411-004-0020 Home and Community-Based Services and Settings (1) Residential and non-residential HCB settings must have all of the following qualities: (a) The setting is integrated in and supports the same degree of access to the greater community as people not receiving HCBS, including opportunities for individuals enrolled in or utilizing HCBS to: (A) Seek employment and work in competitive integrated employment settings; (B) Engage in greater community life; (C) Control personal resources; and (D) Receive services in the greater community. (b) The residential or non-residential setting is selected by an individual or, as applicable, the legal or designated representative of the individual, from among available setting options, including non-disability specific settings and an option for a private unit in a residential setting. The setting options must be: (A) Identified and documented in the person-centered service plan for the individual. (B) Based on the needs and preferences of the individual. (C) For residential settings, based on the available resources of the individual for room and board. (D) For employment and non-residential day services, a non-disability specific setting option must be presented and documented in the person-centered service plan. (c) The setting ensures individual rights of privacy, dignity, respect, and freedom from coercion and restraint. (d) The setting ensures the individual the right to freedom from restraints, except in accordance with the standards set forth in ORS 443.739, OAR chapters 309 and 411, 1915(c) HCBS Waivers, 1915(i) State Plan HCBS, or 1915(k) Community First Choice (K State Plan Option). When the right to freedom from restraints must be limited due to a threat to the health and safety of an individual or others, an individually-based limitation as described in OAR 411-004-0040 must apply in any residential or non-residential setting. (e) The setting optimizes, but does not regiment, individual initiative, autonomy, self-direction, and independence in making life choices including, but not limited to: daily activities, physical environment, and with whom the individual chooses to interact. (f) The setting facilitates individual choice regarding services and supports, and who provides the services and supports. (2) Provider owned, controlled, or operated residential settings must have all of the following qualities: (a) The setting meets all the qualities in section (1) of this rule. (b) The setting is physically accessible to an individual. (c) The unit is a specific physical place that may be owned, rented, or occupied by an individual under a legally enforceable Residency Agreement. The individual has, at a minimum, the same responsibilities and protections from an eviction that a tenant has under the landlord tenant law of the state, county, city, or other designated entity. For a setting in which landlord tenant laws do not apply, the Residency Agreement must provide protections for the individual and address eviction and appeal processes. The eviction and appeal processes must be substantially equivalent to the processes provided under landlord tenant laws. (d) Each individual has privacy in his or her own unit. (e) Units must have entrance doors lockable by the individual, with the individual and only appropriate staff having a key to access the unit. (f) Individuals sharing units must have a choice of roommates. (g) Individuals must have the freedom to decorate and furnish his or her own unit as agreed to within the Residency Agreement. (h) Each individual may have visitors of his or her choosing at any time. (i) Each individual has the freedom and support to control his or her own schedule and activities. (j) Each individual has the freedom and support to have access to food at any time. (3) The qualities of an HCB setting described in sections (1)(d) and (2)(d) to (2)(j) of this rule apply to children under the age of 18, enrolled in or utilizing HCBS, and residing in provider owned, controlled, or operated residential settings, in the context of addressing any limitations beyond what are typical health and safety precautions or discretions utilized for children of the same age without disabilities. Health and safety precautions or discretions utilized for children under the age of 18, enrolled in or utilizing HCBS, and residing in provider owned, controlled, or operated residential settings, shall be addressed through a person-centered service planning process and documented in the person-centered service plan for the child. Limitations which deviate from and are more restrictive than what is typical for children of the same age without disabilities, must comply with OAR 411-004-0040. (4) When conditions under sections (1)(d) and (2)(d) to (2)(j) of this rule may not be met due to threats to the health and safety of the individual or others, the person-centered service plan may apply an individually-based limitation with the consent of the individual or, as applicable, the legal representative of the individual, as described in OAR 411-004-0040. (5) Providers initially licensed, certified, or endorsed by DHS or OHA on or after January 1, 2016 must meet the requirements in this rule prior to being licensed, certified, or endorsed. (6) Providers licensed, certified, or endorsed prior to January 1, 2016 must make measurable progress toward compliance with these rules and be in full compliance with these rules by September 1, 2018. The Department will not issue sanctions and penalties on the rules in OAR chapter 411, division 004 until September 1, 2018 if a provider is making measureable progress towards compliance. (7) HCB settings do not include the following: (a) A nursing facility. (b) An institution as outlined in ORS 426.010. (c) An intermediate care facility for individuals with intellectual disabilities. (d) A hospital providing long-term care services. (e) Any other setting that has the qualities of an institution. (A) The following settings are presumed to have the qualities of an institution: (i) A setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment. (ii) A setting that is located in a building on the grounds of, or immediately adjacent to, a public institution. (iii) A setting that has the effect of isolating individuals receiving HCBS from the greater community. (B) In addition to the qualities under subsection (A) above, non-residential settings that isolate individuals receiving HCBS from the greater community and are presumed to have the qualities of an institution also include: (i) Facility-based prevocational settings that do not, at minimum, provide interaction with the general public. (ii) Facility or site-based non-residential day service settings that do not, at minimum, facilitate going out into the greater community. (C) A setting that is presumed to have the qualities of an institution, as described in this section, will be subject to a heightened scrutiny process. If a setting has indicators that lead the State to question their HCBS status, the setting will be given the opportunity to rebut that presumption by submitting evidence of their compliance with these regulations. Based on the evidence, the State may determine that a setting has not overcome the presumption and HCBS funding will not be utilized. If the State determines that a setting has provided adequate evidence to rebut the presumption that it has the qualities of an institution, the State will submit the evidence to CMS after a public comment period. CMS determines, based on information presented by DHS, OHA, or other parties, whether the setting is home and community-based or is institutional in nature. If CMS determines that a setting has not overcome the presumption and is institutional in nature, HCBS funding will not be utilized. Statutory/Other Authority: ORS 409.050, 413.042, 413.085 & 443.738 Statutes/Other Implemented: ORS 409.050, 413.042, 413.085 & 443.738 History: APD 15-2017, f. 6-26-17, cert. ef. 7-1-17 APD 25-2015, f. 12-28-15, cert. ef. 1-1-16 APD 23-2015, f. 12-15-15, cert. ef. 1-1-16