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Oregon Bulletin

January 1, 2014

Department of Human Services, Aging and People with Disabilities and Developmental Disabilities, Chapter 411

Rule Caption: Medicaid Home and Community-Based Services

Adm. Order No.: SPD 44-2013

Filed with Sec. of State: 12-13-2013

Certified to be Effective: 12-15-13

Notice Publication Date: 11-1-2013

Rules Amended: 411-001-0510, 411-030-0070, 411-030-0100, 411-040-0000, 411-045-0010, 411-045-0050, 411-048-0150, 411-048-0160, 411-048-0170, 411-065-0000, 411-070-0033

Rules Repealed: 411-001-0510(T), 411-030-0070(T), 411-030-0100(T), 411-040-0000(T), 411-045-0010(T), 411-045-0050(T), 411-048-0150(T), 411-048-0160(T), 411-048-0170(T), 411-065-0000(T), 411-070-0033(T)

Subject: The Department of Human Services is permanently amending the rules for Aging and People with Disabilities in OAR chapter 411 to make permanent the changes adopted by temporary rule that became effective on July 1, 2013 as a result of a change in Medicaid funding for community-based services.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-001-0510

Lay Representation in Contested Case Hearings

(1) Subject to the approval of the Attorney General, an officer or employee of the Department of Human Services (Department) is authorized to appear on behalf of the Department in the following types of hearings conducted by the Office of Administrative Hearings:

(a) Eligibility for services available through a waiver or state plan administered by the Department’s Aging and People with Disabilities (APD) or Developmental Disabilities (DD), including but not limited to the level or amount of benefits, and effective date;

(b) Eligibility for medical benefits, the level and amount of benefits, and effective date;

(c) Overpayments related to waivered or state plan service benefits or medical benefits;

(d) Suspension, reduction, or denial of medical assistance services, prior authorizations, or medical management decisions; and

(e) Consumer-employed provider matters, including but not limited to provider enrollment or denial of enrollment, overpayment determinations, audits, and sanctions.

(2) A Department officer or employee acting as the Department’s representative may not make legal argument on behalf of the Department.

(a) “Legal argument” includes arguments on:

(A) The jurisdiction of the Department to hear the contested case;

(B) The constitutionality of a statute or rule or the application of a constitutional requirement to the Department; and

(C) The application of court precedent to the facts of the particular contested case proceeding.

(b) “Legal argument” does not include presentation of motions, evidence, examination and cross-examination of witnesses, or presentation of factual arguments or arguments on:

(A) The application of the statutes or rules to the facts in the contested case;

(B) Comparison of prior actions of the Department in handling similar situations;

(C) The literal meaning of the statutes or rules directly applicable to the issues in the contested case;

(D) The admissibility of evidence; and

(E) The correctness of procedures being followed in the contested case hearing.

(3) When an officer or employee appears on behalf of the Department, the administrative law judge shall advise the Department’s representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection.

(4) If the administrative law judge determines that statements or objections made by the Department representative appearing under section (1) of this rule involve legal argument as defined in this rule, the administrative law judge shall provide reasonable opportunity for the Department representative to consult the Attorney General and permit the Attorney General to present argument at the hearing or to file written legal argument within a reasonable time after conclusion of the hearing.

(5) The Department is subject to the Code of Conduct for Non-Attorney Representatives at Administrative Hearings, which is maintained by the Oregon Department of Justice and available at http://www.doj.state.or.us. A Department representative appearing under section (1) of this rule must read and be familiar with the Code of Conduct for Non-Attorney Representatives at Administrative Hearings.

(6) When a Department officer or employee represents the Department in a contested case hearing, requests for admission and written interrogatories are not permitted.

Stat. Auth: ORS 409.050

Stats Implemented: ORS 183.452 & 409.010

Hist.: SPD 6-2013, f. & cert. ef. 4-2-13; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-030-0070

Maximum Hours of Service

(1) LEVELS OF ASSISTANCE FOR DETERMINING SERVICE PLAN HOURS.

(a) “Minimal Assistance” means an individual is able to perform the majority of an activity, but requires some assistance from another person.

(b) “Substantial Assistance” means an individual is able to perform only a small portion of the tasks that comprise an activity without assistance from another person.

(c) “Full Assistance” means an individual needs assistance from another person through all phases of an activity, every time the activity is attempted.

(2) MAXIMUM MONTHLY HOURS FOR ADL.

(a) The planning process uses the following limitations for time allotments for ADL tasks. Hours authorized must be based on the service needs of an individual. Case managers may authorize up to the amount of hours identified in these assistance levels (minimal, substantial, or full assist).

(A) Eating:

(i) Minimal assistance, 5 hours;

(ii) Substantial assistance, 20 hours;

(iii) Full assistance, 30 hours.

(B) Dressing/Grooming:

(i) Minimal assistance, 5 hours;

(ii) Substantial assistance, 15 hours;

(iii) Full assistance, 20 hours.

(C) Bathing and Personal Hygiene:

(i) Minimal assistance, 10 hours;

(ii) Substantial assistance, 15 hours;

(iii) Full assistance, 25 hours.

(D) Mobility:

(i) Minimal assistance, 10 hours;

(ii) Substantial assistance, 15 hours;

(iii) Full assistance, 25 hours.

(E) Elimination (Toileting, Bowel, and Bladder):

(i) Minimal assistance, 10 hours;

(ii) Substantial assistance, 20 hours;

(iii) Full assistance, 25 hours.

(F) Cognition/Behavior:

(i) Minimal assistance, 5 hours;

(ii) Substantial assistance, 10 hours;

(iii) Full assistance, 20 hours.

(b) Service plan hours for ADL may only be authorized for an individual if the individual requires assistance (minimal, substantial, or full assist) from another person in that activity of daily living as determined by a service assessment applying the parameters in OAR 411-015-0006.

(c) For households with two or more eligible individuals, each individual’s ADL service needs must be considered separately. In accordance with section (3)(c) of this rule, authorization of IADL hours is limited for each additional individual in the home.

(d) Hours authorized for ADL are paid at hourly rates in accordance with the rate schedule. The Independent Choices Program cash benefit is based on the hours authorized for ADLs paid at the hourly rates. Participants of the Independent Choices Program may determine their own employee provider pay rates.

(3) MAXIMUM MONTHLY HOURS FOR IADL.

(a) The planning process uses the following limitations for time allotments for IADL tasks. Hours authorized must be based on the service needs of an individual. Case managers may authorize up to the amount of hours identified in these assistance levels (minimal, substantial, or full assist).

(A) Medication and Oxygen Management:

(i) Minimal assistance, 2 hours;

(ii) Substantial assistance, 4 hours;

(iii) Full assistance, 6 hours.

(B) Transportation or Escort Assistance:

(i) Minimal assistance, 2 hours;

(ii) Substantial assistance, 3 hours;

(iii) Full assistance, 5 hours.

(C) Meal Preparation:

(i) Minimal assistance prior to January 1, 2012:

(I) Breakfast, 4 hours;

(II) Lunch, 4 hours;

(III) Supper, 8 hours.

(ii) Minimal assistance effective January 1, 2012:

(I) Breakfast, 3 hours;

(II) Lunch, 3 hours;

(III) Supper, 7 hours.

(iii) Substantial assistance prior to January 1, 2012:

(I) Breakfast, 8 hours;

(II) Lunch, 8 hours;

(III) Supper, 16 hours.

(iv) Substantial assistance effective January 1, 2012:

(I) Breakfast, 7 hours;

(II) Lunch, 7 hours;

(III) Supper, 14 hours.

(v) Full assistance prior to January 1, 2012:

(I) Breakfast, 12 hours;

(II) Lunch, 12 hours;

(III) Supper, 24 hours.

(vi) Full assistance effective January 1, 2012:

(I) Breakfast, 10 hours;

(II) Lunch, 10 hours;

(III) Supper, 21 hours.

(D) Shopping:

(i) Minimal assistance, 2 hours;

(ii) Substantial assistance, 4 hours;

(iii) Full assistance, 6 hours.

(E) Housecleaning:

(i) Minimal assistance:

(I) Prior to January 1, 2012, 5 hours.

(II) Effective January 1, 2012, 4 hours.

(ii) Substantial assistance:

(I) Prior to January 1, 2012, 10 hours.

(II) Effective January 1, 2012, 9 hours.

(iii) Full assistance:

(I) Prior to January 1, 2012, 20 hours.

(II) Effective January 1, 2012, 18 hours.

(b) Rates are paid in accordance with the rate schedule.

(A) When a live-in employee is present, IADL hours may be paid at less than minimum wage according to the Fair Labor Standards Act.

(B) The Independent Choices Program cash benefit is based on the hours authorized for IADL tasks paid at the hourly rates. Participants of the Independent Choices Program may determine their own employee provider pay rates.

(c) When two or more individuals eligible for IADL task hours live in the same household, the assessed IADL need of each individual must be calculated. Payment is made for the highest of the allotments and a total of four additional IADL hours per month for each additional individual to allow for the specific IADL needs of the other individuals.

(d) Service plan hours for IADL tasks may only be authorized for an individual if the individual requires assistance (minimal, substantial, or full assist) from another person in that IADL task as determined by a service assessment applying the parameters in OAR 411-015-0007.

(4) TWENTY-FOUR HOUR AVAILABILITY.

(a) Payment for 24-hour availability is authorized only when an individual employs a live-in homecare worker or Independent Choices Program employee provider and requires 24-hour availability due to the following:

(A) The individual requires assistance with ADL or IADL tasks at unpredictable times throughout most 24-hour periods; and

(B) The individual requires minimal, substantial, or full assistance with ambulation and requires assistance with transfer (as defined in OAR 411-015-0006); or

(C) The individual requires full assistance in transfer or elimination (as defined in OAR 411-015-0006); or

(D) The individual requires full assist in at least three of the eight components of cognition/behavior (as defined in OAR 411-015-0006).

(b) The number of hours allowed per month shall have the following maximums. Hours authorized are based on the service needs of an individual. Case managers may authorize up to the amount of hours identified in these assistance levels (minimal, substantial, or full assist).

(A) Minimal assistance — 60 hours. Minimal assistance hours may be authorized when an individual requires one of these assessed needs as defined in OAR 411-015-0006:

(i) Full assist in cognition; or

(ii) Full assist in toileting or bowel or bladder.

(B) Substantial assistance — 110 hours. Substantial assistance hours may be authorized when an individual requires these assessed needs as defined in OAR 411-015-0006:

(i) Assist in transfer; and

(ii) Assist in ambulation; and

(iii) Full assist in cognition; or

(iv) Full assist in toileting or bowel or bladder.

(C) Full assistance — 159 hours. Full assistance hours may be authorized when:

(i) The authorized provider is unable to get at least five continuous hours of sleep in an eight hour period during a 24-hour work period; and

(ii) The eligible individual requires the following assessed needs as defined in OAR 411-015-0006:

(I) Full assist in transfer; and

(II) Assist in mobility; or

(III) Full assist in toileting or bowel or bladder; or

(IV) Full assist in cognition.

(c) Service plans that include full-time live-in homecare workers or Independent Choices Program employee providers must include a minimum of 60 hours per month of 24-hour availability.

(A) When a live-in homecare worker or Independent Choices Program employee provider is employed less than full time, the hours must be pro-rated.

(B) Full-time means the live-in homecare worker is providing services to the consumer-employer seven days per week throughout a calendar month.

(d) Rates for 24-hour availability are in accordance with the rate schedule and paid at less than minimum wage according to the Fair Labor Standards Act and ORS 653.020.

(e) Twenty-four hour availability assumes the homecare worker is available to address the service needs of an individual as they arise throughout a 24-hour period. A homecare worker who engages in employment outside the eligible individual’s home or building during the work periods the homecare worker is on duty, is not considered available to meet the service needs of the individual.

(5) A provider may not receive payment from the Department for more than the total amount authorized by the Department on the service plan authorization form under any circumstances. All service payments must be prior-authorized by a case manager.

(6) AUTHORIZED HOURS ARE SUBJECT TO THE AVAILABILITY OF FUNDS. Case managers must assess and utilize as appropriate, natural supports, cost-effective assistive devices, durable medical equipment, housing accommodations, and alternative service resources (as defined in OAR 411-015-0005) to reduce an individual’s reliance on paid in-home services hours.

(7) The Department may authorize paid in-home services only to the extent necessary to supplement potential or existing resources within an individual’s natural supports system.

(8) Payment by the Department for Medicaid home and community-based services are only made for the tasks described in this rule as ADL, IADL tasks, and 24-hour availability. Services must be authorized to meet the needs of an eligible individual and may not be provided to benefit an entire household.

(9) EXCEPTIONS TO MAXIMUM HOURS OF SERVICE.

(a) To meet an extraordinary ADL service need that has been documented, the hours authorized for ADL may exceed the full assistance hours (described in section (2) of this rule) as long as the total number of ADL hours in the service plan does not exceed 145 hours per month.

(b) Monthly service payments that exceed 145 ADL hours per month may be approved by the Department when the exceptional payment criteria identified in OAR 411-027-0020 and 411-027-0050 is met.

(c) Monthly service plans that exceed 145 ADL, 76 IADL, and 159 24-hour availability hours per month for a live-in homecare worker or Independent Choices Program employee provider, or that exceed the equivalent monthly service payment for an hourly services plan, may be approved by the Department when the exceptional payment criteria identified in OAR 411-027-0020 and 411-027-0050 is met.

(d) As long as the total number of IADL task hours in the service plan does not exceed 76 hours per month and the service need is documented, the hours authorized for IADL tasks may exceed the hours for full assistance (as described in section (3) of this rule) for the following tasks and circumstances:

(A) Housekeeping based on medical need (such as immune deficiency);

(B) Short-term extraordinary housekeeping services necessary to reverse unsanitary conditions that jeopardize the health of an individual; or

(C) Extraordinary IADL needs in medication management or service-related transportation.

(e) Monthly service plans that exceed 76 hours per month in IADL tasks may be approved by the Department when an individual meets the exceptional payment criteria identified in OAR 411-027-0020 and 411-027-0050.

[ED. NOTE: Forms referenced are available from the agency.]

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

Hist.: SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SSD 6-1994, f. & cert. ef. 11-15-94; SDSD 8-1999(Temp), f. & cert. ef. 10-15-99 thru 4-11-00; SDSD 3-2000, f. 4-11-00, cert. ef. 4-12-00; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 24-2011(Temp), f. 11-15-11, cert. ef. 1-1-12 thru 6-29-12; SPD 6-2012, f. 5-31-12, cert. ef. 6-1-12; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-030-0100

Independent Choices Program

(1) The Independent Choices Program (ICP) is an In-Home Services Program that empowers participants to self-direct their own service plans and purchase goods and services that enhance independence, dignity, choice, and well-being.

(2) The ICP is limited to a maximum of 2,600 participants.

(a) The Department establishes and maintains a waiting list for individuals eligible for in-home services requesting ICP after the ICP has reached its maximum.

(b) The Department enters names on the waiting list according to the date submitted by the Department/AAA office.

(c) As vacancies occur, eligible individuals on the waiting list are offered the ICP according to his or her place on the waiting list.

(d) Individuals on the waiting list may receive services through other appropriate Department programs for which they are eligible.

(3) INITIAL ELIGIBILITY REQUIREMENTS.

(a) To be eligible for the ICP an individual must:

(A) Meet all requirements for in-home services as described in these rules;

(B) Develop a service plan and budget to meet the needs identified in his or her CA/PS assessment;

(C) Sign the ICP participation agreement;

(D) Have or be able to establish a checking account;

(E) Provide evidence of a stable living situation for the past three months; and

(F) Demonstrate the ability to manage money as evidenced by timely and current utility and housing payments.

(b) If a participant is unable to direct and purchase his or her own in-home services, the participant must have a representative to act on the participant’s behalf. The “representative” is the person assigned by the participant to act as the participant’s decision maker in matters pertaining to the ICP service plan and service budget. A representative must:

(A) Complete a background check pursuant to OAR chapter 407, division 007 and receive a final fitness determination of approval; and

(B) Sign and adhere to the “Independent Choices Program Representative Agreement” on behalf of the participant.

(c) If a participant is unable to manage ICP cash payment accounting, tax, or payroll responsibilities and does not have a representative, the participant must arrange and purchase the ongoing services of a fiscal intermediary, such as an accountant, bookkeeper, or equivalent financial services.

(A) A participant, or the participant’s representative who has met the eligibility criteria in subsection (b) of this section, may also choose to use a fiscal intermediary.

(B) The participant is responsible for any fees or payment to the fiscal intermediary and may allocate the fees or payment from discretionary funds or other non-ICP funds.

(4) DISENROLLMENT CRITERIA. Participants may be disenrolled from the ICP voluntarily or involuntarily. Participants who are disenrolled from the ICP may not reapply for six months. After the six month disenrollment period, an individual may re-enroll and must meet all ICP eligibility requirements. If the ICP enrollment cap has been reached, participants who were disenrolled are added to the waiting list.

(a) VOLUNTARY DISENROLLMENT. Participants or representatives must provide notice to the Department of intent to discontinue participation in the ICP. The participant or the representative must meet with the Department to reconcile remaining ICP cash payment either within 30 days of the date of disenrollment or before the termination date, whichever is sooner.

(b) INVOLUNTARY DISENROLLMENT. The participant may be involuntarily disenrolled from the ICP when the participant, representative, or employee provider does not adequately meet the participant’s service needs or carry out the following ICP responsibilities:

(A) Non-payment of employee’s wages, as stated in the service budget.

(B) Failure to maintain the participant’s health and well-being by obtaining personal care as evidenced by:

(i) Decline in functional status due to the failure to meet the participant’s needs; or

(ii) Substantiated complaints of self-neglect, neglect, or other abuse on the part of the employee provider or representative.

(C) Failure to purchase goods and services according to the participant’s service plan;

(D) Failure to comply with the legal or financial obligations as an employer;

(E) Failure to maintain a separate ICP checking account or commingling ICP cash benefit with other assets;

(F) Inability to manage the cash benefit as evidenced by two or more incidents of overdrafts of the participant’s ICP checking account during the last cash benefit review period;

(G) Failure to deposit monthly service liability payment into the ICP checking account;

(H) Failure to maintain an individualized back-up plan (as part of the participant’s service plan) resulting in a negative consequence;

(I) Failure to sign or follow the ICP Participation Agreement; and

(J) Failure to select a representative within 30 days if a participant needs a representative and does not have one.

(5) INTERRUPTION OF SERVICES. The ICP cash benefit is terminated when a participant is absent from the home for longer than 30 days due to illness or medical treatment. The cash benefit may resume upon the participant’s return to the home, providing ICP eligibility criteria is met.

