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Oregon State Archives

Oregon Bulletin

February 1, 2012

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

Rule Caption: Home Delivered Meals.

Adm. Order No.: SPD 26-2011(Temp)

Filed with Sec. of State: 12-20-2011

Certified to be Effective: 12-20-11 thru 6-13-12

Notice Publication Date:

Rules Amended: 411-040-0000

Subject: The Department of Human Services (Department) is temporarily amending OAR 411-040-0000 to clarify the eligibility standards for home delivered meals and to clearly define the standards for all Medicaid paid providers of home delivered meals.

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

411-040-0000

Home Delivered Meals

(1) Medicaid paid home delivered meals, exclusive of those funded through the Older Americans Act or Oregon Project Independence, constitute a service that may be provided as part of a waivered services care plan to assist an individual to remain in the individual’s own home.

(2) To be eligible for Medicaid paid home delivered meals, an individual must comply with the Department’s October 2008 Nutrition Program Standards for Medicaid Paid Home Delivered Meal Programs.

(3) Applicants determined ineligible to receive Medicaid paid home delivered meals but who need food assistance shall be directed to the nearest AAA or appropriate food assistance programs.

(4) All Medicaid paid providers of home delivered meals must:

(a) Meet the basic, administrative, and program requirements as described in the Department’s October 2008 Nutrition Program Standards for Medicaid Paid Home Delivered Meal Programs;

(b) Follow the food service sanitation and safety requirements for Medicaid paid home delivered meals as directed in the Department’s October 2008 Nutrition Program Standards for Medicaid Paid Home Delivered Meal Programs;

(c) Provide nutrition education as described in the Department’s October 2008 Nutrition Program Standards for Medicaid Paid Home Delivered Meal Programs;

(d) Plan menus that meet the requirements as described in the Department’s October 2008 Nutrition Program Standards for Medicaid Paid Home Delivered Meal Programs; and

(e) Establish a means of soliciting participant input as described in the Department’s October 2008 Nutrition Program Standards for Medicaid Paid Home Delivered Meal Programs.

(5) The Department’s October 2008 Nutrition Program Standards for Medicaid Paid Home Delivered Meal Programs may be found anytime at: http://www.dhs.state.or.us/spd/tools/cm/hdm/standards.pdf or is available from the Department upon request

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

(7) All requests for home delivered meals shall be referred to the Department or AAA.

(8) The Department shall establish, authorize, purchase, and monitor the standards for Medicaid paid home delivered meals.

(9) Individuals required to make a monthly payment under OAR 461-185-0050 in order to remain eligible for Medicaid waiver services must have their home-delivered meal costs calculated in conjunction with their in-home service provider costs.

(a) To remain eligible for waiver services, pay-in clients are responsible for payment of authorized home-delivered meals received up to their specified monthly pay-in amount. Payments due for meal services shall be included as part of the monthly sum and the individual must send the payment to the Department’s pay-in unit rather than making any direct payments to the Medicaid paid home delivered meal provider.

(b) The Department shall direct payments made to Medicaid paid home delivered meal providers for all authorized home-delivered meals to waiver service eligible clients. Direct payment from the Department shall include the meals paid through the individual’s monthly pay-in and for meals that exceed the individual’s total monthly liability.

(10) For individuals whose meals are delivered through an Older Americans Act (OAA) meal service program that also contracts as a Medicaid paid home delivered meals provider:

(a) Individuals receiving home-delivered meals authorized and paid for by the Department shall be officially informed by the Department or AAA 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) The criteria in section (9) of this rule and subsection (a) of this section applies to individuals that must submit a monthly payment to the Department under OAR 461-185-0050 in order to remain eligible for services.

(c) An individual who meets the criteria in sections (6) or (9) of this rule and is age 65 or older, may choose to receive meals through the OAA meal service program and may make voluntary donations. For individuals required to make a monthly payment under OAR 461-185-0050, these donations are not credited toward the pay-in liability. In turn, OAA meal programs are not mandated to provide home-delivered meals to Medicaid waiver service clients, age 65 and older, 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

Rule Caption: Support Services for Adults with Developmental Disabilities.

Adm. Order No.: SPD 27-2011

Filed with Sec. of State: 12-28-2011

Certified to be Effective: 12-28-11

Notice Publication Date: 12-1-2011

Rules Adopted: 411-340-0125

Rules Amended: 411-320-0090, 411-320-0110, 411-340-0020, 411-340-0100, 411-340-0110, 411-340-0120, 411-340-0130, 411-340-0140, 411-340-0150

Rules Repealed: 411-320-0090(T), 411-320-0110(T), 411-340-0100(T), 411-340-0110(T)

Subject: The Department of Human Services (Department) is updating the support services rules in OAR chapter 411, division 340 and the Community Developmental Disability Program (CDDP) rules in OAR chapter 411, division 320 to:

• Permanently make the receipt of support services contingent on eligibility for the federally approved Support Services Waiver in most cases and require that all individuals not eligible for the Support Services Waiver exit brokerage services. Prior to this, eligibility for the Support Services Waiver was not a requirement for support services;

• Further define eligibility criteria for supplemental funds relating to needs associated with activities of daily living;

• Emphasize that support funds are not meant to supplement existing and naturally occurring supports;

• Address the role of brokerages in handling an individual in crisis;

• As a result of adding the role of case manager to the personal agent, include timelines for informing individuals of the personal agent, establish expectations around providing protective services, and outline specific requirements around progress noting; and

• Specifically identify rate range and expenditure guidelines.

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

411-320-0090

Developmental Disabilities Case Management Program Responsibilities

(1) AVAILABILITY. As required by these rules, the CDDP must assure the availability of a services coordinator to meet the service needs of an individual and any emergencies or crisis. The assignment of the services coordinator must be appropriately documented in individual service records and the CDDP must accurately report enrollment in the Department’s payment and reporting systems.

(2) POLICIES AND PROCEDURES. The CDDP must adopt written procedures to assure that the delivery of services meet the standards in OAR 411-320-0090(4) of this rule.

(a) The CDDP must have procedures for ongoing involvement of individuals and family members in the planning and review of consumer satisfaction with the delivery of case management or direct services provided by the CDDP.

(b) Copies of the procedures for planning and review of case management services, consumer satisfaction, and complaints must be maintained on file at the CDDP offices. The procedures must be available to:

(A) CDDP employees who work with individuals;

(B) Individuals who are receiving services from the CDDP and the individuals’ families;

(D) The Department.

(3) NOTICE OF SERVICES. The CDDP must inform the individuals, family members, legal representatives, and advocates of the minimum case management services that are set out in OAR 411-320-0090(4) of this rule.

(4) MINIMUM STANDARDS FOR CASE MANAGEMENT SERVICES.

(a) The CDDP must ensure that eligibility for services is determined by a trained eligibility specialist in accordance with OAR 411-320-0030.

(b) An Annual Plan for an individual must be developed and reviewed in accordance with OAR 411-320-0120(1).

(A) The services coordinator must assure that there is an Annual Plan. The services coordinator must attend the annual plan meeting and participate in the development of the plan for individuals enrolled in comprehensive services. The services coordinator is responsible for the development of the Annual Plan, on the form provided by the Department, for children receiving family support services in coordination with the child and the family.

(B) An Annual Plan must be completed for each individual that is not enrolled in any Department-funded service other than case management.

(d) Services coordinators must monitor services and supports for all individuals enrolled in case management in accordance with the standards described in OAR 411-320-0130.

(e) Entry, exit, and transfers from comprehensive program services must be in accordance with OAR 411-320-0110.

(f) Crisis diversion services must be assessed, identified, planned, monitored, and evaluated by the services coordinator in accordance with OAR 411-320-0160.

(g) Abuse investigations and provision of protective services for adults must be provided as described in OAR 407-045-0250 to 407-045-0360 and include investigating complaints of abuse, writing investigation reports, and monitoring for implementation of report recommendations.

(h) Civil commitment services must be provided in accordance with ORS 427.215 to 427.306.

(i) The services coordinator must provide information and timely referral about how to access services to individuals and their families regarding developmental disability services available within the county and services available from other agencies or organizations within the county.

(A) For individuals 18 years and older, information and referral must specifically include information necessary to inform the individual of the comprehensive services wait list and support services. When more than one support services brokerage is available within the CDDP’s geographic service area, the CDDP must also provide impartial information about the brokerages available to the individual.

(B) For individuals 18 years and older, information and referral must be provided initially and at minimum annually thereafter if the individual declines the comprehensive services wait list or support services. Annual information and referral must include informing the individual of the individual’s right to, at any time, request access to the comprehensive services wait list or support services. Documentation of the initial referral and subsequent annual discussion must be documented in the individual’s CDDP file.

(C) For individuals enrolled in the support services brokerage but not enrolled in the comprehensive services wait list, the CDDP must coordinate with the support services brokerage to ensure that wait list information is provided annually.

(j) The services coordinator must enroll individuals in the comprehensive services wait list who meet the following criteria:

(A) The individual is age 18 or older;

(B) The individual is enrolled in case management services or a support services brokerage;

(D) The individual is not enrolled in comprehensive services as an adult.

(k) An individual who moves between CDDP’s and whose case management or support services do not lapse for more than a period of 12 months shall retain the wait list enrollment date assigned or continued by the CDDP in which case management services were previously received. If an individual did not receive case management services in any county in Oregon for a period exceeding 12 calendar months, a new wait list enrollment date shall be assigned. The new wait list enrollment date must be the date the individual first meets all the criteria described in OAR 411-320-0090(4)(j) of this section.

(l) When funding and resources are available, the CDDP must facilitate selection of individuals from the comprehensive services wait list using the date of enrollment on the comprehensive services wait list. An individual in crisis according to OAR 411-320-0160(2) and in need of service must be given first consideration for comprehensive services regardless of the date of enrollment on the comprehensive services wait list.

(m) The services coordinator may remove an individual from the comprehensive services wait list for the following reasons:

(A) The individual requests to be removed;

(B) The individual is placed in comprehensive services; or

(n) The CDDP must inform the individual of the CDDP’s intent to remove the individual from the comprehensive services wait list.

(o) Services coordinators must coordinate services with the child welfare (CW) caseworker assigned to a child to ensure the provision of required supports from the Department, CDDP, and CW.

(p) Services coordinators may attend IEP planning meetings or other transition planning meetings for children when the services coordinator is invited by the family or guardian to participate.

(A) The services coordinator may, to the extent resources are available, assist the family in accessing those critical non-educational services that the child or family may need.

(B) Upon request and to the extent possible, the services coordinator may act as a proponent for the child or family at IEP meetings.

(C) The services coordinator must participate in transition planning by attending IEP meetings or other transition planning meetings of students 16 years of age or older, or until the student is enrolled in the support services brokerage, to discuss the individual’s transition to adult living and work situations unless such attendance is refused by the child’s parent or legal guardian, or the individual if the individual is 18 years or older.

(q) The CDDP must ensure that individuals eligible for and receiving developmental disability services are enrolled in Department payment and reporting systems. The county of origin must enroll the individual into the Department payment and reporting systems for all developmental disability service providers except in the following circumstances:

(A) The Department shall complete the enrollment or termination form for children entering or leaving a licensed 24-hour residential program that is directly contracted with the Department.

(B) The Department shall complete the Department payment and reporting systems enrollment, termination, and billing forms for children entering or leaving the children’s intensive in-home services (CIIS) program.

(C) The Department shall complete the enrollment, termination, and billing forms as part of an interagency agreement for purposes of billing for crisis diversion services by a region.

(r) Services coordinators must facilitate referrals to nursing homes when appropriate as determined by OAR 411-070-0043.

(s) The services coordinator must coordinate and monitor the specialized services provided to an eligible individual living in a nursing home in accordance with OAR 411-320-0150.

(t) The services coordinator must ensure that all serious events related to an individual are reported to the Department using the SERT system. The CDDP must ensure that there is monitoring and follow-up on both individual events and system trends.

(u) When the services coordinator completes the Title XIX waiver form, the services coordinator must ensure that Medicaid eligible individuals are offered the choice of home and community-based waiver services, provided a notice of hearing rights, and have a completed Title XIX waiver form that is reviewed annually or at anytime there is a significant change. For individuals who are expected to enter support services, the services coordinator must complete the initial Title XIX waiver form after the individual’s 18th birth date and no more than 30 days prior to entry into the support services brokerage. The support services brokerage staff must assess the individual’s level of care annually thereafter for continued Title XIX waiver eligibility or at anytime there are significant changes.

(v) The services coordinator must participate in the appointment of a health care representative per OAR chapter 411, division 365.

(w) The services coordinator must coordinate with other state, public, and private agencies regarding services to individuals.

(x) The CDDP must ensure that a services coordinator is available to provide or arrange for comprehensive in-home supports for adults, long term supports for children, or family supports, as required, to meet the support needs of eligible individuals. This includes:

(A) Providing assistance in determining needs and planning supports;

(B) Providing assistance in finding and arranging resources and supports;

(C) Providing education and technical assistance to make informed decisions about support need and direct support service providers;

(D) Arranging fiscal intermediary services;

(E) Arranging employer-related supports; and

(F) Providing assistance with monitoring and improving the quality of supports.

(5) SERVICE PRIORITIES. If it becomes necessary for the CDDP to prioritize the availability of case management services, the CDDP must request and have approval of a variance prior to implementation of any alternative plan. If the reason for the need for the variance could not have been reasonably anticipated by the CDDP, the CDDP has 15 working days to submit the variance request to the Department. The variance request must:

(a) Document the reason the service prioritization is necessary (including any alternatives considered);

(b) Detail the specific service priorities being proposed; and

(6) FAMILY RECONNECTION. The CDDP and the services coordinator must provide assistance to the Department when a family member is attempting to reconnect with an individual who was previously discharged from Fairview Training Center or Eastern Oregon Training Center or the individual is currently receiving developmental disability services.

(a) If a family member contacts a CDDP for assistance in locating a family member they shall be referred to the Department. A family member may contact the Department directly.

(b) The Department shall send the family member a Department form requesting further information to be used in providing notification to the individual. The form shall include the following information:

(A) Name of requestor;

(B) Address of requestor and other contact information;

(D) Reason for wanting to reconnect; and

(E) Last time the family had contact.

(c) The Department shall determine if the individual was previously a resident of Fairview Training Center or Eastern Oregon Training Center and also determine:

(A) If the individual is deceased or living;

(B) Whether the individual is currently or previously enrolled in Department services; and

(d) Within 10 working days of receipt of the request, the Department shall notify the family member if the individual is enrolled or no longer enrolled in Department services.

(e) If the individual is enrolled in Department services, the Department shall send the completed family information form to the individual or the individual’s guardian and the individual’s services coordinator.

(f) If the individual is deceased, the Department shall follow the process for identifying the personal representative of the deceased as provided for in ORS 192.526.

(A) If the personal representative and the requesting family member are the same, the family member shall be informed that the person is deceased.

(B) If the personal representative is different from the requesting family member, the personal representative shall be contacted for permission to share the information to the requesting family member. In the event of this situation, the Department must make a good faith effort at finding the personal representative and obtaining a decision concerning the sharing of information as soon as practicable.

(g) When an individual is located, the services coordinator when the individual is enrolled in case management, or the CDDP in conjunction with the support services brokerage when the individual is enrolled in a support services brokerage, must facilitate a meeting with the individual or the individual’s guardian to discuss and determine if the individual wishes to have contact with the family member.

(A) The services coordinator when the individual is enrolled in case management, or the CDDP in conjunction with the support services brokerage when the individual is enrolled in a support services brokerage, must assist the individual or the individual’s guardian in evaluating the information to make a decision regarding initiating contact including providing the information from the form and any relevant history with the family member that might support contact or present a risk to the individual.

(B) If the individual does not have a guardian or is unable to express his or her wishes, the ISP team must be convened to review factors and choose the best response for the individual after evaluating the situation.

