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Summary

INFORMATIONAL LETTER
Transmittal: 17-INF-01
To: Voluntary Provider Executive Directors
Developmental Disabilities State Operations Offices Directors
Developmental Disabilities Regional Offices Directors
Issuing Division of Person-Centered Supports
OPWDD Office: Division of Quality Improvement
Counsel’s Office
Date: March 1, 2017
Subject: Home and Community Based Settings Heightened Scrutiny Provider Self-Report
and Evidence Questionnaire
Suggested Executive Directors and Executive Staff
Distribution: Quality Assurance Staff
HCBS Waiver Program Managers
Contact: Casey Downey, Program Operations Specialist, Division of Person Centered
Supports (DPCS), Home and Community Living, (518) 486-9863
[email protected]
Attachments: Appendix A: October 13, 2015 Communication to Providers on the Home and
Community Based Settings (HCBS) Heightened Scrutiny Process and Requirements
for certified settings where waiver services are delivered
Appendix B: HCBS Settings Heightened Scrutiny Provider Evidence Questionnaire
Self-Report
Appendix B-1: Instructions and Content Guidance for OPWDD’s HCBS Settings
Heightened Scrutiny Self-Report
Appendix C: How to register for a webinar covering instructions for how to complete
the Heightened Scrutiny Provider Evidence Questionnaire Self-Report
Append D: Home and Community-Based Services (HCBS) Settings Compliance
Work Plan
Related Releases Regulatory MHL & Other Records
ADMs/INFs Cancelled Authority Statutory Authority Retention
October 13, 2015 None 42 CFR §441.301 Mental Hygiene Law 6 Years from Date
Communication to 42 CFR §441.530 Sections 13.07, of Service:
Providers on the 42 CFR §441.710 13.09(b), and 16.00 18 NYCRR 504.3(a)
Home and 14 NYCRR §633.4
Community Based 14 NYCRR
Settings (HCBS)
Heightened
Subpart 635-10
Scrutiny Process 14 NYCRR Part
and Requirements 671
for certified settings
where waiver Social Security Act
services are §1915(c), §1915(i),
delivered §1915(k)
Purpose:
The purpose of this Informational Letter is to communicate to Home and Community
Based Services (HCBS) waiver providers the evidence questionnaire and
timeframe/process for evidence submittal for each setting subject to heightened scrutiny
that is identified by OPWDD, the Department of Health (DOH) and/or its contractors, or
the provider agency

This is a continuation of the information provided in the October 13, 2015,
“Communication to Providers on the Home and Community Based Settings (HCBS)
Heightened Scrutiny Process and Requirements for certified settings where waiver
services are delivered”. See Appendix A or http://www.opwdd.ny.gov/node/6252 . The
October 13, 2015 memo outlined the criteria for determining whether a setting is subject
to heightened scrutiny. It also described the required evidence documentation for
settings subject to heightened scrutiny and noted that OPWDD would develop a
questionnaire for providers to include in their evidence package. Please note that all the
content in Appendix A (October 2015 memo) remains substantively the same except for
the timelines. The evidence questionnaire template is contained in Appendix B

All HCBS Waiver Providers must complete Appendix B no later than May 5, 2017

The revised heightened scrutiny process timeline is included in this Informational Memo

OPWDD will hold several webinars on how to complete the evidence package. See
Appendix C for times and dates and how to register for this webinar. OPWDD highly
recommends that agency Executive Directors and other applicable executive
level staff plan to attend

Background:
The Centers for Medicare and Medicaid Services (CMS) is seeking to ensure that
individuals receiving services through HCBS Medicaid waiver programs have full access
to the greater community in which they live. On March 17, 2014, CMS issued final
regulations regarding characteristics and requirements for settings in order to be
considered “home and community based” for purposes of Medicaid (42 CFR 441.301,
et. seq). The federal regulations can be found at the following link:
https://www.federalregister.gov/documents/2014/01/16/2014-00487/medicaid-program-
state-plan-home-and-community-based-services-5-year-period-for-waivers-provider

