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Oregon Bulletin

February 1, 2011

 

Department of Human Services,
Seniors and People with Disabilities Division
Chapter 411

Rule Caption: Developmental Disability Services Eligibility.

Adm. Order No.: SPD 28-2010

Filed with Sec. of State: 12-29-2010

Certified to be Effective: 1-1-11

Notice Publication Date: 12-1-2010

Rules Amended: 411-320-0020, 411-320-0080, 411-320-0175

Rules Repealed: 411-320-0020(T), 411-320-0080(T), 411-320-0175(T)

Subject: The Department of Human Services, Seniors and People with Disabilities Division is proposing to permanently amend OAR 411-320-0020, OAR 411-320-0080, and OAR 411-320-0175 relating to developmental disability services eligibility.

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

411-320-0020

Definitions

(1) “24-Hour Residential Program” means a comprehensive residential home or facility licensed by the Division under ORS 443.410 to provide residential care and training to individuals with developmental disabilities.

(2) “Abuse” means:

(a) Abuse of a child:

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

(B) Abuse as defined in OAR 407-045-0260, when a child resides in:

(i) Homes or facilities licensed to provide 24-hour residential services for children with developmental disabilities; or

(ii) Agencies licensed or certified by the Division to provide proctor foster care for children with developmental disabilities.

(b) Abuse of an adult as defined in OAR 407-045-0260.

(3) “Abuse Investigation and Protective Services” means reporting and investigation activities as required by OAR 407-045-0300 and any subsequent services or supports necessary to prevent further abuse as required by OAR 407-045-0310.

(4) “Accident” means an event that results in injury or has the potential for injury even if the injury does not appear until after the event.

(5) “Adaptive Behavior” means the degree to which an individual meets the standards of personal independence and social responsibility expected for age and culture group. Other terms used to describe adaptive behavior include but are not limited to adaptive impairment, ability to function, daily living skills, and adaptive functioning. Adaptive behaviors are everyday living skills including but not limited to walking (mobility), talking (communication), getting dressed or toileting (self-care), going to school or work (community use), and making choices (self-direction).

(a) Adaptive behavior is measured by a standardized test administered by a psychologist, social worker, or other professional with a graduate degree and specific training and experience in individual assessment, administration, and test interpretation of adaptive behavior scales for individuals with developmental disabilities.

(b) “Significant impairment” in adaptive behavior means a composite score of at least two standard deviations below the norm or two or more areas of functioning that are at least two standard deviations below the norm including but not limited to communication, mobility, self-care, socialization, self-direction, functional academics, or self-sufficiency as indicated on a standardized adaptive test.

(6) “Administrative Review” means the formal process that is used by the Division when an individual or an individual’s representative is not satisfied with the decision made by the community developmental disability program or support services brokerage about a complaint involving the provision of services or a service provider.

(7) “Adult” means an individual 18 years or older with developmental disabilities.

(8) “Advocate” means a person other than paid staff who has been selected by the individual, or by the individual’s legal representative, to help the individual understand and make choices in matters relating to identification of needs and choices of services, especially when rights are at risk or have been violated.

(9) “Annual Plan” means:

(a) A written summary the services coordinator completes for an individual 18 years or older who is not receiving support services or comprehensive services; or

(b) The written details of the supports, activities, costs, and resources required for a child receiving family support services.

(10) “Assistant Director” means the assistant director of the Division, or that person’s designee.

(11) “Care” means supportive services including but not limited to provision of room and board, supervision, protection, and assistance in bathing, dressing, grooming, eating, management of money, transportation, or recreation. The term “care” is synonymous with “services”.

(12) “Chemical Restraint” means the use of a psychotropic drug or other drugs for punishment, or to modify behavior, in place of a meaningful behavior or treatment plan.

(13) “Child” means an individual under the age of 18 that has a provisional determination of developmental disability.

(14) “Choice” means the individual’s expression of preference, opportunity for, and active role in decision-making related to the selection of assessments, services, service providers, goals and activities, and verification of satisfaction with these services. Choice may be communicated verbally, through sign language, or by other communication methods.

(15) “Community Developmental Disability Program (CDDP)” means an entity that is responsible for planning and delivery of services for individuals with developmental disabilities in a specific geographic service area of the state operated by or under a contract with the Division or a local mental health authority.

(16) “Community Mental Health and Developmental Disability Program (CMHDDP)” means an entity that operates or contracts for all services for individuals with mental or emotional disturbances, drug abuse problems, developmental disabilities, and alcoholism and alcohol abuse problems under the county financial assistance contract with the Department.

(17) “Complaint” means a verbal or written expression of dissatisfaction with services or service providers.

(18) “Complaint Investigation” means an investigation of any complaint that has been made to a proper authority that is not covered by an abuse investigation.

(19) “Comprehensive Services” mean a package of developmental disability services and supports that include one of the following living arrangements regulated by the Division alone or in combination with any associated employment or community inclusion program regulated by the Division:

(a) Twenty-four hour residential services including but not limited to services provided in a group home, foster home, or through a supported living program; or

(b) In-home supports provided to an adult in the individual or family home costing more than the individual cost limit for support services.

(c) Comprehensive services do not include support services for adults enrolled in support services brokerages or for children enrolled in long-term supports for children or children’s intensive in-home services.

(20) “County of Origin” means the individual’s county of residence, unless a minor, then county of origin means the county where the jurisdiction of the child’s guardianship exists.

(21) “Crisis” means:

(a) A situation as determined by a qualified services coordinator that would result in civil court commitment under ORS 427.215 to 427.306 and for which no appropriate alternative resources are available; or

(b) Risk factors described in OAR 411-320-0160(2) are present for which no appropriate alternative resources are available.

(22) “Crisis Diversion Services” mean short-term services provided for up to 90 days, or on a one-time basis, directly related to resolving a crisis, and provided to, or on behalf of, an individual eligible to receive crisis services.

(23) “Crisis Plan” means the community developmental disability program or regional crisis diversion program generated document, serving as the justification for, and the authorization of crisis supports and expenditures pertaining to an individual receiving crisis services provided under these rules.

(24) “Current Documentation” means documentation relating to an individual’s developmental disability in regards to the individual’s functioning within the last three years. Current documentation may include but is not limited to annual plans, behavior support plans, educational records, medical assessments related to the developmental disability, psychological evaluations, and adaptive behavior assessments.

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

(26) “Developmental Disability (DD)” means a disability that originates in the developmental years, that is likely to continue, and significantly impacts adaptive behavior as diagnosed and measured by a qualified professional. Developmental disabilities include mental retardation, autism, cerebral palsy, epilepsy, or other neurological disabling conditions that require training or support similar to that required by individuals with mental retardation, and the disability:

(a) Originates before the individual reaches the age of 22 years, except that in the case of mental retardation, the condition must be manifested before the age of 18;

(b) Originates and directly affects the brain and has continued, or must be expected to continue, indefinitely;

(c) Constitutes a significant impairment in adaptive behavior; and

(d) Is not primarily attributed to other conditions, including but not limited to mental or emotional disorder, sensory impairment, substance abuse, personality disorder, learning disability, or Attention Deficit Hyperactivity Disorder (ADHD).

