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Oregon Bulletin

February 1, 2014

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

SPD 49-2013 through SPD 56-2013

Rule Caption: Medicaid Long Term Care Quality and Reimbursement Advisory Council (MLTCQRAC)

Adm. Order No.: SPD 49-2013

Filed with Sec. of State: 12-17-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 11-1-2013

Rules Amended: 411-001-0100, 411-001-0110, 411-001-0118, 411-001-0120

Subject: The Department of Human Services (Department) is permanently amending the rules for the Medicaid Long Term Care Quality and Reimbursement Advisory Council (Council) in OAR chapter 411, division 001 to clarify the Council’s role in advising the Department or the Oregon Health Authority in changes or modifications to the Medicaid reimbursement system that affect the reimbursement or quality of long term care and community-based services administered by the Department.

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

411-001-0100

Purpose

(1) The purpose of the rules in OAR chapter 411, division 001 is to establish procedures for the operation of the Medicaid Long Term Care Quality and Reimbursement Advisory Council (Council).

(2) The Council was established by the 1995 Legislative Assembly and consists of 12 stakeholders including the Long Term Care Ombudsman, consumers, advocates, and providers. Council appointments are made by the Governor, the President of the Senate, the Speaker of the House, the Governor’s Commission on Senior Services, and the Oregon Disabilities Commission as described in ORS 410.550.

(3) The Council is directed to advise the Department of Human Services or the Oregon Health Authority on changes or modifications to the Medicaid reimbursement system and the adverse and positive effects of the changes or modifications on the quality of long term care and community-based services and reimbursement for long term care and community-based services.

Stat. Auth.: ORS 410.070, 410.555

Stats. Implemented: ORS 410.550 - 410.555

Hist.: SSD 7-1996, f. 8-30-96, cert. ef. 9-1-96; SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06; SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14

411-001-0110

Definitions

(1) “Authority” means the Oregon Health Authority.

(2) “Council” means the Medicaid Long Term Care Quality and Reimbursement Advisory Council.

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

(4) “Medicaid Reimbursement System” means the method or methodology associated with reimbursing providers of long term care and community-based services under the Department. The Medicaid reimbursement system does not include rates established by collective bargaining, rates established by actuarial calculations, or rate increases that have been approved and funded by the Legislature.

(5) “Quality” means the degree to which long term care systems, services, and supplies for individuals and populations increase the likelihood of positive outcomes.

(6) “These Rules” mean the rules in OAR chapter 411, division 001.

Stat. Auth.: ORS 410.070 & 410.555

Stats. Implemented: ORS 410.550–410.555

Hist.: SSD 7-1996, f. 8-30-96, cert. ef. 9-1-96; SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06; SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14

411-001-0118

Council Scope and Operation

(1) At the beginning of each legislative session, the Council shall review the Governor’s Recommended Budget for the Department. The Council may submit a recommendation in support or opposition of the Governor’s Recommended Budget.

(2) The Department or Authority shall submit any proposed change or modification to the Medicaid reimbursement system to the Council for the Council’s review and recommendation.

(3) Upon review of any proposed change or modification under section (2) of this rule, the Council shall issue a written advisory recommendation to the Department or Authority as described in OAR 411-001-0120.

(4) Prior to implementing any change or modification to the Medicaid reimbursement system, the Department or Authority shall submit the Council’s written recommendation to the Legislative Assembly or to the Emergency Board if the Legislative Assembly is not in session.

(5) If the Council has a disagreement with any change or modification to the Medicaid reimbursement system, the Department or Authority shall obtain the approval of the Legislative Assembly or the Emergency Board if the Legislative Assembly is not in session, before instituting the proposed change or modification. A proposed change or modification with an estimated fiscal impact of $100,000 or less is exempt from this provision.

(6) The Department shall inform the Council of all rate changes within the Department’s Aging and People with Disabilities Programs, including rates established by collective bargaining, rates established by actuarial calculations, and rate increases that have been approved and funded by the Legislature.

(7) The Council may review the Department’s strategic initiatives in order to assess the likelihood of increased quality for individuals served by the Department.

Stat. Auth.: ORS 410.070 & 410.555

Stats. Implemented: ORS 410.550–410.555

Hist.: SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14

411-001-0120

Council Operation

(1) Within 60 calendar days after receipt from the Department or Authority of any proposed change or modification to the Medicaid reimbursement system, the Council shall issue a written advisory recommendation to the Department or Authority. The 60-day period begins the day following delivery to the chairperson of the Council if a proposed change or modification is faxed, hand-delivered, or e-mailed. Otherwise, the 60-day period begins the third day after the date of mailing first class.

(2) A written advisory recommendation issued by the Council must state:

(a) Whether the Council supports or opposes the proposed change or modification;

(b) Whether the Council concludes that the proposed change or modification shall have an adverse or positive effect on the quality of long term care and community-based services provided under the Oregon Medicaid program; and

(c) The basis for the Council’s recommendation, which must include:

(A) The reason for the Council’s position;

(B) A list of the principal documents, reports, or studies, if any, relied upon in considering the proposed change or modification; and

(C) Other information deemed appropriate by the Council.

(3) Timeline for written recommendation.

(a) Notwithstanding section (1) of this rule, the Department or Authority may shorten the time within which the Council must issue a written recommendation if the Department or Authority decides to adopt a proposed change or modification by temporary rule and if the Department or Authority prepares a written statement in which the Department or Authority:

(A) Finds that failure to make proposed changes or modifications promptly is likely to result in serious prejudice to the public interest or to the interests of individuals receiving Department or Authority services, providers of long term care or community-based services, or other affected parties;

(B) Specifies reasons why the Department or Authority’s failure to act promptly is likely to result in serious prejudice to those interests;

(C) States the need for the proposed change or modification and how the change or modification is intended to meet the need;

(D) Lists the principal documents, reports, or studies, if any, prepared or relied upon by the Department or Authority in evaluating the need for the proposed change or modification; and

(E) Cites the legal authority relied upon and bearing upon the adoption, amendment, or suspension of the rule if the proposed change or modification is to be made by administrative rule.

(b) However, the Department or Authority may not shorten the time for written recommendation to less than five business days.

(4) If the Department or Authority intends to adopt an administrative rule that directly or indirectly proposes a change or modification to the Medicaid reimbursement system, the Department or Authority may not proceed with notice requirements provided for in ORS 183.335 until the Department or Authority has received the Council’s written recommendation as described in section (2) of this rule or the time permitted to the Council for issuance of a written recommendation has passed, whichever occurs first.

Stat. Auth.: ORS 410.070 & 410.555

Stats. Implemented: ORS 410.550–410.555

Hist.: SSD 7-1996, f. 8-30-96, cert. ef. 9-1-96; SPD 18-2006, f. 5-12-06, cert. ef. 6-1-06; SPD 18-2009, f. 12-23-09, cert. ef. 1-1-10; SPD 49-2013, f. 12-17-13, cert. ef. 1-1-14


Rule Caption: Support Services for Adults with Intellectual or Developmental Disabilities

Adm. Order No.: SPD 50-2013

Filed with Sec. of State: 12-27-2013

Certified to be Effective: 12-28-13

Notice Publication Date: 12-1-2013

Rules Amended: 411-340-0010, 411-340-0020, 411-340-0030, 411-340-0040, 411-340-0050, 411-340-0060, 411-340-0070, 411-340-0080, 411-340-0090, 411-340-0100, 411-340-0110, 411-340-0120, 411-340-0125, 411-340-0130, 411-340-0140, 411-340-0150, 411-340-0160, 411-340-0170, 411-340-0180

Rules Repealed: 411-340-0020(T), 411-340-0100(T), 411-340-0110(T), 411-340-0120(T), 411-340-0125(T), 411-340-0130(T), 411-340-0150(T)

Subject: The Department of Human Services is permanently amending the rules for support services for adults with intellectual or developmental disabilities in OAR chapter 411, division 340.

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

411-340-0010

Statement of Purpose

(1) The rules in OAR chapter 411, division 340 prescribe standards, responsibilities, and procedures for support services brokerages to assist adults with intellectual or developmental disabilities to identify and address support needs and for providers paid with support services funds, including resources available through the state plan and waiver, to provide services so that an adult with an intellectual or developmental disability may live in his or her own home or in the family home.

(2) Services provided under these rules are intended to identify, strengthen, expand, and where required, supplement private, public, formal, and informal support available to adults with intellectual or developmental disabilities so that an adult with an intellectual or developmental disability may exercise self-determination in the design and direction of his or her life.

Stat. Auth.: ORS 409.050, 427.402, & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1750, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0020

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules 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 the 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)” means basic personal everyday activities, including but not limited to tasks such as eating, using the restroom, grooming, dressing, bathing, and transferring.

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

(6) “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 or as applicable the individual’s legal or designated representative or provider organization.

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

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

(9) “Alternative Resources” means 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) “Annual Plan” means the written summary a personal agent completes for an individual who is not enrolled in waiver or Community First Choice services. An Annual Plan is not an Individual Support Plan and is not a plan of care for Medicaid purposes.

(11) “Attendant Care” means assistance with activities of daily living, instrumental activities of daily living, and health-related tasks through cueing, monitoring, reassurance, redirection, set-up, hands-on, standby assistance, and reminding, as described in OAR 411-340-0130.

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

(13) “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) For individuals who have not had a service level determined, access to an amount of support services funds used to assist with the purchase of supports listed in OAR 411-340-0130.

(14) “Basic Supplement” means an amount of support services funds in excess of the basic benefit to which an individual, who has not had a service level determined, 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).

(15) “Basic Supplement Criteria Inventory (Form DHS 0203)” means the written inventory of an individual’s circumstances that is completed and scored by a brokerage to determine whether the individual, who has not had a service level determined, is eligible for a basic supplement.

(16) “Behavior Support Plan (BSP)” means the written strategy based on person-centered planning and a functional assessment that outlines specific instructions for a provider to follow to cause an individual’s challenging behaviors to become unnecessary and to change the provider’s own behavior, adjust environment, and teach new skills.

(17) “Behavior Support Services” mean the services consistent with positive behavioral theory and practice that are provided to assist with behavioral challenges due to an individual’s intellectual or developmental disability that prevents the individual from accomplishing activities of daily living, instrumental activities of daily living, health related tasks, and cognitive supports to mitigate behavior. Behavior support services are provided in the home or community.

(18) “Benefit Level” means the total annual amount of support services funds for which an individual, who has not had a service level determined, is eligible. The benefit level includes the basic benefit and any exceptions to the basic benefit financial limits.

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

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

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

(22) “CDDP” means “community developmental disability program” as defined in this rule.

(23) “Certificate” means the 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.

(24) “Choice” means an individual’s expression of preference, opportunity for, and active role in decision-making related to services received and from whom, including but not limited to case management, providers, services, and service settings. Personal outcomes, goals, and activities are supported in the context of balancing an individual’s rights, risks, and personal choices. Individuals are supported in opportunities to make changes when so expressed. Choice may be communicated verbally, through sign language, or by other communication methods.

(25) “Choice Advising” means the impartial sharing of information about case management and other service delivery options available to individuals with intellectual or developmental disabilities provided by a person that meets the qualifications identified in OAR 411-340-0150(5).

(26) “Chore Services” mean the services described in OAR 411-340-0130 that are needed to restore a hazardous or unsanitary situation in an individual’s home to a clean, sanitary, and safe environment.

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

(28) “Community First Choice (K Plan)” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(29) “Community Living and Inclusion Supports” mean the services described in OAR 411-340-0130 designed to assist an individual in acquiring, retaining, and improving the self-help, socialization, and non-activities of daily living or instrumental activities of daily living skills necessary for the individual to reside successfully in home and community-based settings.

(30) “Community Nursing Services” mean the services described in OAR 411-340-0130 that include nurse delegation, training, and care coordination for an individual living in his or her own home.

(31) “Community Transportation” means the services described in OAR 411-340-0130 that enable an individual to gain access to community services, activities, and resources that are not medical in nature.

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

(33) “Comprehensive Services” means developmental disability services and supports that include 24-hour residential services provided in a licensed home, foster home, or through a supported living program. Comprehensive services are regulated by the Department alone or in combination with an associated Department-regulated employment or community inclusion program. Comprehensive services are in-home services provided to an individual with an intellectual or developmental disability when the individual receives case management services from a community developmental disability program. Comprehensive services do not include support services for adults with intellectual or developmental disabilities enrolled in brokerages.

(34) “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.

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

(36) “Crisis” means:

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

(37) “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 the individual is in emergent status. Crisis diversion services may include short-term residential placement services indicated on an individual’s Support Services Brokerage Crisis Addendum, as well as additional support as described in an Individual Support Plan.

(38) “Day” means a calendar day unless otherwise specified in these rules.

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

(40) “Designated Representative” means a parent, family member, guardian, advocate, or other person authorized in writing by an individual to serve as the individual’s representative in connection with the provision of funded supports, who is not also a paid provider for the individual. An individual is not required to appoint a designated representative.

(41) “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.

(42) “Director” means the director of the Department’s Office of Developmental Disability Services or the director’s designee.

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

(44) “Employer-Related Supports” mean the activities that assist an individual, and when applicable the individual’s legal or designated representative or family members, with directing and supervising provision of services described in the individual’s Individual Support Plan. Employer-related supports include but are not limited to:

(a) Education about employer responsibilities;

(b) Orientation to basic wage and hour issues;

(c) Use of common employer-related tools, such as job descriptions; and

(d) Fiscal intermediary services.

(45) “Entry” means admission to a Department-funded licensed or certified developmental disability service provider.

(46) “Environmental Accessibility Adaptations” mean the physical adaptations described in OAR 411-340-0130 that are necessary to ensure the health, welfare, and safety of an individual in the individual’s home, or that enable an individual to function with greater independence in the individual’s home.

(47) “Exit” means termination or discontinuance of a Department-funded developmental disability service by a licensed or certified provider organization.

(48) “Family”:

(a) Means a unit of two or more people that includes at least one individual with an intellectual or developmental disability where the primary caregiver is:

(A) Related to the individual with an intellectual or developmental disability by blood, marriage, or legal adoption; or

(B) In a domestic relationship where partners share:

(i) A permanent residence;

(ii) Joint responsibility for the household in general, such as child-rearing, maintenance of the residence, and basic living expenses; and

(iii) Joint responsibility for supporting the individual with an intellectual or developmental disability when the individual is related to one of the partners by blood, marriage, or legal adoption.

(b) The term “family” is defined as described above for purposes of:

(A) Determining an individual’s eligibility for brokerage services as a resident in the family home;

(B) Identifying people who may apply, plan, and arrange for individual services; and

(C) Determining who may receive family training.

(49) “Family Training” means the training and counseling services described in OAR 411-340-0130 that are provided to an individual’s family to increase the family’s capacity to care for, support, and maintain the individual in the individual’s home.

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

(51) “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.

(52) “Functional Needs Assessment” means a comprehensive assessment that documents:

(a) Physical, mental, and social functioning; and

(b) Risk factors, choices and preferences, service and support needs, strengths, and goals.

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

(a) Is primarily in business to provide the service chosen by the individual, or as applicable the individual’s legal or designated representative, to the general public;

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

(c) Receives compensation to recruit, supervise, and pay the person who actually provides support for the individual.

(54) “Habilitation Services” mean the services designed to assist an individual in acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully in the individual’s home and community-based settings.

(55) “Hearing” means the formal process following an action that would terminate, suspend, reduce, or deny a service. A hearing 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.

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

(57) “Home and Community-Based Waiver Services” mean the services approved by the Centers for Medicare and Medicaid Services in accordance with section 1915(c) and 1115 of the Social Security Act.

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

(59) “ICF/MR” means intermediate care facilities for the mentally retarded. Federal law and regulations use the term “intermediate care facilities for the mentally retarded (ICF/MR)”. The Department prefers to use the accepted term “individual with intellectual disability (ID)” instead of “mental retardation (MR)”. However, as ICF/MR is the abbreviation currently used in all federal requirements, ICF/MR is used.

(60) “Incident Report” means the written report of any injury, accident, act of physical aggression, or unusual incident involving an individual.

(61) “Independence” means the extent to which an individual exerts control and choice over his or her own life.

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

(63) “Individual” means an adult with an intellectual or developmental disability applying for, or determined eligible for, developmental disability services.

(64) “Individual Cost Limit” means the maximum annual benefit level available under the Support Services Waiver version OR.0375.R02.03. The support services waiver is available at http://www.oregon.gov/dhs/spd/qa/ssa_waiver_icfmr.pdf. Printed copies may be obtained by contacting the Department of Human Services, Developmental Disabilities, ATTN: Rule Coordinator, 500 Summer Street NE, E-10, Salem, Oregon 97301.

(65) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required for an individual to achieve and maintain personal outcomes. The ISP is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. Individual support needs are identified through a functional needs assessment. The manner in which services are delivered, providers, and the frequency of services are reflected in an ISP. The ISP is the individual’s plan of care for Medicaid purposes and reflects whether services are provided through a waiver, state plan, or natural supports.

(66) “Instrumental Activities of Daily Living (IADL)” mean the activities other than activities of daily living required to continue independent living, including but not limited to:

(a) Meal planning and preparation;

(b) Budgeting;

(c) Shopping for food, clothing, and other essential items;

(d) Performing essential household chores;

(e) Communicating by phone or other media; and

(f) Traveling around and participating in the community.

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

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

(b) Participation by individuals with intellectual or developmental disabilities in the same community activities in which people without an intellectual or developmental disability participate, together with regular contact with people without an intellectual or developmental disability; and

(c) Individuals with intellectual or developmental disabilities reside in homes or home-like settings that are in proximity to community resources and foster contact with people in the community.

(68) “Intellectual Disability” means “intellectual disability” as defined in OAR 411-320-0020 and described in 411-320-0080.

(69) “ISP” means “Individual Support Plan” as defined in this rule.

(70) “K Plan” means “Community First Choice” as defined in this rule.

(71) “Legal Representative” means an attorney at law who has been retained by or for an individual, or a person or agency authorized by a court to make decisions about services for an individual.

(72) “Level of Care” means an individual meets the following institutional level of care for an intermediate care facility for individuals with intellectual or developmental disabilities (formerly referred to as an ICF/MR):

(a) The individual has a condition of an intellectual disability or a developmental disability as defined in OAR 411-320-0020 and meets the eligibility criteria for developmental disability services as described in OAR 411-320-0080; and

(b) The individual has a significant impairment in one or more areas of adaptive functioning. Areas of adaptive functioning include self direction, self care, home living, community use, social, communication, mobility, or health and safety.

(73) “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 an intellectual or developmental disability has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused an adult with an intellectual or developmental disability. Nothing contained in ORS 40.225 to 40.295 affects 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.

(74) “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.

(75) “Natural Supports” means the voluntary resources available to an individual from the individual’s relatives, friends, significant others, neighbors, roommates, and the community that are not paid for by the Department.

(76) “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.

(77) “Nursing Care Plan” means the plan developed by a nurse that describes the medical, nursing, psychosocial, and other needs of an individual and how those needs are met. The Nursing Care Plan includes the tasks that are taught or delegated to a qualified provider or the individual’s family. When a Nursing Care Plan exists, it is a supporting document for the individual’s Individual Support Plan.

(78) “Occupational Therapy” means the services described in OAR 411-340-0130 that are provided by a professional licensed under ORS 675.240 that are defined under the approved state plan, except that the amount, duration, and scope specified in the state plan do not apply.

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

(80) “Person-Centered Planning”:

(a) Means a timely and formal or informal process that is driven by an individual with an intellectual or developmental disability that gathers and organizes information that helps an individual:

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

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

(C) Identify, use, and strengthen naturally occurring opportunities for support at home and in the community.

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

(81) “Personal Agent” means a person who is a case manager for the provision of case management services, works directly with individuals and the individuals’ legal or designated representatives and families to provide or arrange for support services as described in these rules, meets the qualifications set forth in OAR 411-340-0150(5), and is a trained employee of a brokerage or a person who has been engaged under contract to the brokerage to allow the brokerage to meet responsibilities in geographic areas where personal agent resources are severely limited. A personal agent is an individual’s person-centered plan coordinator as defined in the Community First Choice state plan.

(82) “Physical Therapy” means the services described in OAR 411-340-0130 that are provided by a professional licensed under ORS 688.020 that are defined under the approved state plan, except that the amount, duration, and scope specified in the state plan do not apply.

(83) “Plan of Care” means the written plan of Medicaid services an individual needs as required by Medicaid regulation. Oregon’s plan of care is the Individual Support Plan.

(84) “Plan Year” means 12 consecutive months that, unless otherwise set according to the conditions of OAR 411-340-0120, begins on the start date specified in an 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.

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

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

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

(b) Uses the least intervention possible;

(c) Ensures that abusive or demeaning interventions are never used; and

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

(87) “Prescription Medication” means any medication that requires a physician’s prescription before the medication may be obtained from a pharmacist.

(88) “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.

(89) “Productivity” as defined in ORS 427.005 means:

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

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

(90) “Progress Note” means a written record of an action taken by a personal agent in the provision of case management, administrative tasks, or direct services, to support an individual. A progress note may also be a recording of information related to an individual’s services, support needs, or circumstances, which is necessary for the effective delivery of support services.

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

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

(93) “Provider” means a person, organization, or business selected by an individual, or as applicable the individual’s legal or designated representative, and paid with support services funds to provide support according to the individual’s Individual Support Plan.

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

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

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

(c) Receives compensation to recruit, supervise, and pay the person who actually provides support for the individual.

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

(96) “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.

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

(98) “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 delivered more effectively or automatically on a regional basis.

(99) “Relief Care” means the intermittent services described in OAR 411-340-0130 that are provided on a periodic basis of not more than 14 consecutive days for the relief of, or due to the temporary absence of, a person normally providing supports to an individual.

(100) “Self-Administration of Medication” means an individual manages and takes his or her own medication, identifies his or her own 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.

(101) “Self-Determination” means a philosophy and process by which individuals with intellectual or 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 an intellectual or 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 an intellectual or 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 assists an individual with an intellectual or 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 the individual.

(102) “Self Direction” means that an individual, or as applicable the individual’s legal or designated representative, has decision-making authority over services and takes direct responsibility for managing services with the assistance of a system of available supports and promoting personal choice and control over the delivery of waiver and state plan services.

(103) “Service Level” means the amount of services determined necessary to meet an individual’s identified support needs.

(104) “Services Coordinator” means an employee of a community developmental disability program or other agency that contracts with the county or Department, who is selected to plan, procure, coordinate, and monitor services, and to act as a proponent for individuals with intellectual or developmental disabilities. A services coordinator is an individual’s person-centered plan coordinator as defined in the Community First Choice state plan.

(105) “Skills Training” means the activities described in OAR 411-340-0130 that are intended to maximize an individual’s independence through training, coaching, and prompting the individual to accomplish activities of daily living, instrumental activities of daily living, community living and inclusion, supported employment, and health-related skills.

(106) “Social Benefit” means a service or financial assistance solely intended to assist an individual with an intellectual or developmental disability to function in society on a level comparable to that of a person who does not have an intellectual or developmental disability. Social benefits are pre-authorized by an individual’s personal agent and provided according to the description and limits written in an individual’s Individual Support Plan.

(a) Social benefits may not:

(A) Duplicate benefits and services otherwise available to a person regardless of intellectual or developmental disability;

(B) Provide financial assistance with food, clothing, shelter, and laundry needs common to a person with or without an intellectual or developmental disability; or

(C) Replace other governmental or community services available to an individual.

(b) Assistance provided as a social benefit is reimbursement for an expense previously authorized in an individual’s Individual Support Plan (ISP) or an advance payment in anticipation of an expense authorized in an individual’s previously authorized ISP.

(c) 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.

(107) “Special Diet” means the specially prepared food or particular types of food described in OAR 411-340-0130 that are specific to an individual’s medical condition or diagnosis and needed to sustain an individual in the individual’s home.

(108) “Specialized Equipment and Supplies” means the devices, aids, controls, supplies, or appliances described in OAR 411-340-0130 that enable an individual to increase the individual’s ability to perform activities of daily living or to perceive, control, or communicate with the environment in which the individual lives.

(109) “Specialized Supports” means the treatment, training, consultation, or other unique services described in OAR 411-340-0130 that are provided by a social or sexual consultant to achieve outcomes in an Individual Support Plan that are not available through state plan services.

(110) “Speech, Hearing, and Language Services” mean the services described in OAR 411-340-0130 that are provided by a professional licensed under ORS 681.250 that are defined under the approved state plan, except that the amount, duration, and scope specified in the state plan do not apply.

(111) “State Plan” means Community First Choice or state plan personal care.

(112) “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.

(113) “Support” means the assistance that an individual requires, solely because of the affects of the individual’s intellectual or developmental disability, to maintain or increase independence, achieve community presence and participation, and improve productivity. Support is subject to change with time and circumstances.

(114) “Support Services” mean the services of a brokerage listed in OAR 411-340-0120 as well as the uniquely determined activities and purchases arranged through the brokerage 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 an individual or the individual’s legal or designated representative (as applicable);

(c) Are provided in accordance with an individual’s Individual Support Plan; and

(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.

(115) “Support Services Brokerage 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.

(116) “Support Services Expenditure Guideline” means a publication of the Department that describes allowable uses for support services funds. The Department’s support services expenditure guideline is maintained on the Department’s website (http://www.oregon.gov/dhs/dd/adults/ss_exp_guide.pdf). Printed copies may be obtained by contacting the Department of Human Services, Developmental Disabilities, ATTN: Rule Coordinator, 500 Summer Street NE, E-10, Salem, Oregon 97301.

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

(118) “Supported Employment Services” mean the services described in OAR 411-340-0130 that provide support for individuals for whom competitive employment is unlikely without ongoing support to perform in a work setting. Supported employment services occur in a variety of settings, particularly work sites in which people without disabilities are employed.

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

(120) “Transition Costs” mean the expenses described in OAR 411-340-0130, such as rent and utility deposits, first month’s rent and utilities, bedding, basic kitchen supplies, and other necessities required for an individual to make the transition from a nursing facility or intermediate care facility for individuals with intellectual or developmental disabilities (formerly referred to as an ICF/MR) to a community-based home setting where the individual resides.

(121) “Unusual Incident” means any incident involving an individual that includes serious illness or an accident, death, injury or illness requiring inpatient or emergency hospitalization, a suicide attempt, a fire requiring the services of a fire department, an act of physical aggression, or any incident requiring an abuse investigation.

(122) “Variance” means the temporary exception from a regulation or provision of these rules that may be granted by the Department as described in OAR 411-340-0090.

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

(124) “Waiver Services” means “home and community-based waiver services” as defined in this rule.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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; SPD 3-2013(Temp), f. 3-20-13, cert. ef. 4-1-13 thru 9-28-13; SPD 30-2013(Temp), f. & cert. ef. 7-2-13 thru 9-28-13; SPD 31-2013, f. 7-22-13, cert. ef. 8-1-13; SPD 32-2013(Temp), f. 7-22-13, cert. ef. 8-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0030

Certification of Support Services Brokerages and Provider Organizations

(1) CERTIFICATE REQUIRED.

(a) No person or governmental unit acting individually or jointly with any other person or governmental unit may establish, conduct, maintain, manage, or operate a brokerage without being certified by the Department under this rule.

(b) No person or governmental unit acting individually or jointly with any other person or governmental unit may establish, conduct, maintain, or operate a provider organization without either certification under this rule or current Department license or certification as described in OAR 411-340-0170(1).

(c) Certificates are not transferable or assignable and are issued only for the brokerage, or for the provider organization requiring certification under OAR 411-340-0170(2), and people or governmental units named in the application.

