With respect to settings under development or new construction, CMS issued guidance in 2016 that stated that CMS would only be able to determine whether a setting overcame its institutional presumption after the facility was operational and occupied by Medicaid beneficiaries who were receiving services in the setting. At this time, CMS is revising the 2016 guidance to allow the state to submit a setting to CMS for a heightened scrutiny review while only non-Medicaid beneficiaries are receiving services in the new setting. The August 2nd Bulletin from Calder Lynch, Acting Deputy Administrator and Director Center for Medicaid and CHIP Services, provides clarification and examples for this new guidance.
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