(27) “DHS Quality Management Strategy” means the Department’s Quality Assurance Plan that includes the quality assurance strategies for the Division (http://www.oregon.gov/DHS/spd/qa/app_h_qa.pdf).

(28) “Division” means the Department of Human Services, Seniors and People with Disabilities Division (SPD).

(29) “Eligibility Determination” means a decision by a community developmental disability program or by the Division regarding a person’s eligibility for developmental disability services pursuant to OAR 411-320-0080 and is either a decision that a person is eligible or ineligible for developmental disability services.

(30) “Eligibility Specialist” means an employee of the community developmental disability program or other agency that contracts with the county or Division to determine developmental disability eligibility.

(31) “Entry” means admission to a Division-funded developmental disability service provider.

(32) “Exit” means either termination from a Division-funded developmental disability service provider or transfer from one Division-funded program to another. Exit does not mean transfer within a service provider’s program within a county.

(33) “Family Member” means husband or wife, domestic partner, natural parent, child, sibling, adopted child, adoptive parent, stepparent, stepchild, stepbrother, stepsister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, or first cousin.

(34) “Founded Reports” means the Department’s Children, Adults, and Families Division or Law Enforcement Authority (LEA) determination, based on the evidence, that there is reasonable cause to believe that conduct in violation of the child abuse statutes or rules has occurred and such conduct is attributable to the person alleged to have engaged in the conduct.

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

(36) “Health Care Provider” means a person or health care facility licensed, certified, or otherwise authorized or permitted by Oregon law to administer health care in the ordinary course of business or practice of a profession.

(37) “Health Care Representative” means:

(a) A health care representative as defined in ORS 127.505; or

(b) A person who has authority to make health care decisions for an individual under the provisions of OAR chapter 411, division 365.

(38) “Hearing” means the formal process following an action that would terminate, suspend, reduce, or deny a service. This is a formal process required by federal law (42 CFR 431.200-250). A hearing is also known as a Medicaid Fair Hearing, Contested Case Hearing, and Administrative Hearing.

(39) “Home” means an individual’s primary residence that is not under contract with the Department to provide services to an individual as a licensed or certified foster home, residential care facility, assisted living facility, nursing facility, or other residential support program site.

(40) “Imminent Risk” means:

(a) An adult who is in crisis and shall be civilly court-committed to the Department under ORS 427.215 to 427.306 within 60 days without the use of crisis diversion services; or

(b) A child who is in crisis and shall require out-of-home placement within 60 days without the use of crisis diversion services.

(41) “Incident Report” means a written report of any unusual incident involving an individual.

(42) “Independence” means the extent to which individuals with developmental disabilities exert control and choice over their own lives.

(43) “Individual” means an adult or a child with developmental disabilities for whom services are planned and provided.

(44) “Individualized Education Plan (IEP)” means a written plan of instructional goals and objectives in conference with the teacher, parent or guardian, student, and a representative of the school district.

(45) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required for an individual to achieve personal goals. The Individual Support Plan is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. The Individual Support Plan is the individual’s plan of care for Medicaid purposes.

(46) “Individual Support Plan (ISP) Team” means a team composed of the individual served, agency representatives who provide service to the individual (if appropriate for in-home supports), the guardian (if any), the services coordinator, and may include family or other persons requested to develop the Individual Support Plan or requested by the individual.

(47) “Informal Adaptive Behavior Assessment” means:

(a) Observations of the adaptive behavior impairments recorded in the individual’s progress notes by a services coordinator or a trained eligibility specialist, with at least two years experience working with individuals with developmental disabilities.

(b) A standardized measurement of adaptive behavior such as a Vineland Adaptive Behavior Scale or Adaptive Behavior Assessment System that is administered and scored by a social worker, or other professional with a graduate degree and specific training and experience in individual assessment, administration, and test interpretation of adaptive behavior scales for individuals.

(48) “Integration” means:

(a) The use by individuals with developmental disabilities of the same community resources that are used by and available to other persons in the community;

(b) Participation in the same community activities in which persons without a developmental disability participate, together with regular contact with persons without a developmental disability; and

(c) Individuals with developmental disabilities live in homes that are in proximity to community resources and foster contact with persons in their community.

(49) “Intellectual Functioning” means functioning as assessed by a qualified professional using one or more individually administered general intelligence tests.

(50) “Legal Representative” means the parent, if the individual is under age 18, unless the court appoints another person or agency to act as guardian. For those individuals over the age of 18, a legal representative means an attorney at law who has been retained by or for an individual, or a person or agency authorized by the court to make decisions about services for the individual.

(51) “Local Mental Health Authority (LMHA)” means:

(a) The county court or board of county commissioners of one or more counties that operate a community mental health and developmental disability program;

(b) The tribal council in the case of a Native American reservation;

(c) The board of directors of a public or private corporation if the county declines to operate or contract for all or part of a community mental health and developmental disability program; or

(d) The advisory committee for the community developmental disability program covering a geographic service area when managed by the Division.

(52) “Majority Agreement” means for the purpose of entry, exit, transfer, and annual Individual Support Plan team meetings, that no one member of the Individual Support Plan team has the authority to make decisions for the team unless so authorized by the team process. Service providers, families, community developmental disability programs, advocacy agencies, or individuals are considered as one member of the Individual Support Plan team for the purpose of reaching majority agreement.

(53) “Management Entity” means the community developmental disability program or private corporation that operates the regional crisis diversion program, including acting as the fiscal agent for regional crisis diversion funds and resources.

(54) “Mandatory Reporter” means any public or private official who:

(a) Comes in contact with and has reasonable cause to believe a child has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused a child, regardless of whether or not the knowledge of the abuse was gained in the reporter’s official capacity. Nothing contained in ORS 40.225 to 40.295 shall affect the duty to report imposed by this section, except that a psychiatrist, psychologist, clergyman, attorney, or guardian ad litem appointed under ORS 419B.231 shall not be required to report such information communicated by a person if the communication is privileged under ORS 40.225 to 40.295.

(b) While acting in an official capacity, comes in contact with and has reasonable cause to believe an adult with developmental disabilities has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused an adult with developmental disabilities. Pursuant to ORS 430.765(2) psychiatrists, psychologists, clergy, and attorneys are not mandatory reporters with regard to information received through communications that are privileged under ORS 40.225 to 40.295.

(55) “Mechanical Restraint” means any mechanical device, material, object, or equipment that is attached or adjacent to an individual’s body that the individual cannot easily remove or easily negotiate around that restricts freedom of movement or access to the individual’s body.

(56) “Medication” means any drug, chemical, compound, suspension, or preparation in suitable form for use as a curative or remedial substance taken either internally or externally by any person.