(d) Certificates issued on or after November 15, 2008 are effective for a maximum of five years.

(e) The Department shall conduct a review of the brokerage, or the provider organization requiring certification under OAR 411-340-0170(2), prior to the issuance of a certificate.

(2) CERTIFICATION. A brokerage, or a provider organization requiring certification under OAR 411-340-0170(2), must apply for an initial certificate and for a certificate renewal.

(a) The application must be on a form provided by the Department and must include all information requested by the Department.

(b) The applicant requesting certification as a brokerage must identify the maximum number of individuals to be served.

(c) To renew certification, the brokerage or provider organization must make application at least 30 days, but not more than 120 days, prior to the expiration date of the existing certificate. On renewal of brokerage certification, no increase in the maximum number of individuals to be served by the brokerage may be certified unless specifically approved by the Department.

(d) Application for renewal must be filed no more than 120 days prior to the expiration date of the existing certificate and extends the effective date of the existing certificate until the Department takes action upon the application for renewal.

(e) Failure to disclose requested information on the application or providing incomplete or incorrect information on the application may result in denial, revocation, or refusal to renew the certificate.

(f) Prior to issuance or renewal of the certificate, the applicant must demonstrate to the satisfaction of the Department that the applicant is capable of providing services identified in a manner consistent with the requirements of these rules.

(3) CERTIFICATION EXPIRATION, TERMINATION OF OPERATIONS, OR CERTIFICATE RETURN.

(a) Unless revoked, suspended, or terminated earlier, each certificate to operate a brokerage or provider organization expires on the expiration date specified on the certificate.

(b) If a certified brokerage or provider organization is discontinued, the certificate automatically terminates on the date operation is discontinued.

(4) CHANGE OF OWNERSHIP, LEGAL ENTITY, LEGAL STATUS, OR MANAGEMENT CORPORATION. The brokerage, or provider organization requiring certification under OAR 411-340-0170(2), must notify the Department in writing of any pending action resulting in a 5 percent or more change in ownership and of any pending change in the brokerage’s or provider organization’s legal entity, legal status, or management corporation.

(5) NEW CERTIFICATE REQUIRED. A new certificate for a brokerage or provider organization is required upon change in a brokerage’s or provider organization’s ownership, legal entity, or legal status. The brokerage or provider organization must submit a certificate application at least 30 days prior to change in ownership, legal entity, or legal status.

(6) CERTIFICATE DENIAL, REVOCATION, OR REFUSAL TO RENEW. The Department may deny, revoke, or refuse to renew a certificate when the Department finds the brokerage or provider organization, the brokerage or provider organization director, or any person holding 5 percent or greater financial interest in the brokerage or provider organization:

(a) Demonstrates substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized and the brokerage or provider organization fails to correct the noncompliance within 30 calendar days of receipt of written notice of non-compliance;

(b) Has demonstrated a substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized during two inspections within a six year period (for the purpose of this rule, “inspection” means an on-site review of the service site by the Department for the purpose of investigation or certification);

(c) Has been convicted of a felony or any crime as described in OAR 407-007-0275;

(d) Has been convicted of a misdemeanor associated with the operation of a brokerage or provider organization;

(e) Falsifies information required by the Department to be maintained or submitted regarding services of individuals, program finances, or individuals’ funds;

(f) Has been found to have permitted, aided, or abetted any illegal act that has had significant adverse impact on individual health, safety, or welfare; or

(g) Has been placed on the Office of Inspector General’s list of excluded or debarred providers (http://exclusions.oig.hhs.gov/).

(7) NOTICE OF CERTIFICATE DENIAL, REVOCATION, OR REFUSAL TO RENEW. Following a Department finding that there is a substantial failure to comply with these rules such that the health, safety, or welfare of individuals is jeopardized, or that one or more of the events listed in section (6) of this rule has occurred, the Department may issue a notice of certificate revocation, denial, or refusal to renew.

(8) IMMEDIATE SUSPENSION OF CERTIFICATE. When the Department finds a serious and immediate threat to individual health and safety and sets forth the specific reasons for such findings, the Department may, by written notice to the certificate holder, immediately suspend a certificate without a pre-suspension hearing and the brokerage or provider organization may not continue operation.

(9) HEARING. An applicant for a certificate or a certificate holder may request a hearing pursuant to the contested case provisions of ORS chapter 183 upon written notice from the Department of denial, suspension, revocation, or refusal to renew a certificate. In addition to, or in lieu of a hearing, the applicant or certificate holder may request an administrative review by the Department’s director. An administrative review does not preclude the right of the applicant or certificate holder to a hearing.

(a) The applicant or certificate holder must request a hearing within 60 days of receipt of written notice by the Department of denial, suspension, revocation, or refusal to renew a certificate. The request for a hearing must include an admission or denial of each factual matter alleged by the Department and must affirmatively allege a short plain statement of each relevant, affirmative defense the applicant or certificate holder may have.

(b) In the event of a suspension pursuant to section (8) of this rule and during the first 30 days after the suspension of a certificate, the brokerage or provider organization may submit a written request to the Department for an administrative review. The Department shall conduct the review within 10 days after receipt of the request for an administrative review. Any review requested after the end of the 30-day period following certificate suspension is treated as a request for a hearing under subsection (a) of this section. If following the administrative review the suspension is upheld, the brokerage or provider organization may request a hearing pursuant to the contested case provisions of ORS chapter 183.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1770, 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 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11; SPD 10-2011, f. & cert. ef. 5-5-11; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0040

Abuse and Unusual Incidents in Support Services Brokerages and Provider Organizations

(1) ABUSE PROHIBITED. No adult or individual as defined in OAR 411-340-0020 shall be abused nor shall any employee, staff, or volunteer of the brokerage or provider organization condone abuse.

(a) Brokerages and provider organizations must have in place appropriate and adequate disciplinary policies and procedures to address instances when a staff member has been identified as an accused person in an abuse investigation as well as when the allegation of abuse has been substantiated.

(b) All employees of a brokerage or provider organization are mandatory reporters. The brokerage or provider organization must:

(A) Notify all employees of mandatory reporting status at least annually on forms provided by the Department; and

(B) Provide all employees with a Department-produced card regarding abuse reporting status and abuse reporting.

(2) INCIDENT REPORTS.

(a) A brokerage or provider organization must prepare an incident report for instances of potential or suspected abuse or an unusual incident as defined in OAR 411-340-0020, involving an individual and a brokerage or provider organization employee. The incident report must be placed in the individual’s record and must include:

(A) Conditions prior to or leading to the potential or suspected abuse or unusual incident;

(B) A description of the potential or suspected abuse or unusual incident;

(C) Staff response at the time; and

(D) Review by the brokerage administration and follow-up to be taken to prevent recurrence of the potential or suspected abuse or unusual incident.

(b) A brokerage or provider organization must send copies of all incident reports involving potential or suspected abuse that occurs while an individual is receiving brokerage or provider organization services to the CDDP.

(c) A provider organization must send copies of incident reports of all potential or suspected abuse or unusual incidents that occur while the individual is receiving services from a provider organization to the individual’s brokerage within five working days of the potential or suspected abuse or unusual incident.

(3) IMMEDIATE NOTIFICATION

(a) The brokerage must immediately report to the CDDP, and the provider organization must immediately report to the CDDP with notification to the brokerage, any incident or allegation of potential or suspected abuse falling within the scope of OAR 407-045-0260.

(A) When an abuse investigation has been initiated, the CDDP must provide notice according to OAR 407-045-0290.

(B) When an abuse investigation has been completed, the CDDP must provide notice of the outcome of the investigation according to OAR 407-045-0320.

(b) In the case of emergency overnight hospitalization due to illness or injury to an individual, the brokerage or provider organization must immediately notify:

(A) The individual’s legal representative, parent, next of kin, designated contact person, or other significant person (as applicable); and

(B) In the case of a provider organization, the individual’s brokerage.

(c) In the event of the death of an individual, the brokerage or provider organization must immediately notify:

(A) The Medical Director of the Department;

(B) The individual’s legal representative, parent, next of kin, designated contact person, or other significant person (as applicable);

(C) The CDDP; and

(D) In the case of a provider organization, the individual’s brokerage.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1780, 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 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11; SPD 10-2011, f. & cert. ef. 5-5-11; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0050

Inspections and Investigations in Support Service Brokerages and Provider Organizations

(1) Support services brokerages and provider organizations certified under these rules must allow the following types of investigations and inspections:

(a) Quality assurance and on-site inspections;

(b) Complaint investigations; and

(c) Abuse investigations.

(2) The Department, CDDP, or proper authority perform all inspections and investigations.

(3) Any inspection or investigation may be unannounced.

(4) All documentation and written reports required by this rule must be:

(a) Open to inspection and investigation by the Department, CDDP, or proper authority; and

(b) Submitted to the Department within the time allotted.

(5) When abuse is alleged or death of an individual has occurred and a law enforcement agency, the Department, or CDDP has determined to initiate an investigation, the brokerage or provider organization may not conduct an internal investigation without prior authorization from the Department. For the purposes of this rule, an “internal investigation” is defined as:

(a) Conducting interviews with the alleged victim, witness, the accused person, or any other person who may have knowledge of the facts of the abuse allegation or related circumstances;

(b) Reviewing evidence relevant to the abuse allegation, other than the initial report; or

(c) Any other actions beyond the initial actions of determining:

(A) If there is reasonable cause to believe that abuse has occurred;

(B) If the alleged victim is in danger or in need of immediate protective services;

(C) If there is reason to believe that a crime has been committed; or

(D) What, if any, immediate personnel actions must be taken.

(6) The Department or the CDDP shall conduct abuse investigations as set forth in OAR 407-045-0250 to 407-045-0360 and shall complete an abuse investigation and protective services report according to 407-045-0320.

(7) Upon completion of the abuse investigation by the Department, CDDP, or a law enforcement agency, a provider may conduct an investigation without further Department approval to determine if any other personnel actions are necessary.

(8) Upon completion of the abuse investigation and protective services report, in accordance with OAR 407-045-0330, the sections of the report that are public records and not exempt from disclosure under the public records law shall be provided to the appropriate brokerage or provider organization.

(9) The brokerage or provider organization may be required to submit to the Department a plan of improvement for any noncompliance found during an inspection pursuant to section (1)(a) of this rule.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1790, 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 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0060

Complaints in Support Services Brokerages

(1) COMPLAINTS. Brokerages must develop and implement written policies and procedures regarding individual complaints and a formal complaint process. These policies and procedures must at minimum address:

(a) Receipt of complaints. If a complaint is associated in any way with abuse, the recipient of the complaint must immediately report the issue to the CDDP and notify the brokerage director and, if applicable, the provider organization director. The brokerage must maintain a log of all complaints regarding the brokerage, provider organization, or independent provider that the brokerage receives from individuals, others acting on the behalf of individuals, and from provider organizations acting in accordance with OAR 411-340-0170(2)(a)(C)(v).

(A) The complaint log must, at a minimum, include the following:

(i) The date the complaint was received;

(ii) The name of the person taking the complaint;

(iii) The nature of the complaint;

(iv) The name of the person making the complaint, if known; and

(v) The disposition of the complaint.

(B) Brokerage personnel issues and allegations of abuse may be maintained separately from a central complaint log. If a complaint results in disciplinary action against a staff member, the documentation on the complaint must include a statement that disciplinary action was taken.

(b) Informal complaint resolution. An individual or a person acting on behalf of the individual must have an opportunity to informally discuss and resolve any allegation that a brokerage, provider organization, or independent provider has taken action that is contrary to law, rule, policy, or that is otherwise contrary to the interest of the individual and that does not meet the criteria for an abuse investigation. Choosing an informal resolution does not preclude an individual or a person acting on behalf of the individual from pursuit of resolution through formal complaint processes.

(c) Investigation of the facts supporting or disproving the complaint.

(d) Taking appropriate actions. The brokerage must take steps to resolve the complaint within five working days following receipt of the complaint. If the complaint cannot be resolved informally, or if the individual or the person acting on behalf of the individual so chooses at any time, the individual or the person acting on behalf of the individual may request a formal resolution of the complaint and, if needed, must be assisted by the brokerage with initiating the formal complaint process.

(e) Review by the brokerage director. If a complaint involves brokerage staff or services and if the complaint is not resolved according to subsection (b) to (d) of this section or if the individual or the person acting on behalf of the individual requests one, a formal review must be completed by the brokerage director and a written response must be provided to the individual or the person acting on behalf of the individual within 30 days following receipt of the complaint.

(f) Agreement to resolve the complaint. Any agreement to resolve a complaint that has been formally reviewed by the brokerage director must be in writing and must be specifically approved by the individual or the person acting on behalf of the individual. The brokerage must provide the individual or the person acting on behalf of the individual with a copy of the agreement.

(g) Administrative review. Unless the individual is a Medicaid recipient and the individual or the person acting on behalf of the individual has elected to initiate the hearing process according to section (3) of this rule, the complaint may be submitted to the Department for administrative review when the complaint cannot be resolved by the brokerage and the complaint involves the provision of services or a provider.

(A) Following a decision by the brokerage director regarding a complaint, the complainant may request an administrative review by the Department’s director.

(B) The individual or the person acting on behalf of the individual must submit to the Department a request for an administrative review within 15 days from the date of the decision by the brokerage director.

(C) Upon receipt of a request for an administrative review, the Department’s director shall appoint an Administrative Review Committee and name the chairperson. The Administrative Review Committee is comprised of a representative of the Department, a CDDP representative, and a brokerage representative. The Administrative Review Committee representatives may not have any direct involvement in the provision of services to the individual or have a conflict of interest in the specific case being reviewed.

(D) The Administrative Review Committee shall review the complaint and the decision by the brokerage director and make a recommendation to the Department’s director within 45 days of receipt of the complaint unless the individual or the person acting on behalf of the individual and the Administrative Review Committee mutually agree to an extension.

(E) The Department’s director shall consider the report and recommendations of the Administrative Review Committee and make a final decision. The decision is in writing and issued within 10 days of receipt of the recommendation by the Administrative Review Committee. The written decision contains the rationale for the director’s decision.

(F) The decision of the Department’s director is final. Any further review is pursuant to the provision of ORS 183.484 for judicial review.

(h) Documentation of complaint. Documentation of each complaint and resolution of the complaint must be filed or noted in the individual’s record.

(2) NOTIFICATION. Upon enrollment and annually thereafter, and when a complaint is not resolved according to section (1)(b) through (1)(d) of this rule, the brokerage must inform each individual, or as applicable the individual’s legal or designated representative, orally and in writing, using language, format, and methods of communication appropriate to the individual’s needs and abilities, of the following:

(a) Brokerage grievance policy and procedures, including the right to an administrative review and the method to obtain an administrative review; and

(b) The right of a Medicaid recipient to a hearing as pursuant to section (3) of this rule and the procedure to request a hearing.

(3) DENIAL, TERMINATION, SUSPENSION, OR REDUCTION OF SERVICES FOR INDIVIDUAL MEDICAID RECIPIENTS.

(a) Each time the brokerage takes an action to deny, terminate, suspend, or reduce an individual’s access to services covered under Medicaid, the brokerage must notify the individual, or as applicable the individual’s legal or designated representative, of the right to a hearing and the method to request a hearing. The brokerage must mail the notice by certified mail or personally serve the notice to the individual, or as applicable the individual’s legal or designated representative, 10 days or more prior to the effective date of an action.

(A) The brokerage must use form SDS 0947, Notification of Planned Action, or a comparable Department-approved form for such notification.

(B) This notification requirement does not apply if an action is part of, or fully consistent with an individual’s ISP, and the individual, or as applicable the individual’s legal or designated representative, has agreed with the action by signature to the ISP.

(b) A notice required by section (3)(a) of this rule must include:

(A) The action the brokerage intends to take;

(B) The reasons for the intended action;

(C) The specific Oregon Administrative Rules that support, or the change in federal or state law that requires, the action;

(D) The appealing party’s right to request a hearing in accordance with OAR chapter 137, ORS chapter 183, and 42 CFR Part 431, Subpart E;

(E) A statement that the brokerage files on the subject of the hearing automatically becoming part of the hearing record upon default for the purpose of making a prima facie case;

(F) A statement that the actions specified in the notice take effect by default if a Department representative does not receive a request for a hearing from the individual, or as applicable the individual’s legal or designated representative, within 45 days from the date that the brokerage mails the notice of action;

(G) In cases of an action based upon a change in law, the circumstances under which a hearing is granted; and

(H) An explanation of the circumstances under which brokerage services are continued if a hearing is requested.

(c) If an individual, or as applicable the individual’s legal or designated representative, disagrees with a decision or proposed action by the brokerage to deny, terminate, suspend, or reduce an individual’s access to services covered under Medicaid, the individual, or as applicable the individual’s legal or designated representative, may request a hearing as provided in ORS chapter 183. The request for a hearing must be in writing on form DHS 443 and signed by the individual or the individual’s legal or designated representative (as applicable). The signed form (DHS 443) must be received by the Department within 45 days from the date the brokerage mailed the notice of action.

(d) An individual, or as applicable the individual’s legal or designated representative, may request an expedited hearing if the individual, or as applicable the individual’s legal or designated representative, feels that there is immediate, serious threat to the individual’s life or health if the normal timing of the hearing process is followed.

(e) If an individual, or as applicable the individual’s legal or designated representative, requests a hearing before the effective date of the proposed action and requests that the existing services be continued, the Department shall continue the services.

(A) The Department must continue the services until whichever of the following occurs first:

(i) The current authorization expires;

(ii) The administrative law judge issues a proposed order and the Department issues a final order; or

(iii) The individual is no longer eligible for Medicaid benefits.

(B) The Department must notify the individual, or as applicable the individual’s legal or designated representative, that the Department is continuing the service. The notice must inform the individual, or as applicable the individual’s legal or designated representative, that if the hearing is resolved against the individual, the Department may recover the cost of any services continued after the effective date of the continuation notice.

(f) The Department must reinstate services if:

(A) The Department takes an action without providing the required notice and the individual, or as applicable the individual’s legal or designated representative, requests a hearing;

(B) The Department fails to provide the notice in the time required in this rule and the individual, or as applicable the individual’s legal or designated representative, requests a hearing within 10 days of the mailing of the notice of action; or

(C) The post office returns mail directed to the individual, or as applicable the individual’s legal or designated representative, but the location of the individual, or as applicable the individual’s legal or designated representative, becomes known during the time that the individual is still eligible for services.

(g) The Department must promptly correct the action taken up to the limit of the original authorization, retroactive to the date the action was taken, if the hearing decision is favorable to the individual or if the Department decides in the individual’s favor before the hearing.

(h) The Department representative and the individual, or as applicable the individual’s legal or designated representative, may have an informal conference without the presence of an 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 individual, or as applicable the individual’s legal or designated representative, to settle the matter;

(B) Ensure the individual, or as applicable the individual’s legal or designated representative, understands the reason for the action that is the subject of the hearing request;

(C) Give the individual, or as applicable the individual’s legal or designated representative, an opportunity to review the information that is the basis for that action;

(D) Inform the individual, or as applicable the individual’s legal or designated representative, of the rules that serve as the basis for the contested action;

(E) Give the individual, or as applicable the individual’s legal or designated representative, and the Department the chance to correct any misunderstanding of the facts;

(F) Determine if the individual, or as applicable the individual’s legal or designated representative, wishes to have any witness subpoenas issued; and

(G) Give the Department an opportunity to review the Department’s action or the action of the brokerage.

(i) At any time prior to the hearing date, the individual, or as applicable the individual’s legal or designated representative, may request an additional conference with the Department representative. At the Department representative’s discretion, the Department representative may grant an additional conference if the additional conference facilitates the hearing process.

(j) The Department may provide the individual, or as applicable the individual’s legal or designated representative, the relief sought at any time before the final order is issued.

(k) An individual, or as applicable the individual’s legal or designated representative, may withdraw a hearing request at any time prior to the issuance of a final order. The withdrawal is effective on the date the Department or the Office of Administrative Hearings receives the request for withdrawal. The Department must issue a final order confirming the withdrawal to the last known address of the individual or the individual’s legal or designated representative (as applicable). The individual, or as applicable the individual’s legal or designated representative, may cancel the withdrawal up to 10 working days following the date the final order is issued.

(l) Proposed and final orders.

(A) In a contested case, the administrative law judge must serve a proposed order on the individual, or as applicable the individual’s legal or designated representative, and the Department.

(B) If the administrative law judge issues a proposed order that is adverse to the individual, the individual, or as applicable the individual’s legal or designated representative, may file an exception to the proposed order to be considered by the Department. The exception must be in writing and must be received by the Department no later than 10 days after service of the proposed order. The individual, or as applicable the individual’s legal or designated representative, may not submit additional evidence after this period unless the Department grants prior approval.

(C) After receiving an exception, if any, the Department may adopt a proposed order as a final order or may prepare a new order. Prior to issuing the final order, the Department may issue an amended proposed order.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1800, 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 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 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11; (Temp) Repealed by SPD 10, 2011, f. & cert. ef. 5-5-11; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0070

Support Services Brokerage and Provider Organization Personnel Policies and Practices

(1) Brokerages and provider organizations must maintain up-to-date written position descriptions for all staff as well as a file, available to the Department or CDDP for inspection that includes written documentation of the following for each staff:

(a) Reference checks and confirmation of qualifications prior to hire;

(b) Written documentation of an approved background check completed by the Department in accordance with OAR 407-007-0200 to 407-007-0370;

(c) Satisfactory completion of basic orientation, including instructions for mandatory reporting and training specific to intellectual or developmental disabilities and skills required to carry out assigned work if the employee is to provide direct assistance to individuals;

(d) Written documentation of employee notification of mandatory reporter status;

(e) Written documentation of any founded report of child abuse or substantiated abuse;

(f) Written documentation of any complaints filed against the staff and the results of the complaint process, including any disciplinary action; and

(g) Legal eligibility to work in the United States.

(2) Any employee providing direct assistance to individuals must be at least 18 years of age and capable of performing the duties of the job as described in a current job description signed and dated by the employee.

(3) An application for employment at the brokerage or provider organization must inquire whether an applicant has had any founded reports of child abuse or substantiated abuse.

(4) Any employee of the brokerage or provider organization, or any subject individual defined by OAR 407-007-0210, who has or will have contact with an eligible individual of support services, must have an approved background check in accordance with OAR 407-007-0200 to 407-007-0370 and under ORS 181.534.

(5) Effective July 28, 2009, a person may not be authorized as a provider or meet qualifications as described in this rule if the person has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(6) Section (5) of this rule does not apply to employees of the brokerage or provider organization who were hired prior to July 28, 2009 and remain in the current position for which the employee was hired.

(7) Each brokerage and provider organization regulated by these rules must be a drug-free workplace.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1810, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; 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 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 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0080

Support Service Brokerage and Provider Organization Records

(1) CONFIDENTIALITY. Brokerage and provider organization records of services to individuals must be kept confidential in accordance with ORS 179.505, 45 CFR 205.50, 45 CFR 164.512 Health Insurance Portability and Accountability Act (HIPAA), 42 CFR Part 2 HIPAA, and any Department rules or policies pertaining to individual service records.

(2) DISCLOSURE AND CONFIDENTIALITY. For the purpose of disclosure from individual medical records under these rules, brokerages, and provider organizations requiring certification under OAR 411-340-0170(2), are considered “providers” as defined in ORS 179.505(1) and 179.505 is applicable.

(a) Access to records by the Department does not require authorization by an individual or an individual’s legal or designated representative or family.

(b) For the purpose of disclosure of non-medical individual records, all or portions of the information contained in the non-medical individual records may be exempt from public inspection under the personal privacy information exemption to the public records law set forth in ORS 192.502(2).

(3) GENERAL FINANCIAL POLICIES AND PRACTICES. The brokerage or provider organization must:

(a) Maintain up-to-date accounting records consistent with generally accepted accounting principles that accurately reflect all revenue by source, all expenses by object of expense, and all assets, liabilities, and equities;

(b) As a provider organization, or as a brokerage offering services to the general public, establish and revise, as needed, a fee schedule identifying the cost of each service provided. Billings for Medicaid funds may not exceed the customary charges to private individuals for any like item or services charged by the brokerage or provider organization; and

(c) Develop and implement written statements of policy and procedure as are necessary and useful to assure compliance with any Department rule pertaining to fraud and embezzlement.

(4) RECORDS RETENTION. Records must be retained in accordance with OAR 166, division 150, Secretary of State, Archives Division.

(a) Financial records, supporting documents, statistical records, and all other records (except individual records) must be retained for a minimum of three years after the close of the contract period.

(b) Individual records must be kept for a minimum of seven years.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1820, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; 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 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0090

Support Services Brokerage and Provider Organization Request for Variance

(1) Variances may be granted to a brokerage or provider organization:

(a) If the brokerage or provider organization lacks the resources needed to implement the standards required in these rules;

(b) If implementation of the proposed alternative services, methods, concepts, or procedures would result in services or systems that meet or exceed the standards in these rules; or

(c) If there are other extenuating circumstances.

(2) Variances may not be granted to OAR 411-340-0130 and 411-340-0140.

(3) The brokerage or provider organization requesting a variance must submit to the Department, in writing, an application that contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The proposed alternative practice, service, method, concept, or procedure;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) If the variance applies to an individual’s services, evidence that the variance is consistent with an individual’s currently authorized ISP.

(4) The Department may approve or deny the variance request. The Department’s decision shall be sent to the brokerage or provider organization and to all relevant Department programs or offices within 45 calendar days of the receipt of the variance request.

(5) The brokerage or provider organization may appeal the denial of a variance request by sending a written request for review to the Department’s director, whose decision is final.

(6) The Department shall determine the duration of the variance.

(7) The brokerage or the provider organization may implement a variance only after written approval from the Department.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1830, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0100

Eligibility for Support Service Brokerage Services

(1) Individuals determined eligible according to 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) The CDDP of an individual’s county of residence may find the individual eligible for brokerage services when:

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

(b) The individual is an adult living in the individual’s own home or family home;

(c) At the time of initial entry to the brokerage, the individual is not enrolled in comprehensive services;

(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 as applicable the individual’s legal or designated representative, has chosen to use a brokerage for assistance with design and management of personal supports.

(3) Individuals are not eligible for services by more than one brokerage unless the concurrent eligibility:

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

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

(c) Does not duplicate services and expenditures.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.40–427.410, 430.610, 430.620 & 430.662–430.695

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; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

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 and the individuals’ legal or designated representatives. 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, 411-340-0170 and 411-340-0180 to provide supports authorized through the individual’s 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 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

(C) A description of the relationship between the brokerage and the brokerage’s Policy Oversight Group.

(2) The brokerage must make the information required in section (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; and

(B) The individual, or as applicable the individual’s legal or designated representative, must choose to receive services from a selected brokerage.

(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 as applicable the individual’s legal or designated representative, to end the service relationship;

(B) If an individual requests case management services from a CDDP. The brokerage must refer the individual to the local CDDP for case management within 10 working days of the request;

(C) No fewer than 30 days after the brokerage has served written notice of intent to exit the individual from brokerage services, when the individual, or as applicable the individual’s legal or designated representative, either cannot be located or has not responded to repeated attempts by brokerage staff to complete ISP development or monitoring activities, and does not respond to the notice of intent to terminate; or

(D) Upon entry into a comprehensive service.

