42 CFR 441.301(c)(5)(v) of the HCBS Final Rule describes the process of Heightened Scrutiny as: A setting "will be presumed to be a setting that has the qualities of an institution unless the Secretary determines through heightened scrutiny, based on information presented by the State or other parties, that the setting does not have the qualities of an institution and that the setting does have the qualities of home and community-based settings."

Purpose of the Standard:

States have an obligation to identify settings that are presumed institutional. DOH requires compliance with both Prong 1 and Prong 2 for the standard to be met. If either Prong 1 or Prong 2 is found to be partially compliant or non-compliant, that site would be identified for heightened scrutiny.

CMS HCBS Settings Standard Description:

Prong 1

Is the setting in a publicly or privately operated facility that provides inpatient institutional treatment?

Compliance Criteria:

If the SADC is in a publicly or privately operated facility that provides inpatient institutional treatment, the SADC should be able to demonstrate that it operates independently of the institution.

CMS, based on evidence submitted by the State, will confirm whether a setting is not institutional and does have the qualities of home and community-based settings.

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Prong 2

Is the setting in a building on the grounds of, or adjacent to, a public institution?

Compliance Criteria:

If the SADC is located on the grounds of, or is adjacent to, a public institution, the SADC should be able to demonstrate that it operates independently of the institution.

CMS, based on evidence submitted by the State, will confirm whether a setting is not institutional and does have the qualities of home and community-based settings.

CMS HCBS Settings Standard Description:

Setting is integrated in and supports full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

Purpose of the Standard:

CMS Standard 42 CFR 441.301(c)(4)(i) is designed to measure SADC compliance in supporting members rights to community integration and how members are informed of community integration opportunities. DOH requires compliance with all eleven (11) questions below for this standard to be met.

Q1.

Does the site provide opportunities for regular meaningful activities in community settings with people who do not receive services, for the amount of time desired by members?

Compliance Criteria:

The SADC is required to offer members activities outside of the facility based on individual member preference and to document such community integration opportunities in the member's PCSP. SADCs are required to give members the opportunity and independence to access the greater community without restrictions.

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Q2:

Does the site afford opportunities for member activities that focus on the needs and desires of the members served and an opportunity for member growth?

Compliance Criteria:

The SADC must show how they provide opportunities for members within the greater community, based on individual member's desires and needs. Information regarding members interests and desires should be elicited during the Person Centered Planning (PCSP) session.

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Q3.

Is public transportation available to/from the site?

Compliance Criteria:

If the SADC is located on a bus or subway line, the members have more options to attend community engagements independently with the use of public transportation. n some areas, mass public transit is not available but other options may include taxis and rideshare such as Uber and Lyft.

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Q4.

Is information regarding transportation available to members in a convenient manner such as member handbooks, handouts, or public postings?

Compliance Criteria:

The SADC should make public transportation information such as bus and subway routes available to members to assist them to independently access the community. Information regarding taxi services and ride shares should also be available to all members.

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Q5:

Setting is integrated and support full access of members receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work/volunteer in competitive integrated settings?

Compliance Criteria:

The SADC must make employment and volunteer opportunities available to members and provide information in a conspicuous location. The SADC must also document members' preferences for volunteer and employment opportunities in their PCSP, along with any volunteer and/or employment choices if selected by the member.

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Q6:

Do the members served at this site regularly interact with members of the community (not staff or volunteers) while participating in program?

Compliance Criteria:

Members of the SADC should be able to access the community independently during program hours. If the SADC community integration activities are restricted to group outings or must be accompanied by staff regardless of their proven safety and competency, it does not meet compliance for community integration. Paid or volunteer members of the community who go to the SADC to provide socialization or entertainment (referred to as "reverse integration"), also does not demonstrate compliance for community integration.

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Q7.

Does the site allow members, who are known to be safe and competent, the freedom to move about the setting, including the freedom to go outside as they choose?

Compliance Criteria:

The SADC must allow members who are deemed safe and competent to move about the facility freely and to access outside spaces if they choose to. The SADC should not have locked doors or other devices to restrict members movements.

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Q8.

Are resources other than public transportation, including financial and staff resources, available for members during the time at the SADC to access the site and/or personalized activities that members may wish to attend in the community?

Compliance Criteria:

The SADC must demonstrate that it can provide options other than public transportation to assist members in accessing their personal interests and activities within the community.

For example:

• The SADC provides members with information about free community events.
• The SADC uses its private transportation to transport members to an activity of their choice within the community.
• Staff are available to accompany members not deemed safe or competent, in the community so they can attend a chosen activity.

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Q9.

Does the site restrict members from receiving services or engaging in activities outside of the setting?

Compliance Criteria:

The SADC must not restrict member services or restrict the members ability to engage in activities outside of the day care program during SADC hours. If there is a modification to members rights, please provide justification and details of the modification in the members PCSP.

