(a) A home and community-based setting is a setting in which an individual receives CLASS Program services or CFC services. A home and community-based setting must have all of the following qualities based on the needs of the individual as documented in the individual's person-centered service plan.
  (1) A home and community-based setting is integrated in and supports the individual's access to the greater community to the same degree as a person not enrolled in a Medicaid waiver program, including opportunities for the individual to:
    (A) seek employment and work in a competitive integrated setting;
    (B) engage in community life;
    (C) control personal resources; and
    (D) receive services in the community.
  (2) A home and community-based setting is selected by an individual from among setting options, including non-disability specific settings and an option for a private unit in a setting in which SFS or CFS is provided. The setting options are identified and documented in an individual's IPP and are based on the individual's needs, preferences, and, for settings in which SFS or CFS is provided, resources available for room and board.
  (3) A home and community-based setting ensures an individual's rights of privacy, dignity and respect, and freedom from coercion and restraint.
  (4) A home and community-based setting optimizes, not regiments, individual initiative, autonomy, and independence in making life choices, including choices regarding daily activities, physical environment, and with whom to interact.
  (5) A home and community-based setting facilitates individual choice regarding services and supports, and the service providers who provide the services and supports.
(b) In addition to the requirements in subsection (a) of this section, a DSA must ensure that a group setting in which prevocational services are provided:
  (1) allows an individual to:
    (A) control the individual's schedule and activities related to prevocational services;
    (B) have access to the individual's food at any time; and
    (C) receive visitors of the individual's choosing at any time; and
  (2) is physically accessible and free of hazards to an individual.
(c) If a DSA becomes aware that a modification to a requirement described in subsection (b)(1) of this section is needed based on a specific assessed need of an individual:
  (1) the DSA must:
    (A) notify the case manager of the needed modification; and
    (B) provide the case manager with the information described in paragraph (2)(A) of this subsection as requested by the case manager; and
  (2) the case manager must, if notified by the DSA of a needed modification, convene a service planning team meeting in person or by videoconferencing to update the individual's IPP to include the following:
    (A) a description of the specific and individualized assessed need that justifies the modification;
    (B) a description of the positive interventions and supports that were tried but did not work;
    (C) a description of the less intrusive methods of meeting the need that were tried but did not work;
    (D) a description of the condition that is directly proportionate to the specific assessed need;
    (E) a description of how data will be routinely collected and reviewed to measure the ongoing effectiveness of the modification;
    (F) the established time limits for periodic reviews to determine if the modification is still necessary or can be terminated;
    (G) the individual's or LAR's signature evidencing informed consent to the modification; and
    (H) the DSA's assurance that the modification will cause no harm to the individual; and
  (3) the DSA may implement the modification after the service planning team updates the IPP as required by paragraph (2) of this subsection.
(d) Except as provided in subsection (e) of this section, a program provider must ensure that CLASS Program services and CFC services are not provided in a setting that is presumed to have the qualities of an institution. A setting is presumed to have the qualities of an institution if the setting:
  (1) is located in a building in which a certified ICF/IID operated by a LIDDA or state supported living center is located but is distinct from the ICF/IID;
  (2) is located in a building on the grounds of, or immediately adjacent to a certified ICF/IID operated by a LIDDA or state supported living center;
  (3) is located in a building in which a licensed private ICF/IID, a hospital, a nursing facility, or other institution is located but is distinct from the ICF/IID, hospital, nursing facility, or other institution;
  (4) is located in a building on the grounds of, or immediately adjacent to, a hospital, a nursing facility, or other institution except for a licensed private ICF/IID; or
  (5) has the effect of isolating individuals from the broader community of persons not receiving Medicaid HCBS.
(e) A program provider may provide a CLASS Program service or a CFC service to an individual in a setting that is presumed to have the qualities of an institution as described in subsection (d) of this section, if CMS determines through a heightened scrutiny review that the setting:
  (1) does not have the qualities of an institution; and
  (2) does have the qualities of home and community-based settings.

Source Note: The provisions of this §259.59 adopted to be effective January 30, 2023, 48 TexReg 362