(6) SELECTION OF EMPLOYEE PROVIDERS.

(a) The participant or representative carries full responsibility for locating, screening, interviewing, hiring, training, paying, and terminating employee providers. The participant or representative must comply with Immigration and Customs Enforcement laws and policies.

(b) The participant or representative must assure the employee provider’s ability to perform or assist with ADL, IADL, and twenty-four hour availability needs.

(c) Employee providers must complete a background check pursuant to OAR chapter 407, division 007. If a record of a potentially disqualifying crime is revealed, the participant or representative may employ the provider at the participant’s or representative’s discretion.

(d) A representative may not be an employee provider regardless of relationship to the participant.

(e) A participant’s relative may be employed as an employee provider.

(7) CASH BENEFIT.

(a) The cash benefit is determined based on the participant’s CA/PS assessment of need, service plan, level of assistance standards in OAR 411-030-0070, and natural supports.

(b) The cash benefit is calculated by adding the ADL task hours, the IADL task hours, and the twenty-four hour availability hours that the participant is eligible for as determined in the CA/PS assessment, at the rates according to the Department’s rate schedule.

(c) The following services, which are approved by the case manager and paid for by the Department, are excluded from the ICP cash benefit:

(A) Long-term care community nursing;

(B) Contracted community transportation;

(C) Medicaid home delivered meals; and

(D) Emergency response systems.

(d) The cash benefit includes the employer’s portion of required FICA, FUTA, and SUTA.

(e) The cash benefit is directly deposited into a participant’s ICP designated checking account.

(8) SERVICE BUDGET.

(a) The service budget must identify the cash benefit, the discretionary and contingency funds if applicable, the reimbursement to an employee provider, and all other expenditures. The service budget must be initially approved by a Department/AAA case manager.

(b) The participant may amend the service budget as long as the amendments relate to meeting the participant’s service needs and are within ICP program guidelines.

(c) A budget review to assure financial accountability and review service budget amendments must be completed at least every six months.

(9) CONTINGENCY FUND.

(a) The participant may establish a contingency fund in the service budget to purchase identified items that are not otherwise covered by Medicaid or the Supplemental Nutrition Assistance Program (SNAP) that substitute for personal assistance and allow for greater independence.

(b) The contingency fund must be approved by the case manager, identified in the service budget, and related to service plan needs.

(c) Contingency funds may be carried over into the next month’s budget until the item is purchased.

(10) DISCRETIONARY FUND.

(a) The participant may establish a monthly discretionary fund in the service budget to purchase items that directly relate to the health, safety, and independence of the participant and are not otherwise covered under Medicaid home and community-based services or delineated in the monthly service budget.

(b) The maximum amount of discretionary funds may be up to 10 percent of the participant’s cash benefit not including employee taxes.

(c) The discretionary fund must be approved by the case manager, identified in the service budget, and related to service plan needs.

(d) Discretionary funds must be used by the end of the month.

(11) ISSUING BENEFITS.

(a) The service plan and service budget must be prior approved by the case manager before the first ICP cash benefit is paid.

(b) A cash benefit is considered issued and received by the participant when the direct deposit is made to the participant’s ICP bank account or a benefit check is received by the participant.

(c) The cash benefit is exempt from resource calculations for other Department programs only while in the ICP bank account and not commingled with other personal funds.

(d) The cash benefit is not subject to assignment, transfer, garnishment, or levy as long as the cash benefit is identified as a program benefit and is separate from other money in the participant’s possession.

(12) CASE MANAGER RESPONSIBILITIES.

(a) The case manager is responsible to review and authorize service plans and service budgets that meet the ICP program criteria.

(b) If a participant is disenrolled, the case manager must review eligibility for other Medicaid long term care and community-based service options and offer other alternatives if the participant is eligible.

(c) At least every six months, a Department/AAA case manager must complete a service budget review to assure financial accountability and review service budget amendments.

(13) HEARING RIGHTS. ICP participants have contested case hearing rights as described in OAR chapter 461, division 025.

Stat. Auth.: ORS 410.090

Stats. Implemented: ORS 410.070

Hist.: SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-040-0000

Medicaid Funded Home Delivered Meals

(1) Home delivered meals, exclusive of those funded through the Older Americans Act or Oregon Project Independence, constitute a service that is provided as part of Medicaid home and community-based services to assist an individual to remain in his or her own home.

(2) Payment for meals delivered to an individual at his or her home may be provided when other plans do not appear feasible and home delivered meals are determined by the Department’s local unit to be more appropriate for the individual’s needs than nursing facility services. The cost for these meals is calculated into the individual’s service plan in conjunction with in-home services provided by a consumer-employed provider or a home care agency.

(3) All requests for Medicaid-funded home delivered meals must be referred to the Department’s local unit.

(4) The Department/AAA case manager is responsible for establishing, authorizing, purchasing, and monitoring a plan for home-delivered meals.

(5) Individuals who are required to make a monthly payment under OAR 461-185-0050 in order to remain eligible for Medicaid home and community-based services must have the home-delivered meal costs calculated in conjunction with the in-home service provider costs.

(a) To remain eligible for Medicaid home and community-based services, pay-in individuals are responsible for payment of authorized home-delivered meals received up to their specified monthly pay-in amount. Individual payments due for meal services are to be included as part of the monthly sum sent to the Department’s pay-in unit rather than making any direct payments to the meal provider.

(b) The Department is responsible for direct payments made to providers for all authorized home-delivered meals to individuals receiving Medicaid home and community-based services. Direct payment from the Department includes meals paid through the individual’s monthly pay-in and for meals that exceed the individual’s total monthly liability.

(6) For individuals whose meals are delivered through an Older Americans Act meal service program, which also contracts as a Medicaid home delivered meals provider:

(a) Individuals receiving home-delivered meals authorized and paid for by the Department must be officially informed by the case manager that there is no obligation to make any voluntary or suggested donation for this service. However, if the individual chooses to make a voluntary donation, there is no restriction from doing so.

(b) If the individual has a monthly payment to the Department under OAR 461-185-0050 in order to remain eligible for services, the individual must meet the criteria in both subsections (5) and (6)(a) of this rule.

(c) An individual who meets the criteria in subsections (2) or (5) of this rule and is age 65 or older, may choose to receive meals through the Older Americans Act (OAA) meal service program and may make voluntary donations. For individuals required to make a monthly payment under OAR 461-185-0050, these donations may not be credited toward the pay-in liability. In turn, OAA meal programs are not mandated to provide home-delivered meals to individuals age 65 and older receiving Medicaid home and community-based services unless the agency is a Medicaid-contracted meal provider and the meals are authorized and paid for by the Department.

Stat. Auth.: ORS 410.070, 411.060 & 411.070

Stats. Implemented: ORS 410.070

Hist.: SSD 11-1982, f. & ef. 10-1-82; SPD 12-2004, f. & cert. ef. 6-1-04; SPD 26-2011(Temp), f. & cert. ef. 12-20-11 thru 6-13-12; Administrative correction, 6-27-12; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-045-0010

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 045:

(1) Administrative Hearing — A hearing related to a denial, reduction, or termination of benefits that is held when requested by the PACE participant or his or her representative. A hearing may also be held when requested by a PACE participant who believes a claim for services was not acted upon with reasonable promptness or believes the payor took an action erroneously.

(2) Advance Directive — A process that allows a person to have another person make health care decisions when he or she is unable to make the decision and tell a doctor what life sustaining measures to take if he or she is near death.

(3) Aging and People with Disabilities Division (APD) — A division within the Department that is the designated State Unit on Aging (SUA) that also administers Medicaid’s long-term care program. APD is responsible for nursing facility and Medicaid home and community-based services for eligible older adults and individuals with disabilities. APD includes local offices and the AAAs who have contracted to perform specific functions of the licensing and enrollment processes.

(4) Alternate Service Settings — Residential 24-hour care facilities that include, but are not limited to, residential care facilities, assisted living facilities, adult foster homes, and nursing facilities.

(5) Americans with Disabilities Act (ADA) — Federal law defining the civil rights of persons with disabilities. The ADA requires that reasonable accommodations be made in employment, service delivery, and facility accessibility.

(6) Ancillary Services — Those medical services that are medically appropriate to support a covered service under the PACE benefit package. A list of ancillary services and limitations is specified in DMAP’s Ancillary Services Criteria Guide.

(7) Appeal — A PACE participant’s action taken with respect to any instance where the PACE program reduces, terminates, or denies a covered service.

(8) Area Agency on Aging (AAA) — An established public agency within a planning and service area designated under Section 305 of the Older American’s Act that has responsibility for local administration of Department programs. AAAs contract with the Department to perform specific activities in relation to PACE programs including processing of applications for Medicaid and determining the level of care required under Oregon’s State Medicaid Plan for coverage of nursing facility services.

(9) Assessment — The determination of a participant’s need for covered services. An assessment involves the collection and evaluation of data by each of the members of the Interdisciplinary Team pertinent to the participant’s health history and current problems obtained through interview, observation, and record review. The Assessment concludes with one of the following:

(a) Documentation of a diagnosis providing the clinical basis for a written care plan; or

(b) A written statement that the participant is not in need of covered services for a particular condition.

(10) Automated Information System (AIS) — A computer system that provides information on the current eligibility status for participants under the Medical Assistance Program.

(11) Care Plan — Service plan as defined in this rule.

(12) Centers for Medicare and Medicaid Services (CMS) — Formerly known as the Health Care Financing Administration (HCFA). The federal agency under the Department of Health and Human Services that is responsible for approving the PACE program and joining the state in signing an agreement with the PACE program once it has been approved as a provider under 42 CFR Part 460.

(13) Clinical Record — The clinical record includes, but is not limited to, the medical, social services, dental, and mental health records of a PACE participant. Clinical records include the Interdisciplinary Team’s records, hospital records, and grievance and disenrollment records.

(14) Comfort Care — The provision of medical services or items that give comfort or pain relief to a participant who has a terminal illness. Comfort care includes the combination of medical and related services designed to make it possible for a participant with terminal illness to die with dignity, respect, and with as much comfort as is possible given the nature of the illness. Comfort care includes but is not limited to, pain medication, palliative services, and hospice care including those services directed toward ameliorating symptoms of pain or loss of bodily function or to prevent additional pain or disability. These guarantees are provided pursuant to 45 CFR, Chapter XIII, 1340.15. Where applicable comfort care is provided consistent with Section 4751 OBRA 1990 — Patient Self-Determination Act and ORS 127.505-127.660 and 127.800-127.897 relating to health care decisions. Comfort care does not include diagnostic or curative care for the primary illness or care focused on active treatment of the primary illness and intended to prolong life.

(15) Community Standard— Typical expectations for access to the health care delivery system in the PACE participant’s community of residence. The Department requires that the health care delivery system available to PACE participants take into consideration the community standard and be adequate to meet the needs of PACE participants except where the community standard is less than sufficient to ensure quality of care.

(16) Covered Services — Those diagnoses, treatments, and services listed in OAR 410-141-0520. In addition, all services that are to be covered by Medicare are covered services even if the services fall below the currently funded line for the Oregon Health Plan. Covered services also include those services listed in 42 CFR Sections 460.92 and 460.94.

(17) Dentally Appropriate — Services that are required for prevention, diagnosis, or treatment of a dental condition and that are:

(a) Consistent with the symptoms of a dental condition or treatment of a dental condition;

(b) Appropriate with regard to standards of good dental practice and generally recognized by the relevant scientific community and professional standards of care as effective;

(c) Not solely for the convenience of the PACE participant or a provider of the service; and

(d) The most cost effective of the alternative levels of dental services that may be safely provided to a PACE participant.

(18) Dental Emergency Services — Dental services provided for severe pain, bleeding, unusual swelling of the face or gums, or an avulsed tooth.

(19) Department — The Department of Human Services.

(20) DHS — Department of Human Services (DHS).

(21) Disenrollment — The act of discharging a PACE participant from a PACE program. After the effective date of disenrollment a PACE participant is no longer authorized to obtain covered services from the PACE program.

(22) Emergency Services — The health care and services provided for diagnosis and treatment of a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, may reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.

(23) Enrollment — A process for the PACE program. A PACE participant’s enrollment with a PACE program indicates that the PACE participant obtains from, or is referred by, the PACE program for all covered services.

(24) Grievance — A PACE participant’s or the participant’s representative’s clear expression of dissatisfaction with the PACE program that addresses issues that are part of the PACE program’s contractual responsibility. The expression states the reason for the dissatisfaction and may be in whatever form of communication or language that is used by the participant or the participant’s representative.

(25) Health Management Unit (HMU) — The DMAP unit responsible for adjustments to enrollments and retroactive disenrollments.

(26) Interdisciplinary Team (IDT) — PACE staff and PACE subcontractors with current and appropriate licensure, certification, or accreditation who are responsible for assessment and development of the PACE participant’s care plan. An IDT may conduct assessments of PACE participants and provide services to PACE participants within their scope of practice, state licensure, or certification. An IDT includes at least one representative from each of the following groups:

(a) Medical Doctor, Osteopathic Physician, Nurse Practitioner, or Physician’s Assistant;

(b) Registered Nurse or a Licensed Practical Nurse supervised by a Registered Nurse;

(c) Social Worker with a Master’s degree or a Social Worker with a Bachelor degree who is supervised by a Master’s level Social Worker;

(d) Occupational Therapist or a Certified Occupational Therapy Assistant supervised by an Occupational Therapist;

(e) Recreational Therapist or an Activity Coordinator with two years experience;

(f) Physical Therapist or a Physical Therapy Assistant supervised by a Physical Therapist;

(g) Dietician and Pharmacist as indicated; and

(h) In addition to the positions listed above in subsections (a) to (g) of this section, the IDT includes the PACE Center Manager, the Home Care Coordinator, Personal Care Attendant, and the Driver or Transportation Coordinator.

(27) Medicaid — A federal and state funded portion of the Medical Assistance Program established by Title XIX of the Social Security Act, as amended and administered in Oregon by the Department of Human Services.

(28) Medically Appropriate — Services and medical supplies required for prevention, diagnosis, or treatment of a health condition that encompasses physical or mental conditions, or injuries, and that are:

(a) Consistent with the symptoms of a health condition or treatment of a health condition;

(b) Appropriate with regard to standards of good health practice and generally recognized by the relevant scientific community and professional standards of care as effective;

(c) Not solely for the convenience of a PACE participant or a provider of the service or medical supplies; and

(d) The most cost effective of the alternative levels of medical services or medical supplies that may be safely provided to a PACE participant in the PACE program’s judgment.

(29) Medicare — The federal health insurance program for people who are 65 or older, certain younger people with disabilities, and people with End-Stage Renal Disease (permanent kidney failure requiring dialysis or a transplant, sometimes called ESRD).

(30) Non-Covered Services — Services or items the PACE program is not responsible for providing or paying for.

(31) Non-Participating Provider — A provider who does not have a contractual relationship with the PACE program, i.e., is not on their panel of providers.

(32) Division of Medical Assistance Programs (DMAP) — The division of the Oregon Health Authority responsible for coordinating medical assistance programs. DMAP writes and administers the state Medicaid rules for medical services, contracts with providers, maintains records of participant eligibility and processes, and pays DMAP providers and contractors such as PACE.

(33) Oregon Health Plan (OHP) — The Medicaid demonstration project that expands Medicaid eligibility. The Oregon Health Plan relies substantially upon a prioritization of health services and managed care to achieve the policy objectives of access, cost containment, efficacy, and cost effectiveness in the allocation of health resources.

(34) PACE — The Program of all Inclusive Care for the Elderly (PACE) is a managed care entity that provides medical, dental, mental health, social services, transportation, and long-term care services to persons age 55 and older on a prepaid capitated basis in accordance with a signed agreement with the Department and CMS.

(35) PACE Participant — An individual who meets the Department criteria for nursing facility care and is enrolled in the PACE program. These individuals are eligible under the following categories:

(a) AB/AD (Assistance to Blind and Disabled) with Medicare — Individuals with concurrent Medicare eligibility with income under Medicaid eligibility;

(b) AB/AD without Medicare — Individuals without Medicare with income under Medicaid eligibility;

(c) OAA (Old Age Assistance) with Medicare — Individuals with concurrent Medicare Part A or Medicare Parts A and B eligibility with income under Medicaid eligibility;

(d) OAA without Medicare — Individuals without Medicare with income under Medicaid eligibility; or

(e) Private — Individuals with or without Medicare with incomes over Medicaid eligibility.

(36) Participating Provider — An individual, facility, corporate entity, or other organization that supplies medical, dental, or mental health services or items who have agreed to provide those services or items and to bill in accordance with a signed agreement with a PACE program.

(37) Preventive Services — Those services as defined under Expanded Definition of Preventive Services in OAR 410-141-0480 and 410-141-0520.

(38) Primary Care Provider (PCP) — A medical practitioner who has responsibility for supervising and coordinating initial and primary care within his or her scope of practice for PACE participants. Primary Care Providers initiate referrals for care outside their scope of practice that may include consultations and specialist care, and assure the continuity of medically or dentally appropriate care.

(39) Quality Improvement — Quality improvement is the effort to improve the level of performance of a key process or processes in health and long term care. A quality improvement program measures the level of current performance of the processes, finds ways to improve the performance, and implements new and better methods for the processes. Quality Improvement includes the goals of quality assurance, quality control, quality planning, and quality management in health care. Quality of care reflects the degree to which health services for individuals and populations increases the likelihood of desired health outcomes and is consistent with current professional knowledge.

(40) Representative — A person who can assist the PACE participant in making administrative related decisions such as, but not limited to, completing an enrollment application, filing grievances, and requesting disenrollment. A representative may be, in the following order of priority, a person who is designated as the PACE participant’s health care representative, a court-appointed guardian, a spouse, other family member as designated by the PACE participant, the Individual Service Plan Team (for individuals with intellectual or developmental disabilities), or a Department/AAA case manager or other Department designee. This definition does not apply to health care decisions unless the representative has legal authority to make such decisions.

(41) Seniors and People with Disabilities — Aging and People with Disabilities as defined in this rule.

(42) Service Area — The geographic area defined by Federal Information Processing Standards (FIPS) codes, or other criteria determined by the Department, in which the PACE program has agreed to provide services under the Oregon PACE program regulations and the Federal PACE regulations 42 CFR Part 460. The service area is defined in the PACE contract with the Department.

(43) Service Plan — An individualized, written plan that addresses all relevant aspects of a participant’s health and socialization needs that is developed by the Interdisciplinary Team with the involvement of the participant and the participant’s representative. A service plan is based on the findings of the participant’s assessments and defines specific service and treatment goals and objectives, proposed interventions, and the measurable outcomes to be achieved. A service plan is reviewed at least every four months or as indicated by a change in the participant’s condition.