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

(c) Each brokerage must have policies and procedures for notifying the CDDP of an individual’s county of residence when the 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, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1850, 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 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 21-2011(Temp), f. & cert. ef. 8-31-11 thru 12-28-11; SPD 27-2011, f. & cert. ef. 12-28-11; DVA 3-2007, f. & cert .ef. 9-25-07; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

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 and plan supports in response to needs;

(b) For individuals who have not had a service level determined, develop individualized budgets based on available resources;

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

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

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

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

(g) Employer-related supports; and

(h) 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 section (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 as applicable the individual’s legal or designated representative, regarding the nature of supports or other steps taken to ameliorate any identified risks; and

(c) Education and support to recognize and report abuse.

(5) PERSONAL AGENT SERVICES.

(a) An individual entered into brokerage services must be assigned a personal agent for case management services.

(b) 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 as applicable the individual’s legal or designated representative, within 10 working days from the date entry becomes known to the brokerage.

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

(c) 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, or as applicable the individual’s legal or designated representative, and all current 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.

(d) OSIP-M ELIGIBILITY. If an individual loses OSIP-M eligibility, a personal agent must assist the individual in identifying why OSIP-M eligibility was lost. Whenever possible, the personal agent must assist the individual in becoming eligible for OSIP-M again. The personal agent must document efforts taken to assist the individual in becoming OSIP-M eligible.

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

(7) CHOICE ADVISING. Choice advising regarding the provision of case management and other services must be provided to individuals who are eligible for, and desire, developmental disability services. Choice advising must be provided at least annually.

(8) LEVEL OF CARE DETERMINATION.

(a) The brokerage must assure that individuals, who are eligible or become eligible for OSIP-M after entry into the brokerage, receive a level of care determination. Individuals, who are eligible or become eligible after entry into the brokerage, must:

(A) Be offered the choice between home and community-based services or institutional care;

(B) Be provided a notice of fair hearing rights; and

(C) Have the level of care determination reviewed annually or at any time there is a significant change in a condition that qualified the individual for the level of care.

(b) The level of care determination must be documented in a progress note in the individual’s record. The level of care determination must be completed no more than 90 days prior to the authorization of the individual’s initial ISP and no more than 60 days prior to the annual reauthorization.

(9) FUNCTIONAL NEEDS ASSESSMENT. The brokerage must complete a functional needs assessment at least annually for any individual who is enrolled in waiver or Community First Choice services. The functional needs assessment must be completed:

(a) Within 30 days of entry into a brokerage;

(b) Within 30 days of establishing eligibility for OSIP-M and determining level of care;

(c) Within 60 days prior to the authorization of an ISP; and

(d) Within 45 days from the time the individual, or as applicable the individual’s legal or designated representative, requests a functional needs assessment.

(10) INDIVIDUAL SUPPORT PLANS.

(a) An individual who is accessing waiver or Community First Choice services must have an authorized ISP.

(A) The ISP must be facilitated, developed, and authorized by a personal agent.

(B) The ISP must be authorized within 60 days of the completion of a functional needs assessment and at least annually thereafter.

(C) The brokerage must provide a written copy of the most current ISP to the individual and the individual’s legal or designated representative (as applicable).

(b) The ISP must address all the support needs identified in a functional needs assessment. The ISP or attached documents must include:

(A) The individual’s name and the name of the individual’s legal or designated representative (as applicable);

(B) A description of the supports required that is consistent with the individual’s functional needs assessment, including the reason the support is necessary;

(C) The projected dates of when specific supports are to begin and end;

(D) A list of personal, community, and public resources that are available to the individual and how the resources may be applied to provide the required supports. Sources of support may include waiver services, state plan services, state general funds, or natural supports;

(E) The manner in which services are delivered and the frequency of services;

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

(G) The setting in which the individual resides as chosen by the individual;

(H) The individual’s strengths and preferences;

(I) The clinical and support needs as identified through a functional needs assessment;

(J) Individually identified goals and desired outcomes;

(K) The services and supports (paid and unpaid) to assist the individual to achieve identified goals and the providers of the services and supports, including voluntarily provided natural supports;

(L) The risk factors and the measures in place to minimize the risk factors, including back up plans;

(M) The identity of the person responsible for case management and monitoring the ISP;

(N) A provision to prevent unnecessary or inappropriate care;

(O) The alternative settings considered by the individual;

(P) Schedule of ISP reviews;

(Q) Any changes in support needs identified in a functional needs assessment; and

(R) Any revisions to the ISP 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.

(c) ISP SCHEDULE. The schedule of the support services ISP, developed in compliance with this rule after an individual enters a brokerage, may be adjusted one time for any individual entering a brokerage in the following circumstances. An adjustment interrupts any plan year in progress and establishes a new plan year for the individual beginning on the date the first new ISP is authorized.

(A) Brokerages, with the consent of an individual, or as applicable an individual’s legal or designated representative, may designate a new ISP start date.

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

(ii) An ISP date adjustment must be clearly documented in the ISP.

(B) A new ISP start date may be designated for individuals transitioning from family support services 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 an 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 ISP in place at the time the individual turns 18 years of age when the ISP, 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) A new ISP start date may be designated for individuals transitioning from 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.

(d) ISP AUTHORIZATION.

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

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

(C) A revision to an initial or annual 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 as applicable the individual’s legal or designated representative, is required prior to implementation of the revision.

(D) An ISP is authorized when:

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

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

(II) Unavailability is not an acceptable reason for an individual, or as applicable the individual’s legal or designated representative, not to sign the ISP.

(III) In the case of a revision to an 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.

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

(iii) A designated brokerage representative has reviewed the ISP for compliance with Department rules and policy.

(e) PERIODIC REVIEW OF ISP AND RESOURCES.

(A) A personal agent must conduct and document reviews of an individual’s ISP and resources with the individual and the individual’s legal or designated representative (as applicable).

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

(i) Evaluate an individual’s progress toward achieving the purposes of the ISP and assess and revise goals as needed;

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

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

(iv) Record final support services fund costs.

(11) ANNUAL PLANS. An Annual Plan must be completed for individuals who do not access waiver or Community First Choice services.

(a) The Annual Plan must be completed within 60 days of an individual’s enrollment into support services.

(b) A written Annual Plan must be documented in an individual’s record as an Annual Plan or as a comprehensive progress note and consist of:

(A) A review of the individual’s current living situation;

(B) A review of any personal health, safety, or behavioral concerns;

(C) A summary of the individual’s support needs; and

(D) Actions to be taken by the personal agent and others.

(12) PROFESSIONAL OR OTHER SERVICE PLANS.

(a) A Nursing Care Plan must be attached to an 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 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.

(13) TRANSITION TO ANOTHER BROKERAGE. At the request of an individual enrolled in brokerage services who has selected another brokerage, or as applicable the individual’s legal or designated representative, 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, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1860, 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 25-2010(Temp), f. & cert. ef. 11-17-10 thru 5-16-11; SPD 10-2011, f. & cert. ef. 5-5-11; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

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 section (2) of this rule.

(2) CRISIS DETERMINATION.

(a) 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:

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

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

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

(iv) An individual undergoes, or is at imminent risk of undergoing, loss of primary caregiver due to the primary caregiver’s inability to provide supports;

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

(vi) 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; and

(C) The individual’s ISP has been revised to address the identified crisis risk factors and the revisions:

(i) May resolve the crisis; and

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

(b) A functional needs assessment must be completed for any individual determined to be in crisis as described in this section of this rule.

(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 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 providers, and the individual’s legal or designated representative and family (as applicable).

(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 subparagraph (ii) of this paragraph in the individual’s record and report to the Regional Crisis Diversion Program or CDDP as required.

(c) Support services provided during emergent status are subject to all requirements of this rule.

(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, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 &430.662–430.695

Hist.: SPD 27-2011, f. & cert. ef. 12-28-11; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

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 individual’s family home;

(b) For an individual who has not had a service level determined, a functional needs assessment has determined the individual’s support needs;

(c) An enrolled individual meets the criteria for level of care;

(d) An enrolled individual is eligible for OSIP-M;

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

(A) Support services funds are not intended to replace the resources available to an individual from the individual’s natural supports. Support services funds may be authorized only when the individual’s natural supports are 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.

(f) For an individual who has not had a service level determined, 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

(g) The ISP has been authorized for implementation.

(2) A brokerage may use support services funds to assist individuals that do not meet the criteria in section (1)(c) or (1)(d) of this rule in the following circumstances:

(a) The individual meets the crisis criteria described in OAR 411-340-0125; or

(b) Up to the individual’s 18th birthday, the individual was receiving children’s intensive in-home services as described in OAR chapter 411, division 300 or in-home supports as described in OAR chapter 411, division 308.

(3) An individual is no longer eligible to access support services funds when the individual is eligible for support services funds based on section (2)(b) of this rule and:

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

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

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

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

(5) LIMITS OF FINANCIAL ASSISTANCE. For individuals who have not had a service level determined, the use of support services funds to purchase individual supports in any plan year is limited to the individual’s annual benefit level.

(a) An individual must have access throughout the plan year to the total annual amount of support services 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 or designated representative (as applicable).

(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) When an individual’s benefit level changes, except in the case of an individual whose benefit level changes as the result of a change in eligibility for access to support services funds, the monthly benefit level is 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 is applied each month from the date the change in benefit level occurred for the remainder of the plan year.

(B) In the case of an individual with an ISP developed for a partial plan year, the monthly benefit level is 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 is applied each month during which the ISP developed for a partial plan year is in effect.

(6) EXCEPTIONS TO BASIC BENEFIT FINANCIAL LIMITS.

(a) Exceptions to the basic benefit annual support services fund limits described in this section do not apply to individuals who have had a service level determined. Existing individual’s exceptions to the basic benefit may remain until a service level is determined for the individual. No new exceptions to the basic benefit level are allowed.

(b) 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 as applicable the individual’s legal or designated representative, at least annually and must make budget reductions when allowed by the individual’s ISP.

(c) 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

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

(d) Medicaid recipients 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 the individual’s 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 with such needs as bathing (tub, bed bath, shower), hair care, grooming, shaving, nail care, foot care, dressing, skin care, or oral hygiene;

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

(iii) Mobility, transfers, and repositioning, assisting with ambulation or transfers with or without assistive devices, turning an 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 adaptive utensils, cutting food, and placing food, dishes, and utensils within reach for eating;

(v) Medication and medical equipment, assisting with ordering, organizing, and administering medications (including pills, drops, ointments, creams, injections, inhalers, and suppositories), monitoring for choking while taking medications, maintaining equipment, or monitoring for adequate medication supply; and

(vi) Delegated nursing tasks.

(B) Assistance means an individual requires help from another person with ADLs. Assistance may include cueing, monitoring, reassurance, redirection, set-up, hands-on, or standby assistance. Assistance may be provided through the use of electronic devices or other assistive devices. Assistance may also require verbal reminding to complete one of the tasks described in subsection (A) of this section.

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

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

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

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

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

(vi) “Set-up” means the preparation, cleaning, and maintenance of personal effects, supplies, assistive devices, or equipment 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 if 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 laundry. Only the housekeeping activities related to the eligible individual’s needs may be considered in housekeeping;

(ii) Grocery and other shopping necessary for the completion of ADL and IADL tasks;

(iii) Assistance with necessary medical appointments, including help scheduling appointments, arranging medical transportation services, follow up from appointments, or assistance with mobility, transfers, or cognition in getting to and from appointments;

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

(v) First aid and handling emergencies, including addressing medical incidents related to conditions such as seizures, aspiration, constipation, or dehydration or responding to an individual’s call for help during an emergent situation or for unscheduled needs requiring immediate response ; and

(vi) Cognitive assistance or emotional support provided to an individual due to the individual’s intellectual or developmental disability, including helping the individual cope with change and assisting the individual with decision-making, reassurance, orientation, memory, or other cognitive functions.

(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) Relief care.

(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) serves 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 supports.

(7) 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 in the amount required to implement 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 or designated representative (as applicable).

(8) TYPES OF SUPPORTS PURCHASED. For ISPs that have not been developed based on a service level determined by a functional needs assessment, 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;

(c) Environmental accessibility adaptation;

(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(7); or

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

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

(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 care providers 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 intellectual or developmental disability.

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

(A) When specialized equipment and supplies are primarily and customarily used to serve a medical purpose, the purchase, rental, or repair of specialized equipment and supplies with support services funds must be limited to the types of equipment and supplies permitted under the state 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 plan after the limits specified in the state plan have been reached, requests for purchases have been denied by the state 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 intellectual or 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, such as utensils, trays, cups, or 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, such as 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, such as vestibular swing, weighted blanket, or tactile supplies like creams and lotions;

(l) Specialized supports;

(m) Speech and language therapy services;

(n) Supported employment; and

(o) Transportation.

(9) TYPES OF SUPPORTS. When an ISP is based on a service level determined by a functional needs assessment, supports eligible for purchase with support services funds are:

(a) Community First Choice services:

(A) Community nursing services as described in section (10) of this rule;

(B) Chore services as described in section (11) of this rule;

(C) Attendant care as described in section (12) of this rule;

(D) Skills training as described in section (13) of this rule;

(E) Community transportation as described in section (14) of this rule;

(F) Specialized equipment and supplies as described in section (15) of this rule;

(G) Relief care as described in section (16) of this rule;

(H) Behavior support services as described in section (17) of this rule;

(I) Environmental accessibility adaptations as described in section (18) of this rule; and

(J) Transition costs as described in section (19) of this rule.

(b) Home and Community Based Waiver Services:

(A) Community living and inclusion supports as described in section (20) of this rule;

(B) Case management as defined in OAR 411-340-0020;

(C) Supported employment as described in section (21) of this rule;

(D) Family training as described in section (22) of this rule;

(E) Occupational therapy as described in section (23) of this rule;

(F) Physical therapy as described in section (24) of this rule;

(G) Speech, hearing, and language services, as described in section (25) of this rule;

(H) Special diets as described in section (26) of this rule; and

(I) Specialized supports as described in section (27) of this rule.

(10) COMMUNITY NURSING SERVICES.

(a) Community nursing services include:

(A) Evaluation, including medication reviews, and identification of supports that minimize health risks while promoting an individual’s autonomy and self-management of healthcare;

(B) Collateral contact with a personal agent regarding an individual’s community health status to assist in monitoring safety and well-being and to address needed changes to the person-centered ISP; and

(C) Delegation and training of nursing tasks to an individual’s provider so the provider may safely perform health related tasks.

(b) Community nursing services exclude direct nursing care.

(c) Community nursing services are not covered by other Medicaid spending authorities.

(11) CHORE SERVICES. Chore services may be provided only in situations where no one else is responsible or able to perform or pay for the services.

(a) Chore services include heavy household chores such as:

(A) Washing floors, windows, and walls;

(B) Tacking down loose rugs and tiles; and

(C) Moving heavy items of furniture for safe access and egress.

(b) Chore services may include yard hazard abatement to ensure the outside of the home is safe for the individual to traverse and enter and exit the home.

(12) ATTENDANT CARE SERVICES.

(a) ADL services include but are not limited to:

(A) Basic personal hygiene, providing or assisting with such needs as bathing (tub, bed, bath, shower), hair care, grooming, shaving, nail care, foot care, dressing, skin care, or oral hygiene;

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

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

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

(E) Medication and medical equipment including but not limited to assisting with ordering, organizing, and administering medications (including pills, drops, ointments, creams, injections, inhalers, and suppositories), monitoring an individual for choking while taking medications, assisting with the administration of medications, maintaining equipment, or monitoring for adequate medication supply; and

(F) Delegated nursing tasks.

(b) IADL services include but are not limited to:

(A) Light housekeeping, tasks necessary to maintain an 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 laundry;

(B) Grocery and other shopping necessary for the completion of other ADL and IADL tasks;

(C) Assistance with necessary medical appointments, including help scheduling appointments, arranging medical transportation services, accompaniment to appointments, follow up from appointments, or assistance with mobility, transfers, or cognition in getting to and from appointments;

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

(E) First aid and handling emergencies, including addressing medical incidents related to conditions such as seizures, aspiration, constipation, or dehydration or responding to an individual’s call for help during an emergent situation or for unscheduled needs requiring immediate response; and

(F) Cognitive assistance or emotional support provided to an individual due to an intellectual or developmental disability, including helping the individual cope with change and assisting the individual with decision-making, reassurance, orientation, memory, or other cognitive functions.

(c) Attendant care services means an individual requires assistance with ADLs. Assistance may include cueing, monitoring, reassurance, redirection, set-up, hands-on, or standby assistance. Assistance may be provided through human assistance or the use of electronic devices or other assistive devices. Assistance may also require verbal reminding to complete any of the tasks described in subsection (b) of this section.

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

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

(C) “Monitoring” means a provider observes an individual to determine if assistance is needed.

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

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

(F) “Set-up” means the preparation, cleaning, and maintenance of personal effects, supplies, assistive devices, or equipment so that an individual may perform an activity.

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

(13) SKILLS TRAINING. Skills training is specifically tied to the functional needs assessment and ISP and is a means for an individual to acquire, maintain, or enhance independence in supports otherwise provided through state plan or waiver services.

(a) Skills training may be applied to the use and care of assistive devices and technologies

(b) Skills training is authorized when:

(A) The anticipated outcome of the skills training, as documented in the ISP, is measurable;

(B) Timelines for measuring progress towards the anticipated outcome are established in the ISP; and

(C) Progress towards the anticipated outcome are measured and the measurements are evaluated by a personal agent no less frequently than every six months, based on the start date of the initiation of the skills training.

(c) When anticipated outcomes are not achieved, the personal agent must reassess the use of skills training with the individual.

(14) COMMUNITY TRANSPORTATION.

(a) Community transportation services include but are not limited to:

(A) Community transportation provided by common carriers, taxicab, or bus in accordance with standards established for these entities;

(B) Reimbursement on a per-mile basis for transporting an individual to accomplish an ISP goal related task; or

(C) Assistance with the purchase of a bus pass.

(b) Community transportation services exclude medical transportation, purchase of individual or family vehicles, routine vehicle maintenance and repair, ambulance services, payment to the spouse of an individual receiving support services, and costs for transporting a person other than the individual.

(15) SPECIALIZED EQUIPMENT AND SUPPLIES. When specialized equipment and supplies are primarily and customarily used to serve a medical purpose, the purchase, rental, or repair of specialized equipment and supplies with support service funds must be limited to the types of equipment and supplies that are not excluded under OAR 410-122-0080.

(a) Specialized equipment and supplies may include the purchase of devices, aids, controls, supplies, or appliances primarily and customarily used to enable an individual to increase the individual’s ability to perform and support ADLs and IADLs or to perceive, control, or communicate with the environment in which the individual lives.

(b) Specialized equipment and supplies may be purchased with support service funds when an individual’s intellectual or developmental disability otherwise prevents or limits the individual’s independence in areas identified in a functional needs assessment.

(c) Specialized equipment and supplies that may be purchased for the purpose described in subsection (b) of this section must be of direct benefit to the individual and may include:

(A) Supplies needed to assist with incontinence care such as gloves, pads, wipes, or incontinence garments;

(B) Electronic devices to secure assistance in an emergency in the community and other reminders such as medication minders, alert systems for ADL or IADL supports, or mobile electronic devices;

(C) Assistive technology to provide additional security and replace the need for direct interventions to enable self direction of care and maximize independence, such as motion or sound sensors, two-way communication systems, automatic faucets and soap dispensers, incontinent and fall sensors, or other electronic backup systems;

(i) Expenditures for assistive technology are limited to $5,000 per plan year without Department approval.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(D) Assistive devices, not covered by other Medicaid programs, to assist and enhance an individual’s independence in performing ADLs or IADLs, such as durable medical equipment, mechanical apparatus, electrical appliances, or information technology devices.

(i) Expenditures for assistive devices are limited to $5,000 per plan year without Department approval.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(d) Specialized equipment and supplies may not include items not of direct medical or remedial benefit to the individual.

(e) Specialized equipment and supplies must meet applicable standards of manufacture, design, and installation.

(16) RELIEF CARE.

(a) Relief care includes two types of care, neither of which may be characterized as daily or periodic services provided to allow an individual’s primary caregiver to attend school or work.

(b) Twenty-four hour overnight services 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.

(17) BEHAVIOR SUPPORT SERVICES.

(a) Behavior support services consist of:

(A) Assessing an individual or the needs of the individual’s family and the environment;

(B) Developing positive behavior support strategies, including a Behavior Support Plan if needed;

(C) Implementing the Behavior Support Plan with an individual’s provider or family; and

(D) Revising and monitoring the Behavior Support Plan as needed.

(b) Behavior support services may include:

(A) Training, modeling, and mentoring an individual’s family;

(B) Developing visual communication systems as behavior support strategies; and

(C) Communicating as authorized by an individual, or as applicable the individual’s legal or designated representative, with school, medical, or other professionals about the strategies and outcomes of the Behavior Support Plan.

(c) Behavior support services exclude:

(A) Mental health therapy or counseling;

(B) Health or mental health plan coverage;

(C) Educational services, including, but not limited to consultation and training for classroom staff;

(D) Adaptations to meet needs of an individual at school; or

(E) An assessment in a school setting.

(18) ENVIRONMENTAL ACCESSIBILITY ADAPTATIONS.

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

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

(B) Installation of shatter-proof windows;

(C) Hardening of walls or doors;

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

(E) An alarm system for doors or windows;

(F) Protective covering for smoke alarms, 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;

(R) Modifications for the primary vehicle used by the individual that are necessary to meet the unique needs of the individual, such as lift, interior alterations to seats, head and leg rests, belts, special safety harnesses, or other unique modifications to keep the individual safe in the vehicle; and

(S) Adaptations to control lights, heat, stove, etc.

(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,

(c) Environmental accessibility adaptations are limited to $5,000 per modification. A personal agent may request approval for additional expenditures through the Department prior to expenditure. Approval is based on the individual’s service and support needs and goals and the Department’s determination of appropriateness and cost-effectiveness.

(d) Environmental accessibility adaptations must be tied to supporting ADL, IADL, and health-related tasks as identified in the individual’s ISP.

(e) Environmental accessibility adaptations over $500 must be completed by a state licensed contractor. Any modification requiring a permit must be inspected by a local inspector and certified as in compliance with local codes. Certification of compliance must be filed in the provider’s file prior to payment.

(f) Environmental accessibility adaptations must be made within the existing square footage of the home, except for external ramps, and may not add to the square footage of the home.

(g) Payment to the contractor is to be withheld until the work meets specifications.

(19) TRANSITION COSTS.

(a) Transition costs are limited to individuals transitioning from a nursing facility, ICF/MR, or acute care hospital, to a home or community-based setting where the individual resides.

(b) Transition costs are based on an individual’s assessed need determined during the person-centered service planning process and must support the desires and goals of the individual receiving services and supports. Final approval for transition costs must be through the Department prior to expenditure. The Department’s approval is based on the individual’s need and the Department’s determination of appropriateness and cost-effectiveness.

(c) Financial assistance for transition costs is limited to:

(A) Moving and move-in costs, including movers, cleaning and security deposits, payment for background or credit checks (related to housing), or initial deposits for heating, lighting, and phone;

(B) Payment of previous utility bills that may prevent the individual from receiving utility services and basic household furnishings, such as a bed; and

(C) Other items necessary to re-establish a home.

(d) Transition costs are provided no more than twice annually.

(e) Transitions costs for basic household furnishings and other items are limited to one time per year.

(20) COMMUNITY LIVING AND INCLUSION SUPPORTS. Community living and inclusion supports assist individuals in acquiring, retaining, and improving skills around socialization, recreation and leisure, communication, participation in the community, and ability to direct supports.

(a) Support with socialization includes assisting participants in acquiring, retaining, and improving self-awareness and self control, social responsiveness, social amenities, and interpersonal skills.

(b) Support with community participation, recreation, or leisure includes assisting individuals in acquiring, retaining, and improving skills to use available community resources, facilities, or businesses.

(c) Support with communication includes assisting individuals in acquiring, retaining, and improving expressive and receptive skills in verbal and non-verbal language and the functional application of acquired reading and writing skills.

(d) Supports may be work-related and include instruction in skills an individual wishes to acquire, retain, or improve that enhance the individual’s independence, productivity, integration, or maintain the individual’s physical and cognitive skills. Services may include teaching such concepts as compliance, attendance, task completion, problem solving, and safety that are aimed at preparing an individual with an intellectual or developmental disability for paid employment.

(e) Supports may be used to reinforce skills or lessons taught in school, therapy or other settings. However, this will not duplicate Medicaid State Plan, IDEA or Office of Vocational Rehabilitation Services.

(21) SUPPORTED EMPLOYMENT SERVICES. Supported employment services assist an individual to choose, get, and keep a paid job in an integrated community business setting.

(a) Supported employment services includes job development, training, and on-going supervision to obtain paid employment.

(b) Training may focus on the individual and the individual’s co-workers without disabilities capable of providing natural support.

(c) Supported employment services must not replace services available under a program funded under the Rehabilitation Act of 1973, or P.L. 94-142.

(d) Supported employment services under this rule must not replace or duplicate services that an individual currently receives through Department-contracted employment and alternative to employment services governed by OAR chapter 411, division 345.

(22) FAMILY TRAINING. Family training services are training and counseling services provided to an individual’s family to increase the family’s capability to care for, support, and maintain the individual in the home.

(a) Family training services include but are not limited to:

(A) Instruction about treatment regimens and use of equipment specified in an individual’s ISP;

(B) Information, education, and training about an individual’s disability, medical, and behavioral conditions; and

(C) Organized conferences and workshops specifically related to an individual’s disability, identified support needs, or specialized medical or behavioral support needs.

(b) Family training services may be provided in various settings by various means, including but not limited to psychologists licensed under ORS 675.030, professionals licensed to practice medicine under ORS 677.100 or nursing under ORS 678.040, social workers licensed under ORS 675.530, or counselors licensed under ORS 675.715;

(c) Family training services exclude:

(A) Mental health counseling, treatment, or therapy;

(B) Training for paid care providers;

(C) Legal fees;

(D) Training for families to carry out educational activities in lieu of school;

(E) Vocational training for family members; and

(F) Paying for training to carry out activities that constitute abuse of an adult.

(d) Prior authorization by the brokerage is required for attendance by family members at organized conferences and workshops funded with support services funds.

(23) OCCUPATIONAL THERAPY. Occupational therapy services are the services of a professional licensed under ORS 675.240 that are defined and approved for purchase under the approved state plan, except that the limitation on amount, duration, and scope in the state plan do not apply. Occupational therapy services are available to maintain an individual’s skills or physical condition when prescribed by a physician and after the service limits of the state plan have been reached, either through private or public resources.

(a) Occupational therapy services include assessment, family training, consultation, and hands-on direct therapy provided by an appropriately licensed or certified occupational therapist when there is written proof that the Oregon Health Plan service limits have been reached.

(b) Occupational therapy services exclude:

(A) Goods and services available through an individual’s private insurance or other public programs, such as the Oregon Health Plan, schools, or federal assistance programs for which an individual is eligible;

(B) Experimental therapy or treatments;

(C) Health and medical costs that the general public must pay;

(D) Legal fees; and

(E) Education services for an individual such as tuition to a school.

(24) PHYSICAL THERAPY. Physical therapy services are the services of a professional licensed under ORS 688.020 that are defined and approved for purchase under the approved state plan, except that the limitation on amount, duration, and scope in the state plan do not apply. Physical therapy services are available to maintain an individual’s skills or physical condition when prescribed by a physician and after the service limits of the state plan have been reached, either through private or public resources.

(a) Physical therapy services include assessment, family training, consultation, and hands-on direct therapy provided by an appropriately licensed or certified physical therapist when there is written proof that the Oregon Health Plan service limits have been reached.