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Q10.

Do goals, services, etc. and preferences also include items that relate to community participation, employment, income and savings, health care and wellness, and/or education?

Compliance Criteria:

The SADC Person Centered Service Plan (PCSP) must clearly indicate the individual member's community integration goals and preferred activities. The SADC PCSP must show community integration opportunities in alignment with the member's goals and preferred activities were offered, and that the member (or their representative) accepted or declined. If the member or their representative declines the activity, the SADC PCSP should include a note to indicate that an alternate activity was offered.

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Q11.

Are supports the SADC must/can supply to ensure the member can attend the opportunities and activities they selected listed?

Compliance Criteria:

The SADC PCSP must indicate any supports the member requires to engage in any activities of their choice at the SADC and for community integration activities. Please note the SADC does not need to supply all the supports, however, they do need to ensure support is coordinated.

CMS HCBS Settings Standard Description:

Setting ensures an individual's rights of privacy, dignity, respect, and freedom from coercion and restraint.

Purpose of the Standard:

CMS Standard 42 CFR 441.301(c)(4)(iii) is designed to measure the SADC's compliance with supporting individual members rights to privacy, dignity, respect and freedom from coercion and restraint, and how members are informed of these rights. To comply with this standard, DOH requires compliance with all ten (10) questions below.

Q1.

Does the site ensure member information (medical, diet information, etc.) is kept private/confidential?

Compliance Criteria:

The SADC must designate an area to securely store members' files and personal information per the Health Insurance Portability Accountability Act (HIPAA). One of the ways to do this is by keeping members information in a locked cabinet and limiting access to only persons directly involved in the member's care.

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Q2.

Are health and personal care activities, including discussions of health or personal matters, conducted in private?

Compliance Criteria:

The SADC must maintain a private area in which to conduct any sensitive or personal conversations with members.

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Q3.

Does site provide the opportunity and space for all members to do activities such as speaking on the telephone and visiting with others in private?

Compliance Criteria:

The SADC can ensure a member's right to privacy by offering space to speak on the phone or to visit with guests privately. A private space does not necessarily mean a room with a closed door, it can be a makeshift space that is created when needed or a designated area away from others.

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Q4.

Does the setting support members to: Make their own decisions? Associate with others? Access their money?

Compliance Criteria:

The SADC must allow members to make their own decisions, associate with others, and access their own money. The SADC must inform members of their rights through policies such as the Member Bill of Rights document which should be signed by the member, and notices should be placed conspicuously throughout the center.

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Q5.

Does the site provide members with flexibility in their daily schedule and activities?

Compliance Criteria:

While many daycare centers operate on a schedule to optimize efficiency in participation of onsite activities, it is important for members to know that they are not restricted by a schedule and can decide how best to spend their time at the center. It is important that members are informed of their choices upon enrollment and regularly thereafter.

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Q6.

Does the setting ensure that one or more person's behavior supports do not impede on the rights of other members?

Compliance Criteria:

The SADC must plan to ensure that individual member's rights are not obstructed based on required supports for another member's behavioral needs. If a member with dementia wanders from the SADC site, the SADC may install sound locks on the door to alert staff if member begins to wander. However, the SADC must have a process in place for other members to leave the SADC freely and does not prohibit the other members from engaging in their regular activities.

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Q7.

Does the site allow members to choose which of the site's employees provide their services?

Example: A member requests that all personal care services for her be conducted by female employees. Is that member's request met?

Compliance Criteria:

The SADC must verify if members have a staff preference upon enrollment. Should a member have preferences for staff of a certain gender or provider to assist with tasks or personal care needs, the SADC must honor their preference and have the staffing capacity to meet the request. The request should be documented in the member's PCSP and communicated to the staff.

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Q8.

Does the staff interact and communicate with people respectfully and in a manner in which the person would like to be addressed at all times?

Compliance Criteria:

SADC staff must avoid using "elderspeak" in their interactions with members, and there should be evidence that members are always addressed in a respectful manner. Members should be identified by their preferred name and in their preferred language. Please visit the Person Centered Planning and Practice Resource Library for trainings and resources related to interacting and communicating with member.

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Q9.

Does the site allow members to choose with whom they spend their time while at the setting?

Compliance Criteria:

Members who attend SADCs should have the ability to spend time with whomever they choose, and for however long they choose to. The SADC can inform members of this right by placing notices on its bulletin board or by including this right in the Members Bill of Rights.

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Q10.

Does the SADC PCSP indicate the member's rights of privacy, dignity, and respect, and freedom from coercion and restraint are maintained at all times?

