Frequently Asked Questions:
HCBS Settings Regulation Implementation and Heightened Scrutiny Reviews of Presumptively Institutional Settings:
July 2020 Update
What is the new deadline for states to assure that all settings are in compliance with the home and community-based services (HCBS) settings criteria?
Answer: States have been granted an additional year to demonstrate compliance and should ensure all settings are in full compliance with the HCBS settings criteria by March 17, 2023. This date to demonstrate compliance replaces the March 17, 2022 timeline included in CMS guidance issued May 9, 2017.1 Several states have requested an extension to demonstrate compliance with the HCBS settings criteria due to an inability to complete site-specific assessment and remediation activities due to the COVID-19 public health emergency (PHE). Social-distancing requirements in response to the PHE are resulting in the inability to complete activities outlined in approved statewide transition plans and/or activities required to obtain final approval of those plans.
During this extension, CMS urges states to continue to identify settings in need of remediation and work on the development, approval, and implementation of their Statewide Transition Plans, including close consultation with relevant stakeholders. In light of the risks associated with congregate settings during the COVID-19 PHE, states may wish to give particular priority to those provisions of the rule regarding making available non-disability specific settings among the range of options available to individuals with disabilities, including to individuals currently residing in disability-specific congregate settings (for whom transition supports may be necessary to make the option available).
In addition, CMS reminds states that they continue to have independent obligations to comply with the Americans with Disabilities Act, Section 1557 of the Affordable Care Act, and Section 504 of the Rehabilitation Act, including their requirements under Olmstead v. L.C.2, which remain in effect during this public health emergency. Technical assistance is available from the HHS Office for Civil Rights and the Department of Justice Civil Rights Division.

What assistance is available to states to address the impact of the COVID-19 PHE on statewide transition plan activities?

Answer: States can review up-to-date guidance on flexibilities available for the delivery of HCBS on the CMS website.
 States can also avail themselves of individual and small group technical assistance from CMS, including alternative ways to gather site-specific assessment data and conduct validation activities. CMS also is available to offer assistance with approaches to gather information from beneficiaries and other stakeholders when face-to-face contact is impacted by state or local restrictions due to the COVID-19 PHE.