(h) If the individual or the individual’s guardian wishes to have contact, the individual or ISP team designee may directly contact the family member to make arrangements for the contact.

(i) If the individual or the individual’s guardian does not wish to have contact, the services coordinator must notify the Department with the information and the Department shall inform the family member in writing that no contact is requested.

(j) The notification to the family member regarding the decision of the individual or the individual’s guardian must be within 60 business days of the receipt of the information form from the family member.

(k) The decision by the individual or the individual’s guardian is not appealable.

Stat. Auth.: ORS 409.050, 410.070, 430.640

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

411-320-0110

Entry and Exit Requirements

(1) ADMISSION TO A DEPARTMENT-FUNDED DEVELOPMENTAL DISABILITY PROGRAM.

(a) Department staff must authorize entry into children’s residential services, children’s proctor care, children’s intensive in-home supports, state operated community programs, and state training centers. The services coordinator must make referrals for admission and participate in all entry meetings for these programs.

(b) Admissions to all other Department-funded programs for individuals must be coordinated and authorized by the services coordinator in accordance with these rules.

(2) WRITTEN INFORMATION REQUIRED. The services coordinator, or the services coordinator’s designee, must provide available and sufficient written information to service providers including information that is current and necessary to meet the individual’s support needs in comprehensive services prior to admission.

(a) This written information must be provided in a timely manner and include:

(A) A copy of the individual’s eligibility determination decision;

(B) A statement indicating the individual’s safety skills including ability to evacuate from a building when warned by a signal device, and the ability to adjust water temperature for bathing and washing;

(D) A medical history and information on health care supports that includes, where available:

(i) The results of a physical exam (if any) made within 90 days prior to the entry;

(ii) Results of any dental evaluation;

(iii) A record of immunizations;

(iv) A record of known communicable diseases and allergies; and

(v) A record of major illnesses and hospitalizations.

(E) A written record of any current or recommended medications, treatments, diets, and aids to physical functioning;

(F) If applicable, copies of protocols, the risk tracking record, and any support documentation;

(G) Copies of documents relating to guardianship, conservatorship, health care representative, power of attorney, court orders, probation and parole information, or any other legal restrictions on the rights of the individual, when applicable;

(H) Written documentation why preferences or choices of the individual cannot be honored at that time;

(I) Written documentation that the individual is participating in out-of-residence activities including school enrollment for individuals under the age of 21; and

(J) A copy of the most recent functional assessment, Behavior Support Plan, ISP, and IEP, if applicable.

(b) If the individual is being admitted from the individual’s family home and entry information is not available due to a crisis, the services coordinator must ensure that the service provider assesses the individual upon entry for issues of immediate health or safety and the services coordinator must document a plan to secure the information listed in OAR 411-320-0110(2)(a) of this section no later than 30 days after admission. The documentation must include a written description as to why the information is not available. A copy of the information and plan must be given to the service provider at the time of entry.

(c) If the individual is being admitted from comprehensive service, the information must be made available prior to the admission.

(3) ENTRY MEETING. Prior to an individual’s date of entry into a Department-funded comprehensive service, the ISP team must meet to review referral material in order to determine appropriateness of placement. The ISP team participants shall be determined according to OAR 411-320-0120. The findings of the entry meeting must be recorded in the individual’s file and distributed to the ISP team members. The documentation of the entry meeting must include at a minimum:

(a) The name of the individual proposed for services;

(b) The date of the entry meeting and the date determined to be the date of entry;

(d) Documentation of the pre-entry information required by OAR 411-320-0110(2)(a) of this rule;

(e) Documentation of the decision to serve or not serve the individual requesting service, with reasons;

(f) If the decision was made to enter the individual, a written transition plan to include all medical, behavior, and safety supports needed by the individual, to be provided to the individual for no longer than 60 days after admission; and

(g) Documentation of the participants included in the entry meeting.

(4) CRISIS DIVERSION SERVICES. For a period not to exceed 30 days, OAR 411-320-0110(3)(d) of this rule does not apply if an individual is temporarily admitted to a program for crisis diversion services.

(5) EXIT FROM DEPARTMENT-FUNDED PROGRAMS. All exits from Department-funded developmental disability services must be authorized by the CDDP. All exits from Department direct-contracted service for children’s 24-hour residential and from state-operated community programs, must be authorized by Department staff. Prior to an individual’s exit date, the ISP team must meet to review the appropriateness of the move and to coordinate any services necessary during or following the transition. The ISP team participants must be determined according to OAR 411-320-0120(1)(b).

(6) EXIT STAFFING. The exit plan must be distributed to all ISP team members. The exit plan must include:

(a) The name of the individual considered for exit;

(b) The date of the exit meeting;

(d) Documentation of the circumstances leading to the proposed exit;

(e) Documentation of the discussion of the strategies to prevent an exit from service, unless the individual, the individual’s legal guardian or, for a child, the child’s parent or guardian, is requesting the exit;

(f) Documentation of the decision regarding exit including verification of majority agreement of the exit meeting participants regarding the decision; and

(g) The written plan for services for the individual after exit.

(7) TRANSFER MEETING. All transfers within a county between service sites by a comprehensive service provider agency must be authorized by the CDDP, except for transfers between Department direct contracted services for children in 24-hour residential programs and in state operated community programs. Transfers between Department direct contracted services for children in 24-hour residential programs and state operated community programs must be coordinated by Department staff. A transfer meeting of the ISP team must precede any decision to transfer an individual. Findings of such a transfer meeting must be recorded in the individual’s file and include, at a minimum:

(a) The name of the individual considered for transfer;

(b) The date of the transfer meeting;

(d) Documentation of the circumstances leading to the proposed transfer;

(e) Documentation of the alternatives considered instead of transfer;

(f) Documentation of the reasons any preferences of the individual, the individual’s legal representative, or family members may not be honored;

(g) Documentation of the decision regarding transfer including verification of majority agreement of the transfer meeting participants regarding the decision; and

(h) The written plan for services for the individual after transfer.

(8) ENTRY TO SUPPORT SERVICES.

(a) Referrals of eligible individuals to a support services brokerage must be made in accordance with OAR 411-340-0110. Referrals must be made using the Department mandated application and referral form in accordance with Department guidelines.

(b) The CDDP of an individual’s county of origin may find the individual eligible for services from a support services brokerage when:

(A) The individual is an Oregon resident who has been determined eligible for developmental disability services by the CDDP; AND

(B) The individual is an adult living in the individual’s own home or family home and not receiving other Department-paid in-home or community living support other than state Medicaid plan services; AND

(D) At the time of initial entry to the support services brokerage, the individual is not receiving crisis diversion services from the Department because the individual does not meet one or more of the crisis risk factors listed in OAR 411-320-0160; AND

(E) The individual, or the individual’s legal representative, has chosen to use a support service brokerage for assistance with design and management of personal supports; AND

(F) The individual is eligible for entry to the Support Services Waiver according to OAR 461-135-0750; OR

(G) The individual turns 18 years old and meets the level of care that qualifies the individual for entry to the Support Services Waiver and the individual was enrolled in the CIIS Program up to the individual’s 18th birthday.

(A) Being determined eligible for developmental disability services;

(B) Being determined eligible for entry to the Support Services Waiver;

(D) Requesting support services; and

(E) Selecting an available support services brokerage within the CDDP’s geographic service area.

(d) The individual must complete entry within 90 days of referral to the support services brokerage.

(e) The services coordinator must communicate with the support services brokerage staff and provide all relevant information upon request and as needed to assist support services brokerage staff in developing an ISP that best meets the individual’s support needs including:

(A) A current application or referral on the Department mandated application or referral form;

(B) A completed Title XIX waiver form;

(D) Copies of financial eligibility information;

(E) Copies of any legal documents such as guardianship papers, conservatorship, civil commitment status, probation and parole, etc.;

(F) Copies of relevant progress notes; and

(G) A copy of any current plans.

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

Stat. Auth.: ORS 409.050, 410.070, 430.640

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

411-340-0020

Definitions

As used in OAR chapter 411, division 340:

(1) “Abuse” means abuse of an adult as defined in OAR 407-045-0260.

(2) “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.

(3) “Activities of Daily Living (ADL)” mean the self-care activities accomplished by an individual for continued well-being.

(4) “Adaptive Behavior” means the degree to which an individual meets the standards of personal independence and social responsibility expected for age and culture group.

(5) “Administration of Medication” means the act of placing a medication in, or on, an individual’s body by a person responsible for the individual’s care and employed by or under contract to the individual, the individual’s legal representative, or a provider organization.

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

(7) “Administrator” means the Administrator of the Department, or that person’s designee. The term “Administrator” is synonymous with “Assistant Director”.

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

(9) “Alternative Resources” mean possible resources, not including support services, for the provision of supports to meet an individual’s needs. Alternative resources includes but is not limited to private or public insurance, vocational rehabilitation services, supports available through the Oregon Department of Education, or other community supports.

(10) “Basic Benefit” means the type and amount of support services available to each eligible individual, specifically:

(a) Access to the brokerage services listed in OAR 411-340-0120(1); and if required

(b) Access to an amount of support services funds used to assist with the purchase of supports listed in OAR 411-340-0130(6).

(11) “Basic Supplement” means an amount of support services funds in excess of the basic benefit to which an individual may have access in order to purchase necessary supports based on demonstration of extraordinary long-term need on the Basic Supplement Criteria Inventory, Form DHS 0203.

(12) “Basic Supplement Criteria Inventory (Form DHS 0203)” means the written inventory of an individual’s circumstances that is completed and scored by the brokerage to determine whether the individual is eligible for a basic supplement.

(13) “Benefit Level” means the total annual amount of support service funds for which an individual is eligible. The benefit level includes the basic benefit and any exceptions to the basic benefit financial limits.

(14) “Certificate” means a document issued by the Department to a brokerage, or to a provider organization requiring certification under OAR 411-340-0170(2), that certifies the brokerage or provider organization is eligible to receive state funds for support services.

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

(16) “Chore Services” mean services needed to maintain a clean, sanitary, and safe environment in an individual’s home. Chore services include heavy household chores such as washing floors, windows, and walls, tacking down loose rugs and tiles, and moving heavy items of furniture for safe access and egress.

(17) “Client Process Monitoring System (CPMS)” means the Department’s computerized system for enrolling and terminating services for individuals with developmental disabilities.

(18) “Community Developmental Disability Program (CDDP)” means an entity that is responsible for planning and delivery of services for individuals with developmental disabilities according to OAR chapter 411, division 320. A CDDP operates in a specific geographic service area of the state under a contract with the Department, Local Mental Health Authority, or other entity as contracted by the Department.

(19) “Community Living and Inclusion Supports” mean services that facilitate independence and promote community integration by supporting the individual to gain or maintain skills to live as independently as possible in the type of home the individual chooses. Community living and inclusion supports provide support for the individual to participate in activities in integrated settings that promote community inclusion and contribution.

(a) Community living and inclusion supports include supports designed to develop or maintain skills for self-care, ability to direct supports, care of the immediate environment, and may include instruction in skills an individual wishes to acquire, retain, or improve that enhance independence, productivity, integration, or maintain the individual’s physical and mental skills. Community living and inclusion supports include supports in the following areas:

(A) Personal skills, which includes eating, bathing, dressing, personal hygiene, and mobility;

(B) Socialization, which includes development or maintenance of self-awareness and self-control, social responsiveness, social amenities, and interpersonal skills;

(C) Community participation, recreation, or leisure, which includes the development or maintenance of skills to use available community services, facilities, or businesses;

(D) Communication, which includes development or maintenance of expressive and receptive skills in verbal and non-verbal language and the functional application of acquired reading and writing skills; and

(E) Personal environmental skills, which includes development or maintenance of skills such as planning and preparing meals, budgeting, laundry, and housecleaning.

(b) Community living and inclusion supports may or may not be work related.

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

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

(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 individual in the individual or family home costing more than the individual cost limit.

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

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

(23) “Crisis” means:

(a) A situation that may 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 are present for which no appropriate alternative resources are available.

(24) “Crisis Diversion Services” mean the services authorized and provided according to OAR 411-320-0160 that are intended to maintain an individual at home or in the family home while an individual is in emergent status. Crisis diversion services may include short-term residential placement services indicated on an individual’s Support Services Brokerage Plan of Care Crisis Addendum, as well as additional support as described in an Individual Support Plan.

(25) “Department” means the Department of Human Services (DHS). The term “Department” is synonymous with “Division (SPD)”.

(26) “Developmental Disability” means a neurological condition that originates in the developmental years, that is likely to continue, and significantly impacts adaptive behavior as diagnosed and measured by a qualified professional as described in OAR 411-320-0080.

(27) “Emergent Status” means an individual has been determined to be eligible for crisis diversion services according to OAR 411-320-0160..

(28) “Employer-Related Supports” mean activities that assist individuals and, when applicable, their family members with fulfilling roles and obligations as employers as described in the Individual Support Plan. Supports to the employer include but are not limited to:

(a) Education about employer responsibilities;

(b) Orientation to basic wage and hour issues;

(d) Fiscal intermediary services.

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

(30) “Environmental Accessibility Adaptations” mean physical adaptations that are necessary to ensure the health, welfare, and safety of the individual in the home, or that enable the individual to function with greater independence in the home.

(a) Environmental accessibility adaptations include but are not limited to:

(A) Environmental modification consultation to determine the appropriate type of adaptation;

(B) Installation of shatter-proof windows;

(D) Specialized, hardened, waterproof, or padded flooring;

(E) An alarm system for doors or windows;

(F) Protective covering for smoke detectors, light fixtures, and appliances;

(G) Sound and visual monitoring systems;

(H) Fencing;

(I) Installation of ramps, grab-bars, and electric door openers;

(J) Adaptation of kitchen cabinets and sinks;

(K) Widening of doorways;

(L) Handrails;

(M) Modification of bathroom facilities;

(N) Individual room air conditioners for an individual whose temperature sensitivity issues create behaviors or medical conditions that put the individual or others at risk;

(O) Installation of non-skid surfaces;

(P) Overhead track systems to assist with lifting or transferring;

(Q) Specialized electric and plumbing systems that are necessary to accommodate the medical equipment and supplies necessary for the welfare of the individual; or

(R) Modifications to a vehicle to meet the unique needs of the individual (lift, interior alterations such as seats, head and leg rests and belts, special safety harnesses, or other unique modifications to keep the individual safe in the vehicle).

(b) Environmental accessibility adaptations exclude:

(A) Adaptations or improvements to the home that are of general utility and are not of direct medical or remedial benefit to the individual, such as carpeting, roof repair, and central air conditioning; and

(B) Adaptations that add to the total square footage of the home.

(31) “Environmental Modification Consultant” means either an independent provider, provider organization, or general business paid with support services funds, to provide advice to an individual, the individual’s legal representative, or the individual’s personal agent about the environmental accessibility adaptation required to meet the individual’s needs.

(32) “Exit” means either termination from a Department-funded developmental disability service provider or transfer from one Department-funded service provider to another.

(33) “Family” for determining individual eligibility for brokerage services as a resident in the family home and for determining who may receive family training, means a unit of two or more persons that include at least one individual with developmental disabilities where the primary caregiver is:

(a) Related to the individual with developmental disabilities by blood, marriage, or legal adoption; or

(b) In a domestic relationship where partners share:

(A) A permanent residence;

(B) Joint responsibility for the household in general (e.g. child-rearing, maintenance of the residence, basic living expenses); and

(C) Joint responsibility for supporting a member of the household with developmental disabilities and the individual with developmental disabilities is related to one of the partners by blood, marriage, or legal adoption.

(34) “Family Training” means training and counseling services for the family of an individual that increase the family’s capacity to care for, support, and maintain the individual in the home. Family training includes:

(a) Instruction about treatment regimens and use of equipment specified in the Individual Support Plan;

(b) Information, education, and training about the individual’s developmental disability, medical, and behavioral conditions; and

(c) Counseling for the family to relieve the stress associated with caring for an individual with developmental disabilities.

