SECTION 317:40-1-3. Requirements for Home and Community-Based settings

(a)   The Oklahoma Department of Human Services Developmental Disabilities Services Home and Community-Based Services (HCBS) Waiver settings have the following qualities defined in federal regulation per Section 441.301(c)(4) of Title 42 of the Code of Federal Regulations [42 CFR § 441.301(c)(4)] based on the needs of the individual defined in his or her Individual Plan (Plan).

(1)   The setting is integrated and supports full access of individuals receiving HCBS Waivers to the greater community, including opportunities to:

(A)   seek employment and work in competitive, integrated settings;

(B)   engage in community life;

(C)   control personal resources; and

(D)   receive services in the community, to the same degree as individuals not receiving Medicaid HBCS Waiver Services.

(2)   The setting is selected by the member from options including non-disability settings and an option for a private unit in a residential setting. The setting options are identified and documented in the person-centered service plan and based on individual needs and preferences.

(3)   For residential settings, the member must have income available for room and board.

(4)   The setting ensures the member's rights of privacy, dignity, respect, and freedom from coercion and restraint.

(5)   The setting optimizes individual initiative, autonomy, and independence in making life choices including, but not limited to:

(A)   daily activities;

(B)   the physical environment; and

(C)   with whom to interact.

(6)   The setting facilitates individual choice regarding services and supports, including who provides them.

(b)   In a provider-owned or controlled residential setting, in addition to the attributes specified above, the additional conditions listed in (1) through (8) of this subsection must be met.

(1)   The unit or dwelling is a specific, physical place, owned, rented, or occupied under a legally-enforceable agreement by the member receiving services.

(2)   The member has the same responsibilities and protections from eviction, that tenants have per the Residential Landlord and Tenant Act, Section 101 et. seq. of Title 41 of the Oklahoma Statutes (41 O.S. § 101, et. seq.)

(3)   In settings where landlord tenant laws do not apply, the provider agency completes a lease, residency agreement, or other form of written agreement for each member. The document provides protections that address eviction processes and appeals comparable to those provided in the Residential Landlord and Tenant Act, 41 O.S. § 101, et seq.

(4)   Each member has privacy in his or her sleeping or living unit, where:

(A)   units have entrance doors lockable by the member, with only appropriate staff having keys to doors;

(B)   members sharing units have a choice of roommates; and

(C)   members have freedom to furnish and decorate sleeping or living units within the lease or other agreement.

(5)   Each member has the freedom and support to control his or her own schedule, activities, and access to food at any time.

(6)   Members are able to have visitors of his or her choosing, at any time.

(7)   The setting is physically accessible to the member.

(8)   Any modifications of the additional conditions specified in this subsection, must be supported by a specific, assessed need, justified in the person-centered plan and includes:

(A)   an identified individualized assessed need;

(B)   documentation of the positive interventions and supports used prior to any modifications to the person-centered plan;

(C)   documentation of less intrusive methods tried, including those that did not work;

(D)   a clear description of the condition, proportionate to the specific assessed need;

(E)   regular collection and review of data to measure the ongoing effectiveness of the modification;

(F)   established time limits for periodic reviews to determine if the modification continues to be necessary or can be terminated;

(G)   the informed consent of the member; and

(H)   an assurance the interventions and supports will cause no harm to the member.

(c)   Any setting that isolates members from the broader community of individuals not receiving HCBS is not considered an HCBS. Settings that are not HCBS per 42 CFR § 441.301(c)(5)(v) include:

(1)   a nursing facility;

(2)   an institution for mental diseases;

(3)   an intermediate care facility for individuals with intellectual disabilities;

(4)   a hospital; or

(5)   any other locations with qualities of an institutional setting per 42 CFR § 441.301(c)(5)(v).

[Source: Added at 32 Ok Reg 1162, eff 8-27-15; Amended at 35 Ok Reg 1501, eff 9-14-18]