Transition Plan - New York State Department of Health
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The rule imposes further requirements on settings that are provider owned or controlled, as is often the
case with supportive housing and certain independent residential alternatives (IRAs) where individuals
receiving services through OPWDD’s Home and Community Based Services Waiver may live. The
following qualities and/or conditions must be assured in these settings:
(A) The unit or dwelling is a specific physical place that can be owned, rented or occupied under a legally
enforceable agreement by the individual receiving services, and the individual has, at a minimum, the
same responsibilities and protections from eviction that tenants have under the landlord tenant law of
the State, county, city or other designated entity. For settings in which landlord tenant laws do not
apply, the State must ensure that a lease, residency agreement or other form of written agreement will
be in place for each participant and that the document provides protections that address eviction
processes and appeals comparable to those provided under the jurisdiction's landlord tenant law.
(B) Each individual has privacy in their sleeping or living unit:
(1) Units have entrance doors lockable by the individual, with only appropriate staff having keys to doors
as needed.
(2) Individuals sharing units have a choice of roommates in that setting.
(3) Individuals have the freedom to furnish and decorate their sleeping or living units within the lease or
other agreement.
(C) Individuals have the freedom and support to control their own schedules and activities, and have
access to food at any time.
(D) Individuals are able to have visitors of their choosing at any time.
(E) The setting is physically accessible to the individual.
Finally, the rule asserts that hospitals, nursing homes, institutional care facilities (ICF) for the
developmentally disabled and institutes for mental disease are not community-based settings and
further that settings on the grounds of public or private institutions and those in close proximity to
public institutions are presumed to be institutional rather than community-based. New York State
understands that it has the burden of providing evidence to the Secretary of Health and Human Services
(HHS) if it believes that such a setting should be considered community-based for the purpose of
allowing the provision of Medicaid-funded HCBS LTSS to individuals who reside there.
New York State proposes the following time table and deliverables to come into compliance with this
rule where settings do not yet exhibit these qualities and characteristics.
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