(35) “Fiscal Intermediary” means a person or entity that receives and distributes support services funds on behalf of an individual who employs persons to provide services, supervision, or training in the home or community according to the Individual Support Plan.

(36) “Founded Reports” means the Department’s or Law Enforcement Authority’s (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.

(37) “General Business Provider” means an organization or entity selected by an individual or the individual’s legal representative, and paid with support services funds that:

(a) Is primarily in business to provide the service chosen by the individual to the general public;

(b) Provides services for the individual through employees, contractors, or volunteers; and

(38) “Habilitation Services” mean services designed to assist individuals in acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully in home and community-based settings. Habilitation services include supported employment and community living and inclusion supports.

(39) “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 and contested case hearing.

(40) “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.

(41) “Homemaker Services” mean the general household activities such as meal preparation and routine household services required to maintain a clean, sanitary, and safe environment in an individual’s home.

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

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

(44) “Independent Provider” means a person selected by an individual or the individual’s legal representative and paid with support services funds that personally provide services to the individual.

(45) “Individual” means an adult with developmental disabilities for whom services are planned and provided.

(46) “Individual Cost Limit” means the maximum annual benefit level available under the Support Services Waiver.

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

(48) “Integration” as defined in ORS 427.005 means:

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

(b) Participation by individuals with developmental disabilities 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 reside in homes or home-like settings that are in proximity to community resources and foster contact with persons in their community.

(49) “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.

(50) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who, 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. Nothing contained in ORS 40.225 to 40.295 shall affect the duty to report imposed by this section of this rule, except that a psychiatrist, psychologist, clergy, or attorney is not required to report if the communication is privileged under ORS 40.225 to 40.295.

(51) “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.

(52) “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 that are not paid for by the Department.

(53) “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.

(54) “Nursing Care Plan” means a plan developed by a registered nurse that describes the medical, nursing, psychosocial, and other needs of the individual and how those needs shall be met. The Nursing Care Plan includes which tasks shall be taught, assigned, or delegated to the qualified provider or family.

(55) “Occupational Therapy” means the services provided by a professional licensed under ORS 675.240 that are defined under the approved State Medicaid Plan, except that the amount, duration, and scope specified in the State Medicaid Plan do not apply.

(56) “OSIP-M” means Oregon Supplemental Income Program Medical.

(57) “Personal Agent” means a person who works directly with individuals and families to provide or arrange for support services as described in the Support Services Waiver and these rules, is a case manager for the provision of targeted case management services, meets the qualifications set forth in OAR 411-340-0150(5), and is:

(a) A trained employee of a brokerage; or

(b) 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.

(58) “Personal Emergency Response Systems” mean electronic devices required by certain individuals to secure help in an emergency for safety in the community.

(59) “Person-Centered Planning” means:

(a) A process, either formal or informal, for gathering and organizing information that helps an individual:

(A) Determine and describe choices about personal goals, activities, and lifestyle preferences;

(B) Design strategies and networks of support to achieve goals and a preferred lifestyle using individual strengths, relationships, and resources; and

(b) The methods for gathering information vary, but all are consistent with individual needs and preferences.

(60) “Physical Therapy” means the services provided by a professional licensed under ORS 688.020 that are defined under the approved State Medicaid Plan, except that the amount, duration, and scope specified in the State Medicaid Plan do not apply.

(61) “Plan Year” means 12 consecutive months used to calculate an individual’s annual benefit level. Unless otherwise set according to the conditions of OAR 411-340-0120, the initial plan year begins on the start date specified on the individual’s first authorized Individual Support Plan (ISP) after entry to a brokerage. Subsequent plan years begin on the anniversary of the start date of the initial ISP.

(62) “Positive Behavioral Theory and Practice” means a proactive approach to individual behavior and behavior interventions that:

(a) Emphasizes the development of functional alternative behavior and positive behavior intervention;

(b) Uses the least intervention possible;

(d) Evaluates the effectiveness of behavior interventions based on objective data.

(63) “Prescription Medication” means any medication that requires a physician prescription before it may be obtained from a pharmacist.

(64) “Primary Caregiver” means the person identified in an Individual Support Plan as providing the majority of service and support for an individual in the individual’s home.

(65) “Productivity” as defined in ORS 427.005 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.

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

(67) “Provider Organization” means an entity selected by an individual or the individual’s legal representative, and paid with support services funds that:

(a) Is primarily in business to provide supports for individuals with developmental disabilities;

(b) Provides supports for the individual through employees, contractors, or volunteers; and

(68) “Provider Organization Director” means the employee of a provider organization, or the employee’s designee, responsible for administration and provision of services according to these rules.

(69) “Psychotropic Medication” means a 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) “Quality Assurance” means a systematic procedure for assessing the effectiveness, efficiency, and appropriateness of services.

(71) “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 comprising the region agree are more effectively or automatically delivered on a regional basis.

(72) “Respite” means intermittent services provided on a periodic basis for the relief of, or due to the temporary absence of, persons normally providing the supports to individuals unable to care for themselves.

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

(74) “Self-Administration of Medication” means the individual manages and takes his or her own medication, identifies his or her medication and the times and methods of administration, places the medication internally in or externally on his or her own body without staff assistance upon written order of a physician, and safely maintains the medication without supervision.

(75) “Self-Determination” means a philosophy and process by which individuals with developmental disabilities are empowered to gain control over the selection of support services that meet their needs. The basic principles of self-determination are:

(a) Freedom. The ability for an individual with a developmental disability, together with freely-chosen family and friends, to plan a life with necessary support services rather than purchasing a predefined program;

(b) Authority. The ability for an individual with a developmental disability, with the help of a social support network if needed, to control a certain sum of resources in order to purchase support services;

(c) Autonomy. The arranging of resources and personnel, both formal and informal, that shall assist an individual with a developmental disability to live a life in the community rich in community affiliations; and

(d) Responsibility. The acceptance of a valued role in an individual’s community through competitive employment, organizational affiliations, personal development, and general caring for others in the community, as well as accountability for spending public dollars in ways that are life-enhancing for individuals with developmental disabilities.

(76) “Social Benefit” means a service or financial assistance solely intended to assist an individual with a developmental disability to function in society on a level comparable to that of a person who does not have such a developmental disability.

(a) Social benefits may not:

(A) Duplicate benefits and services otherwise available to persons regardless of developmental disability;

(B) Provide financial assistance with food, clothing, shelter, and laundry needs common to persons with or without developmental disabilities; or

(b) Financial assistance provided as a social benefit may not exceed the actual cost of the support required by an individual to be supported in the individual’s home and must be either:

(A) Reimbursement for an expense previously authorized in an Individual Support Plan (ISP); or

(B) An advance payment in anticipation of an expense authorized in a previously authorized ISP.

(77) “Special Diet” means specially prepared food or particular types of food, ordered by a physician and periodically monitored by a dietician, specific to an individual’s medical condition or diagnosis that are needed to sustain an individual in the individual’s home. Special diets are supplements and are not intended to meet an individual’s complete daily nutritional requirements. Special diets may include:

(a) High caloric supplements;

(b) Gluten-free supplements; and

(78) “Specialized Medical Equipment and Supplies” mean devices, aids, controls, supplies, or appliances that enable individuals to increase their abilities to perform activities of daily living or to perceive, control, or communicate with the environment in which they live. Specialized medical equipment and supplies include items necessary for life support, ancillary supplies and equipment necessary to the proper functioning of such items, and durable and non-durable medical equipment not available under the State Medicaid Plan. Specialized medical equipment and supplies may not include items not of direct medical or remedial benefit to the individual. Specialized medical equipment and supplies must meet applicable standards of manufacture, design, and installation.

(79) “Specialized Supports” mean treatment, training, consultation, or other unique services necessary to achieve outcomes in the Individual Support Plan that are not available through State Medicaid Plan services or other support services listed in OAR 411-340-0130(6). Typical supports include the services of a behavior consultant, a licensed nurse, or a social or sexual consultant to:

(a) Assess the needs of the individual and family, including environmental factors;

(b) Develop a plan of support;

(d) Monitor implementation of the plan of support; and

(e) Revise the plan of support as needed.

(80) “Speech and Language Therapy” means the services provided by a professional licensed under ORS 681.250 that are defined under the approved State Medicaid Plan, except that the amount, duration, and scope specified in the State Medicaid Plan do not apply.

(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) “Supported Employment Services” means provision of job training and supervision available to assist an individual who needs intensive ongoing support to choose, get, and keep a job in a community business setting. Supported employment is a service planned in partnership with public vocational assistance agencies and school districts and through Social Security Work Incentives when available.

(84) “Support Services” mean the services of a brokerage listed in OAR 411-340-0120(1) as well as the uniquely determined activities and purchases arranged through the brokerage support services that:

(a) Complement the existing formal and informal supports that exist for an individual living in the individual’s own home or family home;

(b) Are designed, selected, and managed by the individual or the individual’s legal representative;

(d) May include purchase of supports as a social benefit required for an individual to live in the individual’s home or the family home.

(85) “Support Services Brokerage” or “Brokerage” means an entity, or distinct operating unit within an existing entity, that uses the principles of self-determination to perform the functions listed in OAR 411-340-0120(1) associated with planning and implementation of support services for individuals with developmental disabilities.

(86) “Support Services Brokerage Director” or “Brokerage Director” means the employee of a publicly or privately-operated brokerage, or that person’s designee, who is responsible for administration and provision of services according to these rules.

(87) “Support Services Brokerage Plan of Care Crisis Addendum” means the short-term plan that is required by the Department to be added to an Individual Support Plan to describe crisis diversion services an individual is to receive while the individual is in emergent status in a short-term residential placement.

(88) “Support Services Brokerage Policy Oversight Group” or “Policy Oversight Group” means the group that meets the requirements of OAR 411-340-0150(1) that is formed to provide consumer-based leadership and advice to each brokerage regarding issues such as development of policy, evaluation of services, and use of resources.

(89) “Support Services Expenditure Guideline” means a publication of the Department that describes allowable uses for support services funds.

(90) “Support Services Funds” mean public funds designated by the brokerage for assistance with the purchase of supports according to each Individual Support Plan.

(91) “Support Services Rate Ranges” means a publication of the Department that defines policy regarding the use of support services funds and limits to the rates paid for some support services.

(92) “These Rules” mean the rules in OAR chapter 411, division 340.

(93) “Transportation” means services that allow individuals to gain access to community services, activities, and resources that are not medical in nature.

(94) “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 an abuse investigation.

(95) “Volunteer” means any person assisting a service provider without pay to support the services provided to an individual.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 – 430.695

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1760, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 38-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; 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 27-2011, f. & cert. ef. 12-28-11

411-340-0100

Eligibility for Support Service Brokerage Services

(1) NON-DISCRIMINATION. Individuals determined eligible according to OAR 411-340-0100(2) of this rule may not be denied brokerage services or otherwise discriminated against on the basis of age, diagnostic or disability category, race, color, creed, national origin, citizenship, income, or duration of Oregon residence.

(2) ELIGIBILITY. The CDDP of an individual’s county of residence may find the individual eligible for a brokerage when:

(a) The individual is an Oregon resident who has been determined eligible for developmental disability services by the CDDP; AND

(b) The individual is an adult living in the individual’s own home or family home and not receiving other Department-paid in-home or community living support other than State Medicaid Plan services; AND

(d) At the time of initial entry to the brokerage, the individual is not receiving short-term services from the Department because the individual is eligible for, and at imminent risk of, civil commitment under ORS chapter 427.215 through 427.306; AND

(e) The individual or the individual’s legal representative has chosen to use a brokerage for assistance with design and management of personal supports; AND

(f) The individual is an adult eligible for enrollment in the Support Services Waiver according to OAR 461-135-0750; OR

(g) The individual turns 18 years old and meets the level of care that qualifies the individual for enrollment to the Support Services Waiver and the individual was enrolled in the Children’s Intensive In-home Services (CIIS) Program up to the individual’s 18th birthday.

(3) CONCURRENT SERVICES. Individuals are not eligible for service by more than one brokerage unless the concurrent service:

(a) Is necessary to affect transition from one brokerage to another;

(b) Is part of a collaborative plan between the affected brokerages; and

Stat. Auth.: ORS 409.050 & 410.070

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

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; Renumbered from 309-041-1840, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 18-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 21-2011(Temp), f. & cert. ef. 8-31-11 thru 12-28-11; SPD 27-2011, f. & cert. ef. 12-28-11

411-340-0110

Standards for Support Service Brokerage Entry and Exit

(1) The brokerage must make accurate, up-to-date information about the brokerage available to individuals referred for services. This information must include:

(a) A declaration of brokerage philosophy;

(b) A brief description of the services provided by the brokerage, including typical timelines for activities;

(c) A description of processes involved in using the services, including application and referral, assessment, planning, and evaluation;

(d) A declaration of brokerage employee responsibilities as mandatory abuse reporters;

(e) A brief description of individual responsibilities for use of public funds;

(f) An explanation of individual rights, including an individual’s right to:

(A) Choose a brokerage from among Department contracted brokerages in an individual’s county of residence that is serving less than the total number of individuals specified in the brokerage’s current contract with the Department;

(B) Choose a personal agent among those available in the selected brokerage;

(C) Select providers among those willing, available, and qualified according to OAR 411-340-0160, OAR 411-340-0170, and OAR 411-340-0180 to provide supports authorized through the ISP;

(D) Direct the services of providers; and

(E) Raise and resolve concerns about brokerage services, including specific rights to notification and hearing for Medicaid recipients according to OAR 411-340-0060(3) when services covered under Medicaid are denied, terminated, suspended, or reduced.

(g) Indication that additional information about the brokerage is available on request. The additional information must include but not be limited to:

(A) A description of the brokerage’s organizational structure;

(B) A description of any contractual relationships the brokerage has in place or may establish to accomplish the brokerage functions required by rule; and

(2) The brokerage must make information required in OAR 411-340-0110(1) of this rule available using language, format, and presentation methods appropriate for effective communication according to individuals’ needs and abilities.

(3) ENTRY INTO BROKERAGE SERVICES.

(a) To enter brokerage services:

(A) An individual must be determined by the CDDP to be eligible for brokerage services according to OAR 411-340-0100(2);

(B) The individual or the individual’s legal representative must choose to receive services from a selected brokerage; and

(C) The individual must be enrolled in the Support Services Waiver unless eligibility for support services is based upon OAR 411-340-0100(2)(g).

(b) The Department may implement guidelines that govern entries when the Department has determined that such guidelines are prudent and necessary for the continued development and implementation of support services.

(c) The brokerage may not accept individuals for entry beyond the total number of individuals specified in the brokerage’s current contract with the Department.

(4) EXIT FROM A BROKERAGE.

(a) An individual must exit a brokerage:

(A) At the written request of the individual or the individual’s legal representative to end the service relationship;

(B) No less than 30 days after the brokerage has served written notice of intent to terminate services, when the individual either cannot be located or has not responded to repeated attempts by brokerage staff to complete ISP development and monitoring activities, and does not respond to the notice of intent to terminate;

(D) Upon entry into a comprehensive service;

(E) When the individual is incarcerated or in a medical hospital, psychiatric hospital, or convalescent center and it is determined that the individual will not return home, or will not return home after 90 consecutive days;

(F) After no more than 90 consecutive days from the date the individual becomes ineligible for the Support Services Waiver under OAR 461-135-0750, or no more than 30 days from the date the brokerage learns of the individual’s loss of eligibility, whichever is later, except as stated in OAR 411-340-0110(4)(a)(A-G) of this section; or

(G) After 10 days when an individual is eligible for support services based on OAR 411-340-0100(2)(g) and:

(i) The individual does not apply for a disability determination and OSIP-M within 10 business days of the individual’s 18th birthday; OR

(ii) The Social Security Administration or the Department’s Presumptive Medicaid Disability Determination Team finds that an individual does not have a qualifying disability; OR

(iii) The individual is determined by the State of Oregon to be ineligible for OSIP-M.