(b) Physical therapy services exclude:

(A) Goods and services available through either an individual’s private insurance or public programs, such as the Oregon Health Plan, schools, or federal assistance programs for which an individual is eligible;

(B) Experimental therapy or treatments;

(C) Health and medical costs that the general public must pay;

(D) Legal fees; and

(E) Education services for an individual such as tuition to schools.

(25) SPEECH, HEARING, AND LANGUAGE SERVICES. Speech, hearing, and language services are the services of a professional licensed under ORS 681.250 that are defined and approved for purchase under the approved state plan, except that the limitation on amount, duration, and scope specified in the state plan do not apply. Speech, hearing, and language services are available to maintain an individual’s skills or physical condition when prescribed by a physician and after the service limits of the state plan have been reached, either through private or public resources.

(a) Speech, hearing, and language services include assessment, family training, consultation, and hands-on direct therapy provided by an appropriately licensed or certified speech therapy professional when there is written proof that the Oregon Health Plan service limits have been reached.

(b) Speech, hearing, and language services exclude:

(A) Goods and services available through either an individual’s private insurance or public programs, such as the Oregon Health Plan, schools, or federal assistance programs for which an individual is eligible;

(B) Experimental therapy or treatments;

(C) Health and medical costs that the general public must pay;

(D) Legal fees; and

(E) Education services for an individual such as tuition to schools.

(26) SPECIAL DIET. Special diets are 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.

(27) SPECIALIZED SUPPORTS. Specialized supports include treatment, training, consultation, or other unique services provided by a social or sexual consultant necessary to achieve outcomes in an individual’s ISP that are not available through state plan services or other support services listed in this rule. Specialized supports include:

(a) Assessing the needs of an individual and the individual’s family, including environmental factors;

(b) Developing a plan of support;

(c) Training care providers to implement the plan of support;

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

(e) Revising the plan of support as needed.

(28) EDUCATIONAL SERVICES. Educational services for school age individuals, such as professional instruction, formal training, and tutoring in communication, socialization, and academic skills, are not allowable expenses covered by support services funds.

(29) 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 enable the individual to freely choose to receive 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 may not 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;

(C) Interferes with community participation;

(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.

(30) 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 people, if any, specified by the individual, or as applicable the individual’s legal or designated 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;

(c) Limits of payment:

(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 an individual’s ISP.

(d) The provisions of section (31) of this rule regarding sanctions that may be imposed on providers; and

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

(31) 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 background 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, records or documentation, as requested;

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

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

(I) Falsified required documentation;

(J) Failed to comply with the provisions of section (30) of this rule or OAR 411-340-0140; or

(K) Been suspended or terminated as a provider by 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) The brokerage may withhold payments to the provider.

(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 director.

(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 the Department or by the Oregon Health Authority may not be authorized as providers of Medicaid services.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

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) Section (1) of this rule does not apply to employees of individuals, individuals’ legal representatives, employees of general business providers, or employees of provider organizations, who were hired prior to July 28, 2009 that 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 has 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 but not limited to:

(A) Medications;

(B) Health insurance co-payments;

(C) Dental treatments and appliances;

(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 are normally incurred by a person on vacation, regardless of disability, and are not strictly required by the individual’s need for personal assistance in all home and community-based 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 of 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 the individual’s 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 an individual, or as applicable the individual’s legal or designated representative, has engaged in fraud or misrepresentation, failed to use resources as agreed upon in the individual’s 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, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

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 intellectual or developmental disabilities and family members of individuals with intellectual or 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 the daily operations of the brokerage in compliance with these rules and who 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) and (2), the brokerage director must have:

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

(b) Six years of experience, including supervision, in the field of intellectual or 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;

(C) Establish and meet the time lines for payments that meet individuals’ needs;

(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 the individuals’ ISPs.

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

(c) FISCAL INTERMEDIARY QUALIFICATIONS.

(A) A fiscal intermediary may not:

(i) Be a provider of support services paid using support services 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 knowledge of the public service system for developmental disability services in Oregon and at least:

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

(B) A bachelor’s degree in any field and one year of human services related experience, such as work providing assistance to individuals and groups with issues such as economical disadvantages, employment, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, or housing; or

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

(D) Three years of human services related experience.

(b) A brokerage must submit a written variance request to the Department prior to employing a person not meeting the minimum qualifications for a personal agent set forth in subsection (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.

(i) The proposal must specify activities, timelines, and responsibility for costs incurred in completing the alternative plan.

(ii) A person who fails to complete the alternative plan for education and training to correct the 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;

(c) Identification and use of alternative support resources;

(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 receiving services and must make these records available to the Department upon request. The individual or the individual’s legal representative may access any portion of the individual’s record 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 or designated 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, for individuals who have not had a service level determined, 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 as applicable the individual’s legal or designated representative, that the individual, or as applicable the individual’s legal or designated representative, has been informed of responsibilities associated with the use of support services funds;

(f) Incident reports;

(g) The completed functional needs assessment and other assessments used to determine supports required, preferences, and resources;

(h) ISP and reviews. If an individual is unable to sign the ISP, the individual’s 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 an individual was not able to participate in the development of the ISP, the individual’s 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 a 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 the individual is missing while in the community under the service of a 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 or designated representative (as applicable). The written job description must be consistent with the individual’s ISP and must describe at a minimum:

(A) Type of service to be provided;

(B) Hours, rates, location, duration 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 the individual is missing while in the community under the service of an employee of the individual.

(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 services 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 individual receiving services;

(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’s 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 an individual’s authorized ISP.

(B) Procedures for confirming the receipt, and securing the use of, specialized equipment and supplies 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 if the item is 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 the rental structure.

(b) Any goods purchased with support services funds that are not used according to an individual’s ISP or according to an agreement securing the state’s use may be immediately recovered.

(c) Failure to furnish written documentation upon the 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 the 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 individuals, legal or designated representatives, professionals, and other sources to determine community support needs and preferences;

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

(C) Monitors:

(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 the 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 that 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 are cost-effective and best-suited to provide the services determined by the individual to be the most effective and desirable for meeting needs and circumstances represented in the individual’s 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 that the brokerage is a part of, 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, or as applicable the individual’s legal or designated representative, without bias;

(C) A process for arriving at the option for selecting a provider;

(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 that the brokerage is a part of or otherwise directly affiliated; and

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

(11) GENERAL OPERATING POLICIES AND PRACTICES. 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 the brokerage’s objectives and to meet the requirements of these rules and other applicable standards and rules.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0160

Standards for Independent Providers Paid with Support Services Funds

(1) GENERAL INDEPENDENT PROVIDER QUALIFICATIONS. Each independent provider who is paid as a contractor, a self-employed person, or an employee of an individual, or as applicable the individual’s legal or designated representative, to provide the services and supports in OAR 411-340-0130 must:

(a) Be at least 18 years of age;

(b) Have approval to work based on current Department policy and a background check completed by the Department in accordance with OAR 407-007-0200 to 407-007-0370. A subject individual as defined in 407-007-0210 may be approved for one position to work in multiple homes within the jurisdiction of the qualified entity as defined in 407-007-0210. The Department’s Background Check Request form must be completed by the subject individual to show intent to work at various homes;

(c) Effective July 28, 2009, not have been convicted of any of the disqualifying crimes listed in OAR 407-007-0275;

(d) Be legally eligible to work in the United States;

(e) Not be the spouse of an individual receiving services;

(f) Demonstrate by background, education, references, skills, and abilities that he or she is capable of safely and adequately performing the tasks specified in an individual’s ISP, with such demonstration confirmed in writing by the individual, or as applicable the individual’s legal or designated representative, and including:

(A) Ability and sufficient education to follow oral and written instructions and keep any records required;

(B) Responsibility, maturity, and reputable character exercising sound judgment;

(C) Ability to communicate with the individual; and

(D) Training of a nature and type sufficient to ensure that the provider has knowledge of emergency procedures specific to the individual receiving services.

(g) Hold a current, valid, and unrestricted appropriate professional license or certification where services and supervision requires specific professional education, training, and skill;

(h) Understand requirements of maintaining confidentiality and safeguarding individual information;

(i) Not be on the Office of Inspector General’s list of excluded or debarred providers (http://exclusions.oig.hhs.gov/); and

(j) If providing transportation, have a valid driver’s license and proof of insurance, as well as any other license or certification that may be required under state and local law, depending on the nature and scope of the transportation service.

(2) Section (1)(c) of this rule does not apply to employees of individuals, individuals’ legal or designated representatives, employees of general business providers, or employees of provider organizations, who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(3) All providers must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and 407-007-0290. The provider must notify the Department or the Department’s designee within 24 hours.

(4) BEHAVIOR CONSULTANTS. Behavior consultants providing specialized supports must:

(a) Have education, skills, and abilities necessary to provide behavior consultation services, including knowledge and experience in developing Behavior Support Plans based on positive behavioral theory and practice;

(b) Have received at least two days of training in the Oregon Intervention Services Behavior Intervention System, and have a current certificate; and

(c) Submit a resume to the brokerage indicating at least one of the following:

(A) A bachelor’s degree in special education, psychology, speech and communication, occupational therapy, recreation, art or music therapy, or a behavioral science field, and at least one year of experience with individuals who present difficult or dangerous behaviors; or

(B) Three years experience with individuals who present difficult or dangerous behaviors and at least one year of that experience includes providing the services of a behavior consultant.

(5) SOCIAL OR SEXUAL CONSULTANTS. Social or sexual consultants providing specialized supports must:

(a) Have the education, skills, and abilities necessary to provide social or sexual consultation services; and

(b) Submit a resume to the brokerage indicating at least one of the following:

(A) A bachelor’s degree in special education, psychology, social work, counseling, or other behavioral science field and at least one year of experience with individuals; or

(B) Three years experience with individuals who present social or sexual issues and at least one year of that experience includes providing the services of a social or sexual consultant.

(6) NURSE. A nurse providing community nursing services must:

(a) Have a current Oregon nursing license; and

(b) Submit a resume to the brokerage indicating the education, skills, and abilities necessary to provide nursing services in accordance with state law, including at least one year of experience with individuals.

(7) FAMILY TRAINING PROVIDERS. Providers of family training must be:

(a) Psychologists licensed under ORS 675.030;

(b) Social workers licensed under ORS 675.530;

(c) Counselors licensed under ORS 675.715; or

(d) Medical professionals licensed under ORS 677.100.

(8) DIETICIANS. Dieticians providing special diets must be licensed according to ORS 691.415 through 691.465.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1900, 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 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0170

Standards for Provider Organizations Paid with Support Services Funds

(1) PROVIDER ORGANIZATIONS WITH CURRENT LICENSE OR CERTIFICATION. A provider organization certified, licensed, and endorsed under OAR chapter 411, division 325 for 24-hour residential services, or licensed under OAR 411, division 360 for adult foster homes, or certified and endorsed under OAR 411, division 345 for employment and alternatives to employment services or OAR 411-328-0550 to 411-328-0830 for supported living services, may not require additional certification as an organization to provide relief care, supported employment, community living and inclusion supports, community transportation, specialized supports, chore services, family training, or emergent services.

(a) Current license, certification, or endorsement is considered sufficient demonstration of ability to:

(A) Recruit, hire, supervise, and train qualified staff;

(B) Provide services according to ISPs; and

(C) Develop and implement operating policies and procedures required for managing an organization and delivering services, including provisions for safeguarding individuals receiving services.

(b) Provider organizations must assure that all people directed by the provider organization as employees, contractors, or volunteers to provide services paid for with support services funds meet the standards for qualification of independent providers described in OAR 411-340-0160.

(c) Provider organizations developing new sites, owned or leased by the provider organization, that are not reviewed as a condition of the current license or certification and where individuals are regularly present and receiving services purchased with support services funds, must meet the conditions of section (2)(f) of this rule in each such site.

(2) PROVIDER ORGANIZATIONS REQUIRING CERTIFICATION. A provider organization without a current license or certification as described in section (1) of this rule must be certified as a provider organization according to OAR 411-340-0030 prior to selection for providing the services listed in 411-340-0130 and paid for with support services funds.

(a) The provider organization must develop and implement policies and procedures required for administration and operation in compliance with these rules, including but not limited to:

(A) Policies and procedures required in OAR 411-340-0040, 411-340-0050, 411-340-0070, 411-340-0080, and 411-340-0090 related to abuse and unusual incidents, inspections and investigations, personnel policies and practices, records, and variances.

(B) Individual rights. The provider organization must have, and implement, written policies and procedures that:

(i) Provide for individual participation in selection, training, and evaluation of staff assigned to provide the individual’s services;

(ii) Protect individuals during hours of service from financial exploitation that may include but is not limited to:

(I) Staff borrowing from or loaning money to individuals;

(II) Witnessing wills in which the staff or provider organization is beneficiary; or

(III) Adding the staff member’s or provider organization’s name to the individual’s bank account or other personal property without approval of the individual or the individual’s legal representative (as applicable).

(C) Complaints. The provider organization must implement written policies and procedures for individuals’ complaints. These policies and procedures must, at a minimum, provide for:

(i) Receipt of complaints from an individual or others acting on the individual’s behalf. If the complaint is associated in any way with abuse or the violation of the individual’s rights, the recipient of the complaint must immediately report the issue to the provider organization director and the CDDP;

(ii) Investigation of the facts supporting or disproving the complaint;

(iii) Taking appropriate actions on the complaint within five working days following receipt of the complaint;

(iv) Submission to the provider organization director. If the complaint is not resolved, the complaint must be submitted to the provider organization director for review. The provider organization director must complete a review and provide a written response to the individual or a person acting on the individual’s behalf within 15 days of request for review;

(v) Submission to the brokerage. All complaints received from an individual or a person acting on the individual’s behalf must be reported to the appropriate brokerage; and

(vi) Notification. Upon entry into the program and annually thereafter, the provider organization must inform each individual, or as applicable the individual’s legal or designated representative, orally and in writing, using language, format, and methods of communication appropriate for the individual’s needs and abilities, of the provider organization’s complaint policy and procedures.

(D) Policies and procedures appropriate to scope of service, including but not limited to those required to meet minimum standards set forth in subsections (f) to (k) of this section and consistent with written service agreements for individuals currently receiving services.

(b) The provider organization must deliver services according to a written service agreement.

(c) The provider organization must maintain a current record for each individual receiving services. The record must include:

(A) The individual’s name, current home address, and home phone number;

(B) A current written service agreement, signed and dated by the individual or the individual’s legal or designated representative (as applicable);

(C) Contact information for the individual’s legal or designated representative (as applicable) and any other people designated by the individual, or as applicable the individual’s legal or designated representative, to be contacted in case of incident or emergency;

(D) Contact information for the brokerage assisting the individual to obtain services; and

(E) Records of service provided, including type of services, dates, hours, and personnel involved.

(d) Staff, contractors, or volunteers who provide services to individuals must meet independent provider qualifications in OAR 411-340-0160. Additionally, those staff, contractors, or volunteers must have current CPR and first aid certification obtained from a recognized training agency prior to working alone with an individual.

(e) The provider organization must ensure that employees, contractors, and volunteers receive appropriate and necessary training.

(f) Provider organizations that own or lease sites, provide services to individuals at those sites, and regularly have individuals present and receiving services at those sites, must meet the following minimum requirements:

(A) A written emergency plan must be developed and implemented and must include instructions for staff and volunteers in the event of fire, explosion, accident, or other emergency including evacuation of individuals served.

(B) Posting of emergency information:

(i) The telephone numbers of the local fire, police department, and ambulance service, or “911” must be posted by designated telephones; and

(ii) The telephone numbers of the provider organization director and other people to be contacted in case of emergency must be posted by designated telephones.

(C) A documented safety review must be conducted quarterly to ensure that the service site is free of hazards. Safety review reports must be kept in a central location by the provider organization for three years.

(D) The provider organization must train all individuals when the individuals begin attending the service site to leave the site in response to an alarm or other emergency signal and to cooperate with assistance to exit the site.

(i) Each provider organization must conduct an unannounced evacuation drill each month when individuals are present.

(ii) Exit routes must vary based on the location of a simulated fire.

(iii) Any individual failing to evacuate the service site unassisted within the established time limits set by the local fire authority for the site must be provided specialized training or support in evacuation procedures.

(iv) Written documentation must be made at the time of the drill and kept by the provider organization for at least two years following the drill. The written documentation must include:

(I) The date and time of the drill;

(II) The location of the simulated fire;

(III) The last names of all individuals and staff present at the time of the drill;

(IV) The amount of time required by each individual to evacuate if the individual needs more than the established time limit; and

(V) The signature of the staff conducting the drill.

(v) In sites providing services to individuals who are medically fragile or have severe physical limitations, requirements of evacuation drill conduct may be modified. The modified plan must:

(I) Be developed with the local fire authority, the individual or the individual’s legal or designated representative (as applicable), and the provider organization director; and

(II) Be submitted as a variance request according to OAR 411-340-0090.

(E) The provider organization must provide necessary adaptations to ensure fire safety for sensory and physically impaired individuals.

(F) At least once every three years, the provider organization must conduct a health and safety inspection.

(i) The inspection must cover all areas and buildings where services are delivered to individuals, including administrative offices and storage areas.

(ii) The inspection must be performed by:

(I) The Oregon Occupational Safety and Health Division;

(II) The provider organization’s worker’s compensation insurance carrier; or

(III) An appropriate expert such as a licensed safety engineer or consultant as approved by the Department; and

(IV) The Oregon Health Authority, Public Health Division, when necessary.

(iii) The inspection must cover:

(I) Hazardous material handling and storage;

(II) Machinery and equipment used at the service site;

(III) Safety equipment;

(IV) Physical environment; and

(V) Food handling, when necessary.

(iv) The documented results of the inspection, including recommended modifications or changes and documentation of any resulting action taken, must be kept by the provider for five years.

(G) The provider organization must ensure that each service site has received initial fire and life safety inspections performed by the local fire authority or a Deputy State Fire Marshal. The documented results of the inspection, including documentation of recommended modifications or changes and documentation of any resulting action taken, must be kept by the provider for five years.

(H) Direct service staff must be present in sufficient number to meet health, safety, and service needs specified in the individual written agreements of the individuals present. When individuals are present, staff must have the following minimum skills and training:

(i) At least one staff member on duty with CPR certification at all times;

(ii) At least one staff member on duty with current First Aid certification at all times;

(iii) At least one staff member on duty with training to meet other specific medical needs identified in the individual service agreement; and

(iv) At least one staff member on duty with training to meet other specific behavior intervention needs as identified in individual service agreements.

(g) Provider organizations providing services to individuals that involve assistance with meeting health and medical needs must:

(A) Develop and implement written policies and procedures addressing:

(i) Emergency medical intervention;

(ii) Treatment and documentation of illness and health care concerns;

(iii) Administering, storing, and disposing of prescription and non-prescription drugs, including self-administration;

(iv) Emergency medical procedures, including the handling of bodily fluids; and

(v) Confidentiality of medical records;

(B) Maintain a current written record for each individual receiving assistance with meeting health and medical needs that includes:

(i) Health status;

(ii) Changes in health status observed during hours of service;

(iii) Any remedial and corrective action required and when such actions were taken if occurring during hours of service; and

(iv) A description of any restrictions on activities due to medical limitations.

(C) If providing medication administration when an individual is unable to self-administer medications and there is no other responsible person present who may lawfully direct administration of medications, the provider organization must:

(i) Have a written order or copy of the written order, signed by a physician or physician designee, before any medication, prescription or non-prescription, is administered;

(ii) Administer medications per written orders;

(iii) Administer medications from containers labeled as specified per physician written order;

(iv) Keep medications secure and unavailable to any other individual and stored as prescribed;

(v) Record administration on an individualized Medication Administration Record (MAR), including treatments and PRN, or “as needed”, orders;

(vi) Not administer unused, discontinued, outdated, or recalled drugs; and

(vii) Not administer PRN psychotropic medication. PRN orders may not be accepted for psychotropic medication.

(D) Maintain a MAR (if required). The MAR must include:

(i) The name of the individual;

(ii) The brand name or generic name of the medication, including the prescribed dosage and frequency of administration as contained on physician order and medication;

(iii) Times and dates the administration or self-administration of the medication occurs;

(iv) The signature of the staff administering the medication or monitoring the self-administration of the medication;

(v) Method of administration;

(vi) Documentation of any known allergies or adverse reactions to a medication;

(vii) Documentation and an explanation of why a PRN, or “as needed”, medication was administered and the results of such administration; and

(viii) An explanation of any medication administration irregularity with documentation of administrative review by the provider organization director.

(E) Provide safeguards to prevent adverse medication reactions, including:

(i) Maintaining information about the effects and side-effects of medications the provider organization has agreed to administer;

(ii) Communicating any concerns regarding any medication usage, effectiveness, or effects to the individual or the individual’s legal or designated representative (as applicable); and

(iii) Prohibiting the use of one individual’s medications by another individual or person.

(F) Maintain a record of visits to medical professionals, consultants, or therapists if facilitated or provided by the provider organization.

(h) Provider organizations that own or operate vehicles that transport individuals must:

(A) Maintain the vehicles in safe operating condition;

(B) Comply with Department of Motor Vehicles laws;

(C) Maintain insurance coverage on the vehicles and all authorized drivers;

(D) Carry a fire extinguisher and first aid kit in each vehicle; and

(E) Assign drivers who meet applicable Department of Motor Vehicles requirements to operate vehicles that transport individuals.

(i) If assisting with management of funds, the provider organization must have and implement written policies and procedures related to the oversight of the individual’s financial resources that include:

(A) Procedures that prohibit inappropriately expending an individual’s personal funds, theft of an individual’s personal funds, using an individual’s funds for staff’s own benefit, commingling an individual’s personal funds with the provider organization’s or another individual’s funds, or the provider organization becoming an individual’s legal or designated representative; and

(B) The provider organization’s reimbursement to the individual of any funds that are missing due to theft or mismanagement on the part of any staff of the provider organization, or of any funds within the custody of the provider organization that are missing. Such reimbursement must be made within 10 working days of the verification that funds are missing.

(j) Additional standards for assisting individuals to manage difficult behavior.

(A) The provider organization must have, and implement, a written policy concerning behavior intervention procedures. The provider organization must inform the individual, and as applicable the individual’s legal or designated representative, of the behavior intervention policy and procedures prior to finalizing the individual’s written service agreement.

(B) Any intervention to alter an individual’s behavior must be based on positive behavioral theory and practice and must be:

(i) Approved in writing by the individual or the individual’s legal or designated representative (as applicable); and

(ii) Described in detail in the individual’s record.

(C) Psychotropic medications and medications for behavior must be:

(i) Prescribed by a physician through a written order; and

(ii) Monitored by the prescribing physician for desired responses and adverse consequences.

(k) Additional standards for supports that involve protective physical intervention.

(A) The provider organization must only employ protective physical intervention:

(i) As part of an individual’s ISP;

(ii) As an emergency measure, but only if absolutely necessary to protect the individual or others from immediate injury; or

(iii) As a health-related protection prescribed by a physician, but only if necessary for individual protection during the time that a medical condition exists.

(B) Provider organization staff members who need to apply protective physical intervention under an individual’s service agreement must be trained by a Department-approved trainer and documentation of the training must be maintained in the staff members’ personnel file.

(C) Protective physical intervention in emergency situations must:

(i) Be only used until the individual is no longer a threat to self or others;

(ii) Be authorized by the provider organization director or the individual’s physician within one hour of application of the protective physical intervention;

(iii) Result in the immediate notification of the individual’s legal or designated representative (as applicable); and

(iv) Prompt a review of the individual’s written service agreement, initiated by the provider organization, if protective physical intervention is used more than three times in a six month period.

(D) Protective physical intervention must be designed to avoid physical injury to an individual or others and to minimize physical and psychological discomfort.

(E) All use of protective physical intervention must be documented and reported according to procedures described in OAR 411-340-0040. The report must include:

(i) The name of the individual to whom the protective physical intervention is applied;

(ii) The date, type, and length of time of the application of protective physical intervention;

(iii) The name and position of the person authorizing the use of the protective physical intervention;

(iv) The name of the staff member applying the protective physical intervention; and

(v) Description of the incident.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1910, 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 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 50-2013, f. 12-27-13, cert. ef. 12-28-13

411-340-0180

Standards for General Business Providers Paid with Support Services Funds

(1) General business providers providing services to individuals and paid with support services funds must hold any current license appropriate to function required by the state of Oregon or federal law or regulation, including but not limited to:

(a) For a home health agency, a license under ORS 443.015;

(b) For an in-home care agency, a license under ORS 443.315;

(c) For providers of environmental accessibility adaptations involving building modifications or new construction, a current license and bond as a building contractor as required by either OAR chapter 812 (Construction Contractor’s Board) or OAR chapter 808 (Landscape Contractors Board);

(d) For environmental accessibility consultants, a current license as a general contractor as required by OAR chapter 812, including experience evaluating homes, assessing the needs of an individual, and developing cost-effective plans to make homes safe and accessible;

(e) For public transportation providers, the established standards;

(f) For private transportation providers, a business license and drivers licensed to drive in Oregon;

(g) For vendors and medical supply companies providing specialized equipment and supplies, a current retail business license including enrollment as Medicaid providers through the Division of Medical Assistance Programs if vending medical equipment;

(h) A current business license for providers of personal emergency response systems; and

(i) Retail business licenses for vendors and supply companies providing special diets.

(2) Services provided and paid for with support services funds must be limited to the services within the scope of the general business provider’s license.

Stat. Auth.: ORS 409.050, 427.402 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 427.400–427.410, 430.610, 430.620 & 430.662–430.695

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 309-041-1920, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; 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 50-2013, f. 12-27-13, cert. ef. 12-28-13


Rule Caption: Pediatric Nursing Facilities — Annual Rebasing

Adm. Order No.: SPD 51-2013

Filed with Sec. of State: 12-27-2013

Certified to be Effective: 12-28-13

Notice Publication Date: 12-1-2013

Rules Amended: 411-070-0452

Rules Repealed: 411-070-0452(T)

Subject: The Department of Human Services (Department) is permanently amending OAR 411-070-0452 for pediatric nursing facilities to update the rebase relationship percentage to 93% and implement annual rebasing.

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

411-070-0452

Pediatric Nursing Facilities

(1) PEDIATRIC NURSING FACILITY.

(a) A pediatric nursing facility is a licensed nursing facility at least 50 percent of whose residents entered the facility before the age of 14 and all of whose residents are under the age of 21.

(b) A nursing facility that meets the criteria of subsection (1)(a) of this section is reimbursed as follows:

(A) The pediatric rate is a prospective rate and is not subject to settlement. The Department uses financial reports of facilities that have been in operation for at least 180 days and are in operation as of June 30.

(B) The facility specific pediatric cost per resident day is inflated by the annual change in the DRI Index as measured in the previous 4th quarter. The Oregon Medicaid pediatric days are multiplied by the inflated facility specific cost per resident day for each pediatric facility. The totals are summed and divided by total Oregon Medicaid days to establish the weighted average cost per pediatric resident day. The rebase relationship percentage of 93 percent is applied to the weighted average cost to determine the pediatric rate.

(c) Even though pediatric facilities are reimbursed in accordance with subsection (1)(b) of this section, pediatric facilities must comply with all requirements relating to the timely submission of Nursing Facility Financial Statements.

(2) LICENSED NURSING FACILITY WITH A SELF-CONTAINED PEDIATRIC UNIT.

(a) A nursing facility with a self-contained pediatric unit is a licensed nursing facility that provides services for pediatric residents (individuals under the age of 21) in a separate and distinct unit within or attached to the facility with staffing costs separate and distinct from the rest of the nursing facility. All space within the pediatric unit must be used primarily for purposes related to the services of pediatric residents and alternate uses may not interfere with the primary use.