To be considered a HCBS setting, it must neither be institutional in nature nor isolate
individuals from the broader community. It must be a home or work place that is well-
integrated in the community. Federal regulations and guidance help to identify settings
that are presumed to be institutional or isolating and therefore, do not meet the
requirements of HCBS Settings. Settings that are presumed to be institutional or
isolating are subject to “heightened scrutiny”

Directions:
Appendix B, “HCBS Settings Heightened Scrutiny Evidence Questionnaire Self-
Report” is a pdf print out of the evidence questionnaire template that the provider will
use to report information for each heightened scrutiny setting electronically in
FluidSurveys that can be accessed through the internet using the following link:
http://opwddnygov.fluidsurveys.com/s/HeightenedScrutiny/
We strongly recommend that providers read all of the instructions in Appendix B prior to
getting started. The following information is a summary of the instructions

The Evidence Questionnaire Self-Report for each provider and setting subject to
heightened scrutiny must be completed electronically in FluidSurveys no later than May
5, 2017

A. All HCBS waiver providers: Complete Section A, “Agency Information”, even if
the provider does not believe they operate any heightened scrutiny settings

B. For each waiver setting subject to heightened scrutiny, the HCBS waiver
provider must self-identify which residential and non-residential settings
(excluding sheltered workshops that must close or convert) that trigger
heightened scrutiny. Providers must include:
 Settings deemed heightened scrutiny by DQI surveyors via exit
conference form or letter;
AND
 Settings not yet assessed by DQI where the provider self-identifies the
site as requiring heightened scrutiny;
AND
 Settings the provider self-identifies that they believe should have been
deemed heightened scrutiny by DQI surveyors but was not

4
Then, complete 1 questionnaire for each of these settings

1. Complete Section B through Section F of the Evidence Questionnaire Self-
Report. Do not include names or other personal/confidential information
protected by Federal and/or New York State Law when completing the survey

2. Upload a site map of the setting that clearly identifies the setting by operating
certificate number. Also identify other settings on the site map such as private
residential homes, stores, businesses, parks, etc

If a site was triggered for heightened scrutiny due to being clustered or collocated
and/or is a campus setting, identify all settings on the site map that are collocated
and/or clustered by agency, operating certificate and address

Site maps can be obtained at http://maps.google.com. Once there, click the
satellite button. Before uploading, save the image with the following naming
convention: agency-OC#-sitemap

3. Upload up to 5 pictures that depict the setting and the surrounding neighborhood

Do not include pictures or other identifying information for program participants

Before uploading, save the image with the following naming convention: agency-
OC#-pic1of5 (e.g., opwddcapitaldistrict-012345678-pic1of3)

4. Section E-1 is to be completed for all settings that triggered heightened
scrutiny. These questions are to be answered for all settings where waiver
services are delivered. Questions in Section E-2 are specific to the type of setting
(i.e., residential or day setting). Select "residential" for an assessment being
completed for a residential setting and "non-residential" for an assessment being
completed for a non-residential setting

5. Upload the setting work plan that indicates how compliance with each standard
will be achieved no later than October 1, 2018. The setting may use the work
plan format that is located on the OPWDD HCBS Settings Toolkit under
heightened scrutiny
http://www.opwdd.ny.gov/opwdd_services_supports/HCBS/hcbs-settings-toolkit,
or may use their own format as long as it includes the following:
 Action items, including timeframes to come into compliance with the
HCBS settings requirements;
 Milestones for the action item timelines;
 Responsible parties for implementing the action items;
5
 Method for tracking and monitoring the plan to ensure ongoing compliance
(e.g., self-assessment and data collection activities); and
 Other evidence demonstrating progress toward full HCBS compliance

Please note: The work plan submitted with the FluidSurveys may need to be
revised/updated if any HCBS requirement/standard is identified by DQI as “not
met” during the October 1, 2016 through September 30, 2017 survey cycle that
did not include a corresponding set of action items on the work plan uploaded
with the FluidSurveys. In this case, the provider of the setting is required to
forward an updated work plan to [email protected] no later
than 20 business days after the DQI survey visit that includes action items for the
standards/requirements that DQI identifies as “not met”