(44) Triage — Evaluations conducted to determine whether or not an emergency condition exists, and to direct the DMAP member to the most appropriate setting for medically appropriate care.

(45) Urgent Care Services — Covered services required to prevent a serious deterioration of a PACE participant’s health that results from an unforeseen illness or an injury and for dental services necessary to treat such conditions as lost fillings or crowns. Services that may be foreseen by the individual are not considered urgent services.

(46) Valid Claim:

(a) An invoice received by the PACE program for payment of covered health care services rendered to an eligible PACE participant that:

(A) May be processed without obtaining additional information from the provider of the service or from a third party; and

(B) Has been received within the time limitations prescribed in these rules.

(b) A “valid claim” is synonymous with the federal definition of a “clean claim” as defined in 42 CFR 447.45(b).

(47) Valid Pre-Authorization — A request, received by the PACE program for approval of covered health care services provided by a non-participating provider to an eligible individual, that may be processed without obtaining additional information from the provider of the service or from a third party.

Stat. Auth.: ORS 410.090

Stats. Implemented: ORS 410.070

Hist.: SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01; SPD 2-2005, f. & cert. ef. 1-4-05; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-045-0050

Enrollment

(1) ELIGIBILITY: To be eligible to enroll in a PACE program a person must:

(a) Reside in the PACE program’s approved service area upon enrollment;

(b) Be 55 years of age or older;

(c) Be able to be maintained in a community-based setting at the time of enrollment without jeopardizing his or her health or safety or the health and safety of others;

(d) Be determined by the local Department/AAA agency to need the level of care required under Oregon’s State Medicaid Plan for coverage of nursing facility services in accordance with the rules in OAR chapter 411, division 15 (Long-Term Care Service Priorities for Individuals Served);

(e) Be Medicaid eligible or be willing to pay private fees; and

(f) Be willing to abide by the provision that requires enrollees to receive all health and long term care services exclusively from the PACE program and its contracted or referred providers.

(2) The criteria for determining that an individual is unable to live safely in the community and thereby may be denied enrollment is as follows:

(a) The individual demonstrates imminent danger to self or others in accordance with the definition in OAR 411-015-0005;

(b) There is evidence in the individual’s clinical record that shows he or she has been repeatedly placed in appropriate care settings and, despite medically appropriate treatment, placement has resulted in frequent hospitalizations or failed placements;

(c) At the time of application, the individual is determined to be eligible for enhanced care services or long term care at Oregon State Hospital by either the enhanced care Services Coordinator or the OSH Gero-Psychiatric Outreach Team;

(d) At the time of application, the individual has a physician documented condition that meets the criteria for Medicare skilled care and does not appear to be able to be discharged to the community within the next 30 days; or

(e) At the time of application, the applicant lives in his or her own home and wishes to remain there but requires 24-hour care to remain safely in their home.

(3) If either the PACE program or the local Department/AAA case manager has concerns about the safety of a potential enrollee, a case conference may be convened to review the case with outside consultants as needed for further evaluation.

(4) ENROLLMENT/SCREENING AND INTAKE:

(a) Department/AAA staff processes an application for Medicaid services and determines the level of care required under Oregon’s State Medicaid Plan for coverage of nursing facility services. Department/AAA staff follows the appropriate PACE enrollment protocols as outlined in the Department/AAA Policy Manuals.

(b) Department/AAA staff conducts initial screening and intake, including providing assistance in completing the application and obtaining relevant information.

(c) The Department provides for the calculation of any applicable spend-down liability and for post-eligibility treatment of income for Medicaid participants in the same manner as the Department treats spend-down liability and post-eligibility income for individuals receiving Medicaid home and community-based services (OAR 461-160-0620).

(d) The Department/AAA staff forwards intake information of potential enrollees to the PACE program staff who assesses the applicant’s appropriateness for enrollment in the PACE program in accordance with these rules and the requirements of 42 CFR 460.152. Potential enrollees may be denied enrollment by the PACE program if the PACE program determines the individual is not able to be maintained in a community-based setting without jeopardizing his or her health or safety or the health and safety of others.

(e) If the potential enrollee or his or her representative is in disagreement with the PACE program’s decision not to enroll the person, he or she may file an appeal with the Department.

(f) All letters to applicants regarding denial of enrollment by the PACE program must include the reason for the denial and the applicants appeal rights. This letter along with documentation of pertinent information related to the decision must be forwarded to the Department for review.

Stat. Auth.: ORS 410.090

Stats. Implemented: ORS 410.070

Hist.: SDSD 5-2000, f. 12-29-00 cert. ef. 1-1-01; SPD 2-2005, f. & cert. ef. 1-4-05; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-048-0150

Purpose

(1) The rules in OAR chapter 411, division 48 establish standards and procedures for Medicaid enrolled providers who provide long term care community nursing services. Long term care community nursing services provide ongoing registered nurse (RN) services to eligible individuals who are receiving Medicaid home and community-based services in a home-based or foster home setting.

(2) Long term care community nursing services provide:

(a) Evaluation and identification of supports that help an individual maintain maximum functioning and minimize health risks, while promoting the individual’s autonomy and self management of healthcare;

(b) Teaching an individual’s caregiver or family that is necessary to assure the individual’s health and safety in a home-based or foster home setting;

(c) Delegation of nursing tasks to an individual’s caregiver; and

(d) Case managers and health professionals with the information needed to maintain the individual’s health, safety, and community living situation while honoring the individual’s autonomy and choices.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 8-2013, f. & cert. ef. 4-15-13; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-048-0160

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 48:

(1) “AAA” means the Area Agency on Aging designated by the Department that is responsible for providing a comprehensive and coordinated system of services to older adults and adults with disabilities in a designated planning and service area.

(2) “Abuse” means:

(a) Abuse of a child:

(A) As defined in ORS 419B.005; and

(B) As defined in OAR 407-045-0260, when a child resides in a foster home licensed by the Department to provide residential services to a child with intellectual or developmental disabilities.

(b) Abuse of an adult or older adult:

(A) As defined in ORS 124.050-095 and 430.735-765; and

(B) As defined in OAR 407-045-0260 for individuals 18 years or older with intellectual or developmental disabilities that reside in a Department licensed adult foster home; or

(C) As defined in OAR 411-020-0002 for older adults and adults with a physical disability who are 18 years of age or older that reside in a Department licensed adult foster home.

(3) “Acute Care Nursing” means nursing services provided on an intermittent or time limited basis such as those provided by a hospice agency as defined in ORS 443.850, or a home health agency as defined in 443.005. Acute care nursing may include direct service and is designed to address a specific task of nursing or a short term health condition.

(4) “Business Day” means the day that the “Local Office” is open for business.

(5) “Care Coordination” means the email, faxes, phone calls, meetings and other types of information exchange, consultation, and advocacy provided by a registered nurse on behalf of an individual that is necessary for the registered nurse to conduct assessments, complete medication reviews, provide for individual safety needs, and implement an individual’s Nursing Service Plan.

(6) “Caregiver” means any person responsible for providing services to an eligible individual in a home-based or foster home setting. A caregiver may include an unlicensed person defined as a designated caregiver in OAR chapter 851, division 48 (Standards for Provision of Nursing Care by a Designated Caregiver).

(7) “Case Manager” means a person employed by the Department, Community Developmental Disability Program, or Area Agency on Aging who assesses the service needs of an applicant, determines eligibility, and offers service choices to the eligible individual. The case manager authorizes and implements an individual’s plan for services and monitors the services delivered.

(8) “CDDP” means the Community Developmental Disability Program responsible for plan authorization, delivery, and monitoring of services for individuals with intellectual or developmental disabilities according to OAR chapter 411, division 320.

(9) “Community Nursing Services” means “long term care community nursing services” as defined in this rule.

(10) “Delegation” means the standards and processes described in OAR chapter 851, division 47 (Standards for Community Based Care Registered Nurse Delegation).

(11) “Department” means the Department of Human Services or the Department’s designee.

(12) “Department Approved Form” means forms used by registered nurses and case managers to support these rules. The Department maintains these documents on the Department’s website (http://www.oregon.gov/dhs/spd/pages/provtools/nursing/forms.aspx). Printed copies may be obtained by contacting the Department of Human Services, ATTN: Rule Coordinator, 500 Summer Street NE, E10, Salem, OR 97301.

(13) “Direct Hands-on Nursing” means a registered nurse provides treatment or therapies directly to an individual instead of teaching or delegating the tasks of nursing to the individual’s caregiver. Payment for direct hands-on nursing services is not reimbursed unless an exception has been granted by the Department as described in OAR 411-048-0170.

(14) “Documentation” means a written record of all services provided to, and for, an individual and an individual’s caregiver that is maintained by the registered nurse as described in OAR 411-048-0200.

(15) “Enrolled Medicaid Provider” means an entity or individual that meets and completes all the requirements in these rules, OAR 407-120-0300 to 0400 (Medicaid Provider Enrollment and Claiming), and OAR chapter 410, division 120 (Medicaid General Rules) as applicable.

(16) “Foster Home” means any Department licensed or certified family home in which residential services are provided as described in:

(a) OAR chapter 411, division 050 for adult foster homes for older adults and adults with physical disabilities;

(b) OAR chapter 411, division 346 for foster homes for children with intellectual or developmental disabilities; and

(c) OAR chapter 411, division 360 for adult foster homes for individuals with intellectual or developmental disabilities.

(17) “Healthcare Provider” means a licensed provider providing services such as but not limited to home health, hospice, mental health, primary care, specialty care, durable medical equipment, pharmacy, or hospitalization to an eligible individual.

(18) “Home” means a non-licensed setting where an individual is receiving Medicaid home and community-based services.

(19) “Home and Community-Based Services” mean the services approved and funded by the Centers for Medicare and Medicaid Services for eligible individuals who are aged and physically disabled and for eligible individuals with intellectual disabilities and developmental disabilities in accordance with Title XIX of the Social Security Act.

(20) “Home Health Agency” has the meaning given that term in ORS 443.005.

(21) “Individual” means a person eligible for community nursing services under these rules.

(22) “In-Home Care Agency” has the meaning given that term in ORS 443.305.

(23) “Local Office” means the Department office, Area Agency on Aging, or Community Developmental Disability Program responsible for Medicaid services including case management, referral, authorization, and oversight of long term care community nursing services in the region where the individual lives and where the community nursing services are delivered.

(24) “Long Term Care Community Nursing Services” mean the nursing services provided under these rules to individuals living in a home-based or foster home setting where the monthly Medicaid home and community-based services rate does not include nursing services. Long term care community nursing services are a distinct set of services that focus on an individual’s chronic and ongoing health and activity of daily living needs. Long term care community nursing services include an assessment, monitoring, delegation, teaching, and coordination of services that addresses an individual’s health and safety needs in a Nursing Service Plan that supports individual choice and autonomy. The requirements in these rules are provided in addition to any nursing related requirements stipulated in the licensing rules governing the individual’s place of residence.

(25) “Medication Review” means a review focused on an individual’s medication regime that includes examination of the prescriber’s orders and related administration records, consultation with a pharmacist or the prescriber, clarification of PRN (as needed) parameters, and the development of a teaching plan based upon the needs of the individual or the individual’s caregiver. In an unlicensed setting, the medication review may include observation and teaching related to administration methods and storage systems.

(26) “Nursing Assessment” means one of the following assessments selected by the registered nurse based on an individual’s need and situation:

(a) A “nursing assessment” as defined in OAR 851-047-0010 (Standards for Community Based Care Registered Nurse Delegation); or

(b) A “comprehensive assessment” or “focused assessment” as defined in OAR 851-045-0030 (Standards and Scope of Practice for the Licensed Practical Nurse and Registered Nurse).

(27) “Nursing Service Plan” means the plan that is developed by a registered nurse based on an individual’s initial nursing assessment, reassessment, or updates made to a nursing assessment as a result of monitoring visits.

(a) The Nursing Service Plan is specific to the individual and identifies the individual’s diagnoses and health needs, the caregiver’s teaching needs, and any care coordination, teaching, or delegation activities.

(b) The Nursing Service Plan is separate from the case manager’s service plan, the foster home provider’s service plan, and any service plans developed by other health professionals.

(c) Nursing service plans must meet the standards in OAR chapter 851, division 045 (Standards and Scope of Practice for the Licensed Practical Nurse and Registered Nurse).

(28) “OSBN” means the Oregon State Board of Nursing. OSBN is the agency responsible for regulating nursing practice and education for the purpose of protecting the public’s health, safety, and well-being.

(29) “Rate Schedule” means the communication tool issued by the Department to transmit rate changes to partners, subcontractors, and stakeholders. The Department maintains this document on the Department’s website (http://www.oregon.gov/dhs/spd/provtools/rateschedule.pdf). Printed copies may be obtained by contacting the Department of Human Services, ATTN: Rule Coordinator, 500 Summer Street NE, E10, Salem, OR 97301.

(30) “RN” means a registered nurse licensed by the Oregon State Board of Nursing. An RN providing long term care community nursing services under these rules is either an independent contractor who is an enrolled Medicaid provider or an employee of an organization that is an enrolled Medicaid provider.

(31) “These Rules” mean the rules in OAR chapter 411, division 48.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 8-2013, f. & cert. ef. 4-15-13; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-048-0170

Eligibility and Limitations

Eligibility and Limitations

(1) ELIGIBILITY. Community nursing services may be provided by an RN to an individual if the individual meets the following requirements:

(a) The individual must be determined eligible for Medicaid home and community-based services provided through the Department;

(b) The individual must be receiving services through one of the following:

(A) In-home supports for children with intellectual or developmental disabilities as described in OAR chapter 411, division 308;

(B) Adult foster homes for individuals with intellectual or developmental disabilities as described in OAR chapter 411, division 360;

(C) Foster homes for children with intellectual or developmental disabilities as described in OAR chapter 411, division 346;

(D) Comprehensive in home support for adults with intellectual or developmental disabilities as described in OAR chapter 411, division 330;

(E) Adult foster homes for older adults and adults with physical disabilities as described in OAR chapter 411, division 050;

(F) Independent Choices Program participants as described in OAR chapter 411, division 030;

(G) State Plan personal care participants as described in OAR chapter 411, division 034;

(H) 1915C Nursing Facility Waiver; or

(I) State Plan K Community First Choice;

(c) The individual must live in a home or a foster home as defined in OAR 411-048-0160;

(d) The individual must be referred by their case manager for long term care community nursing services. Individuals may request long term community nursing services through their case manager.

(2) LIMITATIONS.

(a) Long term care community nursing services may not be provided to:

(A) A resident of a nursing facility, assisted living facility, residential care facility, 24-hour developmental disability group home, or intermediate care facility for individuals with intellectual or developmental disabilities;

(B) An individual enrolled in a brokerage or other support services not funded by Medicaid home and community-based services; or

(C) An individual enrolled in a program or residing in a setting where nursing services are provided under a monthly service rate.

(b) Case managers may not prior authorize long term care community nursing services that duplicate nursing services provided by Medicare or other Medicaid programs.

(c) Long term care community nursing services do not include nursing activities used for administrative functions such as protective service investigations, pre-admission screenings, eligibility determinations, licensing inspections, case manager assessments, or corrective action activities. This limitation does not include authorized care coordination as defined in OAR 411-048-0160.

(d) Long term care community nursing services do not include reimbursement for direct hands-on nursing as defined in OAR 411-048-0160.

(3) EXCEPTIONS. An exception to sections (2)(c) and (2)(d) of this rule may be requested as described in OAR 411-048-0250.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 8-2013, f. & cert. ef. 4-15-13; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-065-0000

Purpose

The purpose of these rules is to establish standards for specialized living service contracts. The standards provide an enhanced continuum of quality care in a home-like environment for specific target groups who are eligible for a live-in attendant, but because of special needs, are unable to live independently or receive services in other community-based care facilities and who would otherwise require nursing facility care. Services provided to residents in the Specialized Living Services Program are Medicaid home and community-based services, which may include specific services required because of physical, intellectual, or behavioral limitations in meeting self-care needs.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SSD 5-1982, f. 5-12-82, ef. 5-15-82; SSD 19-1991, f. & cert. ef. 10-10-91; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13

411-070-0033

Post Hospital Extended Care Benefit

(1) The post hospital extended care benefit (OAR 410-120-1210(4)) is an Oregon Health Plan benefit that consists of a stay of up to 20 days in a nursing facility to allow discharge from hospitals.

(2) The post hospital extended care benefit must be prior authorized by pre-admission screening for individuals not enrolled in managed care.

(3) To be eligible for the post hospital extended care benefit, the individual must meet all of the following:

(a) Be receiving Oregon Health Plan Plus or Standard, Fee-for-Service benefits;

(b) Not be Medicare eligible;

(c) Have a medically-necessary, qualifying hospital stay consisting of:

(A) A DMAP-paid admission to an acute-care hospital bed, not including a hold bed, observation bed, or emergency room bed.

(B) The stay must consist of three or more consecutive days, not counting the day of discharge.

(d) Transfer to a nursing facility within 30 days of discharge from the hospital;

(e) Need skilled nursing or rehabilitation services on a daily basis for a hospitalized condition meeting Medicare skilled criteria that may be provided only in a nursing facility meaning:

(A) The individual is at risk of further injury from falls, dehydration, or nutrition because of insufficient supervision or assistance at home;

(B) The individual’s condition requires daily transportation to a hospital or rehabilitation facility by ambulance; or

(C) It is too far to travel to provide daily nursing or rehabilitation services in the individual’s home.

(4) The individual may qualify for another 20 day post-hospital extended care benefit only if the individual has been out of a hospital and has not received skilled nursing care for 60 consecutive days in a row and meets all the criteria in this rule.

(5) Individuals eligible for the 20 day post-hospital extended care benefit are not eligible for long term care nursing facility or Medicaid home and community-based services unless the individual meets the eligibility criteria in OAR 411-015-0100 or 411-320-0080.

Stat. Auth.: ORS 410.070 & 414.065

Stats. Implemented: 410.070 & 414.065

Hist.: SPD 4-2005, f. & cert. ef. 4-19-05; SPD 15-2009, f. 11-30-09, cert. ef. 12-1-09; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13


Rule Caption: Long-Term Care Service Priorities

Adm. Order No.: SPD 45-2013

Filed with Sec. of State: 12-13-2013

Certified to be Effective: 12-15-13

Notice Publication Date: 11-1-2013

Rules Amended: 411-015-0005, 411-015-0008, 411-015-0015, 411-015-0100

Rules Repealed: 411-015-0008(T), 411-015-0015(T), 411-015-0100(T), 411-015-0005(T)

Subject: The Department of Human Services (Department) is permanently amending the rules for long-term care service priorities in OAR chapter 411, division 015.