(57) “Mental Retardation” means significantly sub-average general intellectual functioning defined as intelligence quotient’s (IQ’s) under 70 as measured by a qualified professional and existing concurrently with significant impairment in adaptive behavior that are manifested during the developmental period, prior to 18 years of age. Individuals of borderline intelligence, IQ’s 70-75, may be considered to have mental retardation if there is also significant impairment of adaptive behavior as diagnosed and measured by a qualified professional. The adaptive behavior must be directly related to mental retardation. Definitions and classifications must be consistent with the “Manual of Terminology and Classification in Mental Retardation” by the American Association on Mental Deficiency, 1977 Revision.

(58) “Monitoring” means the periodic review of the implementation of services identified in the Individual Support Plan or annual summary, and the quality of services delivered by other organizations.

(59) “Nurse” means a person who holds a current license from the Oregon Board of Nursing as a registered nurse or licensed practical nurse pursuant to ORS chapter 678.

(60) “OIT” means the Department of Human Services, Office of Investigations and Training.

(61) “Oregon Intervention System (OIS)” means a system of providing training to people who work with designated individuals to intervene physically or non-physically to keep individuals from harming self or others. The Oregon Intervention System is based on a proactive approach that includes methods of effective evasion, deflection, and escape from holding.

(62) “Physical Restraint” means any manual physical holding of, or contact with an individual that restricts the individual’s freedom of movement.

(63) “Physician” means a person licensed under ORS chapter 677 to practice medicine and surgery.

(64) “Physician Assistant” means a person licensed under ORS 677.505 to 677.525.

(65) “Plan of Care” means a written document developed for each individual by the support team using a person-centered approach that describes the supports, services, and resources provided or accessed to address the needs of the individual.

(66) “Productivity” means:

(a) Engagement in income-producing work by an individual with developmental disabilities that is measured through improvements in income level, employment status, or job advancement; or

(b) Engagement by an individual with developmental disabilities in work contributing to a household or community.

(67) “Protection” and “Protective Services” means necessary actions taken as soon as possible to prevent subsequent abuse or exploitation of the individual, to prevent self-destructive acts, and to safeguard an individual’s person, property, and funds.

(68) “Psychologist” means:

(a) A person possessing a doctorate degree in psychology from an accredited program with course work in human growth and development, tests, and measurement; or

(b) A state certified school psychologist.

(69) “Psychotropic Medication” means medication the prescribed intent of which is to affect or alter thought processes, mood, or behavior including but not limited to anti-psychotic, antidepressant, anxiolytic (anti-anxiety), and behavior medications. The classification of a medication depends upon its stated, intended effect when prescribed.

(70) “Qualified Professional” means a:

(a) Licensed clinical psychologist (Ph.D., Psy.D.) or school psychologist;

(b) Medical doctor (MD); or

(c) Doctor of osteopathy (DO).

(71) “Region” means a group of Oregon counties defined by the Division that have a designated management entity to coordinate regional crisis and backup services and be the recipient and administration of funds for those services.

(72) “Regional Crisis Diversion Program” means the regional coordination of the management of crisis diversion services for a group of designated counties that is responsible for the management of the following developmental disability services:

(a) Crisis intervention services;

(b) Evaluation of requests for new or enhanced services for certain groups of individuals eligible for developmental disability services; and

(c) Other developmental disability services that the counties compromising the region agree shall be delivered more effectively or automatically on a regional basis.

(73) “Respite” means short-term care and supervision provided to an individual on a periodic or intermittent basis because of the temporary absence of, or need for relief of, the primary care giver.

(74) “Restraint” means any physical hold, device, or chemical substance that restricts, or is meant to restrict, the movement or normal functioning of an individual.

(75) “Review” means a request for reconsideration of a decision made by a service provider, community developmental disability program, support services brokerage, or the Division.

(76) “School Aged” means the age at which a child is old enough to attend kindergarten through high school.

(77) “Service Element” means a funding stream to fund program or services including but not limited to foster care, 24-hour residential, case management, supported living, support services, crisis diversion services, in-home comprehensive services, or family support.

(78) “Service Provider” means a public or private community agency or organization that provides recognized mental health or developmental disability services and is approved by the Division, or other appropriate agency, to provide these services. The term “provider” or “program” is synonymous with “service provider.”

(79) “Services Coordinator” means an employee of the community developmental disability program or other agency that contracts with the county or Division, who is selected to plan, procure, coordinate, monitor Individual Support Plan services, and to act as a proponent for individuals with developmental disabilities. The term “case manager” is synonymous with “services coordinator”.

(80) “State Training Center” means the Eastern Oregon Training Center.

(81) “Substantiated” means an abuse investigation has been completed by the Department or the Department’s designee and the preponderance of the evidence establishes the abuse occurred.

(82) “Support” means assistance that individuals require, solely because of the affects of developmental disability, to maintain or increase independence, achieve community presence and participation, and improve productivity. Support is flexible and subject to change with time and circumstances.

(83) “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 developmental disabilities.

(84) “Support Team” means a group, composed of members as determined by an individual receiving services or the individual’s legal guardian, that participates in the development of the individual’s plan of care.

(85) “These Rules” mean the rules in OAR chapter 411, division 320.

(86) “Transfer” means movement of an individual from a service site to another service site within a county, administered by the same service provider that has not been addressed within the Individual Support Plan.

(87) “Transition Plan” means a written plan for the period of time between an individual’s entry into a particular service and when the individual’s Individual Support Plan is developed and approved by the Individual Support Plan team. The transition plan includes a summary of the services necessary to facilitate adjustment to the services offered, the supports necessary to ensure health and safety, and the assessments and consultations necessary for the Individual Support Plan development.

(88) “Unusual Incident” means incidents involving serious illness or accidents, death of an individual, injury or illness of an individual requiring inpatient or emergency hospitalization, suicide attempts, a fire requiring the services of a fire department, an act of physical aggression, or any incident requiring abuse investigation.

(89) “Variance” means a temporary exception from a regulation or provision of these rules that may be granted by the Division, upon written application by the community developmental disability program.

(90) “Volunteer” means any person providing services without pay to individuals receiving case management services.

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 6-2010(Temp), f. 6-29-10, cert. ef. 7-4-10 thru 12-31-10; SPD 28-2010, f. 12-29-10, cert. ef. 1-1-11

411-320-0080

Application and Eligibility Determination

(1) APPLICATION. The Division required application for developmental disability services must be used.

(a) All applications must be accepted under the following situations:

(A) If the applicant is an adult, they must be an Oregon resident.

(B) If the applicant is a minor child, the legal guardian and the child must be Oregon residents.

(b) The applicant must apply in the county of origin as defined in OAR 411-320-0020.

(c) The application must be completed, signed, and dated before an eligibility determination can be made.

(d) The date the CDDP receives the completed, signed, and dated application is the date of application for developmental disability services.

(e) A new application is required in the following situations:

(A) Following a closure, denial, or termination if the file has been closed for more than 12 months; or

(B) The applicant does not meet all application requirements.

(2) FINANCIAL STATUS. The CDDP must identify whether the applicant receives any unearned income benefits. Adults with no unearned income benefits must be referred to Social Security for a determination of financial eligibility. Minor individuals must be referred to Social Security if it is identified that they may qualify for benefits.

