CMS Released New Guidance on HCBS Final Rule Heightened Scrutiny Process

Shelley Wagar Sabo

The Centers for Medicare & Medicaid Services (CMS) released late last week new guidance on the HCBS Final Rule implementation. Specifically, the agency released new FAQs aimed at answering questions pertaining to the following issues and processes pursuant to the final rule:


  • Heightened scrutiny
  • Respite services
  • Tenancy (leases and residency agreements)
  • Residents’ access to visitors
  • Managed care arrangements
  • State flexibility


Attached is a copy of the 11-page document, of which the first nine pages is devoted to the heightened scrutiny process. In particular, it offers further details about what information states should submit to CMS for this process, what criteria CMS uses to review states’ requests for heightened scrutiny, how states can demonstrate that settings meet the HCBS characteristics, and more. The following sections of the document are worth noting: 


  • On page 4, A4: CMS offers details about what evidence state should submit in demonstrating that settings in publicly or privately owned facilities that provide inpatient treatment meet the HCBS characteristics.
  • On page 5, A5: CMS offers similar details for states that wish to demonstrate that a building located on the grounds of or immediately adjacent to a public institution meets the HCBS characteristics.
  • On page 7, A9: The document specifies about how states may conduct site visits, including (but not limited to) the following: “Look for evidence that settings have institutional characteristics, such as cameras; individual’s schedules or other personal information posted; lack of uniqueness in room décor; indicators of seclusion or restraint such as quiet rooms with locks, restraint chairs, or posters of restraint techniques; regimented meal times and other daily activities; and barriers that inhibit community member involvement, such as fences or gates…”


Please note that there is a great deal of detail in this document about heightened scrutiny.