(b) Any individual being exited from a brokerage shall be given written notice of the intent to terminate service at least 10 days prior to the termination.

(c) An individual who exits support services as a result of the application of OAR 411-340-0110(4)(a)(F) or (G) of this section may not receive continuation of benefits pending a contested case hearing if a hearing is requested to contest the decision to exit from support services.

(d) Each brokerage must have policies and procedures for notifying the CDDP of an individual’s county of residence when that individual plans to exit, or exits, brokerage services. Notification method, timelines, and content must be based on agreements between the brokerage and CDDP’s of each county in which the brokerage provides services.

Stat. Auth.: ORS 409.050 & 410.070

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

411-340-0120

Support Service Brokerage Services

(1) Each brokerage must provide or arrange for the following services as required to meet individual support needs:

(a) Assistance for individuals to determine needs, plan supports in response to needs, and develop individualized budgets based on available resources;

(b) Assistance for individuals to find and arrange the resources to provide planned supports;

(c) Assistance with development and expansion of community resources required to meet the support needs of individuals served by the brokerage;

(d) Information, education, and technical assistance for individuals to use to make informed decisions about support needs and to direct providers;

(e) Fiscal intermediary services in the receipt and accounting of support services funds on behalf of an individual in addition to making payment to providers with the authorization of the individual;

(f) Employer-related supports; and

(g) Assistance for individuals to effectively put plans into practice, including help to monitor and improve the quality of supports as well as assess and revise plan goals.

(2) SELF-DETERMINATION. Brokerages must apply the principles of self-determination to provision of services required in OAR 411-340-0120(1) of this rule.

(3) PERSON-CENTERED PLANNING. A brokerage must use a person-centered planning approach to assist individuals to establish outcomes, determine needs, plan for supports, and review and redesign support strategies.

(4) HEALTH AND SAFETY ISSUES. The planning process must address basic health and safety needs and supports including but not limited to:

(a) Identification of risks, including risk of serious neglect, intimidation, and exploitation;

(b) Informed decisions by the individual or the individual’s legal representative regarding the nature of supports or other steps taken to ameliorate any identified risks; and

(5) PERSONAL AGENT SERVICES.

(a) INITIAL DESIGNATION OF PERSONAL AGENT.

(A) The brokerage must designate a personal agent for individuals newly entered in support services within 10 working days from the date entry becomes known to the brokerage.

(B) In the instance of an individual transferring into a brokerage from another brokerage, the brokerage must designate a personal agent within 10 days of entry to the new brokerage.

(C) The brokerage must send a written notice that includes the name, telephone number, and location of the personal agent or brokerage to the individual and the individual’s legal representative within 10 working days from the date entry becomes known to the brokerage.

(D) Prior to implementation of the initial ISP, the brokerage shall ask the individual or the individual’s legal representative to identify any family and other advocates to whom the brokerage shall provide the name, telephone number, and location of the personal agent.

(b) CHANGE OF PERSONAL AGENT. Changes of personal agents initiated by the brokerage must be kept to a minimum. If the brokerage must change personal agent assignments, the brokerage must notify the individual, the individual’s legal representative, and all current service providers within 10 working days of the change. The notification must be in writing and include the name, telephone number, and address of the new personal agent, if known, or of a contact person at the brokerage.

(6) PARTICIPATION IN PROTECTIVE SERVICES. The brokerage and personal agent must participate in the delivery of protective services, in cooperation with the CDDP, through the completion of activities necessary to address immediate health and safety concerns.

(7) MEDICAID WAIVERS. The brokerage must assure that individuals who become eligible for Medicaid after entry into the brokerage are offered the choice of home and community-based waiver services, provided a notice of fair hearing rights, and have a completed Support Services Waiver form that is reviewed annually or at any time there is a significant change.

(8) WRITTEN PLAN REQUIRED.

(a) Unless circumstances allow exception under OAR 411-340-0120(8)(b) of this section, the personal agent must write an ISP dated within 90 days of an individual’s entry into brokerage services and at least annually thereafter. The brokerage must provide a written copy of the most current ISP to the individual and the individual’s legal representative. The ISP or attached documents must include:

(A) The individual’s name;

(B) A description of the supports required, including the reason the support is necessary;

(D) Projected costs, with sufficient detail to support estimates;

(E) A list of personal, community, and public resources that are available to the individual and how they shall be applied to provide the required supports;

(F) The providers, or when the provider is unknown or is likely to change frequently, the type of provider (i.e. independent provider, provider organization, or general business provider), of supports to be purchased with support services funds;

(G) Schedule of ISP reviews; and

(H) Any revisions to OAR 411-340-0120(8)(a)(A) to (G) of this section that may alter:

(i) The amount of support services funds required;

(ii) The amount of support services required;

(iii) Types of support purchased with support services funds; and

(iv) The type of support provider.

(b) The schedule of the support services ISP, developed in compliance with OAR 411-340-0120(3) of this rule after an individual enters a brokerage, may be adjusted one time for any individual entering a brokerage in certain circumstances. Such an adjustment shall interrupt any plan year in progress and establish a new plan year for the individual beginning on the date the first new ISP is authorized. Circumstances where this adjustment is permitted include:

(A) Brokerages, with the consent of the individual, may designate a new ISP start date.

(i) This adjustment may only occur one time per individual upon ISP renewal.

(ii) The individual’s benefit level must be pro-rated based on the shortened plan year in order to not exceed the annual benefit level for which the individual is eligible.

(iii) ISP date adjustments must be clearly documented on the ISP.

(B) Transition of individuals receiving family support services for children with developmental disabilities regulated by OAR chapter 411, division 305, children’s intensive in-home services (CIIS) regulated by OAR chapter 411, division 300, or medically fragile children (MFC) services regulated by OAR chapter 411, division 350, when those individuals are 18 years of age. The date of the individual’s first new support services ISP after entry to the brokerage may be adjusted to correspond to the expiration date of the individual’s Annual Plan of Care in place at the time the individual turns 18 years of age when the Annual Plan of Care, developed while the individual is still receiving family support, CIIS, or MFC services, has been authorized for implementation prior to or upon the individual’s entry to the brokerage.

(C) Transition of individuals receiving other Department-paid services who are required by the Department to transition to support services. The date of the individual’s first support services ISP may be adjusted to correspond to the expiration date of the individual’s plan for services when the plan for services:

(i) Has been developed according to regulations governing Department-paid services the individual receives prior to transition;

(ii) Is current at the time designated by the Department for transition to support services; and

(iii) Is authorized for implementation prior to or upon the individual’s entry to the brokerage.

(9) PROFESSIONAL OR OTHER SERVICE PLANS.

(a) A Nursing Care Plan must be attached to the ISP when support services funds are used to purchase services requiring the education and training of a licensed professional nurse.

(b) A Support Services Brokerage Plan of Care Crisis Addendum, or other document prescribed by the Department for use in these circumstances, must be attached to the ISP when an individual enrolled in a brokerage is in emergent status in a short-term, out-of-home, residential placement as part of the individual’s crisis diversion services.

(10) ISP AUTHORIZATION.

(a) An initial and annual ISP must be authorized prior to implementation.

(b) A revision to the annual or initial ISP that involves the types of support purchased with support services funds must be authorized prior to implementation.

(c) A revision to the annual or initial ISP that does not involve the types of support purchased with support services funds does not require authorization. Documented verbal agreement to the revision by the individual or the individual’s legal representative is required prior to implementation of the revision.

(d) An ISP is authorized when:

(A) The signature of the individual or the individual’s legal representative is present on the ISP or documentation is present explaining the reason an individual who does not have a legal representative may be unable to sign the ISP.

(i) Acceptable reasons for an individual without a legal representative not to sign the ISP include physical or behavioral inability to sign the ISP.

(ii) Unavailability of the individual is not an acceptable reason for the individual or the individual’s legal representative not to sign the ISP.

(iii) In the case of a revision to the initial or annual ISP that is in response to immediate, unexpected change in circumstance, and is necessary to prevent injury or harm to the individual, documented verbal agreement may substitute for a signature for no more than 10 working days.

(B) The signature of the personal agent involved in the development of, or revision to, the ISP is present on the ISP; and

(11) PERIODIC REVIEW OF PLAN AND RESOURCES.

(a) The personal agent must conduct and document reviews of plans and resources with the individual and the individual’s legal representative.

(b) At least annually as part of preparation for a new ISP, the personal agent must:

(A) Evaluate progress toward achieving the purposes of the ISP, assessing and revising goals as needed;

(B) Note effectiveness of the use of support services funds based on personal agent observation as well as individual satisfaction;

(C) Determine whether changing needs or availability of other resources has altered the need for continued use of support services funds to purchase supports; and

(D) Record final support services fund costs.

(12) TRANSITION TO ANOTHER BROKERAGE. At the request of an individual enrolled in brokerage services who has selected another brokerage, the brokerage must collaborate with the receiving brokerage and the CDDP of the individual’s county of residence to transition support services.

(a) If the Department has designated and contracted funds solely for the support of the transitioning individual, the brokerage must notify the Department to consider transfer of the funds for the individual to the receiving brokerage.

(b) The ISP in place at the time of request for transfer may remain in effect 90 days after entry to the new brokerage while a new ISP is negotiated and authorized.

Stat. Auth.: ORS 409.050 & 410.070

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

411-340-0125

Crisis Supports in Support Services

(1) The brokerage must, in conjunction with its Regional Crisis Diversion Program, attempt to provide supports that mediate a crisis risk factor for adults who are:

(a) Entered in support services; and

(b) Determined to be in crisis as described in OAR 411-340-0125(2) of this rule.

(2) CRISIS DETERMINATION. An individual enrolled in support services is eligible for crisis diversion services when:

(a) A brokerage has referred an individual to the Regional Crisis Diversion Program because the brokerage has determined that one or more of the following crisis risk factors, not primarily related to a significant mental or emotional disorder or substance abuse, are present and for which no appropriate alternative resources are available:

(A) An individual is not receiving necessary supports to address life-threatening safety skill deficits;

(B) An individual is not receiving necessary supports to address life-threatening issues resulting from behavioral or medical conditions;

(C) An individual currently engages in self-injurious behavior serious enough to cause injury that requires professional medical attention;

(D) An individual undergoes, or is at imminent risk of undergoing, loss of caregiver due to caregiver inability to provide supports;

(E) An individual experiences a loss of home due to a protective service action; or

(F) An individual is not receiving the necessary supports to address significant safety risks to others, including but not limited to:

(i) A pattern of physical aggression serious enough to cause injury;

(ii) Fire-setting behaviors; or

(iii) Sexually aggressive behaviors or a pattern of sexually inappropriate behaviors.

(b) The Regional Crisis Diversion Program has determined crisis eligibility according to OAR 411-320-0160.

(A) May resolve the crisis; and

(B) May not contribute to new or additional crisis risk factors.

(3) CRISIS SUPPORTS.

(a) An ISP for an individual in emergent status may authorize short-term, out-of-home, residential placement. Residential placement does not exit an individual from support services.

(b) The individual’s personal agent must:

(A) Participate with the Regional Crisis Diversion Program staff in efforts to stabilize supports and return costs to the individual’s benefit level;

(B) Assist with the identification of qualified providers who may be paid in whole or in part using crisis diversion funding except in the case of short-term, out-of-home, residential placements with a licensed or certified provider;

(C) Complete and coordinate the Support Services Brokerage Plan of Care Crisis Addendum when an individual in emergent status requires a short-term, out-of-home, residential placement; and

(D) Monitor the delivery of supports provided, including those provided through crisis funding.

(i) Monitoring is done through contact with the individual, any service providers, and the individual’s family.

(ii) Monitoring is done to collect information regarding supports provided and progress toward outcomes that are identified as necessary to resolve the crisis.

(iii) The personal agent must document the information described in OAR 411-340-0125(3)(b)(D)(ii) of this section in the individual’s case file and report to the Regional Crisis Diversion Program or CDDP as required.

(d) All supports authorized in an ISP continue during the crisis unless prohibited by other rule, policy, or the supports contribute to new or additional crisis risk factors.

(4) TRANSITION TO COMPREHENSIVE SERVICES. When an individual eligible for crisis supports may have long-term support needs that may not be met through support services:

(a) The brokerage must immediately notify the CDDP of the individual’s county of residence;

(b) The brokerage must coordinate with the CDDP and the Regional Crisis Diversion Program to facilitate a timely exit from support services and entry into appropriate, alternative services; and

(c) The brokerage must assure that information required for a potential provider of comprehensive services is available as needed for a referral to be made.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 – 430.695

Hist.: SPD 27-2011, f. & cert. ef. 12-28-11

411-340-0130

Using Support Services Funds to Purchase Supports

(1) A brokerage may use support services funds to assist individuals to purchase supports in accordance with an ISP when:

(a) Supports are necessary for an individual to live in the individual’s own home or in the family home;

(b) Cost-effective arrangements for obtaining the required supports, applying public, private, formal, and informal resources available to the eligible individual are specified in the ISP;

(A) Support services funds are not intended to replace the resources available to an individual from their natural support system. Support services funds may be authorized only when the natural support system is unavailable, insufficient, or inadequate to meet the needs of the individual.

(B) Support services funds are not available when an individual’s support needs may be met by alternative resources. Support services funds may be authorized only when alternative resources are unavailable, insufficient, or inadequate to meet the needs of the individual.

(A) Crisis diversion services allowed by OAR 411-320-0160 do not provide the necessary support;

(B) The support was identified as necessary prior to the onset of the crisis;

(C) Support services funds are not expended to such an extent that the support services funds that may be required to purchase the remainder of necessary supports following the termination of crisis diversion services shall be unavailable; and

(D) Support services funds are used for no more than 90 days following the determination that the individual shall enter a comprehensive service.

(d) The ISP projects the amount of support services funds, if any, that may be required to purchase the remainder of necessary supports that are within the benefit level; and

(e) The ISP has been authorized for implementation.

(2) Goods and services purchased with support services funds on behalf of individuals are provided only as social benefits.

(3) LIMITS OF FINANCIAL ASSISTANCE. The use of support services funds to purchase individual supports in any plan year is limited to the individual’s annual benefit level.

(a) Individuals must have access throughout the plan year to the total annual amount of support services funds for which they are eligible that are determined to be necessary to implement an authorized ISP, even if there is a delay in implementation of the ISP, unless otherwise agreed to in writing by the individual or the individual’s legal representative.

(b) The Department may require that annual benefit level amounts be calculated and applied on a monthly basis when an individual’s eligibility for Medicaid changes during a plan year, an individual’s benefit level changes, or when an individual’s ISP is developed and written to be in effect for less than 12 months.

(A) Except in the case of an individual whose benefit level changes as the result of a change in eligibility for the Support Services Waiver, when an individual’s benefit level changes, the monthly benefit level shall be 1/12 of the annual benefit level for which the individual would be eligible should the change in benefit level remain in effect for 12 calendar months. The monthly benefit level shall be applied each month for the remainder of the plan year in which the individual’s change in benefit level occurred, from the date the change occurred.

(B) In the case of an individual with an ISP developed for a partial plan year, the monthly benefit level shall be 1/12 of the annual benefit level for which the individual would be eligible should the individual’s ISP be in effect for 12 calendar months. The monthly benefit level shall be applied each month during which the ISP of less than 12 months’ duration is in effect.

(c) Estimates of the cost for each unique support service purchased with support services funds must be based on the Department’s Support Services Rate Ranges for costs of frequently used services.

(A) Notwithstanding the Department’s Support Services Rate Ranges, final costs for any support service purchased with support services funds may not exceed local usual and customary charges for these services as evidenced by the brokerage’s own documentation.

(B) The brokerage must establish a process for review and approval of all cost estimates exceeding the Department’s Support Services Rate Ranges and must monitor the authorized ISP involved for continued cost effectiveness.