6. Section G is a narrative that enables the heightened scrutiny setting provider to
explain how the setting is home and community based including how the setting
facilitates full access for each person to the broader community. OPWDD highly
recommends that providers complete this section to demonstrate how the setting
is community integrated and overcomes the presumption that it is institutional
and/or isolating as this information will help OPWDD to make a case that the
setting is HCBS eligible. Additionally, agencies should also provide evidence
demonstrating that there is little or no interconnectedness of the administrative
and fiscal operations of co-located or adjacent settings. If the space allocated in
the FluidSurveys is not sufficient, the setting may upload additional information
using this naming convention: Agency-OC#-addinfo

7. Maintain a print out of the questionnaire, the work plan, and all supporting
documentation evidencing its effective implementation at the site or access and
verification by reviewers during the survey process or for other audits/reviews

More detailed instructions are included in Appendix B within the FluidSurveys evidence
questionnaire template. The webinars outlined in Appendix C will cover these
instructions and any questions that providers have on these requirements and the
process

In the meantime, questions can be directed to [email protected] or to
Casey Downey, Program Operations Specialist, (518) 486-9863

Next Steps, Additional Information, and Revised Timeline:
As indicated in the October 2015 Provider Communication Memo on Heightened
Scrutiny (Appendix A), all settings subject to heightened scrutiny will be reviewed by
DQI to:
6
 Determine the status of HCBS compliance;
 Verify the setting’s evidence package; and
 Validate that the setting’s HCBS compliance work plan is implemented and
achieving intended results

DQI will conduct this review during the 10/1/2017 survey cycle

DQI Survey findings for this period will be included as a component of the evidence
package to overcome the institutional presumption if the setting demonstrates
compliance and/or conscientious implementation of its work plan as applicable

If the provider is not in full compliance with HCBS settings standards and/or
implementation of an effective work plan at the time of the DQI review, the setting’s
compliance work plan must be developed/revised to include the action steps for each
area of non-compliance that the provider will take to bring the setting into full
compliance no later than October 1, 2018. This is a very important component of the
evidence package, as CMS specifies in its June 26, 2015 memo that CMS ‘will review
the information to determine whether each and every one of the qualities of a home and
community based setting outlined in 42 CFR 441.301(c)(4)/ 441.530(a) are met,
whether the state can demonstrate that persons receiving services are not isolated from
the greater community of individuals not receiving Medicaid HCBS, and whether CMS
concludes that the information indicates that there is strong evidence the setting does
not meet the criteria for a setting that has the qualities of an institution’1. If the setting
work plan previously uploaded to the FluidSurveys does not align with the areas of non-
compliance identified by DQI, the provider must resubmit the work plan to:
heightened.scrutin[email protected] no later than 20 days after the DQI survey of the
setting (beginning October 1, 2017)

Once evidence has been reviewed and accepted by OPWDD, settings supported by
OPWDD as overcoming the institutional presumption will undergo a public input process
after which OPWDD will send evidence to CMS for a final determination2

The following is a revised timeline and required action that applies to all
residential and non-residential settings where HCBS waiver services are
delivered

1
See CMS Memo dated June 26, 2015, page 2 http://www.opwdd.ny.gov/node/6253
2
CMS will review the information or documentation to ensure that all participants in the setting are afforded the
degree of community integration required by the regulation and desired by the individual. The evidence must be
sufficient to overcome the presumption that the site is institutional or isolating. If the setting withstands this
“heightened scrutiny”, it will be deemed home and community‐based

7
Heightened Scrutiny OPWDD Actions Actions Required of Voluntary and
Timeline state operated providers
October 1, 2015 through OPWDD DQI completes routine on-site Continue to make progress towards full
September 30, 2016 surveys of certified residential and non- compliance with the HCBS settings
residential settings and determines rules and person- centered planning
which ones are subject to heightened and process requirements
scrutiny

DQI reviews certified residential
settings (IRAs and CRs) for baseline
HCBS settings compliance for those
settings that are deemed subject to the
heightened scrutiny process