(3) ELIGIBILITY SPECIALIST. Each CDDP must identify at least one qualified eligibility specialist who shall act as a designee of the Division for purposes of making an eligibility determination. The eligibility specialist must meet performance qualifications and training expectations for determining developmental disability eligibility according to OAR 411-320-0030.

(4) QUALIFIED PROFESSIONAL DIAGNOSIS. For the purpose of this rule, diagnosis and evaluation information must be completed by qualified professionals qualified to make a diagnosis of developmental disabilities as defined in OAR 411-320-0020, in accordance with the American Association on Mental Deficiency, 1977.

(5) ELIGIBILITY FOR MENTAL RETARDATION.

(a) A history demonstrating mental retardation, as defined in OAR 411-320-0020, must be in place by the individual’s18th birthday. Diagnosing mental retardation is done by measuring intellectual functioning and adaptive behavior as assessed by standardized tests administered by a qualified professional as described in section (4) of this rule.

(A) For individuals who have consistent IQ results of 65 and under, no adaptive behavior assessment, as defined in OAR 411-320-0020, may be needed if current documentation supports eligibility.

(B) For individuals who have IQ results of 66-75, verification of mental retardation requires an adaptive behavior assessment as defined in OAR 411-320-0020.

(b) The adaptive impairments must be directly related to mental retardation and cannot be primarily attributed to other conditions, including but not limited to mental or emotional disorders, sensory impairments, substance abuse, personality disorder, learning disability, or ADHD.

(c) The condition or impairment must be expected to last indefinitely.

(6) ELIGIBILITY FOR OTHER DEVELOPMENTAL DISABILITIES.

(a) A history of a developmental disability other than mental retardation must be in place prior to the individual’s 22nd birthday. IQ scores are not used in verifying the presence of a non-mental retardation developmental disability. Diagnosing a developmental disability requires a medical or clinical diagnosis of a developmental disability with significant impairment in adaptive behavior, as defined in OAR 411-320-0020, related to the diagnosis.

(b) The adaptive impairments must be directly related to the developmental disability and cannot be primarily attributed to other conditions, including but not limited to mental or emotional disorders, sensory impairments, substance abuse, personality disorder, learning disability, or ADHD.

(c) The condition or impairment must be expected to last indefinitely.

(7) ELIGIBILITY FOR CHILDREN. Eligibility for children is always provisional. This means eligibility may change in the future when new information is obtained. Eligibility documentation for children must be no more than three years old.

(a) Eligibility for children under 7 years of age must include:

(A) Standardized testing by a qualified professional or master’s level trained early intervention evaluation specialist that demonstrates at least two standard deviations below the norm in two or more areas of adaptive behavior including but not limited to:

(i) Self-care;

(ii) Receptive and expressive language;

(iii) Learning;

(iv) Mobility;

(v) Self-direction; OR

(B) A medical statement by a licensed medical practitioner of a neurological condition or syndrome that originates in and directly affects the brain and causes or is likely to cause significant impairment in at least two or more areas of adaptive behavior including but not limited to:

(i) Self-care;

(ii) Receptive and expressive language;

(iii) Learning;

(iv) Mobility;

(v) Self-direction.

(C) The condition or syndrome cannot be primarily attributed to other conditions, including but not limited to mental or emotional disorders, sensory impairments, substance abuse, personality disorder, learning disability, or ADHD.

(D) The condition or impairment must be expected to last indefinitely.

(b) Eligibility for school aged children.

(A) Eligibility for school aged children must include:

(i) School age documents that are no more than three years old.

(ii) Documentation of mental retardation as described in section (5) of this rule; or

(iii) A diagnosis and documentation of a developmental disability as described in section (6) of this rule.

(B) School aged eligibility may be completed on individuals:

(i) Who are at least 5 years old and who have had school aged testing completed;

(ii) Up to age 18 for individuals who are provisionally eligible based on a condition of mental retardation; or

(iii) Up to age 22 for individuals who are provisionally eligible based on a condition of a developmental disability other than mental retardation.

(8) ELIGIBILITY FOR ADULTS. Eligibility for adults must include:

(a) Documents that are no more than three years old for individuals under 21 years of age.

(b) Documents based on information obtained after the individual’s 17th birthday, for individuals 21 years of age and older.

(c) Documentation of mental retardation as described in section (5) of this rule. Adult intellectual functioning assessments are not needed if the individual has:

(A) Consistent IQ results of 65 or less;

(B) Functioning that is directly related to mental retardation; and

(C) Current documentation that supports eligibility; OR

(d) A diagnosis and documentation of a developmental disability as described in section (6) of this rule.

(9) ABSENCE OF DATA IN DEVELOPMENTAL YEARS.

(a) In the absence of sufficient data during the developmental years, current data may be used if:

(A) There is no evidence of head trauma;

(B) There is no evidence or history of significant mental or emotional disorder; or

(C) There is no evidence or history of substance abuse.

(b) If there is evidence or a history of head trauma, significant mental or emotional disorder, or substance abuse, then a clinical impression by a qualified professional regarding how the individual’s functioning may be impacted by the identified condition must be obtained in order to determine if the individual’s significant impairment in adaptive behavior is directly related to a developmental disability and not primarily related to a head trauma, significant mental or emotional disorder, or substance abuse.

(10) REDETERMINATION OF ELIGIBILITY.

(a) The CDDP must notify the individual or the individual’s representative anytime that a redetermination of eligibility is needed. Notification of the redetermination and the reason for the review of eligibility must be in writing and sent prior to the eligibility redetermination.

(b) Eligibility for school age children must be redetermined no later than age 7.

(c) Eligibility for adults must be redetermined by age 18 for mental retardation and by age 22 for developmental disabilities other than mental retardation.

(d) Any time there is evidence that contradicts the eligibility determination, the Division or its designee may redetermine eligibility or obtain additional information, including securing an additional evaluation for clarification purposes.

(e) Eligibility must be redetermined using the criteria established in this rule.

(A) IQ testing, completed within the last three years, is not needed if the individual has:

(i) Consistent IQ results of 65 or less;

(ii) Functioning continues to be directly related to mental retardation; and

(iii) Current documentation continues to support eligibility.

(B) A current medical or clinical diagnosis of a developmental disability may not be needed if:

(i) There is documentation of a developmental disability by a qualified professional, as defined in OAR 411-320-0020;

(ii) Functioning continues to be directly related to the developmental disability; and

(iii) Current documentation continues to support eligibility.

(C) An informal adaptive behavior assessment, as defined in OAR 411-320-0020, may be completed if all of the following apply:

(i) An adaptive behavior assessment is required in order to redetermine eligibility;

(ii) An adaptive behavior assessment has already been completed by a qualified professional; and

(iii) The individual has obvious significant adaptive impairments in adaptive behavior.

(11) SECURING EVALUATIONS.

(a) In the event that the services coordinator has exhausted all local resources to secure the necessary evaluations for an eligibility determination, the Division or its designee shall assist in obtaining additional testing if required to complete the eligibility determination.