(4) EXCEPTIONS TO BASIC BENEFIT FINANCIAL LIMITS. Exceptions to the basic benefit annual support services fund limit may be only as follows.

(a) Individuals with extraordinary long-term need as demonstrated by a score of 60 or greater on the Basic Supplement Criteria Inventory (Form DHS 0203) may have access to a basic supplement in order to purchase necessary supports.

(A) For Medicaid recipients choosing services under the Support Services Waiver, the basic supplement must result in a plan year cost that is not greater than the individual cost limit.

(B) The brokerage director, or a designee from brokerage management and administration, must administer the Basic Supplement Criteria Inventory only after receiving Department-approved training. The brokerage director or designee must score basic supplement criteria according to written and verbal instruction received from the Department.

(C) The trained brokerage director or a designee from a brokerage’s management or administration must administer the Basic Supplement Criteria Inventory within 30 calendar days of the documented request of the individual or the individual’s legal representative.

(D) The brokerage director or designee must send written notice of findings regarding eligibility for a basic supplement to the individual and the individual’s legal representative within 45 calendar days of the documented request for a basic supplement. This written notice must include:

(i) An offer for the individual and the individual’s legal representative to discuss the findings in person with the director and with the individual’s personal agent in attendance if desired;

(ii) A notice of the complaint process under OAR 411-340-0060; and

(iii) A notice of planned action.

(E) Annual ISP reviews for recipients of the basic supplement must include a review of circumstances and resources to confirm continued need according to the instructions included with the Basic Supplement Criteria Inventory.

(F) The basic supplement must be used to address the conditions and caregiver circumstances identified in the Basic Supplement Criteria Inventory as contributing to the extraordinary long-term need.

(b) An individual in emergent status may receive crisis diversion services that may cause an individual’s benefit level to be exceeded.

(A) Use of crisis diversion services and length of emergent status may be authorized only by the CDDP of the individual’s county of residence, or the Regional Crisis Diversion Program responsible for the individual’s county of residence, depending on the source of the funds for crisis diversion services.

(B) Funds associated with crisis diversion services may be used to pay the difference in cost between the authorized ISP and the supports authorized by either the CDDP of the individual’s county of residence or the Regional Crisis Diversion Program responsible for crisis diversion services in the individual’s county of residence, depending on the source of crisis diversion services funds required to meet the short-term need.

(C) Although costs for crisis diversion services may bring the individual’s total plan year cost temporarily above the individual cost limit, the individual’s costs may not exceed the cost of the state’s current ICF/MR daily cost per individual nor shall plan year expenses at or above the individual cost limit make the individual eligible for comprehensive services.

(D) Individuals placed in emergent status due to receiving crisis diversion services authorized and provided according to OAR 411-320-0160 may remain enrolled in, and receive support services from, the brokerage while both crisis diversion services and support services are required to stabilize and maintain the individual at home or in the family home..

(c) Individuals whose source of support funds are, in whole or in part, an individual-specific redirection of funds through a Department contract from a Department-regulated residential, work, or day habilitation service to support services funds, or to comprehensive in-home support funds regulated by OAR chapter 411, division 330 prior to entry to a brokerage, may have access to the amount specified in the Department contract as available for the individual’s use. This provision is only applicable when each transition is separate and specific to the individual and the services being converted are not subject to statewide service transitions.

(A) Individual plan year costs must always be less than the individual cost limit; and

(B) The brokerage must review the need for supports and their cost-effectiveness with the individual and the individual’s legal representative at least annually and must make budget reductions when allowed by the ISP.

(d) Individuals whose support funds were specifically assigned through a Department contract to self-directed support services prior to the date designated by the Department for transfer of the individual from self-directed support services to a brokerage may have access to the amount specified in the Department contract as available for the individual’s use.

(A) Individual plan year costs must always be less than the individual cost limit; and

(e) Individuals transferring from the Department’s Home and Community-Based Waiver Services for the Aged and Adults with Physical Disabilities who have been determined ineligible for those waiver service funds in accordance with OAR 411-015-0015(4)(c), shall have limited access to support services funds as described in these rules. The amount of support services funds available shall be equal to the Department’s previous service costs for the individual for no more than 365 calendar days. The 365 calendar days begins the date the individual starts receiving support services exclusively through a brokerage.

(f) For Medicaid recipients eligible for and choosing services under the Support Services Waiver, individuals may have access to a basic supplement for ADLs to purchase needed support services under the following conditions:

(A) The individual must have additional assistance needs with ADLs after development of their ISP within the basic benefit, extraordinary long-term need fund limit, or other exceptions provided in this rule. ADLs include:

(i) 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;

(ii) 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;

(iii) Mobility, transfers, and 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;

(iv) 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;

(v) 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; and

(vi) Delegated nursing tasks.

(B) Assistance means the individual requires help from another person with ADLs. Assistance may include cueing, monitoring, reassurance, redirection, set-up, hands-on, or standby assistance. Assistance may also require verbal reminding to complete one of the tasks described in OAR 411-340-0130(4)(f)(A) of this section.

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

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

(iii) “Monitoring” means a provider observes the individual to determine if intervention is needed.

(iv) “Reassurance” means to offer encouragement and support.

(v) “Redirection” means to divert the individual to another more appropriate activity.

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

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

(C) The supplement for ADLs must be used to meet identified support needs related to ADLs. The supplement for ADLs may also be used for the following services if they are incidental to the provision of ADLs, essential for the health and welfare of the individual, and provided solely for the individual receiving support services:

(i) 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;

(ii) Arranging for necessary medical appointments including help scheduling appointments and arranging medical transportation services, assistance with mobility, and transfers or cognition in getting to and from appointments;

(iii) Observation of an individual’s status and reporting of significant changes to physicians, health care professionals, or other appropriate persons;

(iv) First aid and handling 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

(v) Cognitive assistance or emotional support provided to an individual by another person due to developmental disability. This support includes helping the individual cope with change and assisting the individual with decision-making, reassurance, orientation, memory, or other cognitive symptoms.

(D) The supplement for ADL support may not be used for any of the following services:

(i) Shopping;

(ii) Transportation;

(iii) Money management;

(iv) Mileage reimbursement;

(v) Social companionship; or

(vi) Respite

(E) Activities and goals related to the provision of ADL services must be sufficiently documented in the individual’s ISP.

(F) Planned expenses must be based upon the least costly means of providing adequate services and must only be to the extent necessary to meet the documented ADL needs.

(G) The supplement for ADLs may not cause the cost per any plan year to exceed the individual cost limit. There is an exception for individuals receiving both support services under these rules who had a benefit level at the individual cost limit and state plan personal care services under OAR chapter 411, division 034, as of June 30, 2005. These individuals may continue to access the basic supplement and the supplement for ADLs until the individual terminates their receipt of support services or becomes ineligible for one of the supplements. The combined basic benefit, the basic supplement, and supplement for ADLs must remain above the individual cost limit to remain eligible for this exception.

(H) For Medicaid recipients receiving state plan personal care services under OAR chapter 411, division 034 entering support services after June 30, 2005, the Medicaid Personal Care Assessment (Form SDS 0531A) shall serve as the individual’s authorized ISP for a period not to exceed 90 days.

(I) The supplemental ADL services are not intended to replace the resources available to an individual receiving support services under these rules from their natural support system of relatives, friends, neighbors, or other available sources of support.

(5) AMOUNT, METHOD, AND SCHEDULE OF PAYMENT.

(a) The brokerage must disburse, or arrange for disbursement of, support services funds to qualified providers on behalf of individuals up to the amount agreed upon in an authorized ISP. The brokerage is specifically prohibited from reimbursement of individuals or individuals’ families for expenses related to services and from advancing funds to individuals or individuals’ families to obtain services.

(b) The method and schedule of payment must be specified in written agreements between the brokerage and the individual or the individual’s legal representative.

(6) TYPES OF SUPPORTS PURCHASED. Supports eligible for purchase with support services funds are:

(a) Chore services. Chore services may be provided only in situations where no one else in the household is capable of either performing or paying for the services and no other relative, caregiver, landlord, community, volunteer agency, or third-party payer is capable of or responsible for providing these services;

(b) Community living and inclusion supports;

(d) Family training;

(A) Family training must be provided:

(i) By licensed psychologists, medical professionals, clinical social workers, or counselors as described in OAR 411-340-0160(9); or

(ii) In organized conferences and workshops that are limited to topics related to the individual’s developmental disability, identified support needs, or specialized medical or habilitative support needs.

(B) Family training may not be provided to paid caregivers.

(e) Homemaker services. Homemaker services may be provided only when the person regularly responsible for general housekeeping activities as well as caring for an individual in the home is temporarily absent, temporarily unable to manage the home as well as care for self or the individual in the home, or needs to devote additional time to caring for the individual;

(f) Occupational therapy services;

(g) Personal emergency response systems;

(h) Physical therapy services;

(i) Respite;

(A) Respite may be provided in the individual’s or respite provider’s home, a foster home, a group home, a licensed day care center, or a community care facility that is not a private residence.

(B) Respite includes two types of care, neither of which may be characterized as eight-hours-a-day, five-days-a-week services or provided to allow caregivers to attend school or work.

(i) Temporary respite must be provided on less than a 24-hour basis.

(ii) Twenty-four hour overnight care must be provided in segments of 24-hour units that may be sequential but may not exceed 14 consecutive days without permission from the Department.

(j) Special diets. Special diets may not provide or replace the nutritional equivalent of meals and snacks normally required regardless of developmental disability.

(k) Specialized medical equipment and supplies as well as the following provisions:

(A) When specialized medical equipment and supplies are primarily and customarily used to serve a medical purpose, the purchase, rental, or repair of specialized medical equipment and supplies with support services funds must be limited to the types of equipment and supplies permitted under the State Medicaid Plan and specifically those that are not excluded under OAR 410-122-0080.

(B) Support services funds may be used to purchase more of an item than the number allowed under the State Medicaid Plan after the limits specified in the State Medicaid Plan have been reached, requests for purchases have been denied by the State Medicaid Plan or private insurance, and the denial has been upheld in an applicable hearing or private insurance benefit appeals process.

(C) Devices, aids, controls, supplies, or appliances primarily and customarily used to enable an individual to increase the individual’s abilities to perform ADLs or to perceive, control, or communicate with the environment in which the individual lives, may be purchased with support services funds when the individual’s developmental disability otherwise prevents or limits the individual’s independence in these areas. Equipment and supplies that may be purchased for this purpose must be of direct benefit to the individual and include:

(i) Adaptive equipment for eating, (i.e., utensils, trays, cups, bowls that are specially designed to assist an individual to feed him or herself);

(ii) Positioning devices;

(iii) Specially designed clothes to meet the unique needs of the individual, (e.g., clothes designed to prevent access by the individual to the stoma, etc.);

(iv) Assistive technology items;

(v) Computer software used by the individual to express needs, control supports, plan, and budget supports;

(vi) Augmentative communication devices;

(vii) Environmental adaptations to control lights, heat, stove, etc.; or

(viii) Sensory stimulation equipment and supplies that help an individual calm, provide appropriate activity, or safely channel an obsession (e.g., vestibular swing, weighted blanket, tactile supplies like creams and lotions);

(l) Specialized supports;

(m) Speech and language therapy services;

(n) Supported employment; and

(o) Transportation.

(7) CONDITIONS OF PURCHASE. The brokerage must arrange for supports purchased with support services funds to be provided:

(a) In settings and under contractual conditions that allow the individual to freely redirect support services funds to purchase supports and services from another qualified provider;

(A) Individuals who choose to combine support services funds to purchase group services must receive written instruction from the brokerage about the limits and conditions of such arrangements;

(B) Combined support services funds cannot be used to purchase existing, or create new, comprehensive services;

(C) Individual support expenses must be separately projected, tracked, and expensed, including separate contracts, employment agreements, and timekeeping for staff working with more than one individual;

(D) A provider organization resulting from the combined arrangements for community living and inclusion supports or supported employment services must be certified according to these rules; and

(E) Combined arrangements for residential supports must include a plan for maintaining an individual at home after the loss of roommates.

(b) In a manner consistent with positive behavioral theory and practice and where behavior intervention is not undertaken unless the behavior:

(A) Represents a risk to health and safety of the individual or others;

(B) Is likely to continue and become more serious over time;

(D) Results in damage to property; or

(E) Interferes with learning, socializing, or vocation.

(c) In accordance with applicable state and federal wage and hour regulations in the case of personal services, training, and supervision;

(d) In accordance with applicable state or local building codes in the case of environmental accessibility adaptations to the home;

(e) In accordance with Oregon Board of Nursing rules in OAR chapter 851 when services involve performance of nursing services or delegation, teaching, and assignment of nursing tasks;

(f) In accordance with OAR 411-340-0160 through 411-340-0180 governing provider qualifications and responsibilities; and

(g) In accordance with the Department’s Support Services Expenditure Guidelines.

(8) INDEPENDENT PROVIDER, PROVIDER ORGANIZATION, AND GENERAL BUSINESS PROVIDER AGREEMENTS AND RESPONSIBILITIES. When support services funds are used to purchase services, training, supervision, or other personal assistance for individuals, the brokerage must require and document that providers are informed of:

(a) Mandatory reporter responsibility to report suspected abuse;

(b) Responsibility to immediately notify the person or persons, if any, specified by the individual or the individual’s legal representative of any injury, illness, accident, or unusual circumstance that occurs when the provider is providing individual services, training, or supervision that may have a serious effect on the health, safety, physical or emotional well-being, or level of services required;

(A) Support services fund payments for the agreed-upon services are considered full payment and the provider under no circumstances may demand or receive additional payment for these services from the individual, the individual’s family, or any other source unless the payment is a financial responsibility (spend-down) of an individual under the Medically Needy Program; and

(B) The provider must bill all third party resources before using support services funds unless another arrangement is agreed upon by the brokerage and described in the ISP.

(d) The provisions of OAR 411-340-0130(9) of this rule regarding sanctions that may be imposed on providers; and

(e) The requirement to maintain a drug-free workplace.

(9) SANCTIONS FOR INDEPENDENT PROVIDERS, PROVIDER ORGANIZATIONS, AND GENERAL BUSINESS PROVIDERS.

(a) A sanction may be imposed on a provider when the brokerage determines that, at some point after the provider’s initial qualification and authorization to provide supports purchased with support services funds, the provider has:

(A) Been convicted of any crime that would have resulted in an unacceptable criminal records check upon hiring or authorization of service;

(B) Been convicted of unlawfully manufacturing, distributing, prescribing, or dispensing a controlled substance;

(C) Surrendered his or her professional license or had his or her professional license suspended, revoked, or otherwise limited;

(D) Failed to safely and adequately provide the authorized services;

(E) Had a founded report of child abuse or substantiated abuse;

(F) Failed to cooperate with any Department or brokerage investigation or grant access to or furnish, as requested, records or documentation;

(G) Billed excessive or fraudulent charges or been convicted of fraud;

(H) Made false statement concerning conviction of crime or substantiation of abuse;

(I) Falsified required documentation;

(J) Failed to comply with the provisions of OAR 411-340-0130(8) of this rule or OAR 411-340-0140; or

(K) Been suspended or terminated as a provider by another division within the Department or Oregon Health Authority.

(b) The following sanctions may be imposed on a provider:

(A) The provider may no longer be paid with support services funds;

(B) The provider may not be allowed to provide services for a specified length of time or until specified conditions for reinstatement are met and approved by the brokerage or the Department, as applicable; or

(c) If the brokerage makes a decision to sanction a provider, the brokerage must notify the provider by mail of the intent to sanction.

(d) The provider may appeal a sanction within 30 days of the date the sanction notice was mailed to the provider. The provider must appeal a sanction separately from any appeal of audit findings and overpayments.

(A) A provider of Medicaid services may appeal a sanction by requesting an administrative review by the Department’s Administrator.

(B) For an appeal regarding provision of Medicaid services to be valid, written notice of the appeal must be received by the Department within 30 days of the date the sanction notice was mailed to the provider.