   The permanent rules:

   - Adopt the changes made by temporary rule that became effective on July 1, 2013;

   - Clarify that natural supports are voluntary in nature, may not be assumed, and must have the skills and abilities to perform the services needed;

   - Remove references to waivered services as appropriate, and as appropriate, replace the references with references to Medicaid home and community-based services in order to recognize services available through Medicaid waivers or under the Medicaid State Plan; and

   - Reflect new Department terminology and correct formatting and punctuation.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-015-0005

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 015:

(1) “AAA” means “Area Agency on Aging” as defined in this rule.

(2) “Adult” means any person at least 18 years of age.

(3) “All Phases” means each part of an activity.

(4) “Alternative Service Resources” means other possible resources for the provision of services to meet an individual’s needs. Alternative service resources includes but is not limited to natural supports, risk intervention services, Older Americans Act programs, or other community supports. Alternative service resources are not paid by Medicaid.

(5) “Architectural Modifications” means any service leading to the alteration of the structure of a dwelling to meet the specific service needs of an eligible individual.

(6) “Area Agency on Aging (AAA)” means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The term Area Agency on Aging (AAA) is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 to 410.300.

(7) “Assistance Types” needed for activities of daily living and instrumental activities of daily living include but are not limited to the following terms:

(a) “Cueing” means giving verbal or visual clues during an activity to help an individual complete the activity without hands-on assistance.

(b) “Hands-on” means a provider physically performs all or parts of an activity because an individual is unable to do so.

(c) “Monitoring” means a provider must observe an individual to determine if intervention is needed.

(d) “Reassurance” means to offer an individual encouragement and support.

(e) “Redirection” means to divert an individual to another more appropriate activity.

(f) “Set-up” means getting personal effects, supplies, or equipment ready so that an individual may perform an activity.

(g) “Stand-by” means a provider is at the side of an individual ready to step in and take over the task if the individual is unable to complete the task independently.

(h) “Support” means to enhance the environment to enable an individual to be as independent as possible.

(8) “Assistive Devices” means any category of durable medical equipment, mechanical apparatus, electrical appliance, or instrument of technology used to assist and enhance an individual’s independence in performing any activity of daily living.

(9) “Behavioral Care Plan” means a documented set of procedures, reviewed by the Department or AAA representative, which describes interventions for use by a provider to prevent, mitigate, or respond to behavioral symptoms that negatively impact the health and safety of an individual or others in a home or community-based services setting. The preferences of an individual are included in developing a Behavioral Care Plan.

(10) “Business Days and Hours” means Monday through Friday and excludes Saturdays, Sundays, and state or federal holidays. Hours are from 8:00 AM to 5:00 PM.

(11) “CA/PS” means “Client Assessment and Planning System” as defined in this rule.

(12) “Care Setting” means a Medicaid contracted facility at which a Medicaid eligible individual resides and receives services. Care settings are adult foster homes, residential care facilities, assisted living facilities, specialized living contracted residences, and nursing facilities.

(13) “Case Manager” means an employee of the Department or Area Agency on Aging who assesses the service needs of individuals, determines eligibility, and offers service choices to eligible individuals. The case manager authorizes and implements an individual’s service plan and monitors the services delivered as described in OAR chapter 411, division 028.

(14) “Client” means “individual” as defined in this rule.

(15) “Client Assessment and Planning System (CA/PS)”:

(a) Is a single entry data system used for:

(A) Completing a comprehensive and holistic assessment;

(B) Surveying an individual’s physical, mental, and social functioning; and

(C) Identifying risk factors, individual choices and preferences, and the status of service needs.

(b) The CA/PS documents the level of need and calculates an individual’s service priority level in accordance with these rules, calculates the service payment rates, and accommodates individual participation in service planning.

(16) “Cost Effective” means being responsible and accountable with Department resources by offering less costly alternatives when providing choices that adequately meet an individual’s service needs. Cost effective choices consist of all available service options, the utilization of assistive devices or architectural modifications, natural supports, and alternative service resources. Less costly alternatives may include resources not paid for by the Department.

(17) “Department” means the Department of Human Services (DHS).

(18) “Disability” means a physical, cognitive, or emotional impairment which, for an individual, constitutes or results in a functional limitation in one or more of the activities of daily living defined in OAR 411-015-0006.

(19) “Extraordinary Circumstances” means:

(a) An individual being assessed is working full time during business hours; or

(b) A family member, whose presence is requested by an individual being assessed, is traveling from outside the area and is available for only a limited period of time that does not include business days and hours.

(20) “Functional Impairment” means an individual’s pattern of mental and physical limitations that restricts the individual’s ability to perform activities of daily living and instrumental activities of daily living without the assistance of another person.

(21) “Independent” means an individual does not meet the definition of “assist” or “full assist” when assessing an activity of daily living as described in OAR 411-015-0006 or when assessing an instrumental activity of daily living as described in 411-015-0007.

(22) “Individual” means an older adult or an adult with a disability applying for or eligible for services.

(23) “Medicaid Home and Community-Based Services” means the services approved and funded by the Centers for Medicare and Medicaid Services for eligible individuals in accordance with Title XIX of the Social Security Act.

(24) “Mental or Emotional Disorder” means:

(a) A schizophrenic, mood, paranoid, panic, or other anxiety disorder;

(b) Somatoform, personality, dissociative, factitious, eating, sleeping, impulse control, or adjustment disorder; or

(c) Other psychotic disorder as defined by the American Psychiatric Association in the Diagnostic and Statistical Manual.

(25) “Natural Support” means resources and supports (e.g. relatives, friends, neighbors, significant others, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential “natural support”. The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(26) “Older Adult” means any person at least 65 years of age.

(27) “Service Priority Level (SPL)” means the order in which Department and Area Agency on Aging staff identify individuals eligible for a nursing facility level of care, Oregon Project Independence, or Medicaid home and community-based services. A lower service priority level number indicates greater or more severe functional impairment. The number is synonymous with the service priority level.

(28) “SPL” means “service priority level” as defined in this rule.

(29) “Substance Abuse Related Disorders” means disorders related to the taking of a drug or toxin of abuse (including alcohol).

(a) Substance abuse related disorders include:

(A) Substance dependency and substance abuse;

(B) Alcohol dependency and alcohol abuse; and

(C) Substance induced disorders and alcohol induced disorders as defined by the American Psychiatric Association in the Diagnostic and Statistical Manual.

(b) Substance abuse related disorders are not considered physical disabilities. Dementia or other long term physical or health impairments resulting from substance abuse may be considered physical disabilities.

(30) “These Rules” means the rules in OAR chapter 411, division 015.

(31) “Without Supports” means an individual lacks the assistance of another person, a care setting and staff, or an alternative service resource as defined in this rule.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.060, 410.070 & 414.065

Hist.: SSD 3-1985, f. & ef. 4-1-85; SSD 5-1986, f. & ef. 4-14-86; SSD 9-1986, f. & ef. 7-1-86; SSD 12-1987, f. 12-31-87, cert. ef. 1-1-88; SSD 12-1991(Temp), f. 6-28-91, cert. ef. 7-1-91; SSD 21-1991, f. 12-31-91, cert. ef. 1-1-92, Renumbered from former 411-015-0000(2)(a) - (l); SDSD 11-2002(Temp), f. 12-5-02, cert. ef. 12-6-02 thru 6-3-03; SPD 12-2003, f. 5-30-03, cert. ef. 6-4-03; SPD 16-2003(Temp), f. & cert. ef. 10-27-03 thru 4-23-04; SPD 8-2004, f. & cert. ef. 4-27-04; SPD 19-2005, f. & cert. ef. 12-29-05; SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 45-2013, f. 12-13-13, cert. ef. 12-15-13

411-015-0008

Assessments

(1) ASSESSMENT.

(a) The assessment process:

(A) Identifies an individual’s ability to perform activities of daily living and instrumental activities of daily living (self-management tasks);

(B) Determines an individual’s ability to address health and safety concerns; and

(C) Includes an individual’s preferences to meet service needs.

(b) A case manager must conduct an assessment in accordance with the standards of practices established by the Department.

(c) A case manager must assess an individual’s abilities regardless of architectural modifications, assistive devices, or services provided in a care setting, alternative service resources, or other community providers.

(d) The time frame reference for evaluation is how an individual functioned during the 30 days prior to the assessment date, with consideration of how the individual is likely to function in the 30 days following the assessment date.

(A) In order to be eligible, an individual must demonstrate the need for the assistance of another person within the assessment time frame and expect the need to be on-going beyond the assessment time frame.

(B) The time frame for assessing the cognition/behavior activity of daily living may be extended as described in OAR 411-015-0006.

(e) The assessment must be conducted with a standardized assessment tool approved by the Department by a case manager or other qualified Department or AAA representative no less than annually or when requested by the individual.

(f) The initial assessment must be conducted face to face in an individual’s home or care setting.

(g) Annual re-assessments must be conducted face to face in an individual’s home or care setting unless there is a compelling reason to meet elsewhere and the individual requests an alternative location. Case managers must visit an individual’s home or care setting to complete the re-assessment and identify service plan needs, as well as safety and risk concerns.

(A) Individuals must be sent a notice of the need for re-assessment a minimum of 14 days in advance.

(B) Re-assessments based on a change in an individual’s condition or service needs are exempt from the 14-day advance notice requirement.

(h) An individual being assessed may request the presence of natural supports at any assessment.

(i) Assessment times must be scheduled within business days and hours unless extraordinary circumstances necessitate an alternate time. If an alternate time is necessary, an individual must request the after hours appointment and coordinate a mutually acceptable appointment time with the local Department or AAA office.

(j) An individual or the individual’s representative has the responsibility to participate in and provide information necessary to complete assessments and re-assessments within the time frame requested by the Department.

(A) Failure to participate in or provide requested assessment or re-assessment information within the application time frame results in a denial of service eligibility.

(B) The Department may allow additional time if circumstances beyond the control of the individual or the individual’s representative prevent timely participation or timely submission of information.

(2) SERVICE PLAN:

(a) An individual being assessed, others identified by the individual, and a case manager must consider the service options as well as assistive devices, architectural modifications, and other alternative service resources as defined in OAR 411-015-0005 to meet an individual’s service needs identified in the assessment process.

(b) A case manager is responsible for:

(A) Determining eligibility for specific services;

(B) Presenting service options, resources, and alternatives to an individual to assist the individual in making informed choices and decisions;

(C) Identifying goals, preferences, and risks; and

(D) Assessing the cost effectiveness of an individual’s service plan.

(c) A case manager must monitor the service plan and make adjustments as needed.

(d) An eligible individual, or the individual’s representative, is responsible for choosing and assisting in developing less costly service alternatives.

(e) The service plan payment must be considered full payment for the Medicaid home and community-based services rendered. Under no circumstances may any provider demand or receive additional payment for Medicaid home and community-based services from an eligible individual or any other source.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 45-2013, f. 12-13-13, cert. ef. 12-15-13

411-015-0015

Current Limitations

(1) The Department has the authority to establish by administrative rule service eligibility within which to manage the Department’s limited resources. The Department is currently able to serve:

(a) Individuals determined eligible for OSIPM who are assessed as meeting at least one of the service priority levels (1) through (13) as described in OAR 411-015-0010.

(b) Individuals eligible for Oregon Project Independence funded services if the individuals meet at least one of the service priority levels (1) through (18) of OAR 411-015-0010.

(c) Individuals needing risk intervention services in areas designated to provide such services. Individuals with the lowest service priority level number under OAR 411-015-0010 are served first.

(2) Individuals 65 years of age or older determined eligible for developmental disability services or having a primary diagnosis of a mental or emotional disorder are eligible for nursing facility or Medicaid home and community-based services if the individual meets section (1) of this rule and the individual is not in need of specialized mental health treatment services or other specialized Department residential program interventions as identified through the mental health assessment process or PASRR process described in OAR 411-070-0043.

(3) Individuals less than 65 years of age determined eligible for developmental disability services or having a primary diagnosis of a mental or emotional disorder are not eligible for Department nursing facility services unless determined appropriate through the PASRR process described in OAR 411-070-0043.

(4) Individuals less than 65 years of age determined to be eligible for developmental disability services are not eligible for Medicaid home and community-based services administered by the Department’s Aging and People with Disabilities. Eligibility for Medicaid home and community-based services for individuals with intellectual or developmental disabilities is determined by the Department’s Office of Developmental Disability Services or designee.

(5) Individuals less than 65 years of age who have a diagnosis of mental or emotional disorder or substance abuse related disorder are not eligible for Medicaid home and community-based services administered by the Department’s Aging and People with Disabilities unless:

(a) The individual has a medical non-psychiatric diagnosis or physical disability; and

(b) The individual’s need for services is based on his or her medical, non-psychiatric diagnosis, or physical disability; and

(c) The individual provides supporting documentation demonstrating that his or her need for services is based on the medical, non-psychiatric diagnosis, or physical disability. The Department authorizes documentation sources through approved and published policy transmittals.

(6) Medicaid home and community-based services are not intended to replace a natural support system as defined by OAR 411-015-0005. Paid support is provided if a natural support is unwilling or unable to provide identified services.

(7) Individuals with excess income must contribute to the cost of service pursuant to OAR 461-160-0610 and 461-160-0620.

Stat. Auth.: ORS 410.070 & 411.070

Stats. Implemented: ORS 410.070

Hist.: SSD 3-1985, f. & ef. 4-1-85; SSD 5-1986, f. & ef. 4-14-86; SSD 9-1986, f. & ef. 7-1-86; SSD 12-1987, f. 12-31-87, cert. ef. 1-1-88; SSD 12-1991(Temp), f. 6-28-91, cert. ef. 7-1-91; SSD 21-1991, f. 12-31-91, cert. ef. 1-1-92, Renumbered from former 411-015-0000(4); SSD 1-1993, f. 3-19-93, cert. ef. 4-1-93; SDSD 11-2002(Temp), f. 12-5-02, cert. ef. 12-6-02 thru 6-3-03; SPD 1-2003(Temp), f. 1-7-03, cert. ef. 2-1-03 thru 6-3-03; SDP 3-2003(Temp), f. 2-14-03, cert. ef. 2-18-03 thru 6-3-03; SPD 5-2003(Temp), f. & cert. ef. 3-12-03 thru 6-3-03; SPD 6-2003(Temp), f. & cert. ef. 3-20-03 thru 6-3-03; SPD 12-2003, f. 5-30-03, cert. ef. 6-4-03; SPD 16-2003(Temp), f. & cert. ef. 10-27-03 thru 4-23-04; SPD 5-2004(Temp), f. & cert. ef. 3-23-04 thru 4-27-04; SPD 8-2004, f. & cert. ef. 4-27-04; SPD 20-2004(Temp), f. & cert. ef. 7-7-04; SPD 29-2004(Temp), f. & cert. ef. 8-6-04 thru 1-3-05; SPD 1-2005, f. & cert. ef. 1-4-05; SPD 8-2006, f. 1-26-06, cert. ef. 2-1-06; SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 45-2013, f. 12-13-13, cert. ef. 12-15-13

411-015-0100

Eligibility for Nursing Facility or Medicaid Home and Community-Based Services

(1) To be eligible for nursing facility services or Medicaid home and community-based services, a person must:

(a) Be age 18 or older; and

(b) Be eligible for OSIPM; and

(c) Meet the functional impairment level within the service priority levels currently served by the Department as outlined in OAR 411-015-0010 and the requirements in 411-015-0015.

(2) To be eligible for services paid through the Spousal Pay Program, an individual must meet the requirements listed above in section (1) of this rule, and in addition, the requirements in OAR 411-030-0080.

(3) Individuals who are age 17 or younger and reside in a nursing facility are eligible for nursing facility services only and are not eligible to receive Medicaid home and community-based services administered by the Department’s Aging and People with Disabilities.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.060, 410.070 & 414.065

Hist.: SSD 7-1991(Temp), f. & cert. ef. 4-1-91; SSD 13-1991, f. 6-28-91, cert. ef. 7-1-91; SDSD 11-2002(Temp), f. 12-5-02, cert. ef. 12-6-02 thru 6-3-03; SPD 1-2003(Temp), f. 1-7-03, cert. ef. 2-1-03 thru 6-3-03; SPD 12-2003, f. 5-30-03, cert. ef. 6-4-03; SPD 17-2003(Temp), f. 10-31-03, cert. ef. 11-1-03 thru 4-28-04; SPD 8-2004, f. & cert. ef. 4-27-04; SPD 29-2004(Temp), f. & cert. ef. 8-6-04 thru 1-3-05; SPD 1-2005, f. & cert. ef. 1-4-05; SPD 19-2005, f. & cert. ef. 12-29-05; SPD 19-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 45-2013, f. 12-13-13, cert. ef. 12-15-13


Rule Caption: Case Management Services for Older Adults and Adults with Disabilities

Adm. Order No.: SPD 46-2013

Filed with Sec. of State: 12-13-2013

Certified to be Effective: 12-15-13

Notice Publication Date: 11-1-2013

Rules Adopted: 411-028-0000, 411-028-0010, 411-028-0020, 411-028-0030, 411-028-0040, 411-028-0050

Rules Repealed: 411-028-0000(T), 411-028-0010(T), 411-028-0020(T), 411-028-0030(T), 411-028-0040(T), 411-028-0050(T)

Subject: The Department of Human Services (Department) is permanently adopting rules for case management services for older adults and adults with disabilities in OAR chapter 411, division 028 to make permanent the temporary rules that became effective on July 1, 2013. The permanent rules articulate who may provide case management services and to whom and how often case management services will be provided.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-028-0000

Purpose

(1) The rules in OAR chapter 411, division 028 ensure case management services support the independence, empowerment, dignity, and human potential of older adult individuals and adult individuals with disabilities with the purpose of helping the individuals reside in their own home or in a community-based setting.

(2) Case management services are a component of an individual’s comprehensive, person-centered plan for services.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13

411-028-0010

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 028:

(1) “Adult” means any person at least 18 years of age.

(2) “Adult Protective Services” mean the services provided in response to the need for protection from abuse described in OAR chapter 411, division 20, OAR chapter 407, division 45, and OAR chapter 943, division 45.

(3) “Case Management” means the functions described in OAR 411-028-0020 performed by a case manager, adult protective services investigator, or higher level management staff.

(4) “Case Manager” means a Department employee or an employee of the Department’s designee that meets the minimum qualifications in OAR 411-028-0040 who is responsible for service eligibility, assessment of need, offering service choices to eligible individuals, service planning, service authorization and implementation, and evaluation of the effectiveness of Medicaid home and community-based services.

