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PA Bulletin, Doc. No. 22-1796



Request for Public Comment on Service Locations Requiring Heightened Scrutiny

[52 Pa.B. 7219]
[Saturday, November 19, 2022]

 The Department of Human Services (Department) is making available for public review and comment the Home and Community-Based Services (HCBS) provider service locations that the Office of Developmental Programs (ODP) has determined require heightened scrutiny to determine if the setting does not have the qualities of an institution.


 On January 16, 2014, the Centers for Medicare & Medicaid Services (CMS) promulgated the HCBS Rule, which established requirements for the qualities and characteristics of settings for Medicaid HCBS provided under a 1915(c) waiver. See 42 CFR 441.301 (relating to contents of request for a waiver). The following settings, which are listed in 42 CFR 441.301(c)(5), are not acceptable HCBS settings:

 (i) A nursing facility;

 (ii) An institution for mental diseases;

 (iii) An intermediate care facility for individuals with intellectual disabilities;

 (iv) A hospital; and

 (v) Other locations that have qualities of an institutional setting as determined by the Secretary of the Federal Department of Health and Human Services.

 Section 441.301(c)(5)(v) provides that the following settings will be presumed to have the qualities of an institutional setting unless the Secretary determines through heightened scrutiny, based on information presented by the State 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:

 • A setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment,

 • A setting in a building on the grounds of, or immediately adjacent to, a public institution, or

 • Other settings that have the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS.

 To determine if a setting where Residential Habilitation, Life Sharing, Community Participation Support or Day Habilitation services are provided is presumed to have institutional characteristics which require a heightened scrutiny, the following was completed:

 • ODP staff reviewed all provider self-assessments completed in 2018 to identify service locations that providers indicated had characteristics of an institutional setting.

 • ODP staff utilized the following to analyze the service location:

 ◦ Software that maps all provider-owned or provider-operated service locations receiving ODP waiver funding as well as public and private intermediate care facilities for individuals with an intellectual disability,

 ◦ Information and maps available on the Internet,

 ◦ Addresses of skilled nursing facilities, and

 ◦ ODP staff knowledge of the service locations.

 After determining which service locations may have institutional characteristics which require heightened scrutiny, ODP staff completed onsite reviews of these service locations in partnership with Temple University's Institute on Disabilities. ODP reviewed all information from the onsite reviews and determined whether the service location met all HCBS Rule requirements, will require remediation to meet all HCBS Rule requirements, or will not meet all HCBS Rule requirements. The tools used during the onsite reviews as well as the determinations for each service location, including a summary of how each service location has or will overcome the presumption that it is an institution, is available at

 A service location that has not overcome the presumption that it is an institution by March 17, 2023, will not be submitted to CMS for a heightened scrutiny review because services provided at the location will no longer be eligible for waiver funding. Providers that own or operate these service locations, as well as all individuals receiving ODP waiver services at these locations, will be notified that the services are no longer eligible for waiver funding. Individuals receiving services at these service locations will be offered an informed choice of alternate services, settings, service locations or providers that are compliant with the HCBS Rule.

 Further information on the Statewide Transition Plan for compliance with the HBCS Rule is available at

Fiscal Impact

 There is no fiscal impact associated with the identification of service locations that require heightened scrutiny.

Public Comment

 Interested persons are invited to submit written comments regarding the proposed provider service locations requiring heightened scrutiny. Comments should be addressed to Julie Mochon, Department of Human Services, Office of Developmental Programs, 625 Forster Street, Room 510, Harrisburg, PA 17120. Comments may also be submitted to the Department at RA-PWHCBSFinalRule@ using subject header ''ODP Heightened Scrutiny.''

 Comments received within 30 days of publication of this notice will be reviewed and considered in making a final determination as to whether a service location overcomes the presumption that it has institutional characteristics.

 Persons with a disability who require an auxiliary aid or service may submit comments using the Pennsylvania Hamilton Relay Service by dialing 711 or by using one of the toll-free numbers: (800) 654-5984 (TDD users); (800) 654-5988 (voice users); (844) 308-9292 (Speech-to-Speech); or (844) 308-9291 (Spanish).

Acting Secretary

Fiscal Note: 14-NOT-1549. No fiscal impact; (8) recommends adoption.

[Pa.B. Doc. No. 22-1796. Filed for public inspection November 18, 2022, 9:00 a.m.]

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