(e) At the discretion of the Department, providers who have previously been terminated or suspended by any Department division or by the Oregon Health Authority may not be authorized as providers of Medicaid services.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007 & 430.610 – 430.695

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1870, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 10-2004(Temp), f. & cert. ef. 4-30-04 thru 10-25-04; SPD 32-2004, f. & cert. ef. 10-25-04; SPD 38-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; 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 27-2011, f. & cert. ef. 12-28-11

411-340-0140

Using Support Services Funds for Certain Purchases Is Prohibited

(1) Effective July 28, 2009, support services funds may not be used to support, in whole or in part, a provider in any capacity who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(2) OAR 411-340-0140(1) of this rule does not apply to employees of individuals, individual’s legal representatives, employees of general business providers, or employees of provider organizations who were hired prior to July 28, 2009 and remain in the current position for which the employee was hired.

(3) Support services funds may not be used to pay for:

(a) Services, materials, or activities that are illegal;

(b) Services or activities that are carried out in a manner that constitutes abuse as defined in OAR 407-045-0260;

(c) Materials or equipment that have been determined unsafe for the general public by recognized consumer safety agencies;

(d) Individual or family vehicles;

(e) Health and medical costs that the general public normally must pay including:

(A) Medications;

(B) Health insurance co-payments;

(D) Medical treatments;

(E) Dietary supplements including but not limited to vitamins and experimental herbal and dietary treatments; or

(F) Treatment supplies not related to nutrition, incontinence, or infection control.

(f) Ambulance services;

(g) Legal fees;

(h) Vacation costs for transportation, food, shelter, and entertainment that would normally be incurred by anyone on vacation, regardless of developmental disability, and are not strictly required by the individual’s need for personal assistance in all home and community settings;

(i) Individual services, training, or supervision that has not been arranged according to applicable state and federal wage and hour regulations;

(j) Services, activities, materials, or equipment that are not necessary, cost-effective, or do not meet the definition of support or social benefits as defined in OAR 411-340-0020;

(k) Educational services for school-age individuals over the age 18, including professional instruction, formal training, and tutoring in communication, socialization, and academic skills, and post-secondary educational services such as those provided through two- or four-year colleges for individuals of all ages;

(l) Services provided in a nursing facility, correctional institution, or hospital;

(m) Services, activities, materials, or equipment that may be obtained by the individual or family through alternative resources or natural supports;

(n) Unless under certain conditions and limits specified in Department guidelines, employee wages or contractor charges for time or services when the individual is not present or available to receive services including but not limited to employee paid time off, hourly “no show” charge, and contractor travel and preparation hours;

(o) Services or activities for which the legislative or executive branch of Oregon government has prohibited use of public funds; or

(p) Notwithstanding abuse as defined in OAR 407-045-0260, services when there is sufficient evidence to believe that the individual or the individual’s legal representative has engaged in fraud or misrepresentation, failed to use resources as agreed upon in the ISP, refused to accept or delegate record keeping required to use brokerage resources, or otherwise knowingly misused public funds associated with brokerage services.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007 & 430.610 – 430.695

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1880, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 2-2010(Temp), f. & cert. ef. 3-18-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 27-2011, f. & cert. ef. 12-28-11

411-340-0150

Standards for Support Services Brokerage Administration and Operations

(1) POLICY OVERSIGHT GROUP. The brokerage must develop and implement procedures for incorporating the direction, guidance, and advice of individuals and family members of individuals in the administration of the organization.

(a) The brokerage must establish and utilize a Policy Oversight Group, of which the membership majority must be individuals with developmental disabilities and family members of individuals with developmental disabilities.

(b) Brokerage procedures must be developed and implemented to assure the Policy Oversight Group has the maximum authority that may be legally assigned or delegated over important program operational decisions, including such areas as program policy development, program planning and goal setting, budgeting and resource allocation, selection of key personnel, program evaluation and quality assurance, and complaint resolution.

(c) If the Policy Oversight Group is not also the governing body of the brokerage, then the brokerage must develop and implement a written procedure that describes specific steps of appeal or remediation to resolve conflicts between the Policy Oversight Group and the governing body of the brokerage.

(d) A Policy Oversight Group must develop and implement operating policies and procedures.

(2) FULL-TIME BROKERAGE DIRECTOR REQUIRED. The brokerage must employ a full-time director who is responsible for daily brokerage operations in compliance with these rules and has authority to make budget, staffing, policy, and procedural decisions for the brokerage.

(3) DIRECTOR QUALIFICATIONS. In addition to the general staff qualifications of OAR 411-340-0070(1) through (2), the brokerage director must have:

(a) A minimum of a bachelor’s degree and two years experience, including supervision, in developmental disabilities, social services, mental health, or a related field; or

(b) Six years of experience, including supervision, in the field of developmental disabilities, social services, or mental health.

(4) FISCAL INTERMEDIARY REQUIREMENTS.

(a) A fiscal intermediary must:

(A) Demonstrate a practical understanding of laws, rules, and conditions that accompany the use of public resources;

(B) Develop and implement accounting systems that operate effectively on a large scale as well as track individual budgets;

(D) Develop and implement an effective payroll system, including meeting payroll-related tax obligations;

(E) Generate service, management, and statistical information and reports required by the brokerage director and Policy Oversight Group to effectively manage the brokerage and by individuals to effectively manage supports;

(F) Maintain flexibility to adapt to changing circumstances of individuals; and

(G) Provide training and technical assistance to individuals as required and specified in ISPs.

(b) A fiscal intermediary may not recruit, hire, supervise, evaluate, dismiss, or otherwise discipline those employed to provide services described in an authorized ISP.

(A) A fiscal intermediary may not:

(i) Be a provider of support services paid using support funds; or

(ii) Be a family member or other representative of an individual for whom they provide fiscal intermediary services.

(B) The brokerage must obtain and maintain written evidence that:

(i) Contractors providing fiscal intermediary services have sufficient education, training, or work experience to effectively and efficiently perform all required activities; and

(ii) Employees providing fiscal intermediary services have sufficient education, training, or work experience to effectively and efficiently perform all required activities prior to hire or that the brokerage has provided requisite education, training, and experience.

(5) PERSONAL AGENT QUALIFICATIONS.

(a) Each personal agent must have:

(A) An undergraduate degree in a human services field and at least one year experience in the area of developmental disabilities; or

(B) Five years of equivalent training and work experience related to developmental disabilities; and

(b) A brokerage must submit a written variance request to the Department prior to employment of a person not meeting the minimum qualifications for a personal agent set forth in OAR 411-340-0150(5)(a) of this section. The variance request must include:

(A) An acceptable rationale for the need to employ a person who does not meet the qualifications; and

(B) A proposed alternative plan for education and training to correct the deficiencies. The proposal must specify activities, timelines, and responsibility for costs incurred in completing the plan. A person who fails to complete a plan for education and training to correct deficiencies may not fulfill the requirements for the qualifications.

(6) PERSONAL AGENT TRAINING. The brokerage must provide or arrange for personal agents to receive training needed to provide or arrange for brokerage services, including but not limited to:

(a) Principles of self-determination;

(b) Person-centered planning processes;

(d) Fiscal intermediary services;

(e) Basic employer and employee roles and responsibilities;

(f) Developing new resources;

(g) Major public health and welfare benefits;

(h) Constructing and adjusting individualized support budgets; and

(i) Assisting individuals to judge and improve quality of personal supports.

(7) INDIVIDUAL RECORD REQUIREMENTS. The brokerage must maintain current, up-to-date records for each individual served and must make these records available to the Department upon request. Individual records must include at minimum:

(a) Application and eligibility information received from the referring CDDP.

(b) An easily-accessed summary of basic information, including the individual’s name, family name (if applicable), individual’s legal representative (if applicable), address, telephone number, date of entry into the program, date of birth, sex, marital status, individual financial resource information, and plan year anniversary date.

(c) Documents related to determining eligibility for brokerage services and the amount of support services funds available to the individual, including basic supplement criteria if applicable.

(d) Records related to receipt and disbursement of funds, including expenditure authorizations, expenditure verification, copies of CPMS expenditure reports, and verification that providers meet the requirements of OAR 411-340-0160 through 411-340-0180.

(e) Documentation, signed by the individual or the individual’s legal representative, that the individual or the individual’s legal representative has been informed of responsibilities associated with the use of support services funds.

(f) Incident reports.

(g) Assessments used to determine supports required, preferences, and resources.

(h) ISP and reviews. If the individual is unable to sign the ISP, the individual record must document that the individual was informed of the contents of the ISP and that the individual’s agreement to the ISP was obtained to the extent possible.

(i) Names of those who participated in the development of the ISP. If the individual was not able to participate in the development of the ISP, the individual record must document the reason.

(j) Written service agreements. A written service agreement must be consistent with the individual’s ISP and must describe at minimum:

(A) Type of service to be provided;

(B) Hours, rates, location of services, and expected outcomes of services; and

(C) Any specific individual health, safety, and emergency procedures that may be required, including action to be taken if an individual is unable to provide for the individual’s own safety and is missing while in the community under the service of the contractor or provider organization.

(k) A written job description for all services to be delivered by an employee of the individual or the individual’s legal representative. The written job description must be consistent with the individual’s ISP and must describe at minimum:

(A) Type of service to be provided;

(B) Hours, rates, location, duration of services, and expected outcomes of services; and

(l) Personal agent correspondence and notes related to resource development and plan outcomes.

(m) Progress notes. Progress notes must include documentation of the delivery of service by a personal agent to support each case service provided. Progress notes must be recorded chronologically and documented consistent with brokerage policies and procedures. All late entries must be appropriately documented. Progress notes must at a minimum include:

(A) The month, day, and year the services were rendered and the month, day, and year the entry was made if different from the date service was rendered;

(B) The name of the person receiving service;

(C) The name of the brokerage, the person providing the service (i.e., the personal agent’s signature and title), and the date the entry was recorded and signed;

(D) The specific services provided and actions taken or planned, if any;

(E) Place of service. Place of service means the name of the brokerage and where the brokerage is located, including the address. The place of service may be a standard heading on each page of the progress notes; and

(F) The names of other participants (including titles and agency representation, if any) in notes pertaining to meetings with or discussions about the individual.

(n) Information about individual satisfaction with personal supports and the brokerage services.

(8) SPECIAL RECORD REQUIREMENTS FOR SUPPORT SERVICES FUND EXPENDITURES.

(a) The brokerage must develop and implement written policies and procedures concerning use of support services funds. These policies and procedures must include but may not be limited to:

(A) Minimum acceptable records of expenditures:

(i) Itemized invoices and receipts to record purchase of any single item;

(ii) A trip log indicating purpose, date, and total miles to verify vehicle mileage reimbursement;

(iii) Itemized invoices for any services purchased from independent contractors, provider organizations, and professionals. Itemized invoices must include:

(I) The name of the individual to whom services were provided;

(II) The date of the services; and

(III) A description of the services.

(iv) Pay records, including timesheets signed by both employee and employer, to record employee services; and

(v) Documentation that services provided were consistent with the authorized ISP.

(B) Procedures for confirming the receipt, and securing the use of, specialized medical equipment and environmental accessibility adaptations.

(i) When equipment is obtained for the exclusive use of an individual, the brokerage must record the purpose, final cost, and date of receipt.

(ii) The brokerage must secure use of equipment or furnishings costing more than $500 through a written agreement between the brokerage and the individual or the individual’s legal representative that specifies the time period the item is to be available to the individual and the responsibilities of all parties should the item be lost, damaged, or sold within that time period.

(iii) The brokerage must ensure that projects for environmental accessibility adaptations involving renovation or new construction in an individual’s home costing $5,000 or more per single instance or cumulatively over several modifications:

(I) Are approved by the Department before work begins and before final payment is made;

(II) Are completed or supervised by a contractor licensed and bonded in Oregon; and

(III) That steps are taken as prescribed by the Department for protection of the Department’s interest through liens or other legally available means.

(iv) The brokerage must obtain written authorization from the owner of a rental structure before any environmental accessibility adaptations are made to that structure.

(b) Any goods purchased with support services funds that are not used according to an ISP or according to an agreement securing the state’s use may be immediately recovered. Failure to furnish written documentation upon written request from the Department, the Oregon Department of Justice Medicaid Fraud Unit, Centers for Medicare and Medicaid Services, or their authorized representatives immediately or within timeframes specified in the written request may be deemed reason to recover payments or deny further assistance.

(9) QUALITY ASSURANCE.

(a) The Policy Oversight Group must develop a Quality Assurance Plan and review this plan at least twice a year. The Quality Assurance Plan must include a written statement of values, organizational outcomes, activities, and measures of progress that:

(A) Uses information from a broad range of consumer, advocate, professional, and other sources to determine community support needs and preferences;

(B) Involves individuals in ongoing evaluation of the quality of their personal supports; and

(i) Customer satisfaction with the services of the brokerage and with individual plans in areas such as individual access to supports, sustaining important personal relationships, flexible and unique support strategies, individual choice and control over supports, responsiveness of the brokerage to changing needs, and preferences of individuals; and

(ii) Service outcomes in areas such as achievement of personal goals and effective use of resources.

(b) The brokerage must participate in statewide evaluation, quality assurance, and regulation activities as directed by the Department.

(10) BROKERAGE REFFERRAL TO AFFILIATED ENTITIES.

(a) When a brokerage is part of, or otherwise directly affiliated with, an entity that also provides services which an individual may purchase using private or support services funds, brokerage staff may not refer, recommend, or otherwise encourage the individual to utilize this entity to provide services unless:

(A) The brokerage conducts a review of provider options that demonstrates that the entity’s services shall be cost-effective and best-suited to provide those services determined by the individual to be the most effective and desirable for meeting needs and circumstances represented in the ISP; and

(B) The entity is freely selected by the individual and is the clear choice by the individual among all available alternatives.

(b) The brokerage must develop and implement a policy that addresses individual selection of an entity of which the brokerage is a part or otherwise directly affiliated to provide services purchased with private or support services funds. This policy must address, at minimum:

(A) Disclosure of the relationship between the brokerage and the potential provider;

(B) Provision of information about all other potential providers to the individual without bias;

(D) Verification of the fact that the providers were freely chosen among all alternatives;

(E) Collection and review of data on services, purchased by an individual enrolled in the brokerage, by an entity of which the brokerage is a part or otherwise directly affiliated; and

(F) Training of personal agents and individuals in issues related to selection of providers.

(11) GENERAL OPERATING POLICIES AND PRACTIES. The brokerage must develop and implement such written statements of policy and procedure in addition to those specifically required by this rule as are necessary and useful to enable the brokerage to accomplish its objectives and to meet the requirements of these rules and other applicable standards and rules.

Stat. Auth.: ORS 409.050 & 410.070

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

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1890, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 32-2004, f. & cert. ef. 10-25-04; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 27-2011, f. & cert. ef. 12-28-11

Rule Caption: Community Developmental Disability Program Review.

Adm. Order No.: SPD 28-2011

Filed with Sec. of State: 12-28-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 12-1-2011

Rules Amended: 411-320-0190

Subject: The Department of Human Services (Department) is amending OAR 411-320-0190 to clarify existing practice by removing the language relating to the Department’s issuance of a certificate of compliance to Community Developmental Disability Programs (CDDPs). The Department has never issued certificates of compliance to CDDPs. The Department does issue a report to the CDDP that identifies areas of compliance and areas in need of improvement but the report is not considered a certificate.

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

411-320-0190

Program Review and Certification

(1) The Department may review the CDDP implementation of these rules as provided in OAR 411-320-0180 at least every five years or more frequently as needed to ensure compliance.

(2) Following a Department review, the Department shall issue a report to the CDDP identifying areas of compliance and areas in need of improvement.

(3) If, following a review, the CDDP or case management provider is not in substantial compliance with these rules, the Department may offer technical assistance or request a plan of improvement. The CDDP must perform the necessary improvement measures required by and in the time specified by the Department. The Department may conduct additional reviews as necessary to ensure improvement measures have been achieved.