(5) “Collateral Contact” means contact by a case manager with others who may provide information regarding an individual’s health, safety, functional needs, social needs, or effectiveness of the individual’s plan for services. Collateral contact may include family members, service providers, medical providers, neighbors, pharmacy staff, friends, or other professionals involved in the service coordination of an individual receiving Medicaid home and community-based services.

(6) “Department” means the Department of Human Services.

(7) “Designee” means an organization that the Department contracts with or has an interagency agreement with for the purposes of providing case management services.

(8) “Disability” means a physical, cognitive, or emotional impairment which, for an individual, constitutes or results in a functional limitation in one or more of the activities of daily living defined in OAR 411-015-0006.

(9) “Individual” means an older adult or an adult with a disability applying for or determined eligible for Medicaid home and community-based services.

(10) “Medicaid Home and Community-Based Services” mean the services for older adults and adults with disabilities approved for Oregon by the Centers for Medicare and Medicaid Services.

(11) “Older Adult” means any person at least 65 years of age.

(12) “OSIP-M” means Oregon Supplemental Income Program-Medical as defined in OAR 461-101-0010. OSIPM is Oregon Medicaid insurance coverage for individuals who meet eligibility criteria as described in OAR chapter 461.

(13) “Representative” is a person either appointed by an individual to participate in service planning on the individual’s behalf or a person with longstanding involvement in assuring the individual’s health, safety, and welfare.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13

411-028-0020

Scope of Case Management Services

(1) DIRECT CASE MANAGEMENT SERVICES. Direct case management services are provided by a case manager, adult protective services investigator, or higher level staff, who communicates directly with an individual or the individual’s representative. Direct case management services may occur by phone call, face-to-face contact, or email. Direct case management services do not include contact with collateral contacts unless the collateral contact is the individual’s authorized representative. Direct case management services include:

(a) An assessment as described in OAR 411-015-0008;

(b) Service Plan development and review as described in OAR 411-015-0008;

(c) Service options choice counseling as described in OAR 411-030-0050;

(d) Risk assessment and monitoring:

(A) Identifying and documenting risks;

(B) Working with an individual to eliminate or reduce risks;

(C) Developing and implementing a Risk Mitigation Plan;

(D) Monitoring risks over time; and

(E) Making adjustments to an individual’s Service Plan as needed.

(e) Diversion activities. Assisting an individual with finding alternatives to a nursing facility admission;

(f) Adult protective services investigation including all protective service activity directly provided to an individual;

(g) Other program coordination. Helping an individual navigate or coordinate with other social, health, and assistance programs;

(h) Crisis response and intervention. Assisting an individual with problem resolution; and

(i) Service provision issues. Assisting an individual with problem solving to resolve issues that occur with providers, services, or hours that don’t meet the individual’s needs.

(2) INDIRECT CASE MANAGEMENT SERVICES. Indirect case management services are services provided by a case manager, adult protective services investigator, or higher level staff, in which direct contact with an individual is not occurring. Indirect case management services include:

(a) Monitoring Service Plan implementation. Reviewing implementation of an individual’s Service Plan by reviewing and comparing authorized and billed services to ensure that adequate services are being provided;

(b) Service options choice counseling. Assisting an individual’s caregiver, family member, or other support person with understanding all available Medicaid home and community-based service options;

(c) Risk monitoring. Working with a collateral contact to review an individual’s risks, eliminating or reducing risks, and developing and implementing a Risk Mitigation Plan. Adjustments to an individual’s Service Plan based on risk monitoring activities are classified as direct case management;

(d) Diversion activities. Finding alternatives to a nursing facility admission. Diversion activities do not include transition activities to help an individual move from a nursing facility.

(e) Adult protective services referral including collateral contact and investigative work;

(f) Other program coordination. Helping collateral contacts navigate or coordinate with other social, health, and assistance programs;

(g) Service provision issues. Assisting with problem solving issues that occur with providers, services, or hours that do not meet an individual’s needs; and

(h) Other case management activities not included in any criteria in this section of the rule.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13

411-028-0030

Eligibility for Case Management Services

To be eligible for case management services a person must:

(1) Be 18 years of age or older;

(2) Be eligible for OSIP-M; and

(3) Meet the functional impairment level within the service priority levels currently served by the Department as outlined in OAR 411-015-0010 and OAR 411-015-0015.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13

411-028-0040

Qualified Case Manager

Staff working for the Department or the Department’s designee must meet the following requirements to provide case management services:

(1) A bachelor’s degree in a behavioral science, social science, or a closely related field; or

(2) A bachelor’s degree in any field and one year of human services related experience that may include providing assistance to people and groups with issues such as economical disadvantages, employment barriers and shortages, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, or inadequate housing; or

(3) An associate’s degree in a behavioral science, social science, or a closely related field and two years of human services related experience that may include providing assistance to people and groups with issues such as economical disadvantages, employment barriers and shortages, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, or inadequate housing; or

(4) Three years of human services related experience that may include providing assistance to people and groups with issues such as economical disadvantages, employment barriers and shortages, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, or inadequate housing.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13

411-028-0050

Frequency of Case Management Services

A case manager who meets the requirements in OAR 411-028-0040 must provide the following case management services to an eligible individual receiving Medicaid home and community-based services:

(1) A direct case management service as described in OAR 411-028-0020 must be provided to an eligible individual no less than once in each calendar quarter.

(2) An indirect case management service must be provided in every calendar month a direct case management service was not provided.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SPD 15-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 46-2013, f. 12-13-13, cert. ef. 12-15-13


Rule Caption: Homecare Workers Enrolled in the Consumer-Employed Provider Program

Adm. Order No.: SPD 47-2013

Filed with Sec. of State: 12-13-2013

Certified to be Effective: 12-15-13

Notice Publication Date: 11-1-2013

Rules Amended: 411-031-0020, 411-031-0040, 411-031-0050

Rules Repealed: 411-031-0020(T), 411-031-0040(T)

Subject: The Department of Human Services (Department) is permanently amending the rules in OAR chapter 411, division 031 relating to homecare workers enrolled in the Consumer-Employed Provider Program.

   The permanent rules:

   - Adopt the changes made by temporary rule that became effective on July 1, 2013;

   - Amend the definition of fiscal improprieties to protect a homecare worker employed by a relative from an allegation of fiscal improprieties;

   - Remove references to waivered services as appropriate, and as appropriate, replace the references with references to Medicaid home and community-based services in order to recognize services available through Medicaid waivers or under the Medicaid State Plan;

   - Allow the Department to decide on a case-by-case basis whether to request a proposed order, final order, or proposed and final order when making referrals to the Office of Administrative Hearings when a homecare worker requests an administrative hearing based on the termination of his or her provider enrollment; and

   - Reflect new Department terminology and correct formatting and punctuation.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-031-0020

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 31:

(1) “AAA” means “Area Agency on Aging” as defined in this rule.

(2) “Abuse” means abuse as defined by OAR 411-020-0002, 407-045-0260, and 943-045-0260.

(3) “Activities of Daily Living (ADL)” mean those personal, functional activities required by an individual for continued well-being, which are essential for the individual’s health and safety. Activities include eating, dressing/grooming, bathing/personal hygiene, mobility (ambulation and transfer), elimination (toileting, bowel, and bladder management), and cognition/behavior as defined in OAR 411-015-0006.

(4) “ADL” means “activities of daily living” as defined in this rule.

(5) “Adult” means any person at least 18 years of age.

(6) “Adult Protective Services” mean the services provided in response to the need for protection from abuse described in OAR chapter 411, division 20, OAR chapter 407, division 45, and OAR chapter 943, division 45.

(7) “Area Agency on Aging (AAA)” means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The terms AAA and Area Agency on Aging are inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in 410.210 to 410.300.

(8) “Burden of Proof” means the existence or nonexistence of a fact is established by a preponderance of evidence.

(9) “Career Homecare Worker” means a homecare worker with an unrestricted provider enrollment. A career homecare worker has a provider enrollment that allows the homecare worker to provide services to any eligible in-home services consumer. At any given time, a career homecare worker may choose not to be referred for work.

(10) “Case Manager” means an employee of the Department or Area Agency on Aging who assesses the service needs of individuals, determines eligibility, and offers service choices to eligible individuals. The case manager authorizes and implements an individual’s service plan and monitors the services delivered as described in OAR chapter 411, division 28.

(11) “Collective Bargaining Agreement” means the ratified Collective Bargaining Agreement between the Home Care Commission and the Service Employees International Union, Local 503. The Collective Bargaining Agreement is maintained on the Department’s website: (http://www.dhs.state.or.us/spd/tools/cm/homecare/index.htm). Printed copies may be obtained by calling (503) 945-6398 or writing the Department of Human Services, Aging and People with Disabilities, ATTN: Rules Coordinator, 500 Summer Street NE, E-10, Salem, Oregon 97301.

(12) “Companionship Services” mean those services designated by the Department of Labor as meeting the personal needs of a consumer. Companionship services are exempt from federal and state minimum wage laws.

(13) “Consumer” or “Consumer-Employer” means an individual eligible for in-home services.

(14) “Consumer-Employed Provider Program” refers to the program wherein a provider is directly employed by a consumer to provide either hourly or live-in in-home services. In some aspects of the employer and employee relationship, the Department acts as an agent for the consumer-employer. These functions are clearly described in OAR 411-031-0040.

(15) “Department” means the Department of Human Services.

(16) “Disability” means a physical, cognitive, or emotional impairment which, for an individual, constitutes or results in a functional limitation in one or more of the activities of daily living defined in OAR 411-015-0006.

(17) “Evidence” means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.

(18) “Fiscal Improprieties” means a homecare worker committed financial misconduct involving a consumer’s money, property, or benefits.

(a) Fiscal improprieties include but are not limited to financial exploitation, borrowing money from a consumer, taking a consumer’s property or money, having a consumer purchase items for the homecare worker, forging a consumer’s signature, falsifying payment records, claiming payment for hours not worked, or similar acts intentionally committed for financial gain.

(b) Fiscal improprieties do not include the exchange of money, gifts, or property between a homecare worker and a consumer-employer with whom the homecare worker is related unless an allegation of financial exploitation, as defined in OAR 411-020-0002 or 407-045-0260, has been substantiated based on an adult protective services investigation.

(19) “Homecare Worker” means a provider, as described in OAR 411-031-0040, that is directly employed by a consumer to provide either hourly or live-in services to the consumer.

(a) The term homecare worker includes:

(A) A consumer-employed provider in the Spousal Pay and Oregon Project Independence Programs;

(B) A consumer-employed provider that provides state plan personal care services; and

(C) A relative providing Medicaid in-home services to a consumer living in the relative’s home.

(b) The term homecare worker does not include an Independent Choices Program provider or a personal support worker enrolled through Developmental Disability Services or the Addictions and Mental Health Division.

(20) “Hourly Services” mean the in-home services, including activities of daily living and instrumental activities of daily living, that are provided at regularly scheduled times.

(21) “IADL” means “instrumental activities of daily living” as defined in this rule.

(22) “Imminent Danger” means there is reasonable cause to believe an individual’s life or physical, emotional, or financial well-being is in danger if no intervention is immediately initiated.

(23) “Individual” means an older adult or an adult with a disability applying for or eligible for services.

(24) “In-Home Services” mean the activities of daily living and instrumental activities of daily living that assist an individual to stay in his or her own home or the home of a relative.

(25) “Instrumental Activities of Daily Living (IADL)” mean those activities, other than activities of daily living, required by an individual to continue independent living. The definitions and parameters for assessing needs in IADL are identified in OAR 411-015-0007.

(26) “Lack of Ability or Willingness to Maintain Consumer-Employer Confidentiality” means a homecare worker is unable or unwilling to keep personal information about a consumer-employer private.

(27) “Lack of Skills, Knowledge, and Ability to Adequately or Safely Perform the Required Work” means a homecare worker does not possess the skills to perform services needed by consumers of the Department. The homecare worker may not be physically, mentally, or emotionally capable of providing services to consumers. The homecare worker’s lack of skills may put consumers at risk because the homecare worker fails to perform, or learn to perform, the duties needed to adequately meet the needs of the consumers.

(28) “Live-In Services” mean the Consumer-Employed Provider Program services provided when a consumer requires activities of daily living, instrumental activities of daily living, and twenty-four hour availability. Time spent by any live-in homecare worker doing instrumental activities of daily living and twenty-four hour availability are exempt from federal and state minimum wage and overtime requirements.

(29) “Older Adult” means any person at least 65 years of age.

(30) “Office of Administrative Hearings” means the panel described in ORS 183.605 to 183.690 established within the Employment Department to conduct contested case proceedings and other such duties on behalf of designated state agencies.

(31) “Oregon Project Independence” means the program of in-home services described in OAR chapter 411, division 032.

(32) “Preponderance of the Evidence” means that one party’s evidence is more convincing than the other party’s.

(33) “Provider” means the person who renders the services.

(34) “Provider Enrollment” means a homecare worker’s authorization to work as a provider employed by a consumer for the purpose of receiving payment for authorized services provided to consumers of the Department. Provider enrollment includes the issuance of a Medicaid provider number.

(35) “Provider Number” means an identifying number issued to each homecare worker who is enrolled as a provider through the Department.

(36) “Relative” means a person, excluding an individual’s spouse, who is related to the individual by blood, marriage, or adoption.

(37) “Restricted Homecare Worker” means the Department or Area Agency on Aging has placed restrictions on a homecare worker’s provider enrollment as described in OAR 411-031-0040.

(38) “Self-Management Tasks” means “instrumental activities of daily living” as defined in this rule.

(39) “Services are not Provided as Required” means a homecare worker does not provide services to a consumer as described in the consumer’s service plan authorized by the Department.

(40) “These Rules” mean the rules in OAR chapter 411, division 031.

(41) “Twenty-Four Hour Availability” means the availability and responsibility of a homecare worker to meet the activity of daily living and instrumental activity of daily living needs of a consumer as required by the consumer over a twenty-four hour period. Twenty-four hour availability services are provided by a live-in homecare worker and are exempt from federal and state minimum wage and overtime requirements.

(42) “Unacceptable Background Check” means a check that produces information related to a person’s background that precludes the person from being a homecare worker for the following reasons:

(a) The person applying to be a homecare worker has been disqualified under OAR 407-007-0275;

(b) A homecare worker enrolled in the Consumer-Employed Provider Program for the first time, or after any break in enrollment, after July 28, 2009 has been disqualified under OAR 407-007-0275; or

(c) A background check and fitness determination has been conducted resulting in a “denied” status, as defined in OAR 407-007-0210.

(43) “Unacceptable Conduct at Work” means a homecare worker has repeatedly engaged in one or more of the following behaviors:

(a) Delay in arrival to work or absence from work not prior-scheduled with a consumer that is either unsatisfactory to a consumer or neglects the consumer’s service needs; or

(b) Inviting unwelcome guests or pets into a consumer’s home, resulting in the consumer’s dissatisfaction or a homecare worker’s inattention to the consumer’s required service needs.

(44) “Violation of a Drug-Free Workplace” means there was a substantiated complaint against a homecare worker for:

(a) Being intoxicated by alcohol, inhalants, prescription drugs, or other drugs, including over-the-counter medications, while responsible for the care of a consumer, while in the consumer’s home, or while transporting the consumer; or

(b) Manufacturing, possessing, selling, offering to sell, trading, or using illegal drugs while providing authorized services to a consumer or while in the consumer’s home.

(45) “Violation of Protective Service and Abuse Rules” means, based on a substantiated allegation of abuse, a homecare worker was found to have violated the protective service and abuse rules described in OAR chapter 411, division 20, OAR chapter 407, division 45, or OAR chapter 943, division 45.

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

Hist.: SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; SPD 10-2005, f. & cert. ef. 7-1-05; SPD 15-2005(Temp), f. & cert. ef. 11-16-05 thru 5-15-06; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 28-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07; SPD 4-2007, f. 4-12-07, cert. ef. 4-17-07; SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10; SPD 4-2010(Temp), f. 6-23-10, cert. ef. 7-1-10 thru 12-28-10; SPD 26-2010, f. 11-29-10, cert. ef. 12-1-10; SPD 13-2012(Temp), f. & cert. ef. 9-26-12 thru 3-25-13; SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13; SDP 18-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 47-2013, f. 12-13-13, cert. ef. 12-15-13

411-031-0040

Consumer-Employed Provider Program

The Consumer-Employed Provider Program contains systems and payment structures to employ both hourly and live-in providers. The live-in structure assumes a provider is required for activities of daily living (ADLs), instrumental activities of daily living (IADLs), and twenty-four hour availability. The hourly structure assumes a provider is required for ADLs and IADLs during specific substantial periods. Except as indicated, all of the following criteria apply to both hourly and live-in providers:

(1) EMPLOYMENT RELATIONSHIP. The relationship between a provider and a consumer is that of employee and employer.

(2) CONSUMER-EMPLOYER JOB DESCRIPTIONS. A consumer-employer is responsible for creating and maintaining a job description for a potential provider in coordination with the services authorized by the consumer’s case manager.

(3) HOMECARE WORKER LIABILITIES. The only benefits available to homecare workers are those negotiated in the Collective Bargaining Agreement and as provided in Oregon Revised Statute. This Agreement does not include participation in the Public Employees Retirement System or the Oregon Public Service Retirement Plan. Homecare workers are not state employees.

(4) CONSUMER-EMPLOYER ABSENCES. When a consumer-employer is absent from his or her home due to an illness or medical treatment and is expected to return to the home within a 30 day period, the consumer’s live-in provider may be retained to ensure the live-in provider’s presence upon the consumer’s return or to maintain the consumer’s home for up to 30 days at the rate of pay immediately preceding the consumer’s absence.

(5) SELECTION OF HOMECARE WORKER. A consumer-employer carries primary responsibility for locating, interviewing, screening, and hiring his or her own employees. The consumer-employer has the right to employ any person who successfully meets the provider enrollment standards described in section (8) of this rule. The Department/AAA office determines whether a potential homecare worker meets the enrollment standards needed to provide services authorized and paid for by the Department.

(6) EMPLOYMENT AGREEMENT. A consumer-employer retains the full right to establish an employer-employee relationship with a person at any time after the person’s Bureau of Citizenship and Immigration Services papers have been completed and identification photocopied. Payment for services is not guaranteed until the Department has verified that a person meets the provider enrollment standards described in section (8) of this rule and notified both the employer and homecare worker in writing that payment by the Department is authorized.