Compliance Criteria:

The SADC PCSP must clearly indicate that the members rights to privacy, dignity, respect, and freedom from coercion and restraint are maintained. Compliance with this standard can be supported by policies and appropriate PCSP documentation.

For example:

• If a member prefers a male provider to assist with personal care services, the member's PCSP must indicate the member's preference. If the SADC does not have male staff and is not actively looking to hire one the MLTC plan should inform the members that they will not have the option to have a male staff.

CMS HCBS Settings Standard Description:

Setting optimizes, but does not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment, and with whom to interact.

Purpose of the Standard:

CMS Standard 42 CFR 441.301(c)(4)(iv) is designed to measure the SADC's compliance with supporting individual member rights to autonomy and independence in making life choices. To comply with this standard, DOH requires compliance with all five (5) questions below.

Q1.

Does the site have barriers to prevent members' movements such as: Gates? Locked doors? Fences?

Compliance Criteria:

Except for unsafe areas or areas designated as "staff only", members should be able to move about freely and easily access the facility.

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Q2.

Does the site offer options for members to meet physical environment goals and needs?

Compliance Criteria:

To answer this question, the SADC should consider its member capacity and physical space available for use to ensure all members physical goals and needs are met. For example, if a member has a goal documented in their PCSP of learning a dance skill at the center, the SADC must have adequate space for members to participate and engage in their preferred activity of dancing.

Members must be able to navigate designated areas while using wheelchairs or rollators.

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Q3.

Does the setting have enough staff to assist members, as needed?

Compliance Criteria:

The SADC must ensure adequate staffing levels to accommodate the number of members, activities, and preferences of members at any given time.

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Q4.

Does the site afford opportunities for individualized activities that focus on the needs and desires of the member and an opportunity for individual growth?

Compliance Criteria:

The SADC PCSP should clearly list member's interest and the activities that foster individual growth and development.

During the hours spent at the daycare center, members should be given the opportunity to engage in activities which are of interest to them and that promote growth and self-development.

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Q5.

Does the site limit the integration of the member with the community, even if there are health/safety risks which need personalized support for the member?

Compliance Criteria:

The SADC PCSP should clearly list member's interest in community integration as well as the necessary supports they may need to engage in community integration activities if there are health/safety concerns. For example, the PCSP should document member needs such as transportation coordination.

CMS HCBS Settings Standard Description:

Setting facilitates individual choice regarding services and supports, and who provides them.

Purpose of the Standard:

CMS Standard 42 CFR 441.301(c)(4)(V) is designed to measure the SADC's compliance with supporting individual members choices regarding services supports and who provides them. To comply with this standard, DOH requires compliance with the two (2) questions below.

Q1.

Does the setting ensure staff is knowledgeable about the capabilities, interests, preferences, and needs of people?

Compliance Criteria:

The SADC must present evidence that all staff are aware of individual member needs and preferences and that all members have a choice regarding their preferred services. Member preferences should be clearly communicated with all staff members and documented in the PCSP to ensure the members receive services that are aligned with their goals and preferences.

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Q2.

Does the site provide information to members about how to make a request for additional services or to make changes to their SADC PCSP?

Compliance Criteria:

The SADC must ensure members are aware of their right to modify their service plans, including updating their preferences, goals, activities, or services. The SADC must have a process in place to notify members of their right to modify their service plans, including updating their preferences, goals, activities, or services. The SADC must be able to provide evidence of this process and how members are notified of it.

Note as per Title 9 CRR-NY 6654.20the service plan must be reviewedas necessary or at least once annually.

CMS HCBS Settings Standard Description:

Setting ensures individuals have the freedom and support to control their schedules and activities; and have access to food any time.

Purpose of the Standard:

CMS Standard 42 CFR 441.301(c)(4)(vi)(c) is designed to measure the SADC's compliance with ensuring individuals have freedom and support to control their schedules and activities and to ensure they always have access to food. To comply with this standard, DOH requires compliance with all three (3) questions below.

Q1.

Does the site provide for more than one meal option and private dining space if requested by a member?

Compliance Criteria:

The SADC must have more than one meal option available to members, and the SADC must provide a space for members to dine privately if they so choose. The space can be makeshift as needed or a specially designated space.

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Q2.

Are activities adapted to members' needs and preferences?

Compliance Criteria:

The SADC must ensure that members have supportive equipment, tools, or accommodations needed to participate in their selected activities.

For example, the SADC may have magnifying glasses available to someone who has poor vision and wants to participate in the game of Bingo.

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Q3.

Are members given flexibility in when they take breaks/lunch times?

Compliance Criteria:

The SADC must provide members with access to food and drinks throughout the day and must allow for and notify members of their right to have flexibility in mealtimes.

CMS HCBS Settings Standard Description:

Setting ensures individuals are able to have visitors of their choosing at any time.