March 1, 2017 Distribute specific information to Complete and submit information
provider agencies on developing required for evidence package with
evidence package. copy remaining on-site for verification
by DQI

October 1, 2017 through OPWDD DQI reviews HCBS settings Continue to make progress towards full
March 2018 compliance for all heightened scrutiny compliance

settings (residential and non-
residential) and verifies provider self-
survey/evidence information. Review
information will be made public and
becomes part of the evidence package
Effective 10/1/16, HCBS settings
standards become part of routine
survey activity going forward for all
settings where waiver services are
delivered

August through September OPWDD opens heightened scrutiny Continue to make progress towards full
2018 public input process compliance

October through December OPWDD submits heightened scrutiny Continue to make progress towards full
2018 settings to CMS compliance

October 2018 OPWDD begins to enforce HCBS Full compliance required

settings requirements
8
Andrew M. Cuomo, Governor
Kerry A. Delaney, Acting Commissioner
Appendix A
MEMORANDUM
To: Provider Associations
Voluntary Provider Agency Executive Directors
DDSOO Directors
DDRO Directors
OPWDD Regulations E-Mailing List
Quality Improvement E-Mailing List
From: Megan O’Connor-Hebert, Deputy Commissioner,
Division of Quality Improvement
JoAnn Lamphere, Deputy Commissioner,
Division of Person Centered Supports
Helene DeSanto, Deputy Commissioner,
Division of Service Delivery
Roger Bearden, Deputy Commissioner and General Counsel
Date: October 13, 2015
Subject: Communication to Providers on the Home and Community Based Settings
(HCBS) Heightened Scrutiny Process and Requirements for certified
settings where waiver services are delivered:
(a) Certified Individualized Residential Alternatives (IRA) and Community
Residences (CR); and,
(b) Day Habilitation

Suggested Distribution:
Executive Level Staff
Management Staff
Quality Assurance Staff
Executive Office
44 Holland Avenue, Albany, New York 12229-0001 │ 866-946-9733 │www.opwdd.ny.gov
Purpose
The purpose of this communication is to inform providers about how OPWDD intends to
proceed with its heightened scrutiny review for certified Individualized Residential Alternatives
(IRAs), Community Residences (CRs), and Day Habilitation and the actions that providers
must comply with for the review process. This communication also includes the following:
A. Criteria for designating a setting as subject to “heightened scrutiny” in OPWDD’s service
system (Attachment A);
B. OPWDD’s process and timeline for determining whether a setting is subject to
heightened scrutiny (Attachment B); and,
C. The actions that OPWDD and providers must take when a setting is subject to
heightened scrutiny (Attachments B and C)

Please note that sheltered workshops (i.e. certified Day Training) in their current
iteration do not meet HCBS setting standards and will no longer be deemed approved
waiver settings after the conclusion of the HCBS transition period

This communication is based upon guidance to date from CMS and is subject to change, if
necessary, in order to achieve compliance with the HCBS settings rules and CMS
requirements

Background:
The Centers for Medicare and Medicaid Services (CMS) is seeking to ensure that individuals
receiving services through HCBS Medicaid waiver programs have full access to the greater
community in which they live. On March 17, 2014, CMS issued final regulations regarding
characteristics and requirements for settings in order to be considered “home and community
based” for purposes of Medicaid (42 CFR 441.301, et. seq). The federal regulations can be
found at the following link: https://www.federalregister.gov/articles/2014/01/16/2014-
00487/medicaid-program-state-plan-home-and-community-based-services-5-year-period-for-
waivers-provider

On October 20, 2014, OPWDD issued Administrative Memorandum (ADM) #2014-04, “HCBS
Preliminary Transition Plan Implementation”, applicable to OPWDD certified residential
settings, which can be found on OPWDD’s website at: http://www.opwdd.ny.gov/node/5760

This ADM describes the quality principles and standards that were assessed for a sample of
certified residential settings during the prior survey cycle (i.e. October 2014 through
Page 2 of 12
September 2015). In accordance with OPWDD’s Transition Plan, OPWDD intends to enforce
compliance with the HCBS settings standards for existing non-compliant waiver settings
beginning October 1, 2018, for both residential and non-residential settings and there is much
to be accomplished before that time

