HCBS settings rule rights modification FAQ

Rights modification applies to all provider-owned and -controlled residential settings. This includes customized living, foster care (corporate and family) and supported living services (SLS). This does not include SLS provided to people in their own homes.

No, rights modifications are not applicable to people who live in their own homes or in their family’s home. Rights modifications need to be documented only for people who live in provider-owned and -controlled residential settings.

No, the rights modification form only applies to provider-owned and -controlled residential settings. DT&H providers are licensed under Minnesota Statutes, chapter 245D. The requirements of chapter 245D.04, subdivision 3, paragraph (c) still apply.

Rights modification applies to all people who live in provider-owned and -controlled residential settings. If there are rights modifications because of the health and safety needs of the person, the provider needs to document them. See “Documenting rights modifications and using the HCBS rights modification support plan (DHS-7176H)” (below) for more information.

Regardless of setting, parents or other legal guardians have the legal authority to modify a person’s rights. For the purposes of the rights modification, a parent’s authorization to modify the rights of his or her child living in a qualified setting should be documented, as it is part of the support-planning process. Regardless of age, the provider should know what rights should be modified based on health and safety needs of the person.

People who use CDCS cannot receive services in provider-controlled residential settings; therefore, the rights-modification process does not apply.

This is not a scenario that requires a provider to follow the rights-modification process. The HCBS settings rule does not define how much community access people must have; however, it does require people to have equal access to the same community resources and activities as the greater community. Providers should not have policies or rules that restrict or obstruct community access. It is critical to ensure service and support delivery practices do not isolate people from the community.

This is not a scenario that requires the provider to follow the rights modification-process. The rights modification does not depend on staff supervision, either assessed or court-mandated. Rather, rights modifications are only related to privacy in sleeping unit, lockable doors, choice of roommate, access to food at any time and having visitors at any time.

With the education and consent required through the video-monitoring process, the rights modification is not required. There is a video-monitoring process to follow before installing cameras. The person or his or her guardian must agree to the use of cameras for supervision before a provider uses cameras. See CBSM – Monitoring Technology for further details.

The HCBS rule starts with the expectation that each person has the right to a lockable door. A setting cannot have a blanket policy that modifies the rights of everyone in that setting. Each person must have an individualized assessed health and safety need documented in his/her plan to modify this right.

If you are a residential services provider and have identified a health and safety risk to a person in your care, you need to collect documentation of the risk and contact the person’s case manager/care coordinator. The case manager/care coordinator will work with the person, you and other members of the person-centered planning team to ensure the appropriate information is documented on the person’s support plan and the person has been informed and consented to the modification.

No. Providers licensed under Minnesota Statutes chapter 245D have additional rights requirements and specific rights-restriction processes that they must follow. The rights people have that can be restricted when services are licensed under 245D are broader than what is required under the HCBS settings rule. Rights restrictions are provider maintained. Rights modifications are maintained by the case manager.

Yes. They may also use the document to ensure the HCBS standards are met for rights modifications (Part C of HCBS Rights Modification Support Plan Attachment, DHS-7176H (PDF)). Providers licensed under 245D may attach a version of the HCBS Service Recipient Rights Restrictions (DOC) as documentation for this section. Adult Foster Care providers licensed under 245A/Rule 203 may use the Individual Abuse Prevention Plan (PDF).

No, providers licensed under Minnesota Statutes chapter 245D follow a separate rights-restriction process.

The rights-modification process is a federal requirement of the HCBS settings rule. The rights-restriction process is a Minnesota licensing requirement under Chapter 245D. Providers who are not licensed under 245D do not need to complete a 245D rights restriction document. 

Additional differences include: 

• The rights people have (and that may be restricted) when services are licensed under 245D are broader than what is required under the HCBS settings rule. 
• The rights-modification form is initiated, monitored and maintained by the case manager while the rights-restriction form is provider-initiated, -monitored and -maintained. 
• 245D rights restrictions are documented in the CSSP and the CSSP addendum. HCBS rights modification is maintained by the case manager and attached to the person’s support plan.

You use the HCBS rights-modification support plan attachment anytime you modify one of the identified HCBS settings rule rights: privacy in sleeping unit, lockable doors, choice of roommate, access to food at any time and to have visitors at any time.

The rights modifications must be documented in the person’s support plan. This can be done using the HCBS Rights Modification Support Plan Attachment, DHS-7176H. Lead agencies and providers may also develop their own documentation forms.

No. The form created by DHS contains all required elements and provides a template for lead agencies and providers. A lead agency may develop its own rights-modification form as long as it includes all of the elements described in HCBS Rights Modification Support Plan Attachment, DHS-7176H, parts A, B and D. Providers may use their own rights-modification forms as long as they include the elements described in the HCBS rights modification support plan attachment part C: 

• Identify how the right will be modified in the least restrictive manner.
• Describe the positive interventions, less-intrusive methods and supports that were tried and did not work before there were modifications of the person’s rights. 
• Identify the objective measures set as conditions for ending the modification (meaning how and when everyone will know the person’s rights must be restored).
• Identify the schedule for reviewing the need for the modification for each right. Base the schedule on the conditions for ending the restriction.

DHS created a video, Tutorial for the HCBS Rights Modification Support Plan Attachment (DHS-7176H).

People, and/or their guardian as applicable, have the right to refuse to sign the rights-modification form. Ensure that the completed form without person’s and/or guardian’s signature is on file with the case manager. Document in the CSSP the steps taken to obtain the person’s signature. The case manager / care coordinator, provider and person and/or guardian as applicable will then need to assess, based on the risk factor, how they can continue to meet the person’s health and safety needs.