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    HCBS Settings Regulation Implementation

    The January 2014 home and community-based settings final rule identified settings presumed to have institutional qualities that isolate HCBS beneficiaries from their broader community. Heightened scrutiny is the review of these settings whereby the Centers for Medicare and Medicaid Services (CMS) determines if the setting has institutional or home and community-based setting qualities. Only settings that met federal HCBS standards are eligible for Medicaid funding.

    As part of a heightened scrutiny review, the state and qualified providers can provide evidence to CMS to show a setting’s compliance with the home community-based settings rule.

    Maryland’s Heightened Scrutiny Review of Presumptively Institutional Settings

    Between 2016 and 2018, Maryland Medicaid identified heightened scrutiny sites through provider self-assessments and on-site or virtual visits according to the HCBS final rule. In March of 2019, CMS issued guidance on the settings that are subject to the heightened scrutiny process. These settings fall into three categories or "prongs” of residential or non-residential settings presumed to have institutional qualities. In October 2022, Maryland Medicaid refined their list of settings for heightened scrutiny review following this guidance.

    Prongs / Categories 

    • Prong 1: Settings that are located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment. 
      • Example:  A setting in the same building  with a nursing facility, intermediate care facility for people with intellectual disabilities, or an inpatient psychiatric center. 
    • Prong 2: Settings that are in a building located on the ground of, or immediately adjacent to, a public institution.
      • Example: A setting in the same building, on the grounds, or next to a hospital. 
    • Prong 3: Any other settings that isolates individuals receiving Medicaid home and community-based services (HCBS) from the broader community of individuals receiving Medicaid HCBS. 
      • ​Example:  A setting restricts the resident from accessing or engaging the community outside of the setting. 
    Maryland Medicaid’s Presumptive Heightened Scrutiny Review Findings

    In December 2022, the Maryland Medicaid Administration submitted the following presumptively institutional settings to CMS for a heightened scrutiny review based on the Administration’s review and on information received during the public comment period. The deadline for compliance with the HCBS settings regulation is March 17, 2023, to continue to receive Medicaid funding.

    There are no sites in prong 1 or 3.