CMS Provides NASDDDS with Important HCBS Rule Clarifications

The Centers for Medicare and Medicaid Services (CMS) has responded in writing to a letter from NASDDDS asking for clarification regarding two issues related to the Home and Community Based Services (HCBS) rule. NASDDDS requested written clarification on two issues:  1) “that when a state determines that a program or facility does not meet the rule, that the decision rests with the state and that only when a state is requesting heightened scrutiny to include a facility in the waiver as meeting the rule, is CMS accepting information from ‘other parties;’” and 2) acknowledgment that “states have the responsibility to establish  standards for HCBS services” and  endorsement of “the use of objective criteria as part of the standards for participation.”

The first request for clarification was in response to potentially confusing language in recently released guidance on the HCBS rule. In Question 7 a Q and A document, CMS indicated that “other parties can submit information to CMS regarding whether the setting has the qualities of HCB settings or of an institution.” This statement was interpreted by some as a means of appeal to CMS to request heightened scrutiny for facilities that the state has determined do not meet the rule. CMS clarifies that “when a state submits evidence for heightened scrutiny, CMS may review information from other parties when evaluating the state’s request for and evidence submitted as part of heightened scrutiny.” (italics added)

The second request was regarding “putting limits on the size, location and characteristics of facilities.” While acknowledging that “CMS has not communicated that there should be any restriction on the type of standards states employ to define home and community based settings,” NASDDDS pointed out that “neither has there been any guidance that would acknowledge the value of objective criteria when developing standards.” The agency responded that “CMS supports a state’s development and inclusion of objective criteria as part of their standards for the evaluation of HCB services and settings.” CMS also emphasized that “a state may establish standards that are higher than the federal requirement.”

FMI: View the NASDDDS letter at Read the CMS response at An NASDDDS summary of the guidance that included the Qs and As, and a link to the guidance, is available at