(b) A nursing facility that meets the criteria of subsection (2)(a) of this section is reimbursed for pediatric residents served in the pediatric unit as described in section (1) of this rule.

(c) Licensed nursing facilities with a self-contained pediatric unit must comply with all requirements relating to the timely submission of Nursing Facility Financial Statements and must file a separate attachment, on forms prescribed by the Department, related to the costs of the self-contained pediatric unit.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070, OL 2011 ch. 630, & OL 2013 ch. 608

Hist.: SSD 4-1988, f. & cert. ef. 6-1-88; SSD 8-1991, f. & cert. ef. 4-1-91; SSD 14-1991(Temp), f. 6-28-91, cert. ef. 7-1-91; SSD 18-1991, f. 9-27-91, cert. ef. 10-1-91; SSD 6-1993, f. 6-30-93, cert. ef. 7-1-93; SSD 6-1995, f. 6-30-95, cert. ef. 7-1-95; SSD 6-1996, f. & cert. ef. 7-1-96; SDSD 10-1999, f.11-30-99, cert.ef. 12-1-99; SPD 9-2006, f. 1-26-06, cert. ef. 2-1-06; SPD 15-2007(Temp), f. & cert. ef. 9-10-07 thru 3-8-08; SPD 2-2008, f. 2-29-08, cert. ef. 3-1-08; SPD 15-2009, f. 11-30-09, cert. ef. 12-1-09; SPD 17-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 22-2011, f. 10-7-11, cert. ef. 11-1-11; SPD 10-2012, f. 7-31-12, cert. ef. 8-1-12; SDP 17-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 40-2013(Temp), f. 10-4-13, cert. ef. 10-7-13 thru 12-28-13; SPD 51-2013, f. 12-27-13, cert. ef. 12-28-13


Rule Caption: Proctor Care Residential Services for Individuals with Intellectual or Developmental Disabilities

Adm. Order No.: SPD 52-2013(Temp)

Filed with Sec. of State: 12-27-2013

Certified to be Effective: 1-1-14 thru 6-30-14

Notice Publication Date:

Rules Suspended: 411-335-0010, 411-335-0020, 411-335-0030, 411-335-0040, 411-335-0060, 411-335-0120, 411-335-0130, 411-335-0150, 411-335-0160, 411-335-0170, 411-335-0180, 411-335-0190, 411-335-0200, 411-335-0210, 411-335-0220, 411-335-0230, 411-335-0240, 411-335-0250, 411-335-0260, 411-335-0270, 411-335-0280, 411-335-0290, 411-335-0310, 411-335-0320, 411-335-0330, 411-335-0340, 411-335-0350, 411-335-0360

Subject: The Department of Human Services (Department) is suspending the rules in OAR chapter 411, division 335 for proctor care residential services for individuals with intellectual or developmental disabilities. Proctor care residential services were not included as a waiver or Community First Choice State plan option because of concerns regarding third party payments to proctor care providers as well as the potential for violations for the payment of bundled rates under the Social Security Act. As a result, proctor care residential services end effective January 1, 2014.

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

411-335-0010

Statement of Purpose

The rules in OAR chapter 411, division 335 prescribe administrative, policy, procedure, documentation, and personnel requirements for proctor agencies providing intensive, person focused services to individuals with developmental disabilities experiencing significant emotional, medical, or behavioral difficulties. Proctor providers are specially trained and supported by the proctor agency. Proctor providers assist the individual in a home environment to make positive changes in the individual’s adaptive skills that shall enable the individual to move to a less restrictive setting. These rules, in addition to the rules in OAR chapter 411, division 323, also prescribe standards and procedures by which the Department endorses proctor agencies to safely operate and oversee proctor care homes and provide training and support to children with developmental disabilities.

Stat. Auth.: ORS 409.050, 410.070, 427.007 & 430.215

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 1-2012, f. & cert. ef. 1-6-12; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0020

Definitions

(1) “Abuse” means abuse of a child as defined in ORS 419B.005 and for the purposes of these rules, abuse of a child also means abuse 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 in OAR 407-045-0310.

(3) “Administration of Medication” means the act of placing a medication in or on an individual’s body by a person who is responsible for the individual’s care.

(4) “Advocate” means a person other than paid staff who has been selected by the individual or by the individual’s guardian 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.

(5) “Agency Staff” means paid employees responsible for providing services to individuals whose wages or fees are paid in part or in full with funds sub-contracted with the community developmental disability program or contracted directly through the Department. For the purpose of these rules, agency staff includes skill trainers.

(6) “Aid to Physical Functioning” means any special equipment prescribed for an individual by a physician, therapist, or dietician that maintains or enhances the individual’s physical functioning.

(7) “Alternate Caregiver” means any person 18 and older responsible for the care or supervision of a child in foster care.

(8) “Baseline Level of Behavior” means the frequency, duration, or intensity of a behavior, objectively measured, described, and documented prior to the implementation of an initial or revised Behavior Support Plan. This baseline measure serves as the reference point by which the ongoing efficacy of the Individual Support Plan (ISP) is to be assessed. A baseline level of behavior is reviewed and reestablished at minimum yearly, at the time of the ISP team meeting.

(9) “Behavior Data Collection System” means the methodology specified within the individual’s Behavior Support Plan that directs the process for recording observations, interventions, and other support provision information critical to the analysis of the efficacy of the Behavior Support Plan.

(10) “Behavior Data Summary” means a document composed by the proctor provider to summarize episodes of physical intervention. The behavior data summary serves as a substitution for the requirement of individual incident reports for each episode of physical intervention.

(11) “Behavior Support Plan (BSP)” means a written strategy based on person-centered planning and a functional assessment that outlines specific instructions for proctor providers to follow, to cause an individual’s challenging behaviors to become unnecessary, and to change the provider’s own behavior, adjust environment, and teach new skills.

(12) “Board of Directors” means a group of persons formed to set policy and give directions to a proctor agency that provides residential services to individuals with developmental disabilities. A board of directors includes local advisory boards used by multi-state organizations.

(13) “Certificate” means a document issued by the Department to a proctor agency that certifies the proctor agency is eligible under the rules in OAR chapter 411, division 323 to receive state funds for the provision of endorsed proctor care residential services.

(14) “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.

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

(16) “Choice” means the individual’s and guardian’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.

(17) “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.

(18) “Competency Based Training Plan” means a written description of the proctor agency’s process for providing training to newly hired agency staff and proctor providers. At a minimum, the Competency Based Training Plan:

(a) Addresses health, safety, rights, values and personal regard, and the proctor agency’s mission; and

(b) Describes competencies, training methods, timelines, how competencies of staff are determined and documented including steps for remediation, and when a competency may be waived by the proctor agency to accommodate staff or proctor provider’s specific circumstances.

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

(20) “Contracting Entity” means the community developmental disability program or proctor agency contracting with the Department.

(21) “Crisis” means:

(a) A situation as determined by a qualified services coordinator 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(2) are present for which no appropriate alternative resources are available.

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

(23) “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.

(24) “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”.

(25) “Direct Nursing Service” means the provision of individual-specific advice, plans, or interventions, based on nursing process as outlined by the Oregon State Board of Nursing, by a nurse at the home or facility. Direct nursing service differs from administrative nursing services. Administrative nursing services include non-individual-specific services, such as quality assurance reviews, authoring health related agency policies and procedures, or providing general training for staff.

(26) “Educational Surrogate” means a person who acts in place of a parent in safeguarding a child’s rights in the special education decision-making process:

(a) When the parent cannot be identified or located after reasonable efforts;

(b) When there is reasonable cause to believe that the child has a disability and is a ward of the state; or

(c) At the request of a parent or adult student.

(27) “Endorsement” means authorization to provide proctor care residential services issued by the Department to a certified proctor agency that has met the qualification criteria outlined in these rules and the rules in OAR chapter 411, division 323.

(28) “Entry” means admission to a Department-funded developmental disability service. For the purpose of these rules, “entry” means admission to a proctor provider home certified by the Department as described in OAR chapter 411, division 346.

(29) “Executive Director” means the person designated by a board of directors or corporate owner that is responsible for the administration of proctor care residential services.

(30) “Exit” means either termination from a Department-funded developmental disability proctor agency or transfer from one Department-funded proctor agency to another.

(31) “Foster Care” for the purpose of these rules means 24-hour substitute care for children in a foster home that is contracted with the proctor agency and certified by the Department as described in OAR chapter 411, division 346.

(32) “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.

(33) “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.

(34) “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.

(35) “Incident Report” means a written report of any injury, accident, acts of physical aggression, or unusual incident involving an individual.

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

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

(38) “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.

(39) “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.

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

(41) “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.

(42) “Legal Representative” means the parent, if the individual is under age 18, unless the court appoints another person or agency to act as guardian.

(43) “Majority Agreement” means for purposes 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. Agency staff, proctor providers, families, the services coordinator, or advocacy agencies are considered as one member of the ISP team for the purpose of reaching majority agreement.

(44) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who, 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 of this rule, OAR 411-335-0020, except that a psychiatrist, psychologist, clergy, attorney, or guardian ad litem appointed under ORS 419B.231 is not required to report if the communication is privileged under ORS 40.225 to 40.295.

(45) “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, and that restricts freedom of movement or access to the individual’s body.

(46) “Medicaid Agency Identification Number” means the numeric identifier assigned by the Department to a service provider following the service provider’s enrollment as described in OAR chapter 411, division 370.

(47) “Medicaid Performing Provider Number” means the numeric identifier assigned to an entity or person by the Department, following enrollment to deliver Medicaid funded services as described in OAR chapter 411, division 370. The Medicaid Performing Provider Number is used by the rendering service provider for identification and billing purposes associated with service authorizations and payments.

(48) “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.

(49) “Modified Diet” means the texture or consistency of food or drink is altered or limited. Examples include but are not limited to no nuts or raw vegetables, thickened fluids, mechanical soft, finely chopped, pureed, or bread only soaked in milk.

(50) “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.

(51) “Nursing Care Plan” means a plan of care 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 or delegated to the provider and staff.

(52) “Oregon Core Competencies” means:

(a) A list of skills and knowledge for newly hired staff and proctor providers in the areas of health, safety, rights, values and personal regard, and the proctor agency’s mission; and

(b) The associated timelines in which newly hired staff and proctor providers must demonstrate competencies.

(53) “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 protective physical intervention techniques that are used to maintain health and safety.

(54) “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

(C) Identify, use, and strengthen naturally occurring opportunities for support at home and in the community.

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

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

(56) “Proctor Agency” means a public or private community agency or organization that provides recognized developmental disability services and is certified and endorsed by the Department to provide these services under these rules and the rules in OAR chapter 411, division 323. For the purpose of these rules, “agency” or “program” is synonymous with “proctor agency”.

(57) “Proctor Care Services” means a comprehensive residential program endorsed by the Department to provide intensive individually focused contracted foster care, training, and support to individuals with developmental disabilities experiencing emotional, medical, or behavioral difficulties.

(58) “Proctor Provider” means the certified care provider who resides at a child foster home for individuals with developmental disabilities certified by the Department as described in OAR chapter 411, division 346.

(59) “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.

(60) “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.

(61) “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”.

(62) “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.

(63) “Respite” means intermittent services provided on a periodic basis, but not more than 14 consecutive days, for the relief of, or due to the temporary absence of, persons normally providing the supports to individuals unable to care for themselves.

(64) “Self-Administration of Medication” means the individual manages and takes his or her own medication, identifies his or her own 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 the written order of a physician, and safely maintains the medication without supervision.

(65) “Services” mean supportive services, including but not limited to supervision, protection, and assistance in bathing, dressing, grooming, eating, management of money, transportation, or recreation. Services also includes being aware of the individual’s general whereabouts at all times and monitoring the activities of the individual to ensure the individual’s health, safety, and welfare. The term “services” is synonymous with “care”.

(66) “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, and monitor Individual Support Plan services, and to act as a proponent for individuals with developmental disabilities.

(67) “Significant Other” means a person selected by the individual and guardian to be the individual’s friend.

(68) “Specialized Diet” means that the amount, type of ingredients, or selection of food or drink items is limited, restricted, or otherwise regulated under a physicians order. Examples include but are not limited to low calorie, high fiber, diabetic, low salt, lactose free, or low fat diets. A specialized diet does not include a diet where extra or additional food is offered without physician’s orders but may not be eaten, for example, offer prunes each morning at breakfast or include fresh fruit with each meal.

(69) “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.

(70) “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 subject to change with time and circumstances.

(71) “These Rules” mean the rules in OAR chapter 411, division 335.

(72) “Transfer” means movement of an individual from one proctor provider to another within the same county administered by the same proctor agency.

(73) “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 assure health and safety, and the assessments and consultations necessary for ISP development.

(74) “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, or any incident requiring an abuse investigation.

(75) “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 proctor provider or proctor agency.

(76) “Volunteer” means any person assisting a proctor provider or the proctor agency without pay to support the services provided to an individual.

Stat. Auth.: ORS 409.050, 410.070, 427.007 & 430.215

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; 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 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 1-2012, f. & cert. ef. 1-6-12; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0030

Management and Personnel Practices

(1) PROCTOR AGENCY.

(a) CERTIFICATION, ENDORSEMENT, AND ENROLLMENT. To provide proctor care residential services, a proctor agency must have:

(A) A certificate and an endorsement to provide proctor care residential services as set forth in OAR chapter 411, division 323;

(B) A Medicaid Agency Identification Number assigned by the Department as described in OAR chapter 411, division 370; and

(C) For each specific geographic service area where proctor care residential services shall be delivered, a Medicaid Performing Provider Number assigned by the Department as described in OAR chapter 411, division 370.

(b) INSPECTIONS AND INVESTIGATIONS. The proctor agency must allow inspections and investigations as described in OAR 411-323-0040.

(c) AGENCY MANAGEMENT AND PERSONNEL PRACTICES. The proctor agency must comply with the agency management and personnel practices as described in OAR 411-323-0050.

(d) COMPETENCY BASED TRAINING PLAN. The proctor agency must have and implement a Competency Based Training Plan that meets, at a minimum, the competencies and timelines set forth in the Department’s Oregon Core Competencies.

(e) PERSONNEL FILES AND QUALIFICATION RECORDS. The proctor agency must maintain written documentation kept current that the staff member and proctor provider has demonstrated competency in areas identified by the proctor agency’s Competency Based Training Plan as required by OAR 411-335-0030(1)(d) of this section, and that is appropriate to their job.

(f) POLICIES AND PROCEDURES. The proctor agency must implement policies and procedures to:

(A) Assure support, health, safety, and crisis response for individuals served, including policies and procedures to assure training of agency staff and proctor providers.

(B) Assure that provider payment and agency support is commensurate to the support needs of individuals enrolled in proctor care services. Policies and procedures must include frequency of review.

(C) Assure support, health, safety, and crisis response for individuals placed in all types of respite care, including policies and procedures to assure training of respite care providers. The types of respite care include but are not limited to:

(i) Respite care in the proctor provider’s home during day hours only;

(ii) Respite care in the home of someone other than the proctor provider for day time only;

(iii) Overnight care in the proctor provider’s home; and

(iv) Overnight care at someone other than the proctor provider’s home.

(D) Review and document that each child enrolled in proctor care services continues to require such services. Policies and procedures must include frequency of review and the criteria as listed below.

(i) The child’s need for a formal Behavior Support Plan based on the Risk Tracking Record and functional assessment of the behavior.

(ii) The child has been stable and generally free of serious behavioral or delinquency incidents for the past 12 months.

(iii) The child has been free of psychiatric hospitalization (hospital psychiatric unit, Oregon State Hospital, and sub acute) for the last 12 months, except for assessment and evaluation.

(iv) The child poses no significant risk to self or community.

(v) The proctor provider has not needed or utilized the proctor agency’s crisis services in response to the child’s medical, mental health, or behavioral needs more than one time in the past 12 months.

(vi) The proctor provider is successfully supporting the child over time, with a minimum of proctor agency case management contact other than periodic monitoring and check in.

(vii) The proctor provider does not require professional support for the child, and there has been or may be a reduction in ongoing weekly professional support for the child including consultation, skill training, and staffing.

(viii) The proctor agency is not actively working with the child’s family to return the child to the family home.

(g) RESPONSIBILITIES. The proctor agency must:

(A) Assure that preliminary certification for the proctor provider is completed per the relevant foster care statutes and OAR chapter 411, divisions 346. Such work must be submitted to the Department for final review and approval.

(B) Complete an initial home study for all proctor provider applicants that is updated at the certification renewal for all certified proctor providers.

(C) Provide and document training and support for agency staff, proctor providers, subcontractors, volunteers, and respite providers:

(i) To maintain the health and safety of the individuals served.

(ii) To implement the ISP process, including completion of a Risk Tracking Record, development of protocols and BSP for each individual served, and the development of the ISP.

(D) Have a plan for emergency back-up for proctor providers including but not limited to use of crisis respite, other proctor homes, additional staffing, and behavior support consultations.

(E) Coordinate and document entries, exits, and transfers.

(F) Report to the Department, and the CDDP, any placement changes due to a Crisis Plan made outside of normal working hours. Notification must be made by 9:00 a.m. of the first working day after the change has happened.

(G) Assure that each proctor provider has a current Emergency Disaster Plan on file in the proctor provider home, in the proctor agency office, and provided to the CDDP and the individual’s services coordinator if not an employee of the local CDDP.

(H) Assure emergency backup in the event the proctor provider is unavailable.

(2) QUALIFICATIONS FOR PROCTOR AGENCY STAFF AND PROCTOR PROVIDERS INCLUDING SUBCONTRACTORS AND VOLUNTEERS. Any agency staff including skill trainers, respite providers, substitute caregivers, subcontractors, and volunteers must meet the following criteria:

(a) Be at least 18 years of age and have a valid social security card.

(b) Have approval to work based on Department policies and a background check completed by the Department in accordance with OAR 407-007-0200 to 407-007-0370 and OAR 411-323-0050.

(c) Disclose any founded reports of child abuse or substantiated abuse.

(d) Be literate and capable of understanding written and oral orders, be able to communicate with individual’s physicians, services coordinators, and appropriate others, and be able to respond to emergency situations at all times.

(e) Have met the basic qualification in the agency’s Competency Based Training Plan.

(3) GENERAL REQUIREMENTS FOR SAFETY AND TRAINING. All proctor providers, substitute caregivers, respite providers, child care providers, agency staff, and volunteers having contact with an individual, except for those providing services in a crisis situation, must:

(a) Receive training specific to the individual. This training must at a minimum consist of basic information on environment, health, safety, ADLs, positive behavioral supports, and behavioral needs for the individual, including the ISP, BSP, required protocols, and any emergency procedures. Training must include required documentation for health, safety, and behavioral needs of the individual.

(b) Receive OIS training. OIS certification is required if physical intervention is likely to occur as part of the BSP. Knowledge of OIS principles, not certification, is required if it is unlikely that protective physical intervention shall be required.

(c) Receive mandatory reporter training.

(d) Receive confidentiality training.

(e) Be at least 18 years of age and have a valid social security card.

(f) Be cleared by the Department’s background check requirements in OAR 407-007-0200 to 407-007-0370 and 411-323-0050.

(g) Receive training in applicable agency policies and procedures.

(4) PROCTOR PROVIDERS.

(a) Proctor providers must:

(A) Meet all the standards in these rules and the rules in OAR chapter 411, division 346;

(B) Must have knowledge of these rules and the rules in OAR chapter 411, division 346; and

(C) Must receive and maintain current First Aid and CPR training.

(b) Any home managed and contracted to serve children with developmental disabilities by a proctor agency must be certified by the Department as a foster home for children with developmental disabilities in accordance with OAR chapter 411, division 346.

(5) SKILLS TRAINERS, ADVISORS, OR OTHER AGENCY STAFF. Skills trainers, advisors, or other agency staff must:

(a) Receive and maintain current First Aid and CPR training;

(b) Must have knowledge of these rules and the rules in OAR chapter 411, division 346;

(c) Anyone age 18 or older, living in an agency staff members uncertified home must have an approved Department background check per OAR 407-007-0200 to 407-007-0370 and as described in 411-323-0050, prior to any visit of an individual to the staff member’s home.

(d) Assure health and safety guidelines for alternative caregivers including but not limited to the following:

(A) The home and premises must be free from objects, materials, pets, and conditions that constitute a danger to the occupants and the home and premises must be clean and in good repair.

(B) Any sleeping room used for an individual in respite must be finished, attached to the house, and not a common living area, closet, storage area, or garage. If a child is staying overnight, the sleeping arrangements must be safe and appropriate to the individual’s age, behavior, and support needs.

(C) The home must have tubs or showers, toilets, and sinks that are operable and in good repair with hot and cold water.

(D) The alternative caregivers must have access to a working telephone in the home, and must have a list of emergency telephone numbers and know where the numbers are located.

(E) All medications, poisonous chemicals, and cleaning materials must be stored in a way that prevents the individuals from accessing them, unless otherwise addressed in an individual’s ISP.

(F) Firearms must be stored unloaded. Firearms and ammunition must be stored in separate locked locations. Loaded firearms must never be carried in any vehicle while it is being used to transport an individual.

(G) First aid supplies must be available in the home and in the vehicles used to transport an individual.

(6) RESPITE PROVIDERS.

(a) If respite is being provided in the proctor provider’s home day or night, the respite provider must be trained on the:

(A) Basic health needs of the individuals in service; and

(B) Basic safety in the home including but not limited to first aid supplies, the Emergency Plan, and the Fire Evacuation Plan.

(b) If respite is being provided in a home other than the proctor provider’s home day or night, the respite provider must assure health and safety guidelines for alternative caregivers, including but not limited to:

(A) The home and premises must be free from objects, materials, pets, and conditions that constitute a danger to the occupants and the home and premises must be clean and in good repair.

(B) Any sleeping room used for an individual in respite must be finished, have a window that may be opened, be attached to the house, and not a common living area, storage area, closet, or garage. If the individual is staying overnight, the sleeping arrangements must be safe and appropriate to the individual’s age, behavior, and support needs.

(C) The home must have tubs or showers, toilets, and sinks that are operable and in good repair with hot and cold water.

(D) The alternative caregivers must have access to a working telephone in the home and must have a list of emergency telephone numbers and know where the numbers are located.

(E) All medications, poisonous chemicals, and cleaning materials must be stored in a way that prevents an individual from accessing them.

(F) Firearms must be stored unloaded. Firearms and ammunition must be stored in separate locked locations. Loaded firearms must never be carried in any vehicle while it is being used to transport an individual.

(G) First aid supplies must be available in the home and in the vehicles used to transport individuals.

(7) DAY CARE AND CAMP. When a child is cared for by a child care provider, camp, or child care center, the proctor agency must assure that the camp, provider home, or center is certified, licensed, or registered as required by the Child Care Division (ORS 657A.280). The proctor agency must also assure that the ISP team is in agreement with the plan for the child to attend the camp, child care center, or child care provider home.

(8) SOCIAL ACTIVITIES FOR LESS THAN 24 HOURS, INCLUDING OVERNIGHT ARRANGEMENTS. The proctor agency must assure:

(a) The person providing care is capable of assuming all care responsibilities and shall be present at all times.

(b) The ISP team is in agreement with the planned social activity.

(c) The proctor provider maintains back-up responsibilities for the individual in service.

(9) GENERAL CRISIS REQUIREMENTS FOR INDIVIDUALS ALREADY IN PROCTOR AGENCY HOMES.

(a) Crisis service providers must:

(A) Be at least 18 years of age.

(B) Have initial and annual approval to work based on current Department policies and procedures for review of background checks per OAR 407-007-0200 to 407-007-0370 and as described in OAR 411-323-0050, prior to supervising any individual. Providers must also have a child welfare check completed on an annual basis.

(C) Upon placement of the individual, have knowledge of the individual’s needs. This knowledge must consist of basic information on health, safety, ADLs, and behavioral needs for the individual, including the ISP, BSP, and required protocols. Be trained on required documentation for health, safety, and behavioral needs of the individual.

(b) The proctor agency must:

(A) Make follow-up contact with the crisis provider within 24 hours of the placement to assess and assure the individual’s and provider’s support needs are met.

(B) Initiate transition planning with the ISP team and document the plan within 72 hours.

(10) MANDATORY ABUSE REPORTING. Proctor agency staff and providers are mandatory reporters. Upon reasonable cause to believe that abuse has occurred, all members of the household and any proctor providers, substitute caregivers, agency staff, independent contractors, or volunteers must report pertinent information to the Department, the CDDP, or law enforcement. For reporting purposes the following shall apply:

(a) Notification of mandatory reporting status must be made at least annually to all proctor providers, agency employees, substitute caregivers, subcontractors, and volunteers, on forms provided by the Department.

(b) All agency employees and proctor providers must be provided with a Department produced card regarding abuse reporting status and abuse reporting requirements.

(11) CONFIDENTIALITY OF RECORDS.

(a) The proctor agency must ensure all individuals’ records are confidential as described in OAR 411-323-0060.

(b) The proctor agency, proctor provider, and the proctor provider’s family must treat personal information about an individual or an individual’s family in a confidential manner. Confidential information is to be used and disclosed in accordance with OAR 407-014-0020 only on a need to know basis to law enforcement, services coordinators, the Department including child protective services staff and child welfare caseworkers, the CDDP, Office of Investigations and Training investigators, and medical professionals who are treating or providing services to the individual. The information shared must be limited to the health, safety, and service needs of the individual.

(c) The proctor agency, proctor provider, and the proctor provider’s family must comply with the provisions of ORS 192.518 to 192.523 and OAR 407-014-0020 and therefore may use or disclose an individual’s protected health information as defined in OAR 407-014-0000 only:

(A) To law enforcement, the Department, or the CDDP;

(B) As authorized by the individual’s guardian including but not limited to a guardian appointed under ORS 125.305, 419C.481, or 419C.555;

(C) For purposes of obtaining healthcare and treatment of the individual;

(D) For purposes of obtaining payment for health care treatment; or

(E) As permitted or required by state or federal law or by order of a court.

(d) The proctor agency and the proctor provider must keep all written records for each individual in a manner that assures their confidentiality.

(12) DOCUMENTATION REQUIREMENTS. All entries required by these rules, unless stated otherwise must:

(a) Be prepared at the time, or immediately following the event being recorded;

(b) Be accurate and contain no willful falsification;

(c) Be legible, dated, and signed by the person making the entry;

(d) Be maintained for no less than five years; and

(e) Be made readily available for the purposes of inspection.

Stat. Auth.: ORS 409.050, 410.070, 427.007 & 430.215

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; 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 5-2011(Temp), f. & cert. ef. 2-7-11 thru 8-1-11; SPD 13-2011, f. & cert. ef. 7-1-11; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 1-2012, f. & cert. ef. 1-6-12; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0040

Safety: Staffing Requirements

General Staffing Requirements. Each proctor agency must assure that the appropriate number of agency staff, proctor providers, respite providers and support staff are available to meet the safety needs and identified ISP goals for individuals served.

Stat. Auth.: ORS 409.050, 410.070, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0060

Admittance of Individuals

(1) A proctor agency or home contracted with the proctor agency must have prior written consent of the Department or the Department’s designee to admit individuals to a home whose care needs or age exceed the home’s certificate or would violate conditions on the certificate.

(2) A proctor agency or home contracted with the proctor agency must have Department approval to admit or continue to serve children whose numbers exceed the capacity on the proctor provider’s child foster home certificate.

(3) A proctor agency or home contracted to provide proctor services may not admit or continue to provide proctor services to children who may be safely and appropriately supported in foster care, if available, or the individual’s family home.

