410-173-0035 Home and Community Based Services and Setting Qualities (1) Residential and non-residential HCBS settings shall support Individuals in having the same opportunities for integration, access, choice, and rights as Individuals not accessing 1915(i) HCBS; (2) Providers of 1915(i) HCBS shall develop, implement, and maintain policies and procedures to address the following HCBS residential and non-residential setting requirements; (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 receiving 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 representative or authorized representative of the Individual, from available setting options, including non-disability specific settings and an option for a private unit in a residential setting. The setting options shall: (A) Be identified and documented in the Individual’s person-centered service plan; (B) Be based on the desires, needs, preferences, and strengths of the Individual; (C) Protect an Individual’s rights of privacy, dignity, respect, and freedom from coercion, restraint, and seclusion: (i) A physical emergency restraint as outlined in OARs 309-035-0105 and 309-040-0305 may be used to prevent immediate injury to an Individual who is in danger of physically harming themselves or others; (ii) A physical emergency restraint shall use only the degree of force reasonably necessary for protection and for the least amount of time necessary; (iii) A physical emergency restraint shall be documented and maintained in the providers records, identifying the reason for the restraint and the duration of the restraint. (D) 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; and (E) Facilitates individual choice regarding services and supports and who provides the services and supports. (c) Provider owned, controlled, or operated residential settings shall: (A) Meet all the qualities in section (1) of this rule; (B) Be physically accessible to an individual; (C) Be 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 Oregon landlord tenant law. For a setting in which landlord tenant laws do not apply, the residency agreement shall provide protections for the individual and address eviction and appeal processes. The eviction and appeal processes shall be substantially equivalent to the processes provided under landlord tenant laws; (D) Provide the Individual privacy in their own unit; (E) Provide locks on individual doors lockable by the Individual, with the Individual and only appropriate staff having a key to the unit; (F) Provide choice of roommates to Individuals sharing units; (G) Provide Individuals the freedom to decorate and furnish their own unit as agreed to within the residency agreement; (H) Allow Individuals to have visitors of their choosing at any time; (I) Provide Individuals the freedom and support to control their own schedule and activities; and (J) Provide Individuals the freedom and support to have access to food at any time. (4) Providers initially licensed or certified by the Authority on or after January 1, 2016, shall meet the requirements in these rules prior to being issued a license by the Division. (5) HCBS 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; and (e) Any other setting that has the qualities of an institution that include: (A) A setting located in a building that is also a publicly or privately-operated facility that provides inpatient institutional treatment; (B) A setting located in a building on the grounds of or immediately adjacent to a public institution; (C) A setting that has the effect of isolating individuals receiving HCBS from the greater community; or (D) A non-residential setting that isolates individuals from the greater community. (6) A setting that is presumed to have the qualities of an institution, as outlined in section (5) of this rule, shall be subject to a heightened scrutiny process. The setting shall have the opportunity to deny the presumption by submitting evidence of their compliance with these rules. Upon review of the evidence, if the Division determines: (a) A setting has not overcome the presumed qualities of an institution, 1915(i) funding may not be used; or (b) A setting has provided adequate evidence to rebut the presumption that it has the qualities of an institution, the Division shall submit the evidence to the federal Centers for Medicare and Medicaid Services (CMS) after a 30-day public comment period. If CMS determines that a setting has not overcome the presumed qualities of an institution, 1915 (i)HCBS funding may not be used. Statutory/Other Authority: ORS 409.040, 409.050, 413.032, 413.042, 413.071, 413.085, 426.500, 443.738, ORS 409.050, 427.104 & 430.662 Statutes/Other Implemented: ORS 409.040, 409.050, 413.032, 413.042, 413.071, 413.085, 426.500, 443.738, ORS 427.007, 430.610, 430.620 & 430.662 - 430.670 History: DMAP 42-2024, amend filed 02/14/2024, effective 02/29/2024 DMAP 46-2019, adopt filed 11/07/2019, effective 11/26/2019 DMAP 12-2019, temporary adopt filed 05/21/2019, effective 06/01/2019 through 11/27/2019