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 9-2009, f. & cert. ef. 7-13-09; SPD 28-2011, f. 12-28-11, cert. ef. 1-1-12

Rule Caption: AFH-DD: Notice of Exit or Transfer.

Adm. Order No.: SPD 29-2011(Temp)

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 12-30-11 thru 5-29-12

Notice Publication Date:

Rules Amended: 411-360-0170, 411-360-0190

Rules Suspended: 411-360-0170(T), 411-360-0190(T)

Subject: On December 1, 2011, the Department of Human Services (Department) temporarily amended OAR 411-360-0170 and 411-360-0190 to clarify the transfer and exit standards for adult foster homes for individuals with developmental disabilities (AFH-DD) by removing reference to the transfer standards for nursing facilities. Upon further review, it has been determined that reference to the transfer standards for nursing facilities is appropriate as required by ORS 443.738(11)(c).

Through this amended temporary rule, the Department is reestablishing AFH-DD transfer and exit standards by referencing the transfer standards applicable to nursing facilities. It is the Department’s intent that this amended temporary rule apply retroactively to December 1, 2011, the effective date of the previous filing for these rules.

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

411-360-0170

Documentation and Record Requirements

(1) INDIVIDUAL RECORDS. A record must be developed, kept current, and available on the premises for each individual admitted to the AFH-DD.

(a) The provider must maintain a summary sheet for each individual in the home. The record must include:

(A) The individual’s name, current and previous address, date of entry into AFH-DD, date of birth, gender, marital status, religious preference, preferred hospital, Medicaid prime and private insurance number if applicable, and guardianship status; and

(B) The name, address, and telephone number of:

(i) The individual’s legal representative, family, advocate, or other significant person;

(ii) The individual’s preferred primary health care provider and designated back up health care provider or clinic;

(iii) The individual’s preferred dentist;

(iv) The individual’s day program or employer; if any;

(v) The individual’s services coordinator; and

(vi) Other agency representatives providing services to the individual.

(b) EMERGENCY INFORMATION. The AFH-DD provider must maintain emergency information for each individual receiving services in the AFH-DD in addition to an individual summary sheet identified in section (1)(a) of this rule. The emergency information must be kept current and must include:

(A) The individual’s name;

(B) The provider’s name, address, and telephone number;

(D) The individual’s physical description, which could include a picture and the date it was taken, and identification of:

(i) The individual’s race, gender, height, weight range, hair, and eye color; and

(ii) Any other identifying characteristics that may assist in identifying the individual should the need arise, such as marks or scars, tattoos, or body piercings.

(E) Information on the individual’s abilities and characteristics including:

(i) How the individual communicates;

(ii) The language the individual uses and understands;

(iii) The ability of the individual to know how to take care of bodily functions; and

(iv) Any additional information that could assist a person not familiar with the individual to understand what the individual can do for him or herself.

(F) The individual’s health support needs including:

(i) Diagnosis;

(ii) Allergies or adverse drug reactions;

(iii) Health issues that a person would need to know when taking care of the individual;

(iv) Special dietary or nutritional needs such as requirements around textures or consistency of foods and fluids;

(v) Food or fluid limitations due to allergies, diagnosis, or medications the individual is taking, that may be an aspiration risk or other risk for the individual;

(vi) Additional special requirements the individual has related to eating or drinking, such as special positional needs or a specific way foods or fluids are given to the individual;

(vii) Physical limitations that may affect the individual’s ability to communicate, respond to instructions, or follow directions; and

(viii) Specialized equipment needed for mobility, positioning, or other health related needs.

(G) The individual’s emotional and behavioral support needs including:

(i) Mental health or behavioral diagnosis and the behaviors displayed by the individual; and

(ii) Approaches to use when dealing with the individual to minimize emotional and physical outbursts.

(H) Any court ordered or guardian authorized contacts or limitations;

(I) The individual’s supervision requirements and why; and

(J) Any additional pertinent information the provider has that may assist in the care and support of the individual should a natural or man-made disaster occur.

(c) Individual records must be available to representatives of the Department, or the Department’s designee, conducting inspections or investigations, as well as to individuals to whom the information pertains, their authorized representative, or other legally authorized persons;

(d) INDIVIDUAL RECORDS. Individual records must be kept by the provider, for a period of at least three years. When an individual moves or the AFH-DD closes, copies of pertinent information must be transferred to the individual’s new place of residence; and

(e) In all other matters pertaining to confidential records and release of information, providers must comply with ORS 179.505.

(2) INDIVIDUAL ACCOUNT RECORDS. For those individuals not yet capable of managing their own money, as determined by the ISP Team or guardian, the provider must prepare, maintain, and keep current a separate and accurate written record for each individual of all money received or disbursed on behalf of or by the individual.

(a) The record must include:

(A) The date, amount, and source of income received;

(B) The date, amount, and purpose of funds disbursed; and

(b) Purchases of $10.00 or more made on behalf of an individual must be documented by receipts unless an alternate amount is otherwise specified by the ISP team.

(c) Personal Incidental Funds (PIF) for individuals are to be used at the discretion of the individual for such things as clothing, tobacco, and snacks (not part of daily diet) and addressed in the ISP.

(d) Each record must include the disposition of the room and board fee that the individual pays to the provider at the beginning of each month.

(e) REIMBURSEMENT TO INDIVIDUAL. The provider must reimburse the individual any funds that are missing due to theft, or mismanagement on the part of the provider, resident manager, or caregiver of the AFH-DD or for any funds within the custody of the provider that are missing. Such reimbursement must be made within 10 working days of the verification that funds are missing.

(f) Financial records must be maintained for at least seven years.

(3) INDIVIDUALS’ PERSONAL PROPERTY RECORD. The provider must prepare and maintain an accurate individual written record of personal property that has significant or monetary value to each individual as determined by a documented ISP team or guardian decision. The record must include:

(a) The description and identifying number, if any:

(b) Date of inclusion in the record;

(d) Signature of provider making each entry; and

(e) A signed and dated annual review of the record for accuracy.

(4) INDIVIDUAL SUPPORT PLAN. A health and safety transition plan must be developed at the time of admission for the first 60 days of service. A complete ISP must be developed by the end of 60 days. It must be updated at a minimum annually, and more often when the individual’s support needs change.

(a) A completed ISP must be documented on the Department-mandated Foster Care ISP Form that includes the following:

(A) What is most important to the individual and what works and doesn’t work;

(B) The individual’s support needs (as identified on the Support Needs Assessment Profile (SNAP) (if applicable);

(D) The person responsible for carrying out the supports: and

(E) A copy of the Employment, Alternatives to Employment, or Day Program provider’s plan must be integrated or attached to the AFH-DD ISP for persons also served in an employment or other Department-funded day service.

(b) The ISP must include at least six hours of activities each week that are of interest to the individual, not including television or movies made available by the provider. Activities available in the community and made available or offered by the provider or the CDDP may include but are not limited to:

(A) Habilitation services;

(B) Rehabilitation services;

(D) Vocational services;

(E) Recreational and leisure activities; and

(F) Other services required to meet an individual’s needs as defined in the ISP.

(5) HOUSE RULES. The provider must document that a copy of the written house rules has been provided and discussed with the individual annually. House rules must be in compliance with sections (9)(a)–(s) of this rule governing the rights of individuals. House rules established by the provider must:

(a) Include any restrictions the AFH-DD may have on the use of alcohol, tobacco in compliance with Oregon’s Smokefree Workplace Law, medical marijuana (if applicable), pets, visiting hours, dietary restrictions, or religious preference.

(b) Include house rules specific to the presence and use of medical marijuana on the AFH-DD premises, if applicable. The home’s medical marijuana rules must be reviewed and approved by the Department or the Department’s designee.

(d) Include house rules specific to the immediate notification of substantiated abuse as described in OAR 411-360-0210(16)(a)–(d).

(e) Be reviewed and approved by the Department or the Department’s designee prior to the issuance of a license and prior to implementing changes.

(f) Be readily available to be seen and read by individuals and visitors.

(6) UNUSUAL INCIDENTS. A written report of all unusual incidents relating to an individual must be sent to the CDDP within five working days of the incident. The report must include how and when the incident occurred, who was involved, what action was taken by the provider or caregiver and the outcome to the individual, and what action is being taken to prevent the reoccurrence of the incident.

(7) GENERAL INFORMATION. The provider must maintain all other information or correspondence pertaining to the individual.

(8) MONTHLY PROGRESS NOTES. The provider must maintain and keep current, at minimum monthly progress notes for each individual residing in the home, regarding the progress of the ISP supports, any medical, behavioral, or safety issues or any other events that are significant to the individual.

(9) INDIVIDUAL’S BILL OF RIGHTS. The provider must abide by the Individual’s Bill of Rights and post them in a location that is accessible to individuals and individuals’ parents, guardians, or legal representatives. The provider must give a copy of the Individual’s Bill of Rights along with a description of how to exercise these rights to each individual and the individual’s parent, guardian, or legal representative. The Individual’s Bill of Rights must be reviewed annually or as changes occur by the provider with the individual and any parent, guardian, or legal representative. The Individual’s Bill of Rights states each individual has the right to:

(a) Be treated as an adult with respect and dignity;

(b) Be encouraged and assisted to exercise constitutional and legal rights as a citizen including the right to vote;

(d) Have adequate personal privacy and privacy to associate and communicate privately with any person of choice, such as family members, friends, advocates, and legal, social service, and medical professionals, send and receive personal mail unopened, and engage in telephone conversations as explained in OAR 411-360-0130(6)(a)–(f);

(e) Have access to and participate in activities of social, religious, and community groups;

(f) Be able to keep and use personal clothing and possessions as space permits;

(g) Be free of discrimination in regard to race, color, national origin, gender, sexual orientation, or religion;

(h) Manage his or her financial affairs unless determined unable by the ISP team or legally restricted;

(i) Have a safe and secure environment;

(j) Have a written agreement regarding services to be provided;

(k) Voice grievance without fear of retaliation;

(l) Have freedom from training, treatment, chemical or protective physical interventions except as agreed to, in writing, in a individual’s ISP;

(m) Be allowed and encouraged to learn new skills, to act on their own behalf to their maximum ability, and to relate to individuals in an age appropriate manner;

(n) Have an opportunity to exercise choices including such areas as food selection, personal spending, friends, personal schedule, leisure activities, and place of residence;

(o) Be free from punishment. Behavior intervention programs must be approved in writing on the individual’s ISP;

(p) Be free from abuse and neglect;

(q) Have the opportunity to contribute to the maintenance and normal activities of the household;

(r) Have access and opportunity to interact with persons with or without disabilities; and

(s) Have the right not to be transferred or moved without advance notice as provided in ORS 443.739(18) and OAR 411-088-0070, and the opportunity for a hearing as provided in ORS 443.738(11)(c) and OAR 411-088-0080. The standards imposed by this subsection continue the standards in effect prior to December 1, 2011, and continue those standards, except as amended in this subsection, as of December 1, 2011.

(10) AFH-DD records must be kept current and maintained by the AFH-DD provider and be available for inspection upon request. AFH-DD records must include but not be limited to proof that the provider, resident manager, and any other caregivers have met the minimum qualifications as required by OAR 411-360-0110. The following documentation must be available for review upon request:

(a) Completed employment applications, including the names, addresses, and telephone numbers of all caregivers employed by the provider. All employment applications for persons hired to provide care in an AFH-DD must ask if the applicant has ever been found to have committed abuse.

(b) Proof that the provider has the Department’s approval for each subject individual, who is 16 years of age and older, to have contact with adults who are elderly or physically disabled or developmentally disabled as a result of a criminal records check.

(c) Proof of required training according to OAR 411-360-0120. Documentation must include the date of each training, subject matter, name of agency or organization providing the training, and number of training hours.

(d) A certificate to document completion of the Department’s Basic Training Course for the provider, resident manager, and all caregivers.

(e) Proof of mandatory abuse report training for all caregivers.

(f) Proof of any additional training required for resident managers and caregivers.

(g) Documentation of caregiver orientation to the AFH-DD, training of emergency procedures, training on individual’s ISP’s, and training on behavior supports and Nursing Care Plan (if applicable).

Stat. Auth.: ORS 409.050 & 410.070

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 25-2011(Temp), f. & cert. ef. 12-1-11 thru 5-29-12; SPD 29-2011(Temp), f. & cert. ef. 12-30-11 thru 5-29-12

411-360-0190

Standards for Admission, Transfers, Respite, Crisis Placements, Exit, and Closures

(1) ADMISSION. All individuals considered for admission into the AFH-DD must:

(a) Not be discriminated against because of race, color, creed, age, disability, gender, sexual orientation, national origin, duration of Oregon residence, method of payment, or other forms of discrimination under applicable state or federal law; and

(b) Be determined to have a developmental disability by the Department or the Department’s designee; and

(c) Be referred by the CDDP or have prior written approval of the CDDP or Department if the individual’s services are paid for by the Department; or

(d) Be placed with the agreement of the CDDP if the individual is either private pay or not developmentally disabled.

(2) INFORMATION REQUIRED FOR ADMISSION. At the time of the referral, the provider must be given:

(a) A copy of the individual’s eligibility determination document;

(b) A statement indicating the individual’s safety skills including ability to evacuate from a building when warned by a signal device, and adjusting water temperature for bathing and washing;

(d) A medical history and information on health care supports that includes where available:

(A) The results of a physical exam made within 90 days prior to entry;

(B) The results of any dental evaluation;

(D) A record of known communicable diseases and allergies; and

(E) A record of major illnesses and hospitalizations.

(e) A written record of any current or recommended medications, treatments, diets, and aids to physical functioning;

(f) Copies of documents relating to guardianship or conservatorship or any other legal restrictions on the rights of the individual, if applicable; and

(g) A copy of the most recent Functional Behavioral Assessment, Behavior Support Plan, ISP, and Individual Education Plan if applicable.

(3) ADMISSION MEETING. An ISP team meeting must be conducted prior to the onset of services to the individual. The findings of the meeting must be recorded in the individual’s file and include at a minimum:

(a) The name of the individual proposed for services;

(b) The date of the meeting and the date determined to be the date of entry;

(d) Documentation of the pre-admission information required by section (2)(a)–(g) of this rule;

(e) Documentation of the decision to serve or not serve the individual requesting service, with reasons; and

(f) A written Transition Plan to include all medical, behavior, and safety supports needed by the individual, to be provided to the individual for no longer than 60 days, if the decision was made to serve.

(4) The provider must retain the right to deny admission of any individual if they feel the individual’s support needs may not be met by the AFH-DD provider, or for any other reason specifically prohibited by these rules.

(5) AFH-DD homes may not be used as a site for foster care for children, adults from other agencies, or any other type of shelter or day care without the written approval of the CDDP or the Department.

(6) TRANSFERS.

(a) An individual may not be transferred by a provider to another AFH-DD or moved out of the AFH-DD without 30 days advance written notice to the individual, the individual’s legal representative, guardian, or conservator, and the CDDP stating reasons for the transfer as provided in ORS 443.739(18) and OAR 411-088-0070, and the individual’s right to a hearing as provided in ORS 443.738(11)(c) and OAR 411-088-0080, except for a medical emergency, or to protect the welfare of the individual or other individuals. Individuals may only be transferred by a provider for the following reasons:

(A) Behavior that poses a significant danger to the individual or others;

(B) Failure to make payment for care;

(C) The AFH-DD has had its license suspended, revoked, not renewed, or the provider voluntarily surrendered their license;

(D) The individual’s care needs exceed the ability of the provider; or

(E) There is a mutual decision made by the individual and the ISP team that a transfer is in the individual’s best interest and all team members agree.