(b) In the event there is evidence that contradicts the information that an eligibility determination was based upon, the Division or its designee, may obtain additional information including securing an additional evaluation for clarification purposes.

(12) PROCESSING ELIGIBILITY DETERMINATION. The CDDP in the county of origin is responsible for making the eligibility determination.

(a) The CDDP shall work in collaboration with the individual to gather historical records related to the individual’s developmental disability.

(b) The CDDP must process eligibility for developmental disability services in the following time frames.

(A) The CDDP must complete an eligibility determination and issue a Notice of Eligibility Determination within 90 calendar days of the date that the application for services is received by the CDDP, except in the following circumstances:

(i) The CDDP may not make an eligibility determination because the individual or the individual’s representative fails to complete an action;

(ii) There is an emergency beyond the CDDP’s control; or

(iii) More time is needed to obtain additional records by the CDDP, the individual, or the individual’s representative.

(B) The process of making an eligibility determination may be extended up to 90 calendar days by mutual agreement among all parties. Mutual agreement may be in verbal or written form. The CDDP must document in the individual’s record the reason for the delay and type of contact made to verify the individual’s agreement to an extension.

(c) The CDDP must make an eligibility determination unless the following applies and is documented in the individual’s progress notes:

(A) The individual or the individual’s representative voluntarily withdraws the individual’s application;

(B) The individual dies; or

(C) The individual cannot be located.

(d) The CDDP may not use the time frames established in subsection (b) of this section as:

(A) A waiting period before determining eligibility; or

(B) A reason for denying eligibility.

(13) NOTICE OF ELIGIBILITY DETERMINATION. The CDDP, based upon a review of the documentation used to determine eligibility, must issue a written Notice of Eligibility Determination to the individual and to the individual’s representative.

(a) The Notice of Eligibility Determination must be sent or hand delivered within:

(A) Ten working days of making an eligibility redetermination.

(B) Ten working days of making an eligibility determination or 90 calendar days of receiving an application for services, whichever comes first.

(b) The notice must be on forms prescribed by the Division. The notice must include:

(A) The specific date the notice is mailed or hand delivered;

(B) The effective date of any action proposed;

(C) The eligibility determination;

(D) The rationale for the eligibility determination, including what reports, documents, or other information that were relied upon in making the eligibility determination;

(E) The specific rules that were used in making the eligibility determination;

(F) Notification that the documents relied upon may be reviewed by the individual or the individual’s representative; and

(G) Notification that if the individual or the individual’s representative disagrees with the Division’s eligibility determination, the individual or the individual’s representative has the right to request a hearing on the individual’s behalf, as provided in ORS chapter 183 and OAR 411-320-0175 including:

(i) The timeline for requesting a hearing;

(ii) Where and how to request a hearing;

(iii) The right to receive assistance from the CDDP in completing and submitting a request for hearing; and

(iv) The individual’s right to receive continuing services at the same level during the hearing and at the request of the individual including:

(I) Notification of the time frame within which the individual must request continuing services;

(II) Notification of how and where the individual must submit a request for continuing services; and

(III) Notification that the individual may be required to repay the state for any services received during the hearing process if the determination of ineligibility is upheld in a final order.

(14) REQUESTING A HEARING. An individual or an individual’s representative may request a hearing as described in OAR 411-320-0175 if they disagree with the eligibility determination or redetermination made by the CDDP. The request for a hearing must be made by completing the DD Administrative Hearing Request (SDS 0443DD) within the timeframe identified on the Notice of Eligibility Determination.

(15) TRANSFERABILITY OF ELIGIBILITY DETERMINATION. An eligibility determination made by one CDDP must be honored by another CDDP when an individual moves from one county to another.

(a) The receiving CDDP must notify the individual, on forms prescribed by the Division, that a transfer of services to a new CDDP has taken place;

(b) The receiving CDDP must continue services for the individual as soon as it is determined that the individual is residing in the county of the receiving CDDP; and

(c) The receiving CDDP has verification of developmental disability eligibility in the form of a:

(A) Statement of an eligibility determination;

(B) Notification of eligibility determination;

(C) Evaluations and assessments supporting eligibility; or

(D) In the event that the items in subsection (c)(A-C) above cannot be located, written documentation from the sending CDDP verifying eligibility and enrollment in developmental disability services may be used. This may include documentation from the Division’s electronic payment system.

(d) If the receiving CDDP receives information that suggests the individual is not eligible for developmental disability services, the CDDP that determined the individual was eligible for developmental disability services may be responsible for the services authorized on the basis of that eligibility determination.

(e) If an individual submits an application for developmental disability services and discloses that they have previously received developmental disability services in another CDDP, and the termination of case management services as described in OAR 411-320-0100(3) occurred within the past 12 months, the eligibility determination from the other CDDP shall transfer as outlined in this section of the rule.

Stat. Auth.: ORS 409.050, 410.070, & 430.640

Stats. Implemented: ORS 183.415, 427.005, 427.007, & 430.610 – 430.670

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 6-2010(Temp), f. 6-29-10, cert. ef. 7-4-10 thru 12-31-10; SPD 28-2010, f. 12-29-10, cert. ef. 1-1-11

411-320-0175

Hearings for Developmental Disability Services Eligibility Determination

The Department follows the Attorney General’s Model Rules OAR 137-003-0501 to 137-003-0700 and ORS chapter 183 for the conduct of hearings in developmental disability eligibility determination.

(1) DEFINITIONS. As used in this rule:

(a) “Administrative Law Judge” means a professional hearing officer, employed by the Employment Division, Office of Administrative Hearings, who presides over hearings and issues a final order.

(b) “Claimant” means a person who has requested a hearing or who is scheduled for a hearing.

(c) “Department Hearing Representative” means a person authorized to represent the Department in the hearing.

(d) “Good Cause” means a circumstance beyond the control of the claimant and claimant’s representative.

(e) “Representative” means any adult chosen by the claimant to represent them at the hearing.

(f) A “Request for Hearing” is a written request by the claimant or the claimant’s representative that the claimant wishes to appeal an eligibility determination.

(2) HEARING REQUESTS. A claimant has the right to a hearing, as provided in ORS chapter 183, if the claimant disagrees with the Department’s eligibility determination.

(a) The request for a hearing must be in writing on the DD Administrative Hearing Request (SDS 0443DD) and signed by the claimant or the claimant’s representative. The signed request (SDS 0443DD) must be received by the Department within 45 days from the date of the Department’s Notice of Eligibility Determination.

(b) Upon request by the claimant, the CDDP shall assist the claimant in completing the hearing request form.

(c) A late hearing request may be granted when the claimant or the claimant’s representative has good cause.

(3) CONTINUING SERVICES PENDING A HEARING OUTCOME.

(a) When an individual is determined to be no longer eligible following a redetermination of their eligibility, the individual has the right to request continuing services during the hearing process.

(b) The request for continuing services must be indicated by;

(A) Checking the appropriate box on the DD Administrative Hearing Request (SDS 0443DD); or

(B) Communicating directly with the local CDDP, support services brokerage, or the Department that services remain the same.