(4) A proctor agency or home contracted with the proctor agency may not admit an individual from another funding source without first determining that the care and safety needs of all individuals in the home may be maintained, and that there is prior written approval from the placing agency and the CDDP where the foster home is located.

Stat. Auth.: ORS 410.070, 409.050, 427.005-427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 1-2012, f. & cert. ef. 1-6-12; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0120

Variances

(1) The Department may grant a variance to these rules based upon a demonstration by the proctor agency that an alternative method or different approach provides equal or greater program effectiveness and does not adversely impact the welfare, health, safety, or rights of individuals.

(2) The proctor agency requesting a variance must submit, in writing, an application either to the Department’s Residential Services Coordinator or the CDDP whichever entity holds the contract for proctor services. Variance applications must at a minimum contain the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept, or procedure proposed; and

(d) If the variance applies to an individual’s services, evidence that the variance is consistent with an individual’s currently authorized ISP.

(3) The manager or designee of the contracting entity must forward the signed variance request form to the Department within 30 days of receipt of the request indicating its position on the proposed variance. If the variance request affects more than one contracting entity, the variance must be reviewed and signed by each contracting entity.

(4) The Department shall approve or deny the request for a variance.

(5) The Department’s decision shall be sent to the proctor agency, the contracting entity, and to all relevant Department programs or offices within 30 calendar days of the receipt of the variance request.

(6) The proctor agency may appeal the denial of a variance request within 10 working days of the denial, by sending a written request for review to the Director and a copy of the request to either the Department’s Residential Services Coordinator or the CDDP whichever entity holds the contract for proctor services. The Director’s decision is final.

(7) The Department shall determine the duration of the variance.

(8) The proctor agency or proctor provider may implement a variance only after written approval from the Department.

Stat. Auth.: ORS 410.070, 409.050, 427.005-427.007, 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 1-2012, f. & cert. ef. 1-6-12; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0130

Direct Contracted Services

For purposes of this rule OAR chapter 411, division, 335, Proctor Agencies directly contracting services with the Department will submit required documentation for children’s services to the SPD Residential Services Coordinator, in addition to the CDDP services coordinator, unless otherwise specified.

Stat. Auth.: ORS 410.070, 409.050, 427.005-427.007, 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0150

Rights: General

(1) Abuse prohibited. Individuals must not be abused, nor will abuse be tolerated by any foster provider, agency employee, alternate or substitute caregiver, respite provider, contractor or volunteer of the agency.

(2) Protection and well-being. The agency must assure the health and safety of individuals from abuse including the protection of individual’s rights, as well as, encouraging and assisting individuals through the ISP process to understand and exercise these rights. With the exception of individuals under the age of 18, where a parent or guardian has placed reasonable limitations, these rights must, at a minimum, provide for:

(a) Assurance that each individual has the same civil and human rights accorded to other citizens of the same age except when limited by a court order;

(b) Adequate food, housing, clothing, medical and health care;

(c) Visits and communication with family members, guardians, friends, advocates and others of the individual’s choosing, as well as legal and medical professionals; unless limited due to legal process;

(d) Confidential communication including personal mail and telephone;

(e) Personal property and fostering of personal control and freedom regarding that property;

(f) Privacy in all matters that do not constitute a documented health and safety risk to the individual;

(g) Protection from abuse and neglect, including freedom from unauthorized training, treatment and chemical or mechanical or physical interventions or restraints;

(h) Freedom to choose whether or not to participate in religious activity;

(i) The opportunity to vote for individuals over the age of 18 and training in the voting process;

(j) Expression of sexuality within the framework of State and Federal Laws, and, for adults over the age of 18, the freedom to marry and to have children;

(k) Access to community resources, including recreation, agency services, employment and community inclusion services, school, educational opportunities and health care resources;

(l) Individual choice for children and adults that allows for decision-making and control of personal affairs appropriate to age;

(m) Services, which promote independence, dignity and self-esteem and reflect the age and preferences of the individual child or adult;

(n) Individual choice for adults to consent to or refuse treatment unless incapable and then an alternative decision maker is allowed to consent or refuse. For children, consent to or refusal of treatment by the child’s parent or guardian except as defined in statute (ORS 109.610) or limited by court order;

(o) Individual choice to participate in community activities, except where limited by a court order;

(p) Access to a free and appropriate education for children and individuals under the age of 21 including a procedure for school attendance or refusal to attend.

(3) Policies and procedures. The agency must have and implement written policies and procedures that protect an individual’s rights as listed in OAR chapter 411, division 335.

(4) Notification of policies and procedures. The agency must inform each individual and parent or guardian orally and in writing of their rights and a description of how to exercise these rights. This must be completed at entry to the program and in a timely manner thereafter as changes occur. Information must be presented using language, format, and methods of communication appropriate to the individual’s and family/guardian’s needs and abilities.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0160

Rights: Behavior Support

(1) Written policy required. The agency must implement a written policy for behavior support that utilizes individualized positive behavior support techniques and prohibits abusive practices.

(2) Development of an individualized plan to alter an individual’s behavior. A decision to develop a plan to alter an individual’s behavior must be made by the ISP team, and must be based on the Risk Tracking Record. Documentation of the ISP team decision must be maintained by the agency.

(3) Functional assessment required. The agency must conduct a functional assessment of the behavior, which must be based upon information provided by one or more persons who know the individual. The functional assessment must include:

(a) A clear, measurable description of the behavior that includes frequency, duration and intensity of the behavior;

(b) A clear description and justification of the need to alter the behavior;

(c) An assessment of the meaning of the behavior, which includes the possibility that the behavior is one or more of the following:

(A) An effort to communicate;

(B) The result of medical conditions;

(C) The result of psychiatric conditions; and

(D) The result of environmental causes or other factors.

(d) A description of the context in which the behavior occurs; and

(e) A description of what currently maintains the behavior.

(4) BSP requirements. The BSP must include:

(a) An individualized summary of the individual’s needs, preferences and relationships;

(b) A summary of the function(s) of the behavior, (as derived from the functional assessment);

(c) Strategies that are related to the function(s) of the behavior and are expected to be effective in reducing problem behaviors;

(d) Prevention strategies including environmental modifications and arrangement(s);

(e) Early warning signals or predictors that may indicate a potential behavioral episode and a clearly defined plan of response;

(f) A general crisis response plan that is consistent with the Oregon Intervention System (OIS).

(g) A plan to address post crisis issues;

(h) A procedure for evaluating the effectiveness of the plan that includes a method of collecting and reviewing data on frequency, duration and intensity of the behavior;

(i) Specific instructions for agency staff to follow regarding the implementation of the plan; and

(j) Positive behavior supports that includes the least intrusive intervention possible.

(5) Additional documentation requirements for implementation of behavioral support plans. The agency must maintain the following additional documentation for implementation of behavioral support plans:

(a) Written evidence that the individual, guardian or legal representative (if applicable) and the ISP team are aware of the development of the plan and any objections or concerns have been documented;

(b) Written evidence of the ISP team decision for approval of the implementation of the BSP; and

(c) Written evidence of all informal and positive strategies used to develop an alternative behavior.

(6) Notification of policies and procedures. The agency must inform each individual and guardian of the behavior support policy and procedures at the time of entry to the program and as changes occur.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0170

Rights: Physical Intervention

(1) Circumstances allowing the use of physical intervention. The agency must assure that agency staff and foster providers employ only physical intervention techniques that are included in the current approved OIS curriculum or as approved by the OIS Steering Committee. Physical intervention techniques must only be applied:

(a) When the health and safety of the individual or others is at risk, and the ISP team has authorized the procedures as documented by an ISP team decision, included in the ISP and the procedures are intended to lead to less restrictive intervention strategies; or

(b) As an emergency measure, if absolutely necessary, to protect the individual or others from immediate injury; or

(c) As a health related protection prescribed by a physician, if absolutely necessary during the conduct of a specific medical or surgical procedure, or for the individual’s protection during the time that a medical condition exists.

(2) Staff and training. Agency staff members and foster providers who support individuals with a history of behavior that may require the application of physical intervention, and the ISP team has determined that there is probable cause for future application of physical intervention, must be trained by an instructor certified in the Oregon Intervention System (OIS). Documentation verifying such training must be maintained in the personnel file.

(3) Modification of OIS physical intervention procedures. The program must obtain the approval of the OIS Steering Committee for any modification of standard OIS physical intervention technique(s). The request for modification of physical intervention technique(s) must be submitted to the OIS Steering Committee and must be approved in writing by the OIS Steering Committee prior to the implementation of the modification. Documentation of the approval must be maintained in the individual’s record.

(4) Physical intervention techniques in emergency situations. Use of physical intervention techniques that are not part of an approved plan of behavior support in emergency situations must:

(a) Be reviewed by the agency’s executive director or designee within one hour of application. Review will verify the following:

(A) The physical intervention was used in an emergency and only until the individual was no longer an immediate threat to self or others.

(B) An incident report is prepared and submitted within one working day to the Services Coordinator and the individual’s guardian.

(C) Determine the need for an ISP team meeting if the emergency intervention is used three times in a six-month period.

(5) Incident report. Any use of any physical intervention must be documented in an incident report. Agency staff or proctor providers or other support staff who are involved in the incident, or who have witnessed the event, must write the report. The report must include:

(a) The name of the individual to whom the physical intervention was applied;

(b) The date, type, and length of time the physical intervention was applied;

(c) A description of the incident precipitating the need for the use of the physical intervention;

(d) Documentation of any injury;

(e) The name and position of the agency staff member(s) or proctor provider(s) applying the physical intervention;

(f) The name(s) and position(s) of the agency staff or proctor provider(s) witnessing the physical intervention;

(g) The name and position of the person providing the initial review of the use of the physical intervention; and

(h) Documentation of an administrative review that includes the follow-up to be taken to prevent a recurrence of the incident by the director or his/her designee who is knowledgeable in OIS, as evident by a job description that reflects this responsibility.

(6) Copies submitted. A copy of the incident report must be forwarded to the Services Coordinator and the legal guardian within five working days of the incident,

(a) Copies of incident reports will not be provided to a legal guardian, personal or other service providers, when the report is part of an abuse or neglect investigation.

(b) Copies provided to a legal guardian, personal agent, or other service provider must have confidential information about other individuals removed or redacted as required by federal and state privacy laws.

(c) All interventions resulting in injuries must be documented in an incident report and forwarded to the Services Coordinator and the legal guardian within one working day of the incident.

(7) Behavior data summary. The program may substitute a behavior data summary in lieu of individual incident reports when:

(a) There is no injury to the individual or others.

(b) The intervention utilized is not a physical restraint.

(c) There is a formal written functional assessment and written behavioral support plan.

(d) The individual’s behavior support plan defines and documents the baseline level of behavior.

(e) The physical intervention technique(s), and the behavior(s) for which they are applied remain within the parameters outlined in the individual’s behavior support plan and OIS curriculum.

(f) The behavior data collection system for recording observation, intervention and other support information critical to the analysis of the efficacy of the behavior support plan, is also designed to record items as required in support in OAR 411-325-0350(5)(a)–(c) and (e)–(h).

(g) There is written documentation of an ISP team decision that a behavior data summary had been authorized for substitution in lieu of incident reports.

(8) Copy to Services Coordinator. A copy of the behavior data summary must be forwarded to the Services Coordinator, Department designee, and the individual’s legal guardian every thirty days.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007, 430.215

Stats. Implemented: ORS 430.021(4), 430.610-430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0180

Rights: Psychotropic Medications and Medications for Behavior

(1) Requirements. Psychotropic medications and medications for behavior must be:

(a) Prescribed by physician or health care provider through a written order; and

(b) Monitored by the prescribing physician, ISP team and program for desired responses and adverse consequences.

(2) Balancing test. When medication is first prescribed and annually thereafter, the provider must obtain a signed balancing test from the prescribing health care provider using the DHS Balancing Test Form or by inserting the prescribed form content into the provider’s agency forms. Providers must present the physician or health care provider with a full and clear description of the behavior and symptoms to be addressed, as well as any side effects observed.

(3) Documentation requirements. The provider must keep signed copies of these forms in the individual’s medical record for seven years.

Stat. Auth.: ORS 409.050, 410.070, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0190

Safety: Incident Reports and Emergency Notifications

(1) Incident reports. A written report that describes any injury, accident, act of physical aggression or unusual incident involving an individual must be placed in the individual’s record. The agency staff or proctor provider who was involved in the incident must write the incident report. Someone who witnessed the event may also write the report. The report must include:

(a) Conditions prior to or leading to the incident.

(b) A description of the incident.

(c) Agency staff or proctor provider response at the time.

(d) Administrative review to include the follow-up to be taken to prevent a recurrence of the incident.

(2) Sent to guardian and Services Coordinator. Copies of all unusual incident reports must be sent to the individual’s Services Coordinator within five working days of the incident. Upon request of the guardian, copies of incident reports will be sent to the guardian within five working days of the incident. Such copies must have any confidential information about other individuals removed or redacted as required by federal and state privacy laws. Copies of incident reports will not be provided to a guardian when the report is part of an abuse or neglect investigation.

(3) Immediate notification of allegations of abuse and abuse investigations. The program must notify the CDDP or the Department, if the Department holds the direct contract, immediately of an incident or allegation of abuse falling within the scope of OAR 411-320-0020(1)(a)(A)–(G), (b)(A)–(E), and (c)(A)–(H). When an abuse investigation has been initiated, the contracting entity will assure that either the Services Coordinator or the program will also immediately notify the individual’s legal guardian or conservator. The parent who is not the guardian, next of kin or other significant person may also be notified unless the adult requests the parent, next of kin or other significant person not be notified about the abuse investigation or protective services, or notification has been specifically prohibited by law.

(4) Immediate notification for serious illness, injury or death. In the case of a serious illness, injury or death of an individual, the program must immediately notify:

(a) The individual’s guardian or conservator, parent, next of kin or other significant person;

(b) The CDDP and the Department, if the Department holds the direct contract.

(c) Any agency responsible for or providing services to the individual.

(5) Emergency notification. In the case of an individual who is away from the residence, without support beyond the time frames established by the ISP team, the program must immediately notify:

(a) The individual’s guardian, if any, or nearest responsible relative;

(b) The individual’s designated contact person;

(c) The local police department; and

(d) The CDDP and the Department, if the Department holds the direct contract.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0200

Rights: Individuals’ Personal Property

Record of personal property. The program must ensure that individual written records of personal property are prepared and accurately maintained for each individual of personal property that has significant monetary value or is important to the individual as determined by a documented ISP team or guardian decision. The record must include:

(1) The description and identifying number, if any;

(2) Date of inclusion in the record;

(3) Date and reason for removal from the record;

(4) Signature of agency staff or proctor provider making each entry; and

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

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0210

Rights: Handling and Managing Individuals’ Money

(1) Policies and procedures. The program must implement written policies and procedures for the handling and management of individuals’ money. Such policies and procedures must provide for:

(a) Safeguarding of the individual’s funds;

(b) Individuals receiving and spending their money; and

(c) Taking into account the individual’s interests and preferences.

(2) Individual written record. The agency must assure that documentation of the individual’s financial plan is completed II as part of the Proctor Care Individual Support Plan for each individual served.

(3) Reimbursement to individual. The agency must reimburse the individual any funds that are missing due to theft, or mismanagement on the part of any agency staff member or proctor provider, for any funds within the custody of the agency that are missing. Such reimbursement must be made within 10 working days of the verification that funds are missing. Where appropriate the agency will ensure that the proctor provider reimburses any funds missing due to theft or mismanagement on the part of the proctor provide.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0220

Safety: Individual Summary Sheets

A current one to two page summary sheet must be maintained for each individual receiving services from the proctor agency. The record must include:

(1) The individual’s name, current and previous address, date of entry into the program, date of birth, sex, religious preference, preferred hospital, medical prime number and private insurance number where applicable, and guardianship status.

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

(a) The individual’s legal representative, family, advocate or other significant person, and for children, the individual’s parent or guardian, education surrogate, if applicable.

(b) The individual’s preferred physician, secondary physician or clinic.

(c) The individual’s preferred dentist.

(d) The individual’s identified pharmacy.

(e) The individual’s school, day program, or employer, if applicable.

(f) The individual’s CDDP Services Coordinator, and for Department direct contracts, a Department representative.

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

(3) Any court ordered or guardian authorized contacts or limitations.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0230

Individual Support Plan

(1) A copy of each individual’s ISP and supporting documentation on the required Department forms must be available at the proctor provider home within 60 days of entry and annually thereafter.

(2) The following information must be collected and summarized prior to the ISP meeting:

(a) Personal Focus Worksheet.

(b) Risk Tracking Record;

(c) Necessary protocols or plans that address health, behavioral, safety, and financial supports as identified on the Risk Tracking Record;

(d) A Nursing Care Plan, if applicable, including but not limited to those tasks required by the Risk Tracking Record; and

(e) Other documents required by the ISP team.

(3) A completed ISP must be documented on the Department required form and include the following:

(a) What’s most important to the individual;

(b) Risk summary;

(c) Professional services the individual uses or needs;

(d) Action plan;

(e) Discussion record;

(f) Service supports; and

(g) Signature sheet.

(4) The agency must maintain documentation of implementation of each support and services specified in OAR 411-335-0230(2)(c) to (2)(e) of this rule in the individual’s ISP. This documentation must be kept current and be available for review by the individual, guardian, CDDP, and Department representatives.

Stat. Auth.: ORS 409.050, 410.070, 427.007, & 430.215

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 1-2012, f. & cert. ef. 1-6-12; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0240

Health: Medical

(1) Written policies and procedures. The agency must assure implementation of policies and procedures that maintain and protect the physical health of individuals placed in certified proctor provider homes operated and overseen by the Proctor Agency. Policies and procedures must address the following:

(a) Each individual’s health care;

(b) Medication administration;

(c) Medication storage;

(d) Response to emergency medical situations;

(e) Nursing service provision, if needed;

(f) Disposal of medications; and

(g) Early detection and prevention of infectious disease.

(2) Individual health care. Each individual receiving proctor provider services must receive care that promotes their health and well-being as follows:

(a) The agency must assure each individual has a primary physician or qualified health care provider that the individual or guardian chooses from among qualified providers;

(b) The agency must assure each individual receives a medical evaluation by a qualified health care provider no less than every two years or as recommended by a physician;

(c) The agency must assure that the health status and physical conditions of each individual is monitored, and take action in a timely manner in response to identified changes or conditions that could lead to deterioration or harm;

(d) The agency must assure that a physician’s or qualified health care providers written, signed order is obtained prior to the usage or implementation of all of the following:

(A) Prescription medications;

(B) Non-prescription medications except over the counter topical preparations;

(C) Treatments other than basic first aid;

(D) Modified or special diets;

(E) Adaptive equipment; and

(F) Aids to physical functioning.

(e) The agency must maintain a copy of the order in the individual’s central record, and assure that the original is maintained in the proctor provider home.

(f) The agency must assure that its contracted proctor provider, their designee, or proctor agency staff implements orders by a physician or qualified health care provider’s as written.

(3) Required documentation. The agency must maintain records on each individual to aid physicians, licensed health professionals and proctor providers in understanding the individual’s medical history. Such documentation must include:

(a) A list of known health conditions, medical diagnoses; known allergies and immunizations;

(b) A record of visits to licensed health professionals that include documentation of the consultation and any therapy provided; and

(c) A record of known hospitalizations and surgeries.

(4) Medication procurement and storage. All medications must be:

(a) Kept in their original containers;

(b) Labeled by the dispensing pharmacy, product manufacturer or physician, as specified per the physician’s or licensed health care practitioner’s written order; and

(c) Kept in a secured locked container and stored as indicated by the product manufacturer, or as identified and outlined in the ISP.

(5) Medication administration. All medications and treatments must be recorded on an individualized medication administration record (MAR). The MAR must include:

(a) The name of the individual;

(b) A transcription of the written physician’s or licensed health practitioner’s order, including the brand or generic name of the medication, prescribed dosage, frequency and method of administration;

(c) For topical medications and treatments without a physician’s order, a transcription of the printed instructions from the package;

(d) Times and dates of administration or self administration of the medication;

(e) Signature of the person administering the medication or the person monitoring the self-administration of the medication;

(f) Method of administration;

(g) An explanation of why a PRN (i.e., as needed) medication was administered;

(h) Documented effectiveness of any PRN (i.e., as needed) medication administration;

(i) An explanation of any medication administration irregularity; and

(j) Documentation of any known allergy or adverse drug reaction.

(6) Self-administration of medication. For individuals who independently self-administer medications, there must be a plan as determined by the ISP team for the periodic monitoring and review of the self-administration of medications.

(7) Self-administration medications unavailable to other individuals. The program must assure that individuals able to self-administer medications keep them in a place unavailable to other individuals residing in the same proctor provider home, and store them as recommended by the product manufacturer.

(8) PRN/Psychotropic medication prohibited. PRN (i.e., as needed), orders will not be allowed for psychotropic medication.

(9) Adverse medication affects safeguards. Safeguards to prevent adverse effects or medication reactions must be utilized and include:

(a) Obtaining, whenever possible, all prescription medication except samples provided by the health care provider, for an individual from a single pharmacy that maintains a medication profile for him or her;

(b) Maintaining information about each medication’s desired effects and side effects;

(c) Ensuring that medications prescribed for one individual are not administered to, or self-administered by, another individual, proctor provider, or respite provider.

(d) Documentation in the individual’s record of reason why all medications should not be provided through a single pharmacy.

(10) Unused, discontinued, outdated, recalled and contaminated medications. All unused, discontinued, outdated, recalled and contaminated medications must be disposed of in a manner designed to prevent the illegal diversion of these substances. A written record of their disposal must be maintained that includes documentation of:

(a) Date of disposal;

(b) Description of the medication, including dosage strength and amount being disposed;

(c) Individual for whom the medication was prescribed;

(d) Reason for disposal;

(e) Method of disposal;

(f) Signature of the person disposing of the medication; and

(g) For controlled medications, the signature of a witness to the disposal.

(11) Direct nursing services. When direct nursing services are provided to an individual, the agency must:

(a) Coordinate with the nurse or nursing service and the ISP team to assure that the services being provided are sufficient to meet the individual’s health needs; and

(b) Implement the Nursing Care Plan, or appropriate portions therein, as agreed upon by the ISP team and the registered nurse.

(12) Notification. When the individual’s medical, behavioral or physical needs change to a point that they cannot be met by the agency, the Services Coordinator must be notified immediately and that notification documented.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0250

Health: Food and Nutrition

(1) Modified or special diets. For individuals with physician or health care provider ordered modified or special diets the agency must assure that the proctor provider:

(a) Maintains menus for the current week that provide food and beverages that consider the individuals preferences and are appropriate to the modified or special diet; and

(b) Maintains documentation that identifies how modified texture or special diets are prepared and served for the individual.

(2) Supply of food. The agency must assure that each proctor provider maintains in their home: adequate supplies of staple foods for a minimum of one week and perishable foods for a minimum of two days.

Stat. Auth.: ORS 409.050, 410.070, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0260

Safety: Transportation

(1) Vehicles operated to transport individuals. Proctor providers, agency employees and volunteers, that own or operate vehicles that transport individuals must:

(a) Maintain the vehicles in safe operating condition;

(b) Comply with Department of Motor Vehicles laws;

(c) Maintain or assure insurance coverage including liability, on all vehicles and all authorized drivers; and

(d) Carry a first aid kit in vehicles.

(2) Seat belts and appropriate safety devices. When transporting, the driver must assure that all individuals use seat belts. Child car or booster seats will be used for transporting all children as required by law. When transporting individuals in wheel chairs, the driver must assure that wheel chairs are secured with tie downs and that individuals wear seat belts.

(3) Drivers. Drivers operating vehicles that transport individuals must meet applicable Department of Motor Vehicles requirements as evidenced by a valid driver’s license.

Stat. Auth.: ORS 409.050, 410.070, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0270

Emergency Plan and Safety Review

(1) Written emergency plan. The agency must write an emergency plan to include instructions for the proctor provider and agency staff in the event of a fire, explosion, earthquake, accident, or other emergency including evacuation, if appropriate, of individuals served at the proctor provider home. The plan will be available at the Agency offices and the proctor home. A copy shall also be provided to the CDDP.

(2) Emergency telephone numbers. Emergency telephone numbers must be readily available in each proctor provider home, in close proximity to phone(s):

(a) The telephone numbers of the local fire, police department and ambulance service, if not served by a 911 emergency service; and

(b) The telephone number of the Executive Director, emergency physician and other persons to be contacted in the case of an emergency.

(3) Monthly safety review. A documented safety review that is specific to each proctor provider home must be conducted monthly to assure that the home is free of hazards. The agency must keep these reports for three years and make them available upon request to the Services Coordinator and Department representatives.

(4) Provider Absence. There must be a written contingency plan for each child that is available for substitute caregivers and agency staff in the event of an emergency absence of the proctor provider.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0280

Safety: Assessment of Fire Evacuation Assistance Required

(1) Assessment of level of evacuation assistance required. The agency must assure that the proctor provider and agency staff assess the individual’s ability to evacuate the home in response to an alarm or simulated emergency within 24 hours of entry to the home.

(2) Documentation of level of assistance required. The agency must assure documentation of the level of assistance needed by each individual to safely evacuate the residence. The documentation must be maintained in the individual’s entry records.

Stat. Auth.: ORS 409.050, 410.070, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0290

Safety: Individual Fire Evacuation Safety Plans

(1) Written fire safety evacuation plans are required for all individuals residing in proctor provider homes who are unable to evacuate the home in three minutes or less. For individuals who are unable to evacuate the proctor provider home within the required evacuation time, or who the ISP team determines should not participate in fire drills, the agency must develop a written safety plan that includes the following:

(a) Documentation of the risk to the individual’s medical, physical condition and behavioral status;

(b) Identification of the alternative practices used to evacuate his/her home including level of support needed;

(c) The routes to be used to evacuate the residence to a point of safety;

(d) Identification of assistive devices required for evacuation;

(e) The frequency the plan will be practiced and reviewed by the individual, the proctor provider, and any staff working in the proctor provider home.

(f) Approval of the plan by the individual’s guardian, Service Coordinator and the program director.

(g) A plan to encourage the individual’s future participation.

(2) Required documentation of practice and review of safety plans. The agency must maintain documentation of the practice and review of the safety plan by the individual and the proctor provider.

Stat. Auth.: ORS 409.050, 410.070, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0310

Rights: Informal Complaints and Formal Grievances

(1) The proctor agency must implement written policies and procedures for individuals’ grievances as required by OAR 411-323-0060.

(2) The proctor agency must send copies of the documentation on all grievances to the services coordinator within 15 working days of initial receipt of the grievance.

(3) At entry to service and as changes occur, the proctor agency must inform each individual and parent, guardian, or advocate orally and in writing of the proctor agency’s grievance policy and procedures and a description of how to utilize them.

Stat. Auth.: ORS 409.050, 410.070, 427.007 & 430.215

Stats. Implemented: ORS 430.021 & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 1-2012, f. & cert. ef. 1-6-12; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0320

Rights: Medicaid Fair Hearings

Medicaid service recipient’s policy and procedure. The program must have a policy and procedure that provides for immediate referral to the CDDP when a Medicaid recipient, parent or guardian requests a fair hearing. The policy and procedure must include immediate notice to the individual, parent or guardian of the right to a Medicaid fair hearing each time a program takes action to deny, terminate, suspend or reduce an individual’s access to services covered under Medicaid.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0330

Entry, Exit and Transfer: General

(1) Qualifications for Department funding. All individuals considered for Department funded services must:

(a) Be referred through the CDDP;

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

(c) Not be discriminated against because of race, color, creed, disability, national origin, duration or Oregon residence, or other forms of discrimination under applicable state or federal law.

