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HCBS Settings Rule: Heightened Scrutiny

Heightened scrutiny evidentiary summaries

DHS concluded a 30-day public comment period on its findings about HCBS long-term care settings that were identified for heightened scrutiny review. DHS conducted a heightened scrutiny review process and determined there is enough evidence to show CMS that these settings are not institutional in nature and that they meet CMS's compliance requirements. The evidence from the heightened scrutiny review is documented in evidentiary summaries.

Comments received regarding specific provider settings during the February 22, 2021–March 24, 2021, public comment period have been added to that provider's evidentiary summary. Comments received that were not specific to an individual provider setting are also included.


The home and community-based services (HCBS) settings rule requirements define the qualities of settings that are eligible for reimbursement of Medicaid home and community-based services. The federal rule also assumes that certain settings are not home and community-based. These include:

  • Settings in a publicly or privately owned facility providing inpatient treatment (including skilled nursing facilities).
  • Settings on the grounds of, or adjacent to, a public institution.*
  • Settings with the effect of isolating individuals from the broader community of individuals not receiving Medicaid HCBS waiver services.

If a residential or non-residential setting meets one of the above criteria, then the setting will require additional review (heightened scrutiny) to overcome the assumption that it is not home and community-based. For example, if a community-based residential facility or an adult day care provider is located on the grounds of a public institution, it will not be considered home and community-based unless an additional review determines otherwise.

*The Centers for Medicare & Medicaid Services' (CMS) definition of public institution 42 C.F.R. § 435.1010: "Public institution" means an institution that is the responsibility of a governmental unit or over which a governmental unit exercises administrative control. For purposes of this regulation, a public institution is an inpatient facility that is financed and operated by a county, state, municipality, or other unit of government. A privately owned nursing facility is not a public institution.

States can present evidence to CMS to justify that some settings are home and community-based. The Wisconsin Department of Health Services (DHS) will determine on a case-by-case basis whether a particular setting requires further review with CMS. DHS will conduct a site visit for each setting. If DHS agrees the evidence indicates that the setting is home and community-based, DHS will provide the evidence to CMS for review. CMS will consider evidence and issue a decision.

Contact information

If you cannot find the answer to your question, send us an email or call 877-498-9525.

HCBS settings rule citation

The information provided on this page is published in accordance with 42 C.F.R. 441.301(c)(4).


Last revised October 3, 2023