(7) TERMS OF EMPLOYMENT. A consumer-employer must establish terms of an employment relationship with an employee at the time of hire. The terms of employment may include dismissal or resignation notice, work scheduling, absence reporting, and any sleeping arrangements or meals provided for live-in or hourly employees. Termination and the grounds for termination of employment are determined by a consumer-employer. A consumer-employer has the right to terminate an employment relationship with a homecare worker at any time and for any reason.

(8) PROVIDER ENROLLMENT.

(a) ENROLLMENT STANDARDS. A homecare worker must meet all of the following standards to be enrolled with the Department’s Consumer-Employed Provider Program:

(A) The homecare worker must maintain a drug-free work place.

(B) The homecare worker must complete the background check process described in OAR 407-007-0200 to 407-007-0370 with an outcome of approved or approved with restrictions. The Department/AAA may allow a homecare worker to work on a preliminary basis in accordance with 407-007-0315 if the homecare worker meets the other provider enrollment standards described in this section of the rule.

(C) The homecare worker must have the skills, knowledge, and ability to perform, or to learn to perform, the required work.

(D) The homecare worker’s U.S. employment authorization must be verified.

(E) The homecare worker must be 18 years of age or older. The Department may approve a restricted enrollment, as described in section (8)(d) of this rule, for a homecare worker who is at least 16 years of age.

(F) The homecare worker must complete an orientation as described in section (8)(e) of this rule.

(G) The homecare worker must have a tax identification number or social security number that matches the homecare worker’s legal name, as verified by the Internal Revenue Service or Social Security Administration.

(b) The Department/AAA may deny an application for provider enrollment in the Consumer-Employed Provider Program when:

(A) The applicant has a history of violating protective service and abuse rules;

(B) The applicant has committed fiscal improprieties;

(C) The applicant does not have the skills, knowledge, or ability to adequately or safely provide services;

(D) The applicant has an unacceptable background check;

(E) The applicant is not 18 years of age;

(F) The applicant has been excluded by the Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, and all other Federal Health Care Programs;

(G) The Department/AAA has information that enrolling the applicant as a homecare worker may put vulnerable consumers at risk; or

(H) The applicant’s tax identification number or social security number does not match the applicant’s legal name, as verified by the Internal Revenue Service or Social Security Administration.

(c) BACKGROUND CHECKS.

(A) When a homecare worker is approved without restrictions following a background check fitness determination, the approval must meet the homecare worker provider enrollment requirement statewide whether the qualified entity is a state-operated Department office or an AAA operated by a county, council of governments, or a non-profit organization.

(B) Background check approval is effective for two years unless:

(i) Based on possible criminal activity or other allegations against a homecare worker, a new fitness determination is conducted resulting in a change in approval status; or

(ii) Approval has ended because the Department has inactivated or terminated a homecare worker’s provider enrollment for one or more reasons described in this rule or OAR 411-031-0050.

(C) Prior background check approval for another Department provider type is inadequate to meet background check requirements for homecare worker enrollment.

(D) Background rechecks are conducted at least every other year from the date a homecare worker is enrolled. The Department/AAA may conduct a recheck more frequently based on additional information discovered about a homecare worker, such as possible criminal activity or other allegations.

(d) RESTRICTED PROVIDER ENROLLMENT.

(A) The Department/AAA may enroll an applicant as a restricted homecare worker. A restricted homecare worker may only provide services to a specific consumer.

(i) Unless disqualified under OAR 407-007-0275, the Department/AAA may approve a homecare worker with a prior criminal record under a restricted enrollment to provide services to a specific consumer who is a family member, neighbor, or friend after conducting a weighing test as described in 407-007-0200 to 407-007-0370.

(ii) Based on an applicant’s lack of skills, knowledge, or abilities, the Department/AAA may approve the applicant as a restricted homecare worker to provide services to a specific consumer who is a family member, neighbor, or friend.

(iii) Based on an exception to the age requirements for provider enrollment approved by the Department as described in subsection (a)(E) of this section, a homecare worker who is at least 16 years of age may be approved as a restricted homecare worker.

(B) To remove restricted homecare worker status and be designated as a career homecare worker, the restricted homecare worker must complete a new application and background check and be approved by the Department/AAA.

(e) HOMECARE WORKER ORIENTATION. Homecare workers must participate in an orientation arranged through a Department/AAA office. The orientation must occur within the first 30 days after the homecare worker becomes enrolled in the Consumer-Employed Provider Program and prior to beginning work for any specific Department/AAA consumers. When completion of an orientation is not possible within those timelines, orientation must be completed within 90 days of being enrolled. If a homecare worker fails to complete an orientation within 90 days of provider enrollment, the homecare worker’s provider number is inactivated and any authorization for payment of services is discontinued.

(f) INACTIVATED PROVIDER ENROLLMENT. A homecare worker’s provider enrollment may be inactivated when:

(A) The homecare worker has not provided any paid services to any consumer in the last 12 months;

(B) The homecare worker’s background check results in a closed case pursuant to OAR 407-007-0325;

(C) The homecare worker informs the Department/AAA the homecare worker is no longer providing services in Oregon;

(D) The homecare worker fails to participate in an orientation arranged through a Department/AAA office within 90 days of provider enrollment;

(E) The homecare worker, who at the time is not providing any paid services to consumers, is being investigated by Adult Protective Services for suspected abuse that poses imminent danger to current or future consumers; or

(F) The homecare worker’s provider payments, all or in part, have been suspended based on a credible allegation of fraud pursuant to federal law under 42 CFR 455.23.

(9) PAID LEAVE.

(a) LIVE-IN HOMECARE WORKERS. Irrespective of the number of consumers served, the Department authorizes one twenty-four hour period of leave each month when a live-in homecare worker or spousal pay provider is the only live-in provider during the course of a month. For any part of a month worked, the live-in homecare worker receives a proportional share of the twenty-four hour period of leave authorization. A prorated share of the twenty-four hours is allocated proportionately to each live-in when there is more than one live-in provider per consumer.

(A) ACCUMULATION AND USAGE FOR LIVE-IN PROVIDERS. A live-in homecare worker may not accumulate more than 144 hours of accrued leave. A consumer-employer, homecare worker, and case manager must coordinate the timely use of accrued hours. Live-in homecare workers must take vacation leave in twenty-four hour increments or in hourly increments of at least one but not more than twelve hours. A live-in homecare worker must take accrued leave while employed as a live-in.

(B) THE RIGHT TO RETAIN LIVE-IN PAID LEAVE. A live-in homecare worker retains the right to access earned paid leave when terminating employment with one employer, so long as the homecare worker is employed with another employer as a live-in within one year of separation.

(C) TRANSFERABILITY OF LIVE-IN PAID LEAVE. A live-in homecare worker who converts to hourly or separates from live-in service and returns as an hourly homecare worker within one year from the last day of live-in services is credited with their unused hours of leave up to a maximum of 32 hours.

(D) CASH OUT OF PAID LEAVE.

(i) The Department pays live-in homecare workers 50 percent of all unused paid leave accrued as of January 31 of each year. The balance of paid leave is reduced 50 percent with the cash out.

(ii) Vouchers requesting payment of paid leave received after January 31 may only be paid up to the amount of remaining unused paid leave.

(iii) A live-in homecare worker providing live-in services seven days per week for one consumer-employer may submit a request for payment of 100 percent of unused paid leave if --

(I) The live-in homecare worker’s consumer-employer is no longer eligible for in-home services described in OAR chapter 411, division 030; and

(II) The live-in homecare worker does not have alternative residential housing.

(iv) If a request for payment of 100 percent of unused paid leave based on subparagraph (D)(iii)(I) and (II) of this subsection is granted, the homecare’s paid leave balance is reduced to zero.

(b) HOURLY HOMECARE WORKERS.

(A) On July 1st of each year, active homecare workers who worked 80 authorized and paid hours in any one of the three months that immediately precede July (April, May, June) are credited with one 16 hour block of paid leave to use during the current fiscal biennium (July 1 through June 30) in which the paid leave was accrued.

(B) On February 1st of each year, active homecare workers who worked 80 authorized and paid hours in any one of the three months that immediately precede February (November, December, January) are credited with one 16 hour block of paid leave.

(C) One 16 hour block of paid leave is credited to each eligible homecare worker, irrespective of the number of consumers the homecare worker serves. Such leave may not be cumulative from biennium to biennium.

(D) UTILIZATION OF HOURLY PAID LEAVE.

(i) Time off must be utilized in one eight hour block subject to authorization. If a homecare worker’s normal workday is less than eight hours, the time off may be utilized in blocks equivalent to the homecare worker’s normal workday. Any remaining hours that are less than a normally scheduled workday may be taken as a single block.

(ii) Hourly homecare workers may take unused paid leave when the homecare worker’s employer is temporarily unavailable for the homecare worker to provide services. In all other situations, a homecare worker who is not working during a month is not eligible to use paid time off in that month.

(E) LIMITATIONS OF HOURLY PAID LEAVE. Homecare workers may not be compensated for paid leave unless the time off work is actually taken except as noted in subsection (b)(G) of this section.

(F) TRANSFERABILITY OF HOURLY PAID LEAVE. An hourly homecare worker who transfers to work as a live-in homecare worker (within the biennium that the hourly leave is earned) maintains the balance of hourly paid leave and begins accruing live-in paid leave.

(G) CASH OUT OF PAID LEAVE.

(i) The Department pays hourly providers for all unused paid leave accrued as of January 31 of each year. The balance of paid leave is reduced to zero with the cash out.

(ii) Vouchers requesting payment of paid leave received after January 31 may not be paid if paid leave has already been cashed out.

(10) DEPARTMENT FISCAL AND ACCOUNTABILITY RESPONSIBILITY.

(a) DIRECT SERVICE PAYMENTS. The Department makes payment to a homecare worker on behalf of a consumer for all in-home services. The payment is considered full payment for the Medicaid home and community-based services rendered. Under no circumstances is a homecare worker to demand or receive additional payment for Medicaid home and community-based services from a consumer or any other source. Additional payment to homecare workers for the same home and community-based services covered by Medicaid is prohibited.

(b) TIMELY SUBMISSION OF CLAIMS. In accordance with OAR 410-120-1300, all claims for services must be submitted within 12 months of the date of service.

(c) ANCILLARY CONTRIBUTIONS.

(A) FEDERAL INSURANCE CONTRIBUTIONS ACT (FICA). Acting on behalf of a consumer-employer, the Department applies applicable FICA regulations; and

(i) Withholds a homecare worker-employee contribution from payments; and

(ii) Submits the consumer-employer contribution and the amounts withheld from the homecare worker-employee to the Social Security Administration.

(B) BENEFIT FUND ASSESSMENT. The Workers’ Benefit Fund pays for programs that provide direct benefits to injured workers and the workers’ beneficiaries and assist employers in helping injured workers return to work. The Department of Consumer and Business Services sets the Workers’ Benefit Fund assessment rate for each calendar year. The Department calculates the hours rounded up to the nearest whole hour and deducts an amount rounded up to the nearest cent. Acting on behalf of the consumer-employer, the Department:

(i) Deducts a homecare worker-employees’ share of the Benefit Fund assessment rate for each hour or partial hour worked by each paid homecare worker;

(ii) Collects the consumer-employer’s share of the Benefit Fund assessment for each hour or partial hour of paid services received; and

(iii) Submits the consumer-employer’s and homecare worker-employee’s contributions to the Workers’ Benefit Fund.

(C) The Department pays the consumer-employer’s share of the unemployment tax.

(d) ANCILLARY WITHHOLDINGS. For the purpose of this subsection of the rule, “labor organization” means any organization that represents employees in employment relations.

(A) The Department deducts a specified amount from the homecare worker-employee’s monthly salary or wages for payment to a labor organization.

(B) In order to receive payment, a labor organization must enter into a written agreement with the Department to pay the actual administrative costs of the deductions.

(C) The Department pays the deducted amount to the designated labor organization monthly.

(e) STATE AND FEDERAL INCOME TAX WITHHOLDING.

(A) The Department withholds state and federal income taxes on all payments to homecare workers, as indicated in the Collective Bargaining Agreement.

(B) A homecare worker must complete and return a current Internal Revenue Service W-4 form to the Department/AAA’s local office. The Department applies standard income tax withholding practices in accordance with 26 CFR 31.

(11) REIMBURSEMENT FOR COMMUNITY TRANSPORTATION.

(a) A homecare worker is reimbursed at the mileage reimbursement rate established in the Collective Bargaining Agreement when the homecare worker uses his or her own personal motor vehicle for community transportation, if prior authorized by a consumer’s case manager. If unscheduled transportation needs arise during non-office hours, the homecare worker must provide an explanation as to the need for the transportation and the transportation must be approved by the consumer’s case manager prior to reimbursement.

(b) Medical transportation through the Division of Medical Assistance Programs (DMAP), volunteer transportation, and other transportation services included in a consumer’s service plan is considered a prior resource.

(c) The Department is not responsible for vehicle damage or personal injury sustained when a homecare worker uses his or her own personal motor vehicle for DMAP or community transportation, except as may be covered by workers’ compensation.

(12) BENEFITS. Workers’ compensation and health insurance are available to eligible homecare workers as described in the Collective Bargaining Agreement. In order to receive homecare worker services, a consumer-employer must consent and provide written authorization to the Department for the provision of workers’ compensation insurance for the consumer-employer’s employee.

(13) OVERPAYMENTS. An overpayment is any payment made to a homecare worker by the Department that is more than the homecare worker is authorized to receive.

(a) Overpayments are categorized as follows:

(A) ADMINISTRATIVE ERROR OVERPAYMENT. The Department failed to authorize, compute, or process the correct amount of in-home service hours or wage rate.

(B) PROVIDER ERROR OVERPAYMENT. The Department overpays the homecare worker due to a misunderstanding or unintentional error.

(C) FRAUD OVERPAYMENT. “Fraud” means taking actions that may result in receiving a benefit in excess of the correct amount, whether by intentional deception, misrepresentation, or failure to account for payments or money received. “Fraud” also means spending payments or money the homecare worker was not entitled to and any act that constitutes fraud under applicable federal or state law (including 42 CFR 455.2). The Department determines, based on a preponderance of the evidence, when fraud has resulted in an overpayment. The Department of Justice, Medicaid Fraud Control Unit determines when to pursue a Medicaid fraud allegation for prosecution.

(b) Overpayments are recovered as follows:

(A) Overpayments are collected prior to garnishments, such as child support, Internal Revenue Service back taxes, or educational loans.

(B) Administrative or provider error overpayments are collected at no more than 5 percent of the homecare worker’s gross wages.

(C) The Department determines when a fraud overpayment has occurred and the manner and amount to be recovered.

(D) When a person is no longer employed as a homecare worker, any remaining overpayment is deducted from the person’s final check. The person is responsible for repaying an overpayment in full when the person’s final check is insufficient to cover the remaining overpayment.

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020, 410.070, 410.612 & 410.614

Hist.: SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; SPD 10-2005, f. & cert. ef. 7-1-05; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 28-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07; SPD 4-2007, f. 4-12-07, cert. ef. 4-17-07; SPD 18-2007(Temp), f. 10-30-07, cert. ef. 11-1-07 thru 4-29-08; SPD 6-2008, f. 4-28-08, cert. ef. 4-29-08; SPD 16-2009(Temp), f. & cert. ef. 12-1-09 thru 5-30-10; SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10; SPD 4-2010(Temp), f. 6-23-10, cert. ef. 7-1-10 thru 12-28-10; SPD 26-2010, f. 11-29-10, cert. ef. 12-1-10; SPD 13-2012(Temp), f. & cert. ef. 9-26-12 thru 3-25-13; SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13; SDP 18-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 47-2013, f. 12-13-13, cert. ef. 12-15-13

411-031-0050

Termination, Administrative Review, and Hearing Rights

(1) EXCLUSIONS TO APPEAL AND HEARING RIGHTS. The following are excluded from the administrative review and hearing rights process described in this rule:

(a) Terminations based on a background check. The homecare worker has the right to a hearing in accordance with OAR 407-007-0200 to 407-007-0370.

(b) Homecare workers that have not worked in the last 12 months. The provider enrollment may become inactivated but may not be terminated. To activate the provider enrollment number, the homecare worker must complete an application and background check.

(c) Homecare workers that fail to complete a background recheck.

(d) Homecare workers that are denied a provider enrollment number at the time of initial application.

(e) Homecare workers not currently providing services to any consumers whose provider enrollment is inactivated while an Adult Protective Services investigation is being completed.

(f) Homecare workers who have been excluded by Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, and all other federal programs.

(2) VIOLATIONS RESULTING IN TERMINATION OF PROVIDER ENROLLMENT. The Department may terminate the homecare worker’s provider enrollment when a homecare worker:

(a) Violates the requirement to maintain a drug-free work place;

(b) Has an unacceptable background check;

(c) Lacks the skills, knowledge, and ability to adequately or safely perform the required work;

(d) Violates the protective service and abuse rules in OAR chapter 411, division 20, OAR chapter 407, division 45, and OAR chapter 943, division 45;

(e) Commits fiscal improprieties;

(f) Fails to provide services as required;

(g) Lacks the ability or willingness to maintain consumer-employer confidentiality. Unless given specific permission by the consumer-employer or the consumer-employer’s legal representative, the homecare worker may not share any personal information about the consumer including medical, social service, financial, public assistance, legal, or interpersonal details;

(h) Engages in unacceptable conduct at work;

(i) Has been excluded by the Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, and all other federal health care programs; or

(j) Fails to provide a tax identification number or social security number that matches the homecare worker’s legal name, as verified by the Internal Revenue Service or Social Security Administration.

(3) IMMEDIATE TERMINATION. The Department/AAA may immediately terminate a provider enrollment on the date the violation is discovered, prior to the outcome of the administrative review, when an alleged violation presents imminent danger to current or future consumers. The homecare worker may file an appeal of this decision directly to the Department - Central Office. The homecare worker must file any appeal within 10 business days from the date of the notice.

(4) TERMINATION PENDING APPEAL. When a violation does not present imminent danger to current or future consumers, the provider enrollment may not be terminated during the first 10 business days of the administrative review appeal period. The homecare worker must file any appeal within 10 business days from the date of the notice. If the homecare worker appeals in writing prior to the deadline for appeal, the enrollment may not be terminated until the conclusion of the administrative review.

(5) TERMINATION IF NO APPEAL FILED. The decision of the reviewer becomes final if the homecare worker does not appeal within 10 business days from the date of the notice of the decision. Once the time period for appeal has expired, the provider enrollment is terminated by the reviewer or designee.

(6) BURDEN OF PROOF. The Department has the burden of proving the allegations of the complaint by a preponderance of the evidence. Evidence submitted for the administrative hearing is governed by OAR 137-003-0050.