(b) Individuals who object to the transfer by the AFH-DD provider must be given the opportunity for hearing as provided in ORS 443.738(11)(c) and OAR 411-088-0080. Participants may include the individual, and at the individual’s request, the provider, a family member, and the CDDP. If a hearing is requested to appeal a transfer, the individual must continue to receive the same services until the appeal is resolved.

(c) The standards imposed by this section continue the standards in effect prior to December 1, 2011, and continue those standards, except as amended in subsections (b) and (c) above, as of December 1, 2011.

(7) RESPITE. Providers may not exceed the licensed capacity of their AFH-DD. However, respite care of no longer than 14 days duration may be provided to one or more individuals if the addition of the respite individual does not cause the total number of individuals to exceed five. Thus, a provider may exceed the licensed number of individuals by one or more respite individuals, for 14 days or less, if approved by the CDDP or the Department, and:

(a) If the total number of individuals does not exceed five;

(b) There is adequate bedroom and living space available in the AFH-DD; and

(8) CRISIS SERVICES. All individuals considered for crisis services received in an AFH-DD must:

(a) Be referred by the CDDP or Department;

(b) Be determined to have a developmental disability by the Department or the Department’s designee;

(c) Be determined to be eligible for developmental disability services as defined in OAR 411-360-0020 or any subsequent revision thereof;

(d) Not be discriminated against because of race, color, creed, age, disability, gender, sexual orientation, national origin, duration of Oregon residence, method of payment, or other forms of discrimination under applicable state or federal law; and

(e) Have a written Crisis Plan developed by the CDDP or Regional Crisis Diversion Program that serves as the justification for, and the authorization of, supports and expenditures pertaining to an individual receiving crisis services provided under this rule.

(9) SUPPORT SERVICES PLAN OF CARE AND CRISIS ADDENDUM REQUIRED. Individuals receiving support services under OAR chapter 411, division 340, and receiving crisis services in an AFH-DD must have a Support Services Plan of Care and a Crisis Addendum upon admission to the AFH-DD.

(10) PLAN OF CARE. Individuals, not enrolled in support services, receiving crisis services for less than 90 consecutive days must have a Transition Plan on admission that addresses any critical information relevant to the individual’s health and safety including current physicians’ orders.

(11) ADMISSION MEETING REQUIRED. Admission meetings are required for individuals receiving crisis services.

(12) EXIT MEETING REQUIRED. Exit meetings are required for individuals receiving crisis services.

(13) WAIVER OF APPEAL RIGHTS FOR EXIT. Individuals receiving crisis services do not have appeal rights regarding exit upon completion of the Crisis Plan.

(14) EXIT.

(a) A provider may only exit an individual for valid reasons equivalent to those for transfers stated in sections (6)(a)(A-E) of this rule. The provider must give at least 30 days written notice to an individual, the CDDP services coordinator, and the Department or the Department’s designee before termination of residency, except where undue delay might jeopardize the health, safety, or well-being of the individual or others. If an individual requests a hearing to appeal the exit from an AFH-DD, the individual must receive the same services until the grievance is resolved.

(b) The provider must promptly notify the CDDP in writing if an individual gives notice or plans to leave the AFH-DD or if an individual abruptly leaves. An individual is not required to give notice to an AFH-DD provider if they choose to exit the AFH-DD.

(15) EXIT MEETING. Each individual considered for exit must have a meeting by the ISP team before any decision to exit is made. Findings of such a meeting must be recorded in the individual’s file and include at a minimum:

(a) The name of the individual considered for exit;

(b) The date of the meeting;

(d) Documentation of the circumstances leading to the proposed exit;

(e) Documentation of the discussion of strategies to prevent an exit from the AFH-DD unless the individual, or individual’s guardian is requesting exit;

(f) Documentation of the decision regarding exit including verification of a majority agreement of the meeting participants regarding the decision; and

(g) Documentation of the proposed plan for services to the individual after the exit.

(16) REQUIREMENTS FOR WAIVER OF EXIT MEETING. Requirements for an exit meeting may be waived if an individual is immediately removed from the AFH-DD under the following conditions:

(a) The individual and the individual’s guardian or legal representative request an immediate move from the AFH-DD home; or

(b) The individual is removed by a legal authority acting pursuant to civil or criminal proceedings.

(17) CLOSING. Providers must notify the Department in writing prior to a voluntary closure of an AFH-DD, and give individuals, families, and the CDDP, 30 days written notice, except in circumstances where undue delay might jeopardize the health, safety, or well-being of individuals, providers, or caregivers. If a provider has more than one AFH-DD, individuals may not be shifted from one house to another house without the same period of notice unless prior approval is given and agreement obtained from individuals, family members, and the CDDP. A provider must return the AFH-DD license to the Department if the home closes prior to the expiration of the license.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 443.705 - 443.825

Rule Caption: Hearings for Developmental Disability Services Eligibility Determination.

Adm. Order No.: SPD 30-2011(Temp)

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12 thru 6-29-12

Notice Publication Date:

Rules Amended: 411-320-0175

Subject: The Department of Human Services (Department) is temporarily amending OAR 411-320-0175 to reflect recent policy and practice changes by the Department regarding when the Department shall delegate final order authority to the Office of Administrative Hearings (OAH).

Currently, final order authority is always delegated to OAH and the Department is required to revoke this delegation each time the Department desires to request a proposed order or proposed and final order.

This temporary rulemaking allows the Department to identify the type of order the Department desires when making a referral to OAH. This permits the Department to request a proposed order or proposed and final order without having to revoke delegation of final order authority.

The temporary rulemaking also allows the Department to properly inform and explain the process for filing exceptions, describe timelines, and describe process followed when a proposed order or a proposed and final order is requested and then received by the Department.

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

411-320-0175

Hearings for Developmental Disability Services Eligibility Determination

(1) DEFINITIONS. As used in this rule:

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

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

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

(e) 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.

(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.

(5) REPRESENTATION.

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

(b) Department 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 (OAH) 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) PROPOSED AND FINAL ORDERS.

(a) When the Department refers a hearing under these rules to OAH, the Department shall indicate on the referral:

(A) Whether the Department is authorizing a proposed order, a proposed and final order, or a final order; and

(B) If the Department is establishing an earlier deadline for written exceptions and argument because the hearing is being referred for an expedited hearing.

(b) When the Department authorizes either a proposed order or a proposed and final order:

(A) The claimant or the claimant’s representative may file written exceptions and written argument to be considered by the Department. The exceptions and argument must be received at the location indicated in the OAH order not later than the 20th day after service of the proposed order or proposed and final order, unless subsection (1)(a)(B) of this rule applies.

(B) PROPOSED ORDERS. After OAH issues a proposed order, the Department issues the final order, unless the Department requests that OAH issue the final order under OAR 137-003-0655.

(C) PROPOSED AND FINAL ORDERS. If the claimant or the claimant’s representative does not submit timely exceptions or argument following a proposed and final order, the proposed and final order becomes a final order on the 21st day after issuance of the proposed and final order unless the Department has issued a revised order or has notified the claimant or the claimant’s representative and OAH that the Department shall issue the final order. When the Department receives timely exceptions or argument, the Department shall issue the final order, unless the Department requests that OAH issue the final order in compliance with OAR 137-003-0655.

(c) If in a contested case hearing OAH is authorized to issue a final order on behalf of the Department, the Department may issue the final order in the case of default.

(d) A petition by a claimant or the claimant’s representative for reconsideration or rehearing must be filed with the entity who signed the final order, unless stated otherwise on 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; SPD 30-2011(Temp), f. 12-30-11, cert. ef. 1-1-12 thru 6-29-12

Rule Caption: Application and Eligibility Determination for Developmental Disability Services.

Adm. Order No.: SPD 31-2011

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 12-1-2011

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

Subject: The Department of Human Services (Department) is amending the rules in OAR chapter 411, division 320 relating to the application and eligibility determination process for developmental disability services to:

• Add nurse practitioners to the list of qualified professionals that may diagnose developmental disability conditions;

• Clarify the term “training or support similar to that required by individuals with intellectual disability”;

• Include language that is consistent with current practice around making 18-22 year olds who have developmental disabilities other than intellectual disabilities, provisionally eligible up to age 22; and

• Make changes that are considered housekeeping to reflect the Department’s rule writing standards.

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 Department 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 Department 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 Department 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) “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”.

(11) “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.

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

(13) “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.

(14) “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 Department or a local mental health authority.

(15) “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 or Oregon Health Authority.

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

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

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

(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.

(19) “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.

(20) “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.

(21) “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.

(22) “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.

(23) “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 assessments of adaptive behavior.

(24) “Department” means the Department of Human Services (DHS). The term “Department” is synonymous with “Division (SPD)”.

(25) “Developmental Disability (DD)” means a neurological condition that:

(a) Originates before the individual reaches the age of 22 years, except that in the case of intellectual disability, the condition is manifested before the age of 18;

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

(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).

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

(27) “Director” means the director of the Department’s Office of Developmental Disability Services, or that person’s designee. The term “Director” is synonymous with “Assistant Director”.

(28) “Eligibility Determination” means a decision by a community developmental disability program or by the Department 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.

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

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

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

(32) “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.

(33) “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.

(34) “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.

(35) “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.

(36) “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.

(37) “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.

(38) “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.

(39) “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.

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

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

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

(43) “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.

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

(45) “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 ISP or requested by the individual.

(46) “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.

(47) “Integration” as defined in ORS 427.005 means:

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

(c) Individuals with developmental disabilities reside in homes or home-like settings that are in proximity to community resources and foster contact with persons in their community.

(48) “Intellectual Disability” 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 intellectual disability if there is also significant impairment of adaptive behavior as diagnosed and measured by a qualified professional.

(49) “Intellectual Functioning” means functioning as assessed by a qualified professional using one or more individually administered general intelligence tests. For purposes of making eligibility determinations, intelligence tests do not include brief intelligence measurements.

(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 Department.

(52) “Majority Agreement” means for the purpose of entry, exit, transfer, and annual Individual Support Plan (ISP) team meetings, that no one member of the ISP 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 ISP 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” is synonymous with “intellectual disability”.

(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’s Office of Investigations and Training.

(61) “Oregon Intervention System (OIS)” means a system of providing training to people who work with designated individuals to provide elements of positive behavior support and non-aversive behavior intervention. OIS uses principles of pro-active support and describes approved physical intervention techniques that are used to maintain health and safety.

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

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

(64) “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.

(65) “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.

(66) “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.

(67) “Protective Physical Intervention (PPI) “ means any manual physical holding of, or contact with, an individual that restricts the individual’s freedom of movement. The term “Protective Physical Intervention” is synonymous with “Physical Restraint”.

(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);

(d) Nurse Practitioner.

(71) “Region” means a group of Oregon counties defined by the Department 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 Department.

(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 Department, 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 Department, 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.

(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 (ISP) is developed and approved by the ISP 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 ISP 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 Department, 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; SPD 31-2011, f. 12-30-11, cert. ef. 1-1-12

411-320-0080

Application and Eligibility Determination

(1) APPLICATION.

(a) To apply for developmental disability services, an applicant must use the Department required application and apply in the county of origin as defined in OAR 411-320-0020.

(A) If the applicant is an adult, the applicant must be an Oregon resident at the time of application.

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

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

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

(d) 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) Following a closure, denial, or termination if the file has been closed for less than 12 months and the applicant does not meet all application requirements.

(2) FINANCIAL STATUS. The CDDP must identify whether the applicant receives any unearned income benefits.

(a) The CDDP must refer adults with no unearned income benefits to Social Security for a determination of financial eligibility.

(b) The CDDP must refer minor children to Social Security if it is identified that the minor child may qualify for Social Security benefits.

(3) ELIGIBILITY SPECIALIST. Each CDDP must identify at least one qualified eligibility specialist who shall act as a designee of the Department 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, evaluation of information and diagnosis of intellectual disability and developmental disabilities must be completed by qualified professionals as defined in OAR 411-320-0020 who are qualified to make a diagnosis of the specific developmental disability.

(5) ELIGIBILITY FOR INTELLECTUAL DISABILITY. A history demonstrating an intellectual disability, as defined in OAR 411-320-0020, must be in place by the individual’s18th birthday for the individual to receive developmental disability services.

(a) Diagnosing an intellectual disability 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 assessment of adaptive behavior may be needed if current documentation supports eligibility.

(B) For individuals who have IQ results of 66-75, verification of an intellectual disability requires an assessment of adaptive behavior.

(b) The adaptive behavior impairments must be directly related to an intellectual 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.

(6) ELIGIBILITY FOR OTHER DEVELOPMENTAL DISABILITIES. A history of a developmental disability, as defined in OAR 411-320-0020, must be in place prior to the individual’s 22nd birthday for the individual to receive developmental disability services.

(a) Other developmental disabilities include:

(A) Autism, cerebral palsy, epilepsy, or other neurological disabling conditions that originate in and directly affect the brain; and

(B) The individual must require training or support similar to that required by individuals with intellectual disability. For the purpose of this rule, “training or support similar to that required by individuals with intellectual disability” means an individual has a domain category or composite score that is at least two standard deviations below the mean, as measured on a standardized assessment of adaptive behavior administered by a qualified professional.

(b) IQ scores are not used in verifying the presence of a 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.

(c) The adaptive behavior 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.

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

(7) PROVISIONAL ELIGIBILITY. Eligibility may be redetermined in the future when new information is obtained.

(a) Eligibility for children is always provisional.

(b) Eligibility may be provisional for adults between their 18th and 22nd birthdays if their eligibility is based on an other developmental disability.

(8) ELIGIBILITY FOR CHILDREN. 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 confirming 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 an intellectual disability as described in section (5) of this rule; or

(iii) A diagnosis and documentation of an other 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 an intellectual disability; or

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

(9) ELIGIBILITY FOR ADULTS.

(a) Eligibility for adults must include:

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

(i) Consistent IQ results of 65 or less; and

(ii) Significant impairments in adaptive behavior that are directly related to an intellectual disability; and

(iii) Current documentation that supports eligibility; OR

(B) A diagnosis and documentation of an other developmental disability as described in section (6) of this rule.

(b) The documentation of an other developmental disability or intellectual disability must include:

(A) Information no more than three years old for individuals under 21 years of age; or

(B) Information obtained after the individual’s 17th birthday, for individuals 21 years of age and older.

(10) 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

(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.

(11) REDETERMINATION OF ELIGIBILITY.

(a) The CDDP must notify the individual or the individual’s legal 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 an intellectual disability and by age 22 for developmental disabilities other than an intellectual disability.

(d) Any time there is evidence that contradicts the eligibility determination, the Department or the Department’s 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) Significant impairments in adaptive behavior that continue to be directly related to an intellectual disability; 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) Significant impairments in adaptive behavior continue 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 assessment of adaptive behavior is required in order to redetermine eligibility;

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

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

(12) SECURING EVALUATIONS.

(a) In the event that the eligibility specialist has exhausted all local resources to secure the necessary evaluations for an eligibility determination, the Department or the Department’s 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 Department or the Department’s designee, may obtain additional information including securing an additional evaluation for clarification purposes.

(13) 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 legal 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 legal 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 legal representative voluntarily withdraws the individual’s application;

(B) The individual dies; or

(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.

(14) 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 legal 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 Department. The notice must include:

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

(B) The effective date of any action proposed;

(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 legal representative; and

(G) Notification that if the individual or the individual’s legal representative disagrees with the Department’s eligibility determination, the individual or the individual’s legal 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.

(15) REQUESTING A HEARING. As described in OAR 411-320-0175, an individual or an individual’s representative may request a hearing 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.

(16) 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 Department, 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

(A) Statement of an eligibility determination;

(B) Notification of eligibility determination;

(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 Department’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; SPD 31-2011, f. 12-30-11, cert. ef. 1-1-12

Rule Caption: Program Services Rule Revisions to Implement OAR Chapter 411, Division 323 (Developmental Disability Certification and Endorsement).

Adm. Order No.: SPD 1-2012

Filed with Sec. of State: 1-6-2012

Certified to be Effective: 1-6-12