Section 260.59 - Requirements for Home and Community-Based Settings(a) A home and community-based setting is a setting in which an individual resides or receives DBMD Program services or CFC services. A home and community-based setting must have all of the following qualities based on the individual's strengths, preferences, and needs as documented in the individual's IPP. (1) The 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) The 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 licensed assisted living 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 licensed assisted living is provided, resources available for room and board.(3) The setting ensures the individual's rights of privacy, dignity and respect, and freedom from coercion and restraint.(4) The 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) The setting facilitates individual choice regarding services and supports and the service providers who provide the services and supports.(b) Except as provided in subsection (c) of this section, a program provider must ensure that DBMD 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.(c) A program provider may provide a DBMD 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 (b) 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.(d) A program provider must ensure that employment readiness is not provided in the residence of an individual or another person.(e) In addition to the requirements in subsection (a) of this section, a program provider must ensure that an employment readiness location: (1) allows an individual to: (A) control the individual's schedule and activities;(B) have access to the individual's food at any time; and(C) have visitors of the individual's choosing at any time; and(2) is physically accessible and free of hazards to an individual.(f) If an individual's service planning team determines that the requirements in subsection (e)(1)(A) and (B) of this section must be modified, the service planning team must: (1) revise the individual's IPP in accordance with § 260.77 of this chapter (relating to Renewal and Revision of an IPP and IPC); and(2) document on the individual's IPP: (A) a description of the specific and individualized assessed need that justifies the modification;(B) a description of any positive interventions and supports that have been tried but did not work;(C) a description of any less intrusive methods of meeting the need that have been 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 program provider's assurance that the modification will cause the individual no harm.(g) After the service planning team updates the IPP as required by subsection (f) of this section, the program provider must implement the modifications.26 Tex. Admin. Code § 260.59
Adopted by Texas Register, Volume 48, Number 07, February 17, 2023, TexReg 0907, eff. 2/26/2023; Amended by Texas Register, Volume 49, Number 51, December 20, 2024, TexReg 10347, eff. 1/1/2025