(7) ADMINISTRATIVE REVIEW PROCESS. The administrative review process allows an opportunity for the Department/AAA program manager or the Department - Central Office to review and reconsider the decision to terminate the homecare worker’s provider enrollment. The appeal may include the provision of new information or other actions that may result in the Department/AAA changing its decision.

(a) A written notice is issued by the Department/AAA when the Department decides to terminate a homecare worker’s provider enrollment. The written notice includes:

(A) An explanation of the reason for termination of the provider enrollment;

(B) The alleged violation as listed in section (2) of this rule; and

(C) The homecare worker’s appeal rights, including the right to union representation, and where to file the appeal.

(D) For terminations based on substantiated protective services allegations, the notice may only contain the limited information allowed by law. In accordance with ORS 124.075, 124.085, 124.090, and OAR 411-020-0030, complainants, witnesses, the name of the alleged victim, and protected health information may not be disclosed.

(b) INFORMAL CONFERENCE. At the first level of appeal, an informal conference (described in OAR 461-025-0325) if requested by the homecare worker, is scheduled with the homecare worker and any union representative. The Department/AAA program manager, or designee, meets with the homecare worker, reviews the facts, and explains why the decision was made. The informal conference may be held by telephone.

(c) The homecare worker must specify in the request for review the issues or decisions being appealed and the reason for the appeal. The appropriate party, as stated in the notice, must receive the request for review within 10 business days of the date of the decision affecting the homecare worker. If the homecare worker decides to file an appeal, they must file their appeal in the following order:

(A) ADMINISTRATIVE REVIEW.

(i) Program manager (or designee) at the local Department/AAA office. This is the first level of review for terminations pending appeal described in section (4) of this rule.

(ii) Department Central Office. This is the second level of appeal for terminations pending appeal described in section (4) of this rule. This is the only level of review for immediate terminations described in section (3) of this rule.

(B) OFFICE OF ADMINISTRATIVE HEARINGS.

(i) A homecare worker may file a request for a hearing with the local office if all levels of administrative review have been exhausted and the homecare worker continues to dispute the Department’s decision. The local office files the request with the Office of Administrative Hearings as described in OAR chapter 137, division 003. The request for the hearing must be filed with the local office within 30 calendar days of the date of the written notice from the Department — Central Office.

(ii) When the Department refers a contested case under these rules to the Office of Administrative Hearings, the Department indicates on the referral whether the Department is authorizing a proposed order, a proposed and final order, or a final order.

(iii) No additional hearing rights have been granted to homecare workers by this rule other than the right to a hearing on the Department’s decision to terminate the homecare worker’s provider enrollment.

(d) A written response of the outcome of the administrative review is sent to the homecare worker within 10 business days of the review date.

(e) If the administrative review determines that the decision to immediately terminate the provider enrollment was unjustified, the reviewer or designee must have the provider enrollment restored to active status and any earned benefits such as paid leave reinstated. The written response must notify the homecare worker that the provider enrollment is restored.

(8) REQUEST FOR EXTENSION TO DEADLINE. The Department/AAA or the homecare worker may request an extension of the 10-day deadline described in subsection (7)(e) above for circumstances beyond their control, if further information needs to be gathered to make a decision, or there is difficulty in scheduling a meeting between the parties.

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.070

Hist.: SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; Administrative correction 7-20-05; SPD 15-2005(Temp), f. & cert. ef. 11-16-05 thru 5-15-06; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10; SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13; SPD 47-2013, f. 12-13-13, cert. ef. 12-15-13


Rule Caption: State Plan Personal Care Services

Adm. Order No.: SPD 48-2013

Filed with Sec. of State: 12-13-2013

Certified to be Effective: 12-15-13

Notice Publication Date: 11-1-2013

Rules Amended: 411-034-0000, 411-034-0010, 411-034-0020, 411-034-0030, 411-034-0035, 411-034-0040, 411-034-0050, 411-034-0055, 411-034-0070, 411-034-0090

Rules Repealed: 411-034-0000(T), 411-034-0010(T), 411-034-0020(T), 411-034-0030(T), 411-034-0035(T), 411-034-0040(T), 411-034-0050(T), 411-034-0055(T), 411-034-0070(T), 411-034-0090(T)

Subject: The Department of Human Services (Department) is permanently amending the State Plan personal care services rules in OAR chapter 411, division 034.

   The permanent rules:

   - Adopt the changes made by temporary rule that became effective on July 1, 2013;

   - Modify the authorization of State Plan personal care service hours to allow individuals with needs that exceed the current 20 hour per month payment limitation to request an exception for additional hours;

   - Correctly reflect personal support workers as providers of State Plan personal care services;

   - Update the definitions to provide consistency with terms used for services for older adults, adults with disabilities, and individuals with intellectual or developmental disabilities;

   - Clarify provider qualifications, enrollment, employee-employer relationship, termination, and appeal rights;

   - Remove references to waivered services as appropriate, and as appropriate, replace the references with references to Medicaid home and community-based services in order to recognize services available through Medicaid waivers or under the Medicaid State Plan; and

   - Reflect new Department terminology and correct formatting and punctuation.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-034-0000

Purpose

The rules in OAR chapter 411, division 34 ensure State Plan personal care services support and augment independence, empowerment, dignity, and human potential through the provision of flexible, efficient, and suitable services to individuals eligible for State Plan personal care services. State Plan personal care services are intended to supplement an individual’s own personal abilities and resources.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 410.020, 410.070 & 410.710

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SPD 15-2010(Temp), f. & cert. ef. 6-30-10 thru 12-27-10; SPD 18-2010(Temp), f. & cert. ef. 7-29-10 thru 12-27-10; Administrative correction 1-25-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

411-034-0010

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 034:

(1) “AAA” means “Area Agency on Aging” as defined in this rule.

(2) “Adult” means any person at least 18 years of age.

(3) “Area Agency on Aging (AAA)” means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and adults with disabilities in a planning and service area. The terms AAA and Area Agency on Aging are inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in 410.210 to 410.300.

(4) “Assistance” means an individual requires help from another person with the personal care or supportive services described in OAR 411-034-0020. Assistance may include cueing, hands-on, monitoring, reassurance, redirection, set-up, standby, or support as defined in 411-015-0005. Assistance may also require verbal reminding to complete one of the tasks described in 411-034-0020.

(5) “Assistive Devices” means any category of durable medical equipment, mechanical apparatus, electrical appliance, or instrument of technology used to assist and enhance an individual’s independence in performing any task described in OAR 411-034-0020.

(6) “Assistive Supports” means the aid of service animals, general household items, or furniture used to assist and enhance an individual’s independence in performing any task described in OAR 411-034-0020.

(7) “Background Check” means a criminal records check and abuse check as defined in OAR 407-007-0210.

(8) “Case Management” means the functions performed by a case manager, services coordinator, personal agent, or manager. Case management includes determining service eligibility, developing a plan of authorized services, and monitoring the effectiveness of services.

(9) “Case Manager” means a Department employee or an employee of the Department’s designee, services coordinator, or personal agent who assesses the service needs of individuals, determines eligibility, and offers service choices to eligible individuals. A case manager authorizes and implements an individual’s plan for services and monitors the services delivered.

(10) “Central Office” means the main office of the Department, Division, or Designee.

(11) “Child” means an individual who is less than 18 years of age.

(12) “Community Developmental Disability Program (CDDP)” means the Department’s designee that is responsible for plan authorization, delivery, and monitoring of services for individuals with intellectual or developmental disabilities according to OAR chapter 411, division 320.

(13) “Contracted In-Home Care Agency” means an incorporated entity or equivalent, licensed in accordance with OAR chapter 333, division 536 that provides hourly contracted in-home services to individuals receiving services through the Department or Area Agency on Aging.

(14) “Cost Effective” means being responsible and accountable with Department resources by offering less costly alternatives when providing choices that adequately meet an individual’s service needs. Cost effective choices consist of all available service options, the utilization of assistive devices or assistive supports, natural supports, architectural modifications, and alternative service resources (defined in OAR 411-015-0005). Less costly alternatives may include resources not paid for by the Department.

(15) “Delegated Nursing Task” means a registered nurse (RN) authorizes an unlicensed person (defined in OAR 851-047-0010) to provide a nursing task normally requiring the education and license of an RN. In accordance with OAR 851-047-0000, 851-047-0010, and 851-047-0030, the RN’s written authorization of a delegated nursing task includes assessing a specific eligible individual, evaluating an unlicensed person’s ability to perform a specific nursing task, teaching the nursing task, and supervising and re-evaluating the individual and the unlicensed person at regular intervals.

(16) “Department” means the Department of Human Services.

(17) “Designee” means an organization with which the Department contracts or has an interagency agreement.

(18) “Developmental Disability” as defined in OAR 411-320-0020 and described in 411-320-0080.

(19) “Disability” means a physical, cognitive, or emotional impairment which, for an individual, constitutes or results in a functional limitation in one or more of the activities of daily living defined in OAR 411-015-0006.

(20) “Division” means:

(a) Oregon Health Authority, Addictions and Mental Health Division (AMHD);

(b) Department of Human Services, Aging and People with Disabilities Division (APD);

(c) Area Agencies on Aging (AAA);

(d) Department of Human Services, Self-Sufficiency Programs (SSP);

(e) Department of Human Services, Office of Developmental Disability Services (ODDS);

(f) Community Developmental Disability Programs (CDDP); and

(g) Support Services Brokerages.

(21) “Fiscal Improprieties” means a homecare or personal support worker committed financial misconduct involving an individual’s money, property, or benefits.

(a) Fiscal improprieties include but are not limited to financial exploitation, borrowing money from an individual, taking an individual’s property or money, having an individual purchase items for the homecare or personal support worker, forging an individual’s signature, falsifying payment records, claiming payment for hours not worked, or similar acts intentionally committed for financial gain.

(b) Fiscal improprieties do not include the exchange of money, gifts, or property between a homecare or personal support worker whose employer is a relative unless an allegation of financial exploitation, as defined in OAR 411-020-0002 or 407-045-0260, has been substantiated based on an adult protective services investigation.

(22) “Guardian” means a parent for an individual less than 18 years of age or a person or agency appointed and authorized by the courts to make decisions about services for an individual.

(23) “Homecare Worker” means a provider as described in OAR 411-031-0040, that is directly employed by an individual to provide either hourly or live-in services to the individual.

(a) The term homecare worker includes:

(A) A consumer-employed provider in the Spousal Pay and Oregon Project Independence Programs;

(B) A consumer-employed provider that provides State Plan personal care services; and

(C) A relative providing Medicaid in-home services to an individual living in the relative’s home.

(b) The term homecare worker does not include an Independent Choices Program provider or a personal support worker enrolled through Developmental Disability Services or the Addictions and Mental Health Division.

(24) “Individual” means the person applying for or determined eligible for State Plan personal care services.

(25) “Intellectual Disability” as defined in OAR 411-320-0020 and described in OAR 411-320-0080.

(26) “Lacks the Skills, Knowledge, and Ability to Adequately or Safely Perform the Required Work” means a homecare or personal support worker does not possess the skills to perform services needed by individuals receiving services from the Department. The homecare or personal support worker may not be physically, mentally, or emotionally capable of providing services to individuals. The homecare or personal support worker’s lack of skills may put individuals at risk because the homecare or personal support worker fails to perform, or learn to perform, the duties needed to adequately meet the needs of the individuals.

(27) “Legal Representative” means:

(a) For a child, the parent or step-parent unless a court appoints another person or agency to act as the guardian; and

(b) For an adult:

(A) A spouse;

(B) A family member who has legal custody or legal guardianship according to ORS 125.005, 125.300, 125.315, and 125.310;

(C) An attorney at law who has been retained by or for an individual; or

(D) A person or agency authorized by the courts to make decisions about services for an individual.

(28) “Long Term Care Community Nursing” means the nursing services described in OAR chapter 411, division 048.

(29) “Natural Support” means resources and supports (e.g. relatives, friends, significant others, neighbors, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential “natural support”. The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(30) “Older Adult” means any person at least 65 years of age.

(31) “Ostomy” means assistance that an individual needs with a colostomy, urostomy, or ileostomy tube or opening used for elimination.

(32) “Personal Agent” means a person who is a case manager for the provision of case management services, works directly with individuals and the individuals’ legal or designated representatives and families to provide or arrange for support services as described in OAR chapter 411, division 340, meets the qualifications set forth in 411-340-0150, and is a trained employee of a support services brokerage or a person who has been engaged under contract to the brokerage to allow the brokerage to meet responsibilities in geographic areas where personal agent resources are severely limited.

(33) “Personal Care” means the functional activities described in OAR 411-034-0020 that an individual requires for continued well-being.

(34) “Personal Support Worker” means:

(a) A provider:

(A) Who is hired by an individual with an intellectual or developmental disability or the individual’s representative;

(B) Who receives money from the Department for the purpose of providing services to the individual in the individual’s home or community; and

(C) Whose compensation is provided in whole or in part through the Department or community developmental disability program.

(b) This definition of personal support worker is intended to reflect the term as defined in ORS 410.600.

(35) “Provider” or “Qualified Provider” means a homecare worker or personal support worker that meets the qualifications in OAR 411-034-0050 that performs State Plan personal care services.

(36) “Provider Enrollment” means a homecare worker’s or personal support worker’s authorization to work as a provider employed by an eligible individual, representative, or legal representative for the purpose of receiving payment for services authorized by the Department. Provider enrollment includes the issuance of a Medicaid provider number.

(37) “Provider Number” means an identifying number issued to each homecare or personal support worker who is enrolled as a provider through the Department.

(38) “Relative” means a person, excluding an individual’s spouse, who is related to the individual by blood, marriage, or adoption.

(39) “Representative” means:

(a) A person appointed by an individual or legal representative to participate in service planning on the individual’s behalf that is either the individual’s guardian or natural support with longstanding involvement in assuring the individual’s health, safety and welfare; and

(b) For the purpose of obtaining State Plan personal care services through a homecare or personal support worker, the person selected by an individual or the individual’s legal representative to act on the individual’s behalf to provide the employer responsibilities described in OAR 411-034-0040.

(40) “Respite” means services for the relief of a person normally providing supports to an individual unable to care for him or herself.

(41) “Service Need” means the assistance with personal care and supportive services needed by an individual receiving Department services.

(42) “Service Plan” or “Service Authorization” means an individual’s written plan for services that identifies:

(a) The individual’s qualified provider who is to deliver the authorized services;

(b) The date when the provision of services is to begin; and

(c) The maximum monthly hours of personal care and supportive services authorized by the Department or the Department’s designee.

(43) “Services Coordinator” means an employee of a community developmental disability program or other agency that contracts with the county or Department, who is selected to plan, procure, coordinate, and monitor an individual’s plan for services, and to act as a proponent for individuals with intellectual or developmental disabilities.

(44) “State Plan Personal Care Services” means the assistance with personal care and supportive services described in OAR 411-034-0020 provided to an individual by a homecare worker or personal support worker. The assistance may include cueing, hands-on, monitoring, reassurance, redirection, set-up, standby, or support as defined in 411-015-0005. The assistance may also require verbal reminding to complete one of the personal care tasks described in 411-034-0020.

(45) “Sub-Acute Care Facility” means a care center or facility that provides short-term rehabilitation and complex medical services to an individual with a condition that does not require acute hospital care but prevents the individual from being discharged to his or her home.

(46) “Support Services Brokerage” means an entity, or distinct operating unit within an existing entity, that uses the principles of self-determination to perform the functions associated with planning and implementation of support services for individuals with intellectual or developmental disabilities.

(47) “These Rules” mean the rules in OAR chapter 411, division 34.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.020, 410.070, 410.710 & 411.675

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

411-034-0020

State Plan Personal Care Services

(1) State Plan personal care services are essential services that enable an individual to move into or remain in his or her own home. State Plan personal care services are provided in accordance with an individual’s authorized plan for services by a provider meeting the requirements in OAR 411-034-0050.

(a) To receive State Plan personal care services, an individual must demonstrate the need for assistance with personal care and supportive services and meet the eligibility criteria described in OAR 411-034-0030.

(b) State Plan personal care services are provided directly to an eligible individual and are not meant to provide respite or other services to an individual’s natural support system. State Plan personal care services may not be implemented for the purpose of benefiting an individual’s family members or the individual’s household in general.

(c) State Plan personal care services are limited to 20 hours per month per eligible individual.

(d) To meet an extraordinary personal care need, an individual, representative or legal representative may request an exception to the 20 hour per month limitation. An exception must be requested through the Central Office of the Division serving the individual. The Division has up to 45 days upon receipt of an exception request to determine whether an individual’s assessed personal care needs warrant exceeding the 20 hour per month limitation.

(2) Personal care services include:

(a) Basic personal hygiene — providing or assisting an individual with such needs as bathing (tub, bed bath, shower), washing hair, grooming, shaving, nail care, foot care, dressing, skin care, mouth care, and oral hygiene;

(b) Toileting, bowel, or bladder care — assisting to and from bathroom, on and off toilet, commode, bedpan, urinal, or other assistive device used for toileting, changing incontinence supplies, following a toileting schedule, cleansing an individual or adjusting clothing related to toileting, emptying a catheter drainage bag or assistive device, ostomy care, and bowel care;

(c) Mobility, transfers, or repositioning — assisting an individual with ambulation or transfers with or without assistive devices, turning an individual or adjusting padding for physical comfort or pressure relief, and encouraging or assisting with range-of-motion exercises;

(d) Nutrition — preparing meals and special diets, assisting with adequate fluid intake or adequate nutrition, assisting with food intake (feeding), monitoring to prevent choking or aspiration, assisting with special utensils, cutting food, and placing food, dishes, and utensils within reach for eating;

(e) Medication or oxygen management — assisting with ordering, organizing, and administering oxygen or prescribed medications (including pills, drops, ointments, creams, injections, inhalers, and suppositories), monitoring for choking while taking medications, assisting with the administration of oxygen, maintaining clean oxygen equipment, and monitoring for adequate oxygen supply;

(f) Delegated nursing tasks as defined in OAR 411-034-0010.