To be considered a HCBS setting, it must neither be institutional in nature nor isolate
individuals from the broader community. It must be a home, or work place, that is well-
integrated in the community. Federal regulations and guidance help to identify settings that
are presumed to be institutional or isolating and therefore, do not meet the requirements of
HCBS Settings. Settings that are presumed to be institutional or isolating are subject to
“heightened scrutiny”

States may only include settings that are presumed to be institutional or isolating in nature in
their HCBS program with the approval of CMS. CMS requires these presumed institutional
settings to undergo “heightened scrutiny” to verify that they, in fact, do not isolate individuals
from the broader community, are not institutional in nature, and meet HCBS settings
standards. The state must first determine whether the site does meet and/or can meet the
HCBS requirements; the state will then submit the basis for its determination (the “evidence
package”) to CMS. The following will assist the state with making its determination:
 Attachment A includes the criteria for designating a setting subject to heightened
scrutiny in OPWDD’s system;
 Attachment B includes the actions required of providers when a setting is subject to
heightened scrutiny and the anticipated timeline; and,
 Attachment C includes preliminary information on the evidence package that providers
operating heightened scrutiny settings will need to prepare

In addition, the state must undergo a public input process for all residential and non-residential
settings that are subject to heightened scrutiny. In accordance with CMS requirements1, this
public input process must:
 List the affected settings by name and location and identify the number of people
served in each setting;
 Be widely disseminated with the intent of reaching HCBS participants, families and the
community;
 Include any and all justifications from the state as to how the setting meets HCBS rules
and is not institutional such as any reviewer reports, interview summaries, and other
evidence;
 Provide sufficient detail such that the public has an opportunity to support or rebut the
state’s determination; and,
1
see CMS HCBS Settings Questions and Answers dated June 26, 2015
Page 3 of 12
 Provide responses to CMS from the public comments including explanations as to why
the state is or is not changing its decision

Once the public input process for heightened scrutiny is concluded, OPWDD must send
evidence that each of the heightened scrutiny settings meets/will meet HCBS settings
standards (if applicable) to CMS. According to its June 26, 2015 requirements document,
CMS will review the information or documentation to ensure that all participants in the setting
are afforded the degree of community integration required by the regulation and desired by the
individual. The evidence must be sufficient to overcome the presumption that the site is
institutional or isolating. If the setting withstands this “heightened scrutiny”, it will be deemed
home and community-based

Timeframe and Actions Required:
During the October 2015 to September 2016 survey cycle, OPWDD will review certified IRAs,
CRs, Day Habilitation and Day Training (except sheltered workshops subject to conversion or
closure) to determine which settings will be subject to heightened scrutiny. For residential
settings deemed subject to heightened scrutiny, OPWDD will also review HCBS settings
standards to obtain baseline information that is necessary in order to track progress toward full
HCBS settings compliance

The product of this review process (10/2015 - 9/2016), will be a complete inventory of settings
subject to heightened scrutiny and for residential settings, their current level of HCBS settings
compliance. During the period October 2016 to February 2017, OPWDD will review all
heightened scrutiny settings (including day settings) to determine the amount of progress
made toward full HCBS compliance. OPWDD will also collect, review and verify evidence of
compliance compiled and/or submitted by providers (see Attachment C) for heightened
scrutiny settings. These evidence packages, including the site review documentation, will be
made available for public comment, and submitted later to CMS

Also effective 10/1/2016, the HCBS settings standards and person- centered planning and
process standards will become routine elements of OPWDD’s surveys with enforcement for
non-compliance beginning October 1, 2018. Action will be taken by OPWDD, on a case-by-
case basis, for any setting that OPWDD deems unlikely to comply with the HCBS settings
standards prior to October 1, 2018

Page 4 of 12

The purpose of this Informational Letter is to communicate to Home and Community Based Services (HCBS) waiver providers the evidence questionnaire and timeframe/process for …