(d) For children, be in the custody of the State of Oregon, DHS Child Welfare, or OYA; or have a Developmental Disabilities Individual Placement Agreement with the Department signed by the child’s parent or guardian.

(2) Authorization of Services. The Department must authorize admission into Children’s Residential Services. The CDDP services coordinator for the adult will authorize admission into an adult proctor service.

(3) Information required for entry meeting. The agency must acquire the following information prior to or upon entry ISP team meeting:

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

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

(c) A brief written history of any behavioral challenges including supervision and support needs;

(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) Results of any dental evaluation;

(C) A record of immunizations;

(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;

(g) Written documentation that the individual is participating in out of residence activities including school enrollment until the age of 21; and

(h) A copy of the most recent Functional Assessment, BSP, ISP and IEP.

(i) The entry agreement for family contact and visits that includes, but is not limited to, the names of the family members who can visit, with the level of agency staff supervision needed during visits; and any limitations on location or length of visits.

(j) Medical insurance information and medical card.

(4) Crisis entries from family homes. If the individual is being admitted from his or her family home and the information required in OAR 411-335-0330(3) is not available the agency will assure that they assess the individual upon entry for issues of immediate health or safety and document a plan to secure the remaining information no later than thirty days after entry. This must include a written justification as to why the information is not available.

(5) Entry meeting. An entry 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;

(c) The names and role of the participants at the meeting.

(d) Documentation of the pre-entry information required by 411-335-0330(3)(a)–(j).

(e) Documentation of the decision to serve or not serve the individual, 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.

(6) 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;

(c) Documentation of the participants included in the meeting;

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

(e) Documentation of the discussion of strategies to prevent an unplanned exit from service (unless the individual, individuals parent or 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 documentation of discussion and criteria, as outlined in section (6) of this rule if applicable.

(g) Documentation of the proposed plan for services to the individual after the exit.

(7) Requirements for waiver of exit meeting. Requirements for an exit meeting may be waived if an individual is immediately removed from the home under the following conditions:

(a) The individual and his/her guardian or legal representative requests an immediate move from the home; or

(b) The individual is removed by legal authority acting pursuant to civil or criminal proceedings other than detention;

(8) Transfer meeting. A meeting of the ISP team must precede transfer of an individual before any decision to transfer 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 transfer;

(b) The date of the meeting or telephone call(s);

(c) Documentation of the participants included in the meeting or telephone call(s) including, a parent or guardian who is participating to sign documents;

(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, guardian, legal representative, parent or family members cannot be honored;

(g) Documentation of a majority agreement of the participants with the decision; and

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

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0340

Entry, Exit and Transfer Appeals

(1) Appeals. In cases where the adult, or the parent or guardian objects to, or the ISP team cannot reach majority agreement regarding an entry refusal, a request to exit the program or a transfer within a program, an appeal may be filed by any member of the ISP team.

(2) In cases where the ISP team cannot reach majority agreement or when the parent or guardian objects to an entry refusal, a request to exit the program or a transfer within a program, and an appeal has been filed the following requirements apply.

(a) In the case of a refusal to serve, the program vacancy may not be permanently filled until the appeal is resolved.

(b) In the case of a request to exit or transfer, the individual must continue to receive the same services until the appeal is resolved.

(3) Appeal to the CDDP. All appeals must be made to the CDDP Director or designee in writing, in accordance with the CDDPs dispute resolution policy. The CDDP will provide written response to the individual making the appeal within the timelines specified in the CDDPs dispute resolution policy.

(4) Appeal to Department. In cases where the CDDPs decision is in dispute written appeal must be made to the Department within ten days of receipt of the CDDPs decision.

(5) Department appeal process. The Administrator or designee will review all unresolved appeals. Such review will be completed and a written response provided within 45 days of receipt of written request for Department review. The decision of the Administrator or designee will be final.

(6) Documentation required. Documentation of each appeal and its resolution must be filed or noted in the individual’s record.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0350

Respite Care Services

(1) The proctor agency may provide respite services in a proctor home to an individual not enrolled in proctor services.

(2) Qualifications for respite care services. All individuals not currently enrolled in proctor services with the agency and who are being considered for respite care services to be provided by the Proctor Agency and proctor home must:

(a) Be referred by the Department or by the CDDP whichever entity holds the contract for the services ;

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

(c) Not be discriminated against because of race, color, creed, disability, national origin, duration of Oregon residence, or other forms of discrimination under applicable state or federal law.

(3) Respite care plan. The individual and the guardian and services coordinator, or other ISP team members (as available) must participate in an entry meeting prior to the initiation of respite care services in a proctor provider’s home. This meeting may occur by phone and the Services Coordinator or Proctor Agency will assure that any critical information relevant to the individual’s health and safety, including physicians’ orders, will be made immediately available to the provider. The outcome of this meeting will be a written respite care plan which must take effect upon entry and be available on site, and must:

(a) Address the individual’s health, safety and behavioral support needs;

(b) Indicate who is responsible for providing the supports described in the plan; and

(c) Specify the anticipated length of stay at the residence up to 14 days.

(4) Waiver of exit meeting requirement. Exit meetings are waived for individuals receiving respite care services.

(5) Waiver of appeal rights for entry, exit and transfer. Individuals receiving respite care services do not have appeal rights regarding entry, exit or transfer.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14

411-335-0360

Crisis Services

(1) Proctor Agency Responsibilities in Provision of Crisis Services. All individuals considered for crisis services funded through the Department must:

(a) Be referred by the Department or designee;

(b) Be determined to have a developmental disability by the Department or its designee.

(c) Not be discriminated against because of race, color, creed, disability, national origin, duration of Oregon residence, or other forms of discrimination under applicable state or federal law.

(2) In-Home Support Services Plan, ISP or Plan of Care, and Crisis Addendum required. Individuals receiving CDDP in-home supports or foster care who require crisis services must have a crisis addendum to their current plan of care upon entry to proctor care services.

(3) Plan of Care required for individuals not enrolled in CDDP in-home support services. Individuals not enrolled in CDDP support services, receiving crisis services for less than 90 consecutive days must have a plan of care on entry that addresses any critical information relevant to the individual’s health and safety including current physician’s orders.

(4) Risk Tracking Record required. Individuals not enrolled in CDDP in-home support services, receiving crisis services for 90 days or more must have a completed Risk Tracking Record and a Plan of Care that addresses all identified health and safety supports as noted in the Risk Tracking Record.

(5) Entry meeting required. Entry meetings are required for individuals receiving crisis respite services.

(6) Exit meeting required. Exit meetings are required for individuals receiving crisis services.

(7) Waiver of appeal rights for entry, exit and transfers. An individual or a guardian of an individual receiving crisis services does not have appeal rights regarding entry, exit or transfers.

Stat. Auth.: ORS 410.070, 409.050, 427.005 - 427.007 & 430.215

Stats. Implemented: ORS 430.021(4) & 430.610 - 430.670

Hist.: SPD 33-2004, f. 11-30-04, cert. ef. 1-1-05; SPD 32-2006, f. 12-27-06, cert. ef. 1-1-07; Suspended by SPD 52-2013(Temp), f. 12-27-13, cert. ef. 1-1-14 thru 6-30-14


Rule Caption: Children’s Intensive In-Home Services — Behavior Program

Adm. Order No.: SPD 53-2013

Filed with Sec. of State: 12-27-2013

Certified to be Effective: 12-28-13

Notice Publication Date: 12-1-2013

Rules Amended: 411-300-0100, 411-300-0110, 411-300-0120, 411-300-0130, 411-300-0140, 411-300-0150, 411-300-0155, 411-300-0170, 411-300-0190, 411-300-0200, 411-300-0205, 411-300-0210, 411-300-0220

Rules Repealed: 411-300-0110(T), 411-300-0120(T), 411-300-0130(T), 411-300-0140(T), 411-300-0150(T)

Subject: The Department of Human Services is permanently amending the rules in OAR chapter 411, division 300 for the Children’s Intensive In-home Services Behavior Program.

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

411-300-0100

Purpose

(1) The rules in OAR chapter 411, division 300 establish the policy of, and prescribe the standards and procedures for, the provision of children’s intensive in-home services (CIIS) for children in the ICF/MR Behavioral Waiver. These rules are established to ensure that CIIS augment and support independence, empowerment, dignity, and development of children through the provision of flexible and efficient services to eligible families.

(2) CIIS are exclusively intended to enable a child with an intellectual or developmental disability and intense behaviors to have a permanent and stable familial relationship. CIIS are intended to support, not supplant, a child’s natural supports and services provided by the child’s family and provide the support necessary to enable the family to meet the needs of caring for a child who meets the eligibility criteria for CIIS.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 13-2004, f. & cert. ef. 6-1-04; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; SPD 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0110

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 300:

(1) “Abuse” means “abuse” of a child as defined in ORS 419B.005.

(2) “Activities of Daily Living (ADL)” means basic personal everyday activities, including but not limited to tasks such as eating, using the restroom, grooming, dressing, bathing, and transferring.

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

(4) “Attendant Care” means the Medicaid state plan funded essential supportive daily care described in OAR 411-300-0150 that is delivered by a qualified provider to enable a child to remain in, or return to, the child’s family home.

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

(6) “Behavior Consultant” means a contractor with specialized skills who develops a Behavior Support Plan.

(7) “Behavior Support Plan” means the written strategy based on person-centered planning and a functional assessment that outlines specific instructions for a provider to follow to cause a child’s challenging behaviors to become unnecessary and to change the provider’s own behavior, adjust environment, and teach new skills.

(8) “Behavior Criteria (Form DHS-0521)” means the assessment tool used by the Department to evaluate the intensity of a child’s challenges and service needs and determine the service level for the child.

(9) “Billing Provider” means an organization that enrolls and contracts with the Department to provide services through employees that bills the Department for the provider’s services.

(10) “Case Management” means the functions performed by a services coordinator. Case management includes determining service eligibility, developing a plan of authorized services, and monitoring the effectiveness of services and supports.

(11) “CDDP” means “Community Developmental Disability Program” as defined in this rule.

(12) “Child” means an individual who is less than 18 years of age, eligible for developmental disability services, and applying for, or accepted for, children’s intensive in-home services under the ICF/MR Behavioral Waiver.

(13) “Chore Services” mean the services described in OAR 411-300-0150 that are needed to restore a hazardous or unsanitary situation in a child’s family home to a clean, sanitary, and safe environment.

(14) “CIIS” means children’s intensive in-home services.

(15) “Community Developmental Disability Program (CDDP)” means the entity that is responsible for plan authorization, delivery, and monitoring of developmental disability services according to OAR chapter 411, division 320.

(16) “Community First Choice (K Plan)” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(17) “Community Nursing Services” mean the services described in OAR 411-300-0150 that include nurse delegation, training, and care coordination for a child living in the child’s family home.

(18) “Community Transportation” means the services described in OAR 411-300-0150 that enable a child to gain access to community services, activities, and resources that are not medical in nature.

(19) “Cost Effective” means that in the opinion of a services coordinator, a specific service, support, or item of equipment meets a child’s service needs and costs less than, or is comparable to, other similar service, support, or equipment options considered.

(20) “Daily Activity Log” means the record of services provided to a child. The content and form of a daily activity log is agreed upon by both the child’s parent and the child’s services coordinator and documented in the child’s Individual Support Plan.

(21) “Day” means a calendar day unless otherwise specified in these rules.

(22) “Delegation” means that a registered nurse authorizes an unlicensed person to perform nursing tasks and confirms that authorization in writing. Delegation may occur only after a registered nurse follows all steps of the delegation process as outlined in OAR chapter 851, division 047. Delegation by a physician is also allowed.

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

(24) “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.

(25) “Director” means the director of the Department’s Office of Developmental Disability Services or the director’s designee.

(26) “Environmental Accessibility Adaptations” mean the physical adaptations described in OAR 411-300-0150 that are necessary to ensure the health, welfare, and safety of a child in the child’s family home, or that enable a child to function with greater independence in the family home.

(27) “Exit” means termination or discontinuance of children’s intensive in-home services.

(28) “Family” means a unit of two or more people that includes at least one child with an intellectual or developmental disability where the child’s primary caregiver is:

(a) Related to the child with an intellectual or developmental disability 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, such as child-rearing, maintenance of the residence, and basic living expenses; and

(C) Joint responsibility for supporting a child with an intellectual or developmental disability when the child is related to one of the partners by blood, marriage, or legal adoption.

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

(30) “Family Training” means the training and counseling services described in OAR 411-300-0150 that are provided to a child’s family to increase the family’s capacity to care for, support, and maintain the child in the child’s family home.

(31) “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.

(32) “Functional Needs Assessment” means a comprehensive assessment that documents:

(a) Physical, mental, and social functioning; and

(b) Risk factors, choices and preferences, service and support needs, strengths, and goals.

(33) “Home and Community-Based Waiver Services” mean the services approved by the Centers for Medicare and Medicaid Services in accordance with section 1915(c) and 1115 of the Social Security Act.

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

(35) “ICF/MR” means intermediate care facilities for the mentally retarded. Federal law and regulations use the term “intermediate care facilities for the mentally retarded (ICF/MR)”. The Department prefers to use the accepted term “individual with intellectual disability (ID)” instead of “mental retardation (MR)”. However, as ICF/MR is the abbreviation currently used in all federal requirements, ICF/MR is used.

(36) “ICF/MR Behavioral Waiver” means the waiver program granted by the federal Centers for Medicare and Medicaid Services that allows Medicaid funds to be spent on a child living in the child’s family home who otherwise would have to be served in an intermediate care facility for individuals with intellectual or developmental disabilities (formerly referred to as ICF/MR) if the waiver program was not available.

(37) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required for a child to achieve and maintain personal outcomes. The ISP is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. Individual support needs are identified through a functional needs assessment. The manner in which services are delivered, service providers, and the frequency of services are reflected in an ISP. The ISP is the child’s plan of care for Medicaid purposes and reflects whether services are provided through a waiver, state plan, or natural supports.

(38) “Instrumental Activities of Daily Living (IADL)” means the activities other than activities of daily living, including but not limited to:

(a) Meal planning and preparation;

(b) Budgeting;

(c) Shopping for food, clothing, and other essential items;

(d) Performing essential household chores;

(e) Communicating by phone or other media; and

(f) Traveling around and participating in the community.

(39) “Intellectual Disability” means “intellectual disability” as defined in OAR 411-320-0020 and described in 411-320-0080.

(40) “ISP” means “Individual Support Plan” as defined in this rule.

(41) “K Plan” means “Community First Choice” as defined in this rule.

(42) “Level of Care” means a child meets the following level of care:

(a) HOSPITAL LEVEL OF CARE FOR A CHILD WITH AN INTELLECTUAL OR DEVELOPMENTAL DISABILITY:

(A) A child has a documented medical condition and demonstrates the need for active treatment as assessed by the clinical criteria as defined in OAR 411-350-0020.

(B) A child’s medical condition requires the care and treatment of services normally provided in an acute medical hospital.

(b) NURSING FACILITY LEVEL OF CARE FOR A CHILD WITH AN INTELLECTUAL OR DEVELOPMENTAL DISABILITY:

(A) A child has a documented medical condition that requires 24-hour professional nursing supervision and demonstrates the need for active treatment as assessed by the medically involved criteria as defined in OAR 411-355-0010.

(B) A child’s medical condition requires the care and treatment of services normally provided in a nursing facility.

(43) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who comes in contact with and has reasonable cause to believe a child with or without an intellectual or developmental disability has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused a child with or without an intellectual or developmental disability, 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 affects the duty to report imposed by this section, except that a psychiatrist, psychologist, clergy, attorney, or guardian ad litem appointed under ORS 419B.231 is not required to report if the communication is privileged under ORS 40.225 to 40.295.

(44) “Natural Supports” means the parental responsibilities for a child who is less than 18 years of age and the voluntary resources available to the child from the child’s relatives, friends, neighbors, and the community that are not paid for by the Department.

(45) “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.

(46) “Nursing Care Plan” means the plan developed by a nurse that describes the medical, nursing, psychosocial, and other needs of a child and how those needs are met. The Nursing Care Plan includes the tasks that are taught or delegated to the child’s primary caregiver or a qualified provider. When a Nursing Care Plan exists, it is a supporting document for an Individual Support Plan.

(47) “OHP” means the Oregon Health Plan.

(48) “Oregon Intervention System” means the system of providing training to people who work with designated individuals to provide elements of positive behavior support and non-aversive behavior intervention. The Oregon Intervention System uses principles of pro-active support and describes approved protective physical intervention techniques that are used to maintain health and safety.

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

(50) “Parent” means biological parent, adoptive parent, stepparent, or legal guardian.

(51) “Person-Centered Planning”:

(a) Means a timely and formal or informal process for gathering and organizing information that helps:

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

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

(C) Identify, use, and strengthen naturally occurring opportunities for support at home and in the community.

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

(52) “Personal Care Services” means assistance with activities of daily living, instrumental activities of daily living, and health-related tasks through cueing, monitoring, reassurance, redirection, set-up, hands-on, standby assistance, and reminding.

(53) “Plan of Care” means the written plan of Medicaid services required by Medicaid regulation. Oregon’s plan of care is the Individual Support Plan.

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

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

(b) Uses the least intervention possible;

(c) Ensures that abuse or demeaning interventions are never used; and

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

(55) “Primary Caregiver” means a child’s parent, guardian, relative, or other non-paid parental figure that provides direct care at the times that a paid provider is not available.

(56) “Protective Physical Intervention” means any manual physical holding of, or contact with, a child that restricts the child’s freedom of movement.

(57) “Provider” means a person who is qualified as described in OAR 411-300-0170 to receive payment from the Department for providing support and services to a child according to the child’s Individual Support Plan. A provider works directly with a child. A provider may be an employee of a billing provider, employee of a child’s parent, or an independent contractor.

(58) “Relief Care” means the intermittent services described in OAR 411-300-0150 that are provided on a periodic basis of not more than 14 consecutive days, for the relief of, or due to the temporary absence of, a child’s primary caregiver.

(59) “Service Level” means the services allotted for the care of a child based on the behavior criteria. The service level consists of state plan services, including Community First Choice state plan services, and if the child is on a waiver, waiver services. The monthly service level is 1/12th of the annual amount if the child’s Individual Support Plan is developed for less than a full year.

(60) “Services Coordinator” means an employee of the Department who ensures a child’s eligibility for children’s intensive in-home services and provides assessment, case management, service implementation, and evaluation of the effectiveness of the services. A services coordinator is a child’s person-centered plan coordinator as defined in the Community First Choice state plan.

(61) “Social Benefit” means a service or financial assistance provided to a child’s family solely intended to assist the child to function in society on a level comparable to that of a child who does not have an intellectual or developmental disability. Social benefits are pre-authorized by a services coordinator and provided according to the description and limits written in the child’s Individual Support Plan.

(a) Social benefits may not:

(A) Duplicate benefits and services otherwise available to a child regardless of intellectual or developmental disability;

(B) Replace normal parental responsibilities for a child’s services, education, recreation, and general supervision;

(C) Provide financial assistance with food, clothing, shelter, and laundry needs common to a child with or without a disability; or

(D) Replace other governmental or community services available to the child or the child’s family.

(b) Assistance provided as a social benefit is reimbursement for an expense previously authorized in a child’s Individual Support Plan (ISP) or an advance payment in anticipation of an expense authorized in a previously authorized ISP.

(c) Assistance provided as a social benefit may not exceed the actual cost of the support required by a child to be supported in the child’s family home.

(62) “Special Diet” means the specially prepared food or particular types of food described in OAR 411-300-0150 that are specific to a child’s medical condition or diagnosis and needed to sustain the child in the child’s family home.

(63) “Specialized Equipment and Supplies” means the devices, aids, controls, supplies, or appliances described in OAR 411-300-0150 that enable a child to increase the child’s ability to perform activities of daily living or to perceive, control, or communicate with the environment in which the child lives.

(64) “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.

(65) “Supplant” means take the place of.

(66) “Support” means the assistance that a child and the child’s family requires, solely because of the effects of the child’s intellectual or developmental disability, to maintain or increase the child’s age-appropriate independence, achieve a child’s age-appropriate community presence and participation, and to maintain the child in the child’s family home. Support is subject to change with time and circumstances.

(67) “These Rules” mean the rules in OAR chapter 411, division 300.

(68) “Volunteer” means any person providing services without pay to support the services and supports provided to a child.

(69) “Waiver Services” means the menu of disability related services and supplies, exclusive of attendant care and the Oregon Health Plan, that are specifically identified by the ICF/MR Behavioral Waiver.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007, 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 19-2003(Temp), f. & cert. ef. 12-11-03 thru 6-7-04; SPD 13-2004, f. & cert. ef. 6-1-04; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; 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 20-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0120

Eligibility

(1) ELIGIBILITY. In order to be eligible for CIIS, a child must:

(a) Be under the age of 18;

(b) Be an Oregon resident who meets the citizenship and alien status requirements of OAR 461-120-0110;

(c) Be eligible for OSIP-M;

(d) Be eligible to receive Title XIX (Medicaid);

(e) Be determined eligible for developmental disability services by the CDDP of the child’s county of residence as described in OAR 411-320-0080;

(f) After completion of an assessment, meet the level of care as defined in OAR 411-300-0110;

(g) Be accepted by the Department by scoring greater than 200 on the behavior criteria within two months of starting services. To remain eligible, a child must maintain a score above 150 as determined during an annual re-eligibility assessment;

(h) Reside in the family home; and

(i) Be capable of being safely served in the family home. This includes but is not limited to the child’s primary caregiver demonstrating the willingness, skills, and ability to provide direct care as outlined in the child’s ISP in a cost effective manner, as determined by the services coordinator within the limitations of OAR 411-300-0150, and participate in planning, monitoring, and evaluation of the CIIS provided.

(2) INELIGIBILITY. A child is not eligible for CIIS if the child:

(a) Resides in a hospital, school, sub-acute facility, nursing facility, intermediate care facility for individuals with intellectual or developmental disabilities (formerly referred to as ICF/MR), residential facility, foster home, or other institution;

(b) Does not require waiver services, Community First Choice state plan services, or has sufficient family, government, or community resources available to provide for his or her care; or

(c) Is not safely served in the family home as described in section (1)(i) of this rule.

(3) TRANSITION. A child whose score on the behavior criteria remains at 150 or less is transitioned out of CIIS within 90 days and at the end of the 90 day transition period must exit.

(a) When possible and agreed upon by the child’s parent and the services coordinator, CIIS are incrementally reduced during the 90 day transition period.

(b) A minimum of 30 days prior to exit, the services coordinator must coordinate and attend a transition planning meeting that includes a CDDP representative, the child’s parent, and any other person at the parent’s request.

(4) EXIT. A child must exit from CIIS if the child no longer meets the eligibility criteria in section (1) of this rule or if the child has been transitioned out as described in section (3) of this rule, except when the child’s parent appeals a notice of intent to terminate services and requests continuing services as described in OAR 411-300-0210.

(5) WAIT LIST. If the allowable numbers of children on the ICF/MR Behavioral Waiver are already receiving services, the Department may place a child eligible for CIIS on a wait list. A child on the CIIS wait list may access other waiver, state plan personal care, or Community First Choice state plan services as determined eligible.

(a) The date the initial application for service is completed determines the order on the wait list. A child who was once served by CIIS, exited CIIS, reapplies, and currently meets all other criteria for eligibility, is put on the wait list as of the date the child’s original application for services was complete.

(b) The date the application is complete is the date that the Department has the required demographic data on the child and a statement of developmental disability eligibility.

(c) Children on the wait list are served on a first come, first served basis as space on the ICF/MR Behavioral Waiver allows.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; SPD 20-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0130

Plan of Care

(1) To develop an ISP, a services coordinator must complete a functional needs assessment using a person-centered planning approach and assess the service needs of the child. The assessment must take place in person and the services coordinator must interview the child’s parent, other caregivers, and when appropriate any other person at the parent’s request. The assessment must:

(a) Take place in the child’s family home with both the child and the child’s primary caregiver present;

(b) Identify the services for which the child is currently eligible;

(c) Identify the services currently being provided; and

(d) Identify all available family, private health insurance, and government or community resources that meet any, some, or all of the child’s needs.

(2) The services coordinator must prepare, with the input of the child’s parent and any other person at the parent’s request, a written ISP that identifies:

(a) The service needs of the child;

(b) The most cost effective services for safely and appropriately meeting the child’s service needs; and

(c) The methods, resources, and strategies that address the child’s service needs;

(3) The ISP must include:

(a) A description of the supports required, including the reason the support is necessary. The description must be consistent with the needs identified in the functional needs assessment;

(b) A list of personal, community, and public resources that are available to the child and how the resources may be applied to provide the required supports. Sources of support may include waiver services, state plan services, or natural supports;

(c) The maximum hours of provider services authorized for the child;

(d) The annual and monthly service level;

(e) The number of hours of attendant care or behavior consultation authorized for the child;

(f) Additional services authorized by the Department for the child:

(g) The projected date of when specific services are to begin and end, as well as the end date, if any, of the period of service covered by the ISP;

(h) Projected costs with sufficient detail to support estimates;

(i) The manner in which services are delivered and the frequency of services;

(j) Service providers;

(k) The child’s strengths and preferences;

(l) If the child has a determined service level, the clinical and support needs as identified through the functional needs assessment;

(m) Individually identified goals and desired outcomes;

(n) The services and supports (paid and unpaid) to assist the child to achieve identified goals and the providers of the services and supports, including voluntarily provided natural supports;

(o) The risk factors and the measures in place to minimize the risk factors, including back-up plans;

(p) The identity of the person responsible for case management and monitoring the ISP;

(q) The date of the next ISP review that, at a minimum, must be completed within 12 months of the last ISP;

(r) The Nursing Care Plan as a supporting document, when one exists;

(s) A provision to prevent unnecessary or inappropriate care; and

(t) If the child has a determined service level, any changes in support needs identified through a functional needs assessment.

(4) A child’s ISP must be reviewed with the child’s parent prior to implementation. The parent and the services coordinator must sign the ISP and a copy must be provided to the parent.

(5) The child’s ISP is translated, as necessary, upon request.

(6) A services coordinator must reflect significant changes in the needs of a child in the child’s ISP, as they occur, and provide a copy of the revised ISP to the child’s parent. Changes in service needs funded by the Department must be consistent with needs identified in a functional needs assessment and documented in an amendment to the ISP that is signed by the parent and the services coordinator.

(7) The child’s ISP must be renewed at least every 12 months. Each new plan year begins on the anniversary date of the initial or previous plan date.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; SPD 20-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0140

Rights of the Child

(1) When interventions in the behavior of a child are necessary, the interventions must be done in accordance with positive behavioral theory and practice as defined in OAR 411-300-0110.

(2) The least intrusive intervention to keep the child and others safe must be used.

(3) Abusive or demeaning interventions must never be used.

(4) When protective physical interventions are required, the protective physical intervention must only be used as a last resort and providers must be appropriately trained as per the child’s Behavior Support Plan.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; SPD 20-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0150

Scope and Limitations of Children’s Intensive In-Home Services

(1) CIIS are intended to support, not supplant, the natural supports supplied by a child’s primary caregiver. CIIS are not available to replace services provided by a primary caregiver or to replace other governmental or community services.

(2) CIIS are only authorized to enable a child’s primary caregiver to meet the needs of caring for a child on the ICF/MR Behavioral Waiver. All services funded by the Department must be based on the actual and customary costs related to best practice standards of care for children with similar disabilities.