(3) When any of the services listed in section (2) of this rule are essential to the health, safety, and welfare of an individual and the individual is receiving personal care paid by the Department, the following supportive services may also be provided:

(a) Housekeeping tasks necessary to maintain the eligible individual in a healthy and safe environment, including cleaning surfaces and floors, making the individual’s bed, cleaning dishes, taking out the garbage, dusting, and gathering and washing soiled clothing and linens. Only the housekeeping activities related to the eligible individual’s needs may be considered in housekeeping;

(b) Arranging for necessary medical appointments including help scheduling appointments and arranging medical transportation services (described in OAR chapter 410, division 136) and assistance with mobility and transfers or cognition in getting to and from appointments or to an office within a medical clinic or center;

(c) Observing the individual’s health status and reporting any significant changes to physicians, health care professionals, or other appropriate persons;

(d) First aid and handling of emergencies, including responding to medical incidents related to conditions such as seizures, spasms, or uncontrollable movements where assistance is needed by another person and responding to an individual’s call for help during an emergent situation or for unscheduled needs requiring immediate response; and

(e) Cognitive assistance or emotional support provided to an individual by another person due to confusion, dementia, behavioral symptoms, or mental or emotional disorders. Cognitive assistance or emotional support includes helping the individual cope with change and assisting the individual with decision-making, reassurance, orientation, memory, or other cognitive symptoms.

(4) Payment may not be made for any of the following excluded services:

(a) Shopping;

(b) Community transportation;

(c) Money management;

(d) Mileage reimbursement;

(e) Social companionship;

(f) Day care, adult day services (described in OAR chapter 411, division 066), respite, or baby-sitting services;

(g) Medicaid home delivered meals (described in OAR chapter 411, division 040);

(h) Care, grooming, or feeding of pets or other animals; or

(i) Yard work, gardening, or home repair.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 409.010, 410.020, 410.070 & 410.608

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. & cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

411-034-0030

Eligibility for State Plan Personal Care Services

(1) To be eligible for State Plan personal care services, an individual must:

(a) Require assistance (defined in OAR 411-034-0010) from a qualified provider with one or more of the personal care tasks described in 411-034-0020; and

(b) Be a current service recipient of at least one of the following programs defined in OAR 461-101-0010:

(A) EXT — Extended Medical Assistance;

(B) MAA — Medical Assistance Assumed;

(C) MAF — Medical Assistance to Families;

(D) OHP — Oregon Health Plan;

(E) OSIP-M — Oregon Supplemental Income Program — Medical (OSIPM);

(F) TANF — Temporary Assistance to Needy Families; or

(G) REF — Refugee Assistance.

(2) An individual is not eligible to receive State Plan personal care services if:

(a) The individual is receiving assistance with activities of daily living (as described in OAR 411-015-0006) from a licensed 24-hour residential services program (such as an adult foster home, assisted living facility, group home, or residential care facility);

(b) The individual is in a prison, hospital, sub-acute care facility, nursing facility, or other medical institution;

(c) The individual’s service needs are met through the individual’s natural support system; or

(d) The individual receives services under other Medicaid home and community-based service options.

(3) Payment for State Plan personal care services is not intended to replace the resources available to an individual from the individual’s natural support system (defined in OAR 411-034-0010).

(4) State Plan personal care services are not intended to replace routine care commonly needed by an infant or child typically provided by the infant’s or child’s parent.

(5) State Plan personal care services may not be used to replace other governmental services.

(6) The Department, Division, or Designee has the authority to close the eligibility and authorization for State Plan personal care services if an individual fails to:

(a) Employ a provider that meets the requirements in OAR 411-034-0050; or

(b) Receive personal care from a qualified provider paid by the Department for 30 continuous calendar days or longer.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 409.010, 410.020, 410.070, 410.608 & 410.710

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. & cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

411-034-0035

Applying for State Plan Personal Care Services

(1) Individuals eligible for state plan personal care services as described in OAR 309-016-0690 must apply through the local community mental health program or agency contracted with AMHD. An individual applying for State Plan personal care services that is not eligible for or receiving services through ODDS or APD is referred to the appropriate AMHD office.

(2) An individual with an intellectual or developmental disability eligible for or receiving services through the Department’s Office of Developmental Disabilities Services (ODDS), a Community Developmental Disability Program (CDDP), or Support Services Brokerage must apply for State Plan personal care services through the local CDDP or the local support services brokerage.

(3) An older adult or an adult with a disability eligible for or receiving case management services from the Department’s Aging and People With Disabilities (APD) or Area Agency on Aging (AAA) must apply for State Plan personal care services through the local APD or AAA office.

(4) Individuals receiving benefits through the Department’s Self-Sufficiency Programs (SSP) must apply for State Plan personal care services through the local APD or AAA office. APD/AAA is responsible for service assessment and for any planning and payment authorization for State Plan personal care services, if the applicant is determined eligible.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 410.020, 410.070, 410.608, 410.710 & 411.116

Hist.: SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

411-034-0040

Employer-Employee Relationship

(1) EMPLOYER — EMPLOYEE RELATIONSHIP. The relationship between a provider and an eligible individual or the individual’s representative is that of employee and employer.

(2) JOB DESCRIPTION. As an employer, it is the responsibility of an individual or the individual’s representative to create and maintain a job description for a potential provider that is in coordination with the individual’s plan for services.

(3) PROVIDER BENEFITS. The only benefits available to homecare and personal support workers are those negotiated in a collective bargaining agreement and as provided in statute. The collective bargaining agreement does not include participation in the Public Employees Retirement System or the Oregon Public Service Retirement Plan. Homecare and personal support workers are not state or Division employees.

(4) EMPLOYER RESPONSIBILITIES. For an individual to be eligible for State Plan personal care services, the individual or the individual’s representative must demonstrate the ability to:

(a) Locate, screen, and hire a provider meeting the requirements in OAR 411-034-0050;

(b) Supervise and train a provider;

(c) Schedule work, leave, and coverage;

(d) Track the hours worked and verify the authorized hours completed by a provider;

(e) Recognize, discuss, and attempt to correct any performance deficiencies with the provider and provide appropriate, progressive, disciplinary action as needed; and

(f) Discharge an unsatisfactory provider.

(5) An eligible individual exercises control as the employer and directs the provider in the provision of the services.

(6) The Department makes payment for State Plan personal care services to the provider on an individual’s behalf. Payment for services is not guaranteed until the Department, Division, or Designee has verified that an individual’s provider meets the qualifications in OAR 411-034-0050.

(7) In order to receive State Plan personal care services from a personal support worker or homecare worker, an individual must be able to:

(a) Meet all of the employer responsibilities described in section (4) of this rule; or

(b) Designate a representative to meet the employer responsibilities described in section (4) of this rule.

(8) TERMINATION OF PROVIDER EMPLOYMENT. Termination and the grounds for termination of employment are determined by an individual or the individual’s representative. An individual has the right to terminate an employment relationship with a provider at any time and for any reason. An individual or the individual’s representative must establish an employment agreement at the time of hire. The employment agreement may include grounds for dismissal, notice of resignation, work scheduling, and absence reporting.

(9) After appropriate intervention, an individual unable to meet the employer responsibilities in section (4) of this rule may be determined ineligible for State Plan personal care services.

(a) Contracted in-home care agency services are offered when an individual is ineligible for State Plan personal care services. Other community-based or nursing facility services are offered to an individual if the individual meets the eligibility criteria for community-based or nursing facility services.

(b) An individual determined ineligible for State Plan personal care services may request State Plan personal care services at the individual’s next annual re-assessment. Improvements in health and cognitive functioning may be factors in demonstrating the individual’s ability to meet the employer responsibilities described in section (4) of this rule. The waiting period may be shortened if an individual is able to demonstrate the ability to meet the employer responsibilities sooner than the individual’s next annual re-assessment.

(10) REPRESENTATIVE:

(a) An individual or an individual’s legal representative may designate a representative to act on the individual’s behalf to meet the employer responsibilities in section (4) of this rule. An individual’s legal representative may be designated as the individual’s representative.

(b) The Department, Division, or Designee may deny an individual’s request for a representative if the representative has:

(A) A history of a substantiated abuse of an adult as described in OAR chapter 411, division 20, OAR chapter 407, division 45, or OAR chapter 943, division 45;

(B) A history of founded abuse of a child as described in ORS 419B.005;

(C) Participated in billing excessive or fraudulent charges; or

(D) Failed to meet the employer responsibilities in section (4) of this rule, including previous termination as a result of failing to meet the employer responsibilities in section (4) of this rule.

(c) An individual is given the option to select another representative if the Department, Division, or Designee suspends, terminates, or denies an individual’s request for a representative for the reasons described in subsection (b) of this section.

(d) An individual with a guardian must have a representative for service planning purposes. A guardian may designate themselves the individual’s representative.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 410.020, 410.070, 410.608, 410.710 & 411.159

Hist.: SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

411-034-0050

Provider Qualifications for Enrollment

(1) A qualified provider is a person who, in the judgment of the Department, Division, or Designee, demonstrates by background, skills, and abilities the skills, knowledge, and ability to perform, or to learn to perform, the required work.

(a) A qualified provider must maintain a drug-free work place.

(b) A qualified provider must complete the background check process described in OAR 407-007-0200 to 407-007-0370 with an outcome of approved or approved with restrictions. The Department, Division, or the Designee may allow a provider to work on a preliminary basis in accordance with 407-007-0315 if the provider meets the other qualifications described in this rule.

(c) A qualified provider paid by the Department may not be an individual’s legal representative.

(d) A qualified provider must be authorized to work in the United States in accordance with U.S. Department of Homeland Security, Bureau of Citizenship and Immigration rules.

(e) A qualified provider must be 18 years of age or older. A homecare worker enrolled in the Consumer-Employed Provider Program who is at least 16 years of age may be approved for restricted enrollment as a qualified provider as described in OAR 411-031-0040.

(f) A qualified provider may be employed through a contracted in-home care agency or enrolled as a homecare worker or personal support worker under a provider number. Rates for services are established by the Department.

(g) Providers that provide State Plan personal care services:

(A) Enrolled in the Consumer-Employed Provider Program must meet all of the standards in OAR chapter 411, division 31.

(B) As personal support workers must meet the provider enrollment and termination criteria described in OAR 411-031-0040.

(2) BACKGROUND RECHECKS:

(a) Background rechecks are conducted at least every other year from the date a provider is enrolled. The Department, Division, or Designee may conduct a recheck more frequently based on additional information discovered about a provider, such as possible criminal activity or other allegations.

(b) Prior background check approval for another Department provider type is inadequate to meet background check requirements for homecare or personal support workers.

(c) Provider enrollment may be inactivated when a provider fails to comply with the background recheck process. Once a provider’s enrollment is inactivated, the provider must reapply and meet the standards described in this rule to reactivate his or her provider enrollment.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 409.010, 410.020, 410.070 & 410.608

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

411-034-0055

Provider Termination

(1) The Department, Division, or Designee may deny or terminate a homecare worker’s provider enrollment and provider number as described in OAR 411-031-0050. The termination, administrative review, and hearings rights for homecare workers is described in 411-031-0050.

(2) The Department, Division, or Designee may deny or terminate a personal support worker’s provider enrollment and provider number when the personal support worker:

(a) Has been appointed the legal guardian of an individual;

(b) Has a background check that results in a closed case pursuant to OAR 407-007-0325;

(c) Lacks the skills, knowledge, or ability to perform, or learn to perform, the required work;

(d) Violates the protective service and abuse rules in OAR chapter 411, division 20, OAR chapter 407, division 45, and OAR chapter 943, division 45;

(e) Commits fiscal improprieties;

(f) Fails to provide the authorized services required by an eligible individual;

(g) Has been repeatedly late in arriving to work or has absences from work not authorized in advance by an individual;

(h) Has been intoxicated by alcohol or drugs while providing authorized services to an individual or while in the individual’s home;

(i) Has manufactured or distributed drugs while providing authorized services to an individual or while in the individual’s home; or

(j) Has been excluded as a provider by the U.S. Department of Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, or any other federal health care programs.

(3) A personal support worker may contest the Department’s, Division’s, or Designee’s decision to terminate the personal support worker’s provider enrollment and provider number.

(a) A designated employee from the Department, Division, or Designee reviews the termination and notifies the personal support worker of his or her decision.

(b) A personal support worker may file a request for a hearing with the Department’s, Division’s, or Designee’s local office if all levels of administrative review have been exhausted and the provider continues to dispute the Department’s, Division’s, or Designee’s decision. The local office files the request for a hearing with the Office of Administrative Hearings as described in OAR chapter 137, division 3. The request for a hearing must be filed within 30 calendar days of the date of the written notice from the Department, Division, or Designee.

(c) When a contested case under these rules is referred to the Office of Administrative Hearings, the referral must indicate whether the Department is authorizing a proposed order, a proposed and final order, or a final order.

(d) No additional hearing rights have been granted to a personal support worker by this rule other than the right to a hearing on the Department’s, Division’s, or Designee’s decision to terminate provider enrollment.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 409.010, 410.020, 410.070, & 411.675

Hist.: SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. & cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

411-034-0070

State Plan Personal Care Service Assessment, Authorization, and Monitoring

(1) CASE MANAGER RESPONSIBILITIES.

(a) ASSESSMENT AND REASSESSMENT.

(A) A case manager must meet in person with an individual to assess the individual’s ability to perform the personal care tasks listed in OAR 411-034-0020.

(B) An individual’s natural supports may participate in the assessment if requested by the individual.

(C) A case manager must assess an individual’s service needs, identify the resources meeting any, some, or all of the individual’s needs, and determine if the individual is eligible for State Plan personal care services or other services.

(D) A case manager must meet with an individual in person at least once every 365 days to review the individual’s service needs.

(b) SERVICE PLANNING.

(A) A case manager must prepare a service plan identifying the tasks for which an individual requires assistance and the monthly number of authorized service hours. The case manager must document an individual’s natural supports that currently meet some or all of the individual’s assistance needs.

(B) The service plan must describe the tasks to be performed by a qualified provider and must authorize the maximum monthly hours that may be reimbursed for those services.

(C) When developing service plans, a case manager must consider the cost effectiveness of services that adequately meet the individual’s service needs.

(D) Payment for State Plan personal care services must be prior authorized by a case manager and based on the service needs of an individual as documented in the individual’s written service plan.

(c) ONGOING MONITORING AND AUTHORIZATION.

(A) When there is an indication that an individual’s personal care needs have changed, a case manager must conduct an in person re-assessment with the individual (and any of the individual’s natural supports if requested by the individual).

(B) Following annual re-assessments and those conducted after a change in an individual’s personal care needs, a case manager must review service eligibility, the cost effectiveness of the individual’s service plan, and whether the services provided are meeting the identified service needs of the individual. The case manager may adjust the hours or services in the individual’s service plan and must authorize a new service plan, if appropriate, based on the individual’s current service needs.

(d) ONGOING CASE MANAGEMENT. A case manager must provide ongoing coordination of State Plan personal care services, including authorizing changes in providers and service hours, addressing risks, and monitoring and providing information and referral to an individual when indicated.

(2) LONG TERM CARE (LTC) COMMUNITY NURSING SERVICES. A LTC community nurse is a licensed, registered nurse (RN) who has been approved under a contract or provider agreement with the Department, Division, or Designee to provide nursing assessment for indicators identified in subsection (a) of this section and may provide on-going nursing services as identified in subsection (b) of this section to certain individuals served by the Department, Division, or Designee. Individuals receiving LTC community nursing services are primarily older adults and adults with disabilities.

(a) A case manager may refer a LTC community nurse where available, for nursing assessment and monitoring when it appears an individual needs assistance to manage health support needs and may need delegated nursing tasks, nurse assessment and consultation, teaching, or services requiring RN monitoring. Indicators of the need for LTC community nurse assessment and monitoring include:

(A) Complex health problem or multiple diagnoses resulting in the need for assistance with health care coordination;

(B) Medical instability, as demonstrated by frequent emergency care, physician visits, or hospitalizations;

(C) Behavioral symptoms or changes in behavior or cognition;

(D) Nutrition, weight, or dehydration issues;

(E) Skin breakdown or risk for skin breakdown;

(F) Pain issues;

(G) Medication safety issues or concerns;

(H) A history of recent, frequent falls; or

(I) A provider may benefit from teaching or training about the health support needs of an eligible individual.

(b) Following the completion of an initial nursing assessment in an individual’s home by a LTC community nurse, the provision of ongoing LTC community nursing services must be prior-authorized by a case manager and may include:

(A) Ongoing health monitoring and teaching for an eligible individual specific to the individual’s identified needs;

(B) Medication education for an eligible individual and the individual’s provider;

(C) Instructing or training a provider or natural support to address an individual’s health needs;

(D) Consultation with other health care professionals serving an individual and advocating for the individual’s medical and restorative needs in a non-facility setting; or

(E) Delegation of nursing tasks defined in OAR 411-034-0010 to a non-family provider.

(c) LTC Community nursing services must be provided as described in OAR chapter 411, division 048.

(3) UNAUTHORIZED SERVICE SETTINGS AND PROVIDERS.

(a) The Department, Division, or Designee may not authorize services within an eligible individual’s home when --

(A) The individual’s home has dangerous conditions that jeopardize the health or safety of the individual and necessary safeguards cannot be taken to improve the setting;

(B) The services cannot be provided safely or adequately by a provider;

(C) The individual’s home has dangerous conditions that jeopardize the health or safety of the provider and necessary safeguards cannot be taken to minimize the dangers; or

(D) The eligible individual does not have the ability to make an informed decision, does not have a designated representative to make decisions on his or her behalf, and necessary safeguards cannot be provided to protect the safety, health, and welfare of the individual.

(b) A case manager must present an individual or the individual’s representative with information on service alternatives and provide assistance to assess other choices when a provider or service setting selected by the individual or the individual’s representative is not authorized.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 409.010, 410.020, 410.070, 410.608 & 410.710

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. & cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

411-034-0090

Payment Limitations

(1) The number of State Plan personal care service hours authorized for an individual per calendar month is based on projected amounts of time to perform specific personal care and supportive services to the eligible individual. The total of these hours are limited to 20 hours per individual per month. Individuals whose assessed service needs exceed the 20 hour limit may receive approval for additional hours through the exception process described in OAR 411-034-0020. State Plan personal care service hours are authorized in accordance with an individual’s service plan and may be scheduled throughout the month to meet the service needs of the individual.

(2) Authorized LTC community nurse assessment and monitoring services are not included in the monthly maximum hours for State Plan personal care services described in section (1) of this rule.

(3) The Department does not guarantee payment for State Plan personal care services until all acceptable provider enrollment standards have been verified and both the employer and provider have been formally notified in writing that payment by the Department is authorized.

(4) In accordance with OAR 410-120-1300, all provider claims for payment must be submitted within 12 months of the date of service.

(5) Payment may not be claimed by a provider until the hours authorized for the payment period have been completed, as directed by an eligible individual or the individual’s representative.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 410.020, 410.070, 410.710, 411.159 & 411.675

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2013.

2.) Copyright Oregon Secretary of State: Terms and Conditions of Use

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