The federal regulation for the Rule is 42 CFR 441.301(c)(4)-(5). More information can be found here www.medicaid.gov/hcbs.

All HCBS settings that are provider owned or controlled must complete a self-assessment for each service location to show the five essential characteristics (rights, choice, privacy, autonomy, and integration) of HCBS Settings Final Rule.

Below are the service codes and setting types currently considered provider owned or controlled settings in Kansas:

Service Codes and Service Types:

• HCPCS S5101 – ADULT DAY CARE
• HCPCS S5102 – ADULT DAY CARE
• HCPCS S5125 – (U9) PERSONAL SERVICES/AGENCY DIRECTED
• HCPCS S5125 – PERSONAL SERVICES CARE/AGENCY-DIRECTED
• HCPCS H2023 – SUPPORTED EMPLOYMENT
• HCPCS T2016 – ADULT RESIDENTIAL
• HCPCS T2016 – CHILDREN RESIDENTIAL
• HCPCS T2021 – DAY SUPPORTS
• HCPCS T2021 – PRE-VOCATIONAL SERVICES
• HCPCS S9485 – PROFESSIONAL RESOURCE FAMILY CARE

Settings that are not home and community based as specified in the Final Rule:

• Nursing Facility
• Institution for Mental Disease
• Intermediate Care Facilities for Individuals with Intellectual Disabilities
• Hospital
• Other locations that have qualities of an institutional setting, as determined by the Secretary.

Please check with the HCBS Compliance Team to confirm if you are still unsure of if your setting must take the assessment or not. HCBS Compliance Team contact by phone 785-296-4980 or email KDADS.FinalRule@ks.gov.

Provider self-assessments are completed using the HCBS Compliance Portal. A Provider must request and be approved by the HCBS Training Specialist for an account via the Portal. Once access to the HCBS Portal is granted, all setting assessments, remediation and ongoing monitoring will occur between the Provider and KDADS through this platform. Please request an account here.

Settings where services are truly individualized, person-centered and integrated into the broader community can be determined presumed compliant only by KDADS.

Please note that no provider should assume a setting is presumed compliant without written confirmation from KDADS through the HCBS Compliance Team. All Providers who believe a setting is presumed compliant are encouraged to contact the state about the setting to receive confirmation. HCBS Compliance Team contact by phone 785-296-4980 or email KDADS.FinalRule@ks.gov.

Yes. Settings that are presumed compliant are not required to take the provider self-assessment, however, settings/services that are presumed compliant will be monitored in the ongoing monitoring process and must maintain compliance with the HCBS Settings Final Rule. Below are two examples of presumed compliant services/setting types.

• Financial Management Services (FMS) only Providers are presumed compliant and do not have to take the assessment.
• Medical Equipment only Providers are presumed compliant and do not have to take a self-assessment.

Yes. Foster care settings for children who receive HCBS waiver supports must also be assessed for the essential characteristics of final rule. CPAs complete one assessment per agency to evaluate how the organization assures final rule compliance in all foster care homes. The CPA’s policies and procedures are reviewed, and the organization is included in ongoing monitoring.

In addition to the CPA assessment, Interviews are required of non-kinship care foster home parents and a review of the person-centered support plan of the child to further assure they receive age-appropriate person-centered services in the most integrated setting possible; and have opportunities to be an engaged member of the community as other children who do not receive HCBS.

There should always be a collective effort amongst the support team to assure the person-centered support plan (PCSP) meeting is attended by all individuals who assist in the care of the child as appropriate. A copy of the PCSP should always be available for review at the setting/placement location because it helps to lead service delivery for the waiver participant. The CPA should inquire to the assigned case manager and care coordinator to assure the PCSP is available and appropriate individuals are invited to meetings. KDADS will monitor to assure the PCSP is available at the setting.

Case managers are encouraged to attend trainings/public forums by KDADS. See KDADS.gov for additional information. Sign-up for the listserv here Home and Community Based Services (HCBS) Programs (ks.gov) to be aware of upcoming trainings.

Below are key areas where case managers can help support waiver participants regarding final rule:

• Become knowledgeable about the HCBS Settings Final Rule.
• As you help to support an individual that receives HCBS, help them inquire to their chosen Provider if they follow the Settings Final Rule and are compliant.
• Help waiver participants become familiar with the five essential characteristics of the final rule (rights, choice, privacy, autonomy, integration).
• Observe and report if you witness or are being told by a waiver participant; they are not able to go where they want, visit who they want, work where they want, live where they want, etc.
• Help educate waiver participants on how they can report or talk with others if they have concerns about their services and/or provider. HCBS Compliance Team contact by phone 785-296-4980 or email KDADS.FinalRule@ks.gov.

The average wait after March 17, 2023, will be two weeks or less. Due to the need to offer additional 1-1 assistance during the initial compliance phase before March 17, 2023, an exact estimated time is unable to be given currently. However, the goal is to assure all Providers that engage with KDADS will meet compliance.

Heightened scrutiny is an additional assessment of a setting based on physical location characteristics which might trigger institutional like service delivery or a presumption that the setting might isolate people from the broader community. There are three categories of heightened scrutiny assessed by KDADS:

• Category 1 are settings that are located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment. Examples include but are not limited to a nursing home facility, treatment center, hospital, etc.
• Category 2 are settings that are in a building located on the grounds of, or immediately adjacent to, a public institution. Examples of public institutions include but are not limited to a nursing facility, an institution for mental diseases, an intermediate care facility for individuals with intellectual disabilities, a hospital or any other locations that have qualities of an institutional setting.
• Category 3 are any other settings that have the effect of isolating individuals receiving Medicaid home and community-based services (HCBS) from the broader community of individuals not receiving Medicaid HCBS. Examples include but are not limited to clusters of like services within close vicinity, limited access of waiver participants to the broader integrated community for choice of services, recreation and social activities, etc.

Heightened scrutiny is triggered from the assessment responses and/or lack of appropriate evidence submission to meet final rule criteria. After the validation and desk review phases have been completed by KDADS, an email will be submitted to the contact person for the setting notifying them to return to the HCBS Compliance Portal to review assessment results and start required remediation.

Yes. Eventually all settings will be required to complete an onsite assessment during ongoing monitoring. The heightened scrutiny on-site assessment or virtual equivalent is mandatory to overcome the designation for settings that are in Category 1 and/or 2 to meet initial compliance. If an assessment is needed, KDADS will contact the provider to schedule a site visit.

Currently onsite visits are being completed virtually due to the continued cautions of the COVID-19 public health concerns. Eventually, onsite visits will include a hybrid of in person and virtual meetings on a setting-by-setting determination. KDADS HCBS Compliance Team will collaborate with the Provider to determine the best option.

Please visit Home and Community Based Services (HCBS) Programs (ks.gov) to sign-up for the listserv to be made aware of upcoming trainings and information meetings.

Contact the HCBS Compliance Team by phone 785-296-4980 or email KDADS.FinalRule@ks.gov.