Purpose of the Standard:

CMS Standard 42 CFR 441.301(c)(4)(vi)(D) is designed to measure the SADC's compliance with supporting individual members rights to have visitors of their choosing at any time. To comply with this standard, DOH requires compliance with one (1) question below.

Q1.

Does the site allow members to have visitors of their choosing at any time?

Compliance Criteria:

The SADC Visitor policy must state clearly that visitors are allowed at any time during day care hours, and the SADC must ensure that members are aware of this policy and information.

CMS HCBS Settings Standard Description:

Setting is physically accessible to the individual.

Purpose of the Standard:

CMS Standard 42 CFR 441.301(c)(4)(vi)(E) is designed to measure the SADC's compliance with supporting individual members who may be physically challenged. DOH requires compliance with one (1) question below.

Q1.

Is the site physically accessible to the members, including access to bathrooms and break rooms?

Compliance Criteria:

The SADC must ensure that members of all abilities can access the spaces designated for the program. If there is more than one floor utilized for the SADC program, members using assistive devices must be able to access each floor of the facility. Restrooms should be large enough to accommodate wheelchairs, and spaces between tables should easily accommodate wheelchairs and rollators.

CMS HCBS Settings Standard Description:

Any modifications of the additional conditions under 441.301(c)(4)(vi)(A) through (D) for provider-owned and controlled settings must be supported by a specific assessed need and justified in the person-centered service plan.

Purpose of the Standard:

CMS Standard 42 CFR 441.301(c)(4)(vi)(F) is designed to measure the SADC's compliance with providing modifications of additional conditions. To comply with this standard, DOH requires compliance with one (1) question below.

Q1.

Does the SADC PCSP document, and appropriately justify any modification to the freedoms allotted all members via the HCBS Settings Final Rule?

Compliance Criteria:

This question pertains to documenting the justification for any modifications of the additional conditions under 441.301(c)(4)(vi)(A) through (D). All modifications to the three standards listed below must be supported by a specific assessed need and justified in the PCSP.

For example, members must always have access to snacks and drinks. However, a member with diabetes may need strict mealtimes to control their glucose levels. This is an individual modification to the standard 441.301(c)(4)(vi) (C) that must be documented (justified) in the member's PCSP.

• 441.301(c)(4)(vi)(A) and 441.301(c)(4)(vi)(B): Residential- Not applicable to SADCs.
• 441.301(c)(4)(vi)(C): Setting ensures individuals have the freedom and support to control their schedules and activities; and have access to food any time.
• 441.301(c)(4)(vi)(D): Setting ensures individuals are able to have visitors of their choosing at any time.

Purpose of the Standard:

The SADC must ensure that all volunteers and staff are trained on both federal and state regulations including person centered planning. In addition, all staff are required to be trained on SADC policies that protect members' rights. To comply with this standard, DOH requires compliance with one (1) question below.

Q1.

Do all staff and volunteers receive new hire training related to company policies, including HCBS specific policies and person-centered planning, practice and thinking?

Guidance for Compliance:

The SADC must provide evidence that all staff and volunteers have received necessary training and are aware of the requirements of the HCBS Final Rule, and how person centered planning, practice, and thinking is developed and performed. The SADC must also provide evidence that staff and volunteers are trained in their company's policies.

Purpose of the Standard:

SADC policies must be reviewed and updated at least annually to include new state and federal regulations. To comply with this standard, DOH requires compliance with one (1) question below.

Q1.

Are company policies regularly reassessed for compliance and effectiveness, and amended as necessary?

Guidance for Compliance:

The SADC must ensure all company policies and regulations are regularly updated to include the requirements of the HCBS Final Rule, state and Federal requirements, and person centered planning. The MLTC plan that is contracted with the SADC must regularly review the SADC policies.

Purpose of the Standard:

For the SADC to be compliant in this area, there must be evidence that the SADC site is Certified with the Office of the Medicaid Inspector General (OMIG) and is Registered with the New York City Office of the Aging (only if located in one of the five NYC boroughs). DOH requires compliance with the two (2) questions below.

Q 1:

Did the SADC site register with the New York City Department for the Aging (NYC Aging)? NOTE: Applicable only to SADC sites located within the 5 boroughs of NYC.

Compliance Criteria:

If the SADC is located within the five boroughs of NYC, they are required to register with the New York City Office of the Aging prior to operating. SADCs are also required to keep their contact information updated and any changes to information must be submitted no later than the effective date of the change.

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Q 2:

Has the SADC site completed its annual certification with OMIG?

Compliance Criteria:

All contracted SADC sites are required to certify with the Office of the Medicaid Inspector General (OMIG) on an annual basis per MLTC Policy 15.01a to attest to compliance with Title 9 NYCRR section 6654.20, as required under Article VII, section C of the Managed Long Term Care model contract.