physical environment, and with whom to interact.

(v) Facilitates individual choice regarding services and supports, and who provides them.

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The rule imposes further requirements on settings that are provider owned or controlled, as is often the

receiving services through OPWDD’s Home and Community Based Services Waiver may live. The

(A) The unit or dwelling is a specific physical place that can be owned, rented or occupied under a legally

(B) Each individual has privacy in their sleeping or living unit:

(C) Individuals have the freedom and support to control their own schedules and activities, and have

access to food at any time.

(D) Individuals are able to have visitors of their choosing at any time.

(E) The setting is physically accessible to the individual.

Finally, the rule asserts that hospitals, nursing homes, institutional care facilities (ICF) for the

developmentally disabled and institutes for mental disease are not community-based settings and

further that settings on the grounds of public or private institutions and those in close proximity to

public institutions are presumed to be institutional rather than community-based. New York State

understands that it has the burden of providing evidence to the Secretary of Health and Human Services

(HHS) if it believes that such a setting should be considered community-based for the purpose of

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September 2014 – August 2015

a. Develop detailed census of

existing settings on an agency

by agency basis;

b. Evaluate settings based on

exploratory questions in CMS

toolkit; and

c. Develop mitigation strategies

Evaluation indicating scope of

any issues.

Menu of mitigation strategies.