(c) To qualify for continuing services, the DD Administrative Hearing Request (SDS 0443DD) and request for continuing services, must be received by the effective date identified on the Notice of Eligibility Determination or by 10 days following the date of the notice, whichever is later.

(d) The Department shall determine if there is good cause following receipt of a late request for continuing services.

(e) If the hearing is not in the individual’s favor, the individual may be required to pay back any benefits received during the hearing process.

(4) INFORMAL CONFERENCE.

(a) The Department representative and the claimant or the claimant’s representative may have an informal conference, without the presence of the administrative law judge, to discuss any of the matters listed in OAR 137-003-0575. The informal conference may also be used to:

(A) Provide an opportunity for the Department and the claimant to settle the matter;

(B) Ensure the claimant or the claimant’s representative understands the reason for the action that is the subject of the hearing request;

(C) Give the claimant or the claimant’s representative an opportunity to review the information that is the basis for the action;

(D) Inform the claimant or the claimant’s representative of the rules that serve as the basis for the contested action;

(E) Give the claimant or the claimant’s representative and the Department the chance to correct any misunderstanding of the facts;

(F) Give the claimant or the claimant’s representative an opportunity to provide additional information to the Department; and

(G) Give the Department an opportunity to review its action.

(b) The claimant or the claimant’s representative may, at any time prior to the hearing date, request an additional conference with the Department representative. At the Department representative’s discretion, the Department representative may grant an additional conference if it facilitates the hearing process.

(c) The Department may provide the claimant the relief sought at any time before the final order is issued.

(5) REPRESENTATION.

(a) A representative may be chosen by the claimant to represent their interests during a pre-hearing conference and hearing.

(b) Division employees are authorized to appear as a witness on behalf of the Department for hearings.

(c) Hearings are not open to the public and are closed to non-participants, except non-participants may attend subject to the claimant’s consent.

(6) WITHDRAWAL OF HEARING. A claimant or the claimant’s representative may withdraw a hearing request at any time prior to the issuance of a final order. The withdrawal shall be effective on the date the Department or the Office of Administrative Hearings receives it. The Department shall issue a final order confirming the withdrawal to the last known address of the claimant. The claimant or the claimant’s representative may cancel the withdrawal up to 10 working days following the date the final order is issued.

(7) DISMISSAL FOR FAILURE TO APPEAR. A hearing request is dismissed by order when neither the claimant nor the claimant’s representative appears at the time and place specified for the hearing. The order is effective on the date scheduled for the hearing. The Department may cancel the dismissal order on request of the claimant or the claimant’s representative upon a showing that the claimant or the claimant’s representative was unable to attend the hearing or unable to request a postponement for reasons beyond the claimant’s control.

(8) FINAL ORDER.

(a) In a hearing, the administrative law judge is authorized to enter a final order on behalf of the Department without first issuing a proposed order unless the Department has specifically revoked authority.

(b) A final order shall be issued in compliance with OAR 137-003-0665 or the case otherwise resolved no later than 90 days following the request for hearing.

(c) The final order is effective immediately upon being signed or as otherwise provided in the order.

(d) A petition by a claimant for reconsideration or rehearing must be filed with the entity who issued the final order.

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 – 430.670

Hist.: SPD 9-2009, f. & cert. ef. 7-13-09; SPD 6-2010(Temp), f. 6-29-10, cert. ef. 7-4-10 thru 12-31-10; SPD 28-2010, f. 12-29-10, cert. ef. 1-1-11

 

Rule Caption: Adult Foster Homes for Individuals with Developmental Disabilities – CPR and First Aid Certification.

Adm. Order No.: SPD 29-2010

Filed with Sec. of State: 12-29-2010

Certified to be Effective: 1-1-11

Notice Publication Date: 11-1-2010

Rules Amended: 411-360-0070

Rules Repealed: 411-360-0070(T)

Subject: The Department of Human Services, Seniors and People with Disabilities Division is permanently amending OAR 411-360-0070 to include language that was inadvertently removed in the July 1, 2010 amendment relating to CPR and First Aid certification for adult foster homes providing services to individuals with developmental disabilities.

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

411-360-0070

Classification of Adult Foster Homes for Persons with Developmental Disabilities

A Provisional, Limited, Level 1, Level 2B, or Level 2M license may be issued by the Division based upon the qualifications of the applicant and the resident manager (if applicable) and compliance with the following requirements.

(1) PROVISIONAL AFH-DD LICENSE. A Provisional AFH-DD license may be issued by the Division if:

(a) There is an emergency situation where the current licensed provider is no longer overseeing the operation of the AFH-DD.

(b) The applicant meets the standards of OAR 411-360-0110(1)(a-f)(h-k).

(c) A provisional license is valid for 60 days from the date of issue and is not renewable.

(2) LIMITED AFH-DD LICENSE. A Limited AFH-DD license may be issued by the Division if:

(a) The applicant meets the qualifications listed in OAR 411-360-0110(1)(a-k) and the home meets the requirements listed in OAR 411-360-0130.

(b) The applicant acquires any additional training necessary to meet the specific needs of the individual.

(c) The license shall be limited to the care of the named person only and the individual receiving care is named on the license.

(3) LEVEL 1 AFH-DD LICENSE. A Level 1 AFH-DD license may be issued by the Division if the applicant and resident manager (if applicable):

(a) Meet the qualifications listed in OAR 411-360-0110and completes the training requirements outlined in OAR 411-360-0120; and

(b) The home and applicant are in compliance with OAR 411-360-0080.

(4) LEVEL 2B AFH-DD LICENSE. If a provider serves or intends to serve more than one individual who exhibits behavior that pose a significant danger to the individual or others, the provider must be licensed as a Level 2B AFH-DD.

(a) A Level 2B AFH-DD license may be issued by the Division only if the applicant and resident manager (if applicable) has met the criteria for a Level 1 AFH-DD license and in addition, has met the following criteria:

(A) Has the equivalent of one year of full-time experience in providing direct care to individuals with developmental disabilities;

(B) Has two years of full time experience providing care and support to individuals who exhibit behavior that poses significant risk to the individual or others as described in subsection (4)(a)(E)(i-iv) of this section;

(C) Has completed OIS-G, OIS-IF, or OIS-C certification by a state approved OIS trainer;

(D) Has completed additional hours of advanced behavior intervention training per year, based on the support needs of the individual, if available from the Division;

(E) Has been certified in CPR and First Aid by a recognized training agency; and

(F) Intends to provide care and support to more than one individual who exhibit behavior that poses a significant danger to the individual. Examples include but are not limited to:

(i) Acts or history of acts that have caused injury to self or others requiring medical treatment;

(ii) Use of fire or items to threaten injury to persons or damage to property;

(iii) Acts that cause significant damage to homes, vehicles, or other properties; or

(iv) Actively searching for opportunities to act out thoughts that involve harm to others.

(b) A Level 2B AFH-DD provider must have a Transition Plan for each individual upon entry and a Behavior Support Plan within 60 days of placement that:

(A) Emphasizes the development of the functional alternative and positive approaches to behavior intervention;

(B) Uses the least intervention possible;

(C) Ensures that abusive or demeaning intervention shall never be used; and

(D) Is evaluated by the ISP Team through review of specific data at least every six months to assess the effectiveness of the procedures.

(c) A Level 2B AFH-DD provider may not employ a resident manager or substitute caregiver who does not meet or exceed the training classification standard for the AFH-DD.

(d) The Level 2B AFH-DD may not admit individuals whose care needs exceed the licensed classification of the AFH-DD home and may not admit individuals without prior approval of the CDDP.

(5) LEVEL 2M AFH-DD LICENSE.

(a) A provider must be licensed as a Level 2M AFH-DD if the provider serves or intends to provide care and support to more than one individual who has a medical condition that is serious and could be life threatening. Examples include but are not limited to:

(A) Brittle diabetes or diabetes not controlled through medical or physical interventions;

(B) Significant risk of choking or aspiration;

(C) Physical, intellectual, or mental limitations that render the individual totally dependent on others for access to food or fluids; or

(D) Mental health or alcohol or drug problems that are not responsive to treatment interventions.

(b) A Level 2M AFH-DD license may be issued by the Division only if the applicant or resident manager has met the requirements for a Level 1 AFH-DD and meets the following additional criteria:

(A) Has the equivalent of one year of full-time experience in providing direct care to individuals with developmental disabilities;

(B) Is a health care professional such as a registered nurse or licensed practical nurse, or has the equivalent of two years full-time experience providing care and support to individuals who have a medical condition that is serious and could be life-threatening as described in subsection (5)(b)(E)(i-v) of this section;

(C) Has been certified in CPR and First Aid by a recognized training agency;

(D) Can provide current satisfactory references from at least two medical professionals, such as a physician, physician’s assistant, nurse practitioner, or registered nurse, who have direct knowledge of the applicant’s ability and past experiences as a caregiver;

(E) Has fulfilled a minimum six of the twelve hours of annual training requirements in specific medical training; and

(F) Intends to provide care and support to more than one individual who has a medical condition that is serious and could be life threatening. Examples include but are not limited to:

(i) Brittle diabetes or diabetes not controlled through medical or physical interventions;

(ii) Significant risk of choking or aspiration;

(iii) Physical, intellectual, or mental limitations that render the individual totally dependent on others for access to food or fluids;

(iv) Mental health or alcohol or drug problems that are not responsive to treatment interventions; and

(v) A terminal illness that requires hospice care.

(c) A Level 2M AFH-DD provider must have a Transition Plan for each individual upon entry and develop, with the ISP Team, a Medical Support Plan within 30 days of placement or whenever there is a change in health status for each individual who has a medical condition that is serious and could be life threatening as described in subsection (5)(b)(E)(i-v) of this section.

(d) A provider with a 2M licensed AFH-DD may not employ a resident manager or substitute caregiver who does not meet or exceed the training classification standard for a 2M AFH-DD.

(e) The 2M AFH-DD may not admit individuals whose care needs exceed the licensed classification of the AFH-DD home and may not admit individuals without prior approval of the CDDP.

Stat. Auth.: ORS 410.070 & 409.050

Stats. Implemented: ORS 443.705 - 443.825

Hist.: SPD 3-2005, f. 1-10-05, cert. ef 2-1-05; SPD 13-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 22-2010(Temp), f. & cert. ef. 8-27-10 thru 2-22-11; SPD 29-2010, f. 12-29-10, cert. ef. 1-1-11

 

Rule Caption: Adult Foster Homes.

Adm. Order No.: SPD 30-2010

Filed with Sec. of State: 12-29-2010

Certified to be Effective: 1-1-11

Notice Publication Date: 11-1-2010

Rules Amended: 411-050-0412

Rules Repealed: 411-050-0499

Subject: The Department of Human Services, Seniors and People with Disabilities Division is permanently updating two rules relating to adult foster homes:

      • OAR 411-050-0412 (Criminal Records Check) to provide clarification; and

      • OAR 411-050-0499 (Clackamas County-Issued Adult Foster Home License, Transition to State Licensing) as the rule will no longer be effective after December 31, 2010.

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

411-050-0412

Criminal Records Check

(1) All subject individuals must have approved criminal records checks and maintain the approval in accordance with these rules and OAR 407-007-0200 to 407-007-0370, Criminal Records Check Rules:

(a) Annually;

(b) Prior to a subject individual’s change in position (i.e., changing from substitute caregiver to resident manager); and

(c) Prior to working in another home, regardless of whether the employer was the same or not, unless section (2) of this rule applies.

(2) PORTABILITY OF CRIMINAL RECORDS CHECK APPROVAL. A subject individual may be approved to work in multiple homes within the jurisdiction of the local Division. The Department’s Background Check Request form must be completed by the subject individual to show intent to work at various adult foster homes within the local Division’s jurisdiction.

(3) On or after July 28, 2009, no licensee, licensee applicant, or employee of the licensee shall be approved who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(4) Section (3) of this rule does not apply to:

(a) Employees of the licensee who were hired prior to July 28, 2009 if they continue employment in the same position; or

(b) Any subject individual who is an occupant of the home but is neither a licensee nor a caregiver.

(5) The licensee must have written verification from the Division that the required criminal records checks have been completed for all subject individuals. (See OAR 411-050-0444(6)(a)(A))

(6) All subject individuals must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and OAR 407-007-0290. The licensee must notify the Division or designee within 24 hours.

(7) The Division must provide for the expedited completion of a criminal records check for the state of Oregon when requested by a licensed provider because of an immediate staffing need.

Stat. Auth.: ORS 181.537, 410.070, 443.004, & 443.735

Stats. Implemented: ORS 181.537, 443.004, & 443.735

Hist.: SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 22-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 1-2010(Temp), f. & cert. ef. 3-11-10 thru 6-30-10; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 30-2010, f. 12-29-10, cert. ef. 1-1-11

 

Rule Caption: Personal Care Services (Housekeeping).

Adm. Order No.: SPD 31-2010

Filed with Sec. of State: 12-29-2010

Certified to be Effective: 1-1-11

Notice Publication Date: 12-1-2010

Rules Amended: 411-034-0010, 411-034-0020, 411-304-0035

Subject: The Department of Human Services, Seniors and People with Disabilities Division is permanently amending three state plan personal care services rules in OAR chapter 411, division 034 to remove references to personal care services provided to individuals due to a mental health condition. The rules for personal care services for individuals with a mental health condition were adopted by the Addictions and Mental Health Division on August 25, 2010 in OAR 309-016-0690 to 309-016-0725.

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

411-034-0010

Definitions

As used in these rules, unless the context demands otherwise, the following definitions apply:

(1) “Assistance” means the individual requires help from another person with personal assistance services or supportive services as described in OAR 411-034-0020. This help may include cueing, monitoring, reassurance, redirection, set-up, hands-on, or standby assistance as defined in OAR 411-015-0005(5). It may also require verbal reminding to complete one of the tasks described in OAR 411-034-0020.

(2) “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. Assistive devices include the use of service animals, general household items, or furniture to assist the individual.

(3) “Case Management” means those functions, performed by a case manager or service coordinator including determining service eligibility, developing a plan of authorized services, and monitoring the effectiveness of personal assistance and supportive services to the individual.

(4) “Case Manager” or “Service Coordinator” means a Department employee or an employee of a designee who is responsible for service eligibility, assessment, planning, service authorization and implementation, and evaluation of the effectiveness of the state plan personal care services.

(5) “Contracted In-Home Care Agency” means an entity (described in OAR chapter 333, division 536) that contracts with the Seniors and People with Disabilities Division to provide personal care services to individuals served by the Department under Title XIX.

(6) “Cost Effective” means being responsible and accountable with Department resources. This is accomplished by offering less costly alternatives when providing choices that adequately meet an individual’s service needs. Those choices may include other programs available from the Department, the utilization of assistive devices, 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.

(7) “Delegated Nursing Task” means a task, normally requiring the education and license of a registered nurse (RN) and within the RN scope of practice to perform, that an RN authorizes an unlicensed person (defined in OAR 851-047-0010) to provide in selected situations. In accordance with OAR 851-047-0000, OAR 851-047-0010, and OAR 851-047-0030, the delegation of a nursing task is a written authorization that includes RN assessment of the specific eligible individual, evaluation of the unlicensed person’s ability to perform a specific task, teaching the task, and supervision and re-evaluation of the individual and the unlicensed person at regular intervals.

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

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

(10) “Division” means the following divisions or contractors with the Department:

(a) Addictions and Mental Health Division (AMHD);

(b) Seniors and People with Disabilities Division (SPD) and its subdivision, Developmental Disabilities Services;

(c) Area Agencies on Aging (AAA); and

(d) Children, Adults, and Families Division (CAF) and its subdivision Self-Sufficiency Programs (SSP).

(11) “Fiscal Improprieties” means the personal care attendant committed financial misconduct involving the individual’s money, property, or benefits. Improprieties include but are not limited to financial exploitation, borrowing money from the individual, taking the individual’s property or money, having the individual purchase items for the provider, forging the individual’s signature, falsifying payment records, claiming payment for hours not worked, or similar acts intentionally committed for financial gain.

(12) “Homecare Worker” means a provider as described in OAR 411-031-0040, that provides either hourly or live-in services to eligible individuals and is employed by the individual. The term includes client-employed providers that provide state plan personal care services to seniors and people with physical disabilities. The term does not include personal care attendants enrolled through Developmental Disability Services or the Addictions and Mental Health Division.

(13) “Individual” means the person applying or determined eligible for state plan personal care services through the Department.

(14) “Lacks the Skills, Knowledge, and Ability to Adequately or Safely Perform the Required Work” means the personal care attendant does not possess the skills to perform services needed by individuals served by the Department. The personal care attendant may not be physically, mentally, or emotionally capable of providing services to individuals with developmental disabilities or mental or emotional disorders. Their lack of skills may put individuals at risk, because they fail to perform, or learn to perform, their duties adequately to meet the needs of the individual.

(15) “Legally Responsible Relative” means the parent or step-parent of an eligible minor child, a spouse, or other family member who has legal custody or legal guardianship according to ORS 125.005, 125.300, 125.315, and 125.320.

(16) “Natural Supports” or “Natural Support System” means the resources available to an individual from their relatives, friends, significant others, neighbors, roommates, and the community. Services provided by natural supports are resources not paid for by the Department.

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

(18) “Personal Assistance Services” means those functional activities described in OAR 411-034-0020 consisting of mobility, transfers, repositioning, basic personal hygiene, toileting, bowel and bladder care, nutrition, medication and oxygen management, and delegated nursing tasks that an individual requires for continued well-being.

(19) “Personal Care Attendant” means a provider who is enrolled through the Department with an individual Medicaid provider number to provide state plan personal care services, as described in these rules, to individuals served by Developmental Disabilities Services.

(20) “Provider” or “Qualified Provider” means the person who actually performs the state plan personal care services and meets the description cited in OAR 411-034-0050.

(21) “Provider Enrollment” means the authorization to work as a provider employed by the eligible individual, for the purpose of receiving payment for services authorized by the Department. Provider enrollment includes the issuance of a Medicaid provider number.

(22) “Service Need” means the assistance with personal assistance services and supportive services that an individual requires from another person.

(23) “Service Plan” or “Service Authorization” means the written plan of care for the individual that identifies:

(a) The qualified provider who shall deliver the authorized services;

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

(c) The maximum monthly hours of personal assistance services and supportive services authorized by the case manager or designee.

(24) “State Plan Personal Care Services” means the assistance provided with personal assistance services and supportive services as described in OAR 411-034-0020.

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

(26) “These Rules” mean the Oregon Administrative Rules in chapter 411, division 034.

Stat. Auth.: ORS 410.020 & 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

411-034-0020

Scope of Services

(1) State plan personal care services are essential services performed by a qualified provider, which enable an individual to move into or remain in his or her own home.

(a) Services are provided directly to the eligible individual, and are not meant to provide respite or other services to the individual’s support system. Services may not be implemented for the purpose of benefiting other family members or the household in general.

(b) The extent of the services may vary, but the number of hours is limited to a maximum of 20 hours of services per month per eligible individual.

(2) Personal assistance 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, and 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 the individual or adjusting clothing related to toileting, emptying catheter drainage bag or assistive device, ostomy care, or bowel care;

(c) Mobility, transfers, repositioning — assisting the individual with ambulation or transfers with or without assistive devices, turning the individual or adjusting padding for physical comfort or pressure relief, or 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 and 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 the individual and that individual is receiving a personal assistance service 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), 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, or 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. This 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 services, which are excluded under these rules:

(a) Shopping;

(b) 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) Home delivered meals (described in OAR chapter 411, division 040) funded by Medicaid and provided to individuals by an organization that holds a provider agreement with the Department. Meals prepared by homecare workers or personal care attendants are not considered home delivered meals;

(h) Care, grooming, or feeding of pets or other animals; or

(i) Yard work, gardening, or home repair.

Stat. Auth.: ORS 409.010, 410.020, 410.070 & 410.608

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

411-034-0035

Where Individuals Are Served

(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.

(2) Individuals eligible for or receiving developmental disabilities case management services or other services through Developmental Disabilities Services must apply for state plan personal care services through the local community developmental disability program or through the local support service brokerage.

(3) Individuals eligible for or receiving case management services from a Senior and People With Disabilities (SPD) or Area Agency on Aging (AAA) office serving seniors and persons with physical disabilities, must apply for state plan personal care services through the local SPD or AAA office that provides Medicaid programs to seniors or persons with physical disabilities.

(4) Individuals receiving benefits through Self-Sufficiency Programs must apply for state plan personal care services through the local SPD or AAA office. SPD/AAA shall be 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 409.010, 410.020, 410.070, 410.608 & 411.116

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

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, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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