(3) For an initial or annual ISP, CIIS may include a combination of the following waiver and other Medicaid services based upon the needs of a child as determined by a services coordinator and as consistent with the child’s functional needs assessment:

(a) Community First Choice state plan services:

(A) Specialized consultation, including behavior consultation as described in section (4) of this rule;

(B) Community nursing services as described in section (5) of this rule;

(C) Environmental accessibility adaptations as described in section (6) of this rule;

(D) Attendant care as described in section (7) of this rule;

(E) Relief care as described in section (8) of this rule;

(F) Specialized equipment and supplies as described in section (9) of this rule;

(G) Chore services as described in section (10) of this rule; and

(H) Community transportation as described in section (11) of this rule.

(b) Waiver services:

(A) Family training as described in section (12) of this rule;

(B) Special diet as described in section (13) of this rule; and

(C) Translation as described in section (14) of this rule.

(4) SPECIALIZED CONSULTATION — BEHAVIOR CONSULTATION. Behavior consultation is only authorized to support a child’s primary caregiver in their caregiving role. Behavior consultation is only authorized, as needed, to respond to specific problems identified by a primary caregiver or a services coordinator. Behavior consultants must:

(a) Work with the child’s primary caregiver to identify:

(A) Areas of a child’s family home life that are of most concern for the child and the child’s parent;

(B) The formal or informal responses the child’s family or the provider has used in those areas; and

(C) The unique characteristics of the child’s family that may influence the responses that may work with the child.

(b) Assess the child. The assessment must include:

(A) Specific identification of the behaviors or areas of concern;

(B) Identification of the settings or events likely to be associated with, or to trigger, the behavior;

(C) Identification of early warning signs of the behavior;

(D) Identification of the probable reasons that are causing the behavior and the needs of the child that are being met by the behavior, including the possibility that the behavior is:

(i) An effort to communicate;

(ii) The result of a medical condition;

(iii) The result of an environmental cause; or

(iv) The symptom of an emotional or psychiatric disorder.

(E) Evaluation and identification of the impact of disabilities (i.e. autism, blindness, deafness, etc.) that impact the development of strategies and affect the child and the area of concern; and

(F) An assessment of current communication strategies.

(c) Develop a variety of positive strategies that assist the child’s primary caregiver and the provider to help the child use acceptable, alternative actions to meet the child’s needs in the most cost effective manner. These strategies may include changes in the physical and social environment, developing effective communication, and appropriate responses by a primary caregiver and a provider to the early warning signs.

(A) Interventions must be done in accordance with positive behavioral theory and practice as defined in OAR 411-300-0110.

(B) The least intrusive intervention possible must be used.

(C) Abusive or demeaning interventions must never be used.

(D) The strategies must be adapted to the specific disabilities of the child and the style or culture of the child’s family.

(d) Develop emergency and crisis procedures to be used to keep the child and the child’s primary caregiver and the provider safe. When interventions in the behavior of the child are necessary, positive, preventative, non-aversive interventions that conform to the Oregon Intervention System must be utilized;

(e) Develop a written Behavior Support Plan using clear, concrete language that is understandable to the child’s primary caregiver and the provider that describes the assessment, strategies, and procedures to be used;

(f) Teach the child’s primary caregiver and the provider the strategies and procedures to be used; and

(g) Monitor and revise the Behavior Support Plan as needed.

(5) COMMUNITY NURSING SERVICES.

(a) Community nursing services include:

(A) Evaluation, including medication reviews, and identification of supports that minimize health risks while promoting a child’s autonomy and self-management of healthcare;

(B) Collateral contact with a services coordinator regarding a child’s community health status to assist in monitoring safety and well-being and to address needed changes to the child’s ISP; and

(C) Delegation and training of nursing tasks to a child’s primary caregiver and a provider so the caregivers may safely perform health related tasks.

(b) Community nursing services exclude direct nursing care.

(c) Community nursing services are not covered by other Medicaid spending authorities.

(6) ENVIRONMENTAL ACCESSIBILITY ADAPTATIONS. Environmental accessibility adaptations are physical adaptations to a child’s family home that are necessary to ensure the health, welfare, and safety of the child in the family home due to the child’s intellectual or developmental disability or that are necessary to enable the child to function with greater independence around the family home and in family activities.

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

(A) An environmental modification consultation to determine the appropriate type of adaptation to ensure the health, welfare, and safety of the child;

(B) Installation of shatter-proof windows;

(C) Hardening of walls or doors;

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

(E) An alarm system for doors or windows;

(F) Protective covering for smoke alarms, 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 a child whose temperature sensitivity issues create behaviors or medical conditions that put the child 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 child;

(R) Modifications for the primary vehicle used by the child that are necessary to meet the unique needs of the child and ensure the health, welfare, and safety of the child, such as lift, interior alterations to seats, head and leg rests, belts, special safety harnesses, or other unique modifications to keep the child safe in the vehicle; and

(S) Adaptations to control lights, heat, stove, etc.

(b) Environmental accessibility adaptations exclude:

(A) Adaptations or improvements to the child’s family home that are of general utility and are not for the direct safety, remedial, or long term benefit to the child;

(B) Adaptations that add to the total square footage of the child’s family home; and

(C) General repair or maintenance and upkeep required for the child’s family home or motor vehicle, including repair of damage caused by the child.

(c) Environmental accessibility adaptations are limited to $5,000 per modification. A services coordinator may request approval for additional expenditures through the Department prior to expenditure. Approval is based on the child’s service needs and goals and the Department’s determination of appropriateness and cost-effectiveness.

(d) Environmental accessibility adaptations must be tied to supporting ADL, IADL, and health-related tasks as identified in the child’s ISP.

(e) Environmental accessibility adaptations over $500 must be completed by a state licensed contractor. Any modification requiring a permit must be inspected by a local inspector and certified as in compliance with local codes. Certification of compliance must be filed in the provider’s file prior to payment.

(f) Environmental accessibility adaptations must be made within the existing square footage of the child’s family home, except for external ramps, and may not add to the square footage of the building.

(g) Payment to the contractor is to be withheld until the work meets specifications.

(h) Environmental accessibility adaptations that are provided in a rental structure must be authorized in writing by the owner of the structure prior to initiation of the work. This does not preclude any reasonable accommodations required under the Americans with Disabilities Act.

(7) ATTENDANT CARE. Attendant care services include the purchase of direct provider support provided to a child in the child’s family home or community by qualified individual providers and agencies. Provider assistance provided through attendant care must support the child to live as independently as appropriate for the child’s age, support the child’s family in their primary caregiver role, and be based on the identified needs of the child. A child’s primary caregiver is expected to be present or available during the provision of attendant care.

(a) Attendant care services provided by qualified providers or agencies include:

(A) Basic personal hygiene — Assistance with bathing and grooming;

(B) Toileting, bowel, and bladder care — Assistance in the bathroom, diapering, external cleansing of perineal area, and care of catheters;

(C) Mobility — Transfers, comfort, positioning, and assistance with range of motion exercises;

(D) Nutrition — Feeding and monitoring intake and output;

(E) Skin care — Dressing changes;

(F) Physical healthcare, including delegated nursing tasks;

(G) Supervision — Providing an environment that is safe and meaningful for the child and interacting with the child to prevent danger to the child and others and maintain skills and behaviors required to live in the child’s family home and community;

(H) Assisting the child with appropriate leisure activities to enhance development in the child’s family home and community and provide training and support in personal environmental skills;

(I) Communication — Assisting the child in communicating using any means used by the child;

(J) Neurological — Monitoring of seizures, administering medication, and observing status; and

(K) Accompanying the child and the child’s family to health related appointments.

(b) Attendant care services must:

(A) Be previously authorized by the services coordinator before services begin;

(B) Be delivered through the most cost effective method as determined by the services coordinator; and

(C) Only be provided when the child is present to receive services.

(c) Attendant care services exclude:

(A) Hours that supplant parental responsibilities or other natural supports and services available from the child’s family, community, other government or public services, insurance plans, schools, philanthropic organizations, friends, or relatives;

(B) Hours solely to allow a child’s primary caregiver to work or attend school;

(C) Hours that exceed what is necessary to support the child;

(D) Support generally provided at the child’s age by the child’s parent or other family members;

(E) Educational and supportive services provided by schools as part of a free and appropriate education for children and young adults under the Individuals with Disabilities Education Act;

(F) Services provided by the child’s family; and

(G) Home schooling.

(d) Attendant care services may not be provided on a 24-hour shift-staffing basis.

(8) RELIEF CARE. Relief care services are provided to a child on a periodic or intermittent basis furnished because of the temporary absence of, or need for relief of, the child’s primary caregiver.

(a) Relief care may include both day and overnight services that may be provided in:

(A) The child’s family home;

(B) A licensed, certified, or otherwise regulated setting;

(C) A qualified provider’s home. If overnight relief care is provided in a qualified provider’s home, the services coordinator and the child’s parent must document that the home is a safe setting for the child;

(D) A disability-related or therapeutic recreational camp; or

(E) The community, during the provision of ADL, IADL, health related tasks, and other supports identified in the child’s ISP.

(b) Relief care services are not authorized for the following:

(A) Solely to allow a child’s primary caregiver to attend school or work;

(B) For ongoing services that occur on more than a periodic schedule, such as eight hours a day, five days a week;

(C) For more than 14 consecutive overnight stays in a calendar month;

(D) For more than 10 days per individual plan year when provided at a specialized camp;

(E) For vacation, travel, and lodging expenses; or

(F) To pay for room and board if provided at a licensed site or specialized camp.

(9) SPECIALIZED EQUIPMENT AND SUPPLIES. Specialized equipment and supplies include the purchase of devices, aids, controls, supplies, or appliances that are necessary to enable a child to increase the child’s abilities to perform and support ADLs and IADLs or to perceive, control, or communicate with the environment in which the child lives. Specialized equipment and supplies must meet applicable standards of manufacture, design, and installation.

(a) Specialized equipment and supplies include:

(A) Electronic devices to secure assistance in an emergency in the community and other reminders, such as medication minders, alert systems for ADL or IADL supports, or mobile electronic devices. Expenditures for electronic devices are limited to $500 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(B) Assistive technology to provide additional security and replace the need for direct interventions to enable self direction of care and maximize independence, such as motion or sound sensors, two-way communication systems, automatic faucets and soap dispensers, incontinent and fall sensors, or other electronic backup systems.

(i) Expenditures for assistive technology are limited to $5,000 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(C) Assistive devices not covered by other Medicaid programs to assist and enhance a child’s independence in performing ADLs or IADLs, such as durable medical equipment, mechanical apparatus, electrical appliances, or information technology devices.

(i) Expenditures for assistive devices are limited to $5,000 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(b) Specialized equipment and supplies may include the cost of a professional consultation, if required to assess, identify, adapt, or fit specialized equipment. The cost of professional consultation may be included in the purchase price of the equipment.

(c) To be authorized by a services coordinator, specialized equipment and supplies must be:

(A) In addition to any medical equipment and supplies furnished under OHP and private insurance;

(B) Determined necessary to the daily functions of the child; and

(C) Directly related to a child’s disability.

(d) Specialized equipment and supplies exclude:

(A) Items that are not necessary or of direct medical or remedial benefit to the child;

(B) Specialized equipment and supplies intended to supplant similar items furnished under OHP or private insurance;

(C) Items available through a child’s family, community, or other governmental resources;

(D) Items that are considered unsafe for a child;

(E) Toys or outdoor play equipment; and

(F) Equipment and furnishings of general household use.

(e) Funding for specialized equipment and supplies with an expected life of more than one year is one time funding that is not continued in subsequent plan years. Specialized equipment and supplies may only be included in a child’s ISP when all other public and private resources have been exhausted.

(f) The services coordinator must secure use of specialized equipment or supplies costing more than $500 through a written agreement between the Department and the child’s parent that specifies the time period the item is to be available to the child and the responsibilities of all parties if the item is lost, damaged, or sold within that time period. The Department may immediately recover any specialized equipment or supplies purchased with CIIS funds that are not used according to the child’s ISP or according to the written agreement between the Department and the parent.

(10) CHORE SERVICES. Chore services may be provided only in situations where no one else in a child’s family home is able 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.

(a) Chore services include heavy household chores such as:

(A) Washing floors, windows, and walls;

(B) Tacking down loose rugs and tiles; and

(C) Moving heavy items of furniture for safe access and egress.

(b) Chore services may include yard hazard abatement to ensure the outside of a child’s family home is safe for the child to traverse and enter and exit the home.

(11) COMMUNITY TRANSPORTATION. Community transportation is provided in order to enable a child to gain access to community services, activities, and resources as specified in the child’s ISP. Community transportation excludes:

(a) Transportation provided by a child’s family members;

(b) Transportation used for behavioral intervention or calming;

(c) Transportation normally provided by schools;

(d) Transportation normally provided by the child’s primary caregiver for a child of similar age without disabilities;

(e) Purchase of any family vehicle;

(f) Vehicle maintenance and repair;

(g) Reimbursement for out-of-state travel expenses;

(h) Ambulance services or medical transportation; or

(i) Transportation services that may be obtained through other means, such as OHP or other public or private resources available to the child.

(12) FAMILY TRAINING. Family training services include the purchase of training, coaching, counseling, and support that increase the abilities of a child’s family to care for and maintain the child in the child’s family home. Family training services include:

(a) Instruction about treatment regimens and use of equipment specified in the child’s ISP;

(b) Counseling services that assist the child’s family with the stresses of having a child with an intellectual or developmental disability.

(A) To be authorized, the counseling services must:

(i) Be provided by licensed providers, including but not limited to psychologists licensed under ORS 675.030, professionals licensed to practice medicine under ORS 677.100, social workers licensed under 675.530, or counselors licensed under 675.715;

(ii) Directly relate to the child’s intellectual or developmental disability and the ability of the child’s family to care for the child; and

(iii) Be short-term.

(B) Counseling services exclude:

(i) Therapy that may be obtained through OHP or other payment mechanisms;

(ii) General marriage counseling;

(iii) Therapy to address the psychopathology of the child’s family members;

(iv) Counseling that addresses stressors not directly attributed to the child;

(v) Legal consultation;

(vi) Vocational training for the child’s family members; and

(vii) Training for families to carry out educational activities in lieu of school.

(c) Registration fees for organized conferences, workshops, and group trainings that offer information, education, training, and materials about the child’s intellectual or developmental disability, medical, or health conditions.

(A) Conferences, workshops, or group trainings must be prior authorized by the services coordinator, directly relate to the child’s intellectual or developmental disability, and increase the knowledge and skills of the child’s family to care for and maintain the child in the child’s family home.

(B) Conference, workshop, or group training costs exclude:

(i) Registration fees in excess of $500 per family for an individual event;

(ii) Travel, food, and lodging expenses;

(iii) Services otherwise provided under OHP or available through other resources; or

(iv) Costs for individual family members who are employed to care for the child.

(13) SPECIAL DIET. Special diets do not constitute a full nutritional regime.

(a) In order for a special diet to be authorized:

(A) The foods must be on the approved list developed by the Department;

(B) The special diet must be ordered at least annually by a physician licensed by the Oregon Board of Medical Examiners;

(C) The special diet must be periodically monitored by a dietician or physician; and

(D) The special diet may not be reimbursed through OHP or any other source of public or private funding.

(b) A special diet excludes restaurant and prepared foods, vitamins, and supplements.

(14) TRANSLATION. If the primary language of a child or the child’s primary caregiver is not English, translation service is provided to enable the child or the primary caregiver to communicate with providers of CIIS.

(15) All CIIS authorized by the Department must be included in a child’s written ISP in order to be eligible for payment. The ISP must use the most cost effective services for safely and appropriately meeting a child’s service needs as determined by a services coordinator.

(16) Service levels increase or decrease in direct relationship to the increasing or decreasing behavior criteria score.

(17) If the primary language of a child’s primary caregiver is not English, cost of interpretation or translation services related to CIIS are not considered part of the child’s service level.

(18) EXCEPTIONS. All exceptions must be authorized by the Department’s CIIS manager. Exceptions are limited to 90 days unless re-authorized. Ninety-day exceptions are only authorized in the following circumstances:

(a) The child is at immediate risk of loss of the child’s family home without the expenditure;

(b) The expenditure provides supports for the child’s emerging or changing care needs or behaviors;

(c) A significant medical condition or event occurs that prevents the child’s primary caregiver from providing care or services as documented by a physician; or

(d) The services coordinator determines, with a behavior consultant, that the child needs two staff present at one time to ensure the safety of the child and others. Prior to approval, the services coordinator must determine that a caregiver, including the child’s parent, has been trained in behavior management and that all other feasible recommendations from the behavior consultant and the services coordinator have been implemented.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; SPD 20-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0155

Using Children’s Intensive In-Home Services Funds for Certain Purchases is Prohibited

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

(2) Section (1) of this rule does not apply to employees of a child’s parent or a billing provider who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(3) CIIS funds may not be used for:

(a) Services, supplies, or supports that are illegal, experimental, or determined unsafe for the general public by recognized child and consumer safety agencies;

(b) Services or activities that are carried out in a manner that constitutes abuse of a child;

(c) Services from a person who engages in verbal mistreatment and subjects a child to the use of derogatory names, phrases, profanity, ridicule, harassment, coercion, or intimidation by threatening injury or withholding of services or supports;

(d) Services that restrict a child’s freedom of movement by seclusion in a locked room under any condition;

(e) Purchase of family vehicles;

(f) Purchase of service animals or costs associated with the care of service animals;

(g) Health and medical costs that the general public normally must pay, including but not limited to:

(A) Medical treatments;

(B) Health insurance co-payments and deductibles;

(C) Prescribed or over-the-counter medications;

(D) Mental health treatments and counseling;

(E) Dental treatments and appliances;

(F) Dietary supplements and vitamins; or

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

(h) Ambulance services;

(i) Legal fees, including but not limited to the costs of representation in educational negotiations, establishment of trusts, or creation of guardianship;

(j) Vacation costs for transportation, food, shelter, and entertainment that are not strictly required by the child’s disability-created need for personal assistance in all home and community settings that are normally incurred by a person on vacation, regardless of disability;

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

(l) Unless under certain conditions and limits specified in the child’s ISP, employee wages or contractor payments for services when the child 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;

(m) Services, activities, materials, or equipment that are not necessary, cost effective, or do not meet the definition of support or social benefit as defined in OAR 411-300-0110;

(n) Education and services provided by schools as part of a free and appropriate education for children and young adults under the Individuals with Disabilities Education Act;

(o) Services, activities, materials, or equipment that the Department determines may be reasonably obtained by the child’s family through other available means, such as private or public insurance, philanthropic organizations, or other governmental or public services;

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

(q) Purchase of services when there is sufficient evidence to believe that the child’s parent or guardian, or the provider chosen by the child’s family, has engaged in fraud or misrepresentation, failed to use resources as agreed upon in the child’s ISP, refused to cooperate with record keeping required to document use of CIIS funds, or otherwise knowingly misused public funds associated with CIIS; or

(r) Notwithstanding abuse as defined in ORS 419B.005, services that, in the opinion of the services coordinator, are characterized by failure to act or neglect that leads to, or is in imminent danger of causing, physical injury through negligent omission, treatment, or maltreatment of a child, including but not limited to the failure to provide a child with adequate food, clothing, shelter, medical services, supervision, or through condoning or permitting abuse of a child by any other person. However, no child may be considered neglected for the sole reason that the child’s family relies on treatment through prayer alone in lieu of medical treatment.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007, 430.215

Hist.: SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; 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 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0170

Standards for Providers and Behavior Consultants

(1) PROVIDER QUALIFICATIONS.

(a) A provider must:

(A) Be at least 18 years of age;

(B) Maintain a drug-free work place;

(C) Provide evidence satisfactory to the Department or the Department’s designee that demonstrates by background, education, references, skills, and abilities, the provider is capable of safely and adequately providing the services authorized;

(D) Consent to and pass a background check by the Department as described in OAR 407-007-0200 to 407-007-0370, and be free of convictions or founded allegations of abuse by the appropriate agency, including but not limited to the Department;

(i) Background rechecks must be performed biannually, or as needed if a report of criminal activity has been received by the Department.

(ii) PORTABILITY OF BACKGROUND CHECK APPROVAL. A subject individual as defined in OAR 407-007-0210 may be approved for one position to work in multiple homes within the jurisdiction of the qualified entity as defined in 407-007-0210. The Department’s Background Check Request Form must be completed by the subject individual to show intent to work at various homes.

(E) Effective July 28, 2009, not have been convicted of any of the disqualifying crimes listed in OAR 407-007-0275;

(F) Not be on the current Office of Inspector General’s list of excluded or debarred providers (http://exclusions.oig.hhs.gov/);

(G) Not be the child’s primary caregiver, parent, stepparent, spouse, or legal guardian;

(H) Sign a Medicaid provider agreement and be enrolled as a Medicaid provider prior to delivery of any attendant care services; and

(I) Sign a job description prior to delivery of any attendant care services.

(b) Section (1)(a)(E) of this rule does not apply to employees of billing providers or employees of the child’s parent who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(c) A provider is not an employee of the Department or the state of Oregon and is not eligible for state benefits and immunities, including but not limited to the Public Employees’ Retirement System or other state benefit programs.

(d) If the provider or billing provider is an independent contractor during the terms of the contract, the provider or billing provider must maintain in force, at the providers own expense, professional liability insurance with a combined single limit of not less than $1,000,000 for each claim, incident, or occurrence. Professional liability insurance is to cover damages caused by error, omission, or negligent acts related to the professional services.

(A) The provider or billing provider must provide written evidence of insurance coverage to the Department prior to beginning work and at any time upon the Department’s request.

(B) There must be no cancellation of insurance coverage without 30 days written notice to the Department.

(e) If the provider is an employee of the child’s parent, the provider must submit documentation of immigration status required by federal statute to the Department. The Department maintains documentation of immigration status required by federal statute as a service to the parent, who is the employer.

(f) If the provider is an employee of the child’s parent, both the parent and the provider must sign a job description. The job description must be provided to the services coordinator prior to the delivery of any services by the employee.

(g) A billing provider that wishes to enroll with the Department must maintain and submit evidence of the following upon initial application or upon the Department’s request:

(A) A current background check on each employee who provides services in a child’s family home that shows the employee has no disqualifying criminal convictions.

(B) Professional liability insurance that meets the requirements of section (1)(d) of this rule; and

(C) Any licensure required of the agency by the state of Oregon or federal law or regulation.

(h) All providers must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and 407-007-0290. The provider must notify the Department or the Department’s designee within 24 hours.

(i) A provider must immediately notify a child’s parent and the services coordinator of injury, illness, accidents, or any unusual circumstances that may have a serious effect on the health, safety, physical, emotional well being, or level of service required by the child for whom CIIS are being provided.

(j) Providers are mandatory reporters and are required to report suspected child abuse to their local Department office or to the police in the manner described in ORS 419B.010.

(2) BEHAVIOR CONSULTANTS. Behavior consultants providing specialized consultations must:

(a) Have education, skills, and abilities necessary to provide behavior consultation services as outlined in OAR 411-300-0150;

(b) Have current certification demonstrating completion of training in Oregon Intervention Systems; and

(c) Submit a resume or the equivalent to the Department indicating at least one of the following:

(A) A bachelor’s degree in special education, psychology, speech and communication, occupational therapy, recreation, art or music therapy, or a behavioral science or related field, and at least one year of experience with individuals with disabilities who present difficult or dangerous behaviors; or

(B) Three years experience with individuals with disabilities who present difficult or dangerous behaviors and at least one year of that experience includes providing the services of a behavior consultant as outlined in OAR 411-300-0150.

(d) Additional education or experience may be required to safely and adequately provide the services described in 411-300-0150.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007, 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 13-2004, f. & cert. ef. 6-1-04; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; 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 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0190

Documentation Needs for Children’s Intensive In-Home Services

(1) Accurate time sheets of CIIS must be dated and signed by the provider and the child’s parent after the services are provided and maintained and submitted to the Department with any request for payment for services.

(2) Requests for payment of CIIS must:

(a) Include the billing form indicating prior authorization for the services;

(b) Be signed by the child’s parent after the services were delivered, verifying that the services were delivered as billed; and

(c) Be signed by the provider or billing provider, acknowledging agreement with the terms and condition of the billing form and attesting that the hours were delivered as billed.

(3) Documentation of CIIS provided, including but not limited to daily activity logs as prescribed by the services coordinator, must be provided to the services coordinator upon request or as outlined in the child’s ISP and maintained in the child’s family home or the place of business of the provider of services. The Department does not pay for services unrelated to a child’s disability as outlined in the child’s ISP.

(4) Daily activity logs must be completed by the provider for each shift worked and the responsibility to complete daily activity logs must be listed in the provider’s job description.

(5) The Department retains billing forms and timesheets for at least five years from the date of CIIS.

(6) Behavior consultants must submit the following to the Department written in clear, concrete language understandable to the child’s parent and the provider:

(a) An evaluation of the child, the parent’s concerns, the environment of the child, current communication strategies used by the child and used by others with the child, and any other disability of the child that may impact the appropriateness of strategies to be used with the child; and

(b) Any behavior plan or instructions left with the parent or the provider that describes the suggested strategies to be used with the child.

(7) Billing providers must maintain documentation of provided CIIS for at least seven years from the date of service.

(8) Providers or billing providers must furnish requested documentation immediately upon the written request from the Department, the Oregon Department of Justice Medicaid Fraud Unit, Centers for Medicare and Medicaid Services, or their authorized representatives, or within the time frame specified in the written request. Failure to comply with the request may be considered by the Department as reason to deny or recover payments.

(9) Access to records by the Department, including but not limited to medical, nursing, behavior, psychiatric, or financial records, and specifically including logs and records by providers and vendors providing goods and services, does not require authorization or release by the child or the child’s parent.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; SPD 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0200

Payment for Children’s Intensive In-Home Services

(1) Payment is made after CIIS are delivered as authorized and required documentation is received by the services coordinator.

(2) Effective July 28, 2009, payment may not support, in whole or in part, a provider in any capacity having contact with a recipient of CIIS who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(3) Section (2) of this rule does not apply to employees of a child’s parent or a billing provider who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(4) Service levels are individually negotiated by the Department based on the individual needs of the child.

(5) Authorization must be obtained prior to the delivery of any CIIS for those services to be eligible for payment.

(6) Providers must request payment authorization for CIIS provided during an unforeseeable emergency on the first business day following the emergency service. The services coordinator must determine if the service is eligible for payment.

(7) The Department makes payment to the employee of the child’s parent on behalf of the parent. The Department pays the employer’s share of the Federal Insurance Contributions Act tax (FICA) and withholds the employee’s share of FICA as a service to the parent, who is the employer.

(8) The delivery of authorized CIIS must occur so that any employee of the child’s parent does not exceed 40 hours per work week. The Department does not authorize services that require the payment of overtime, without prior written authorization by the CIIS supervisor.

(9) The Department does not authorize or pay for any hours of CIIS provided by an individual provider beyond 16 hours in any 24-hour period. Exceptions require written authorization by the CIIS supervisor.

(10) Holidays are paid at the same rate as non-holidays.

(11) Travel time to reach the job site is not reimbursable.

(12) Requests for payments must be submitted to the Department within three months of the delivery of CIIS.

(13) Payment by the Department for CIIS is considered full payment for the services rendered under Medicaid. A provider or billing provider may not demand or receive additional payment for CIIS from the child’s parent or any other source, under any circumstances.

(14) Medicaid funds are the payor of last resort. The provider or billing provider must bill all third party resources until all third party resources are exhausted.

(15) The Department reserves the right to make a claim against any third party payer before or after making payment to the provider of CIIS.

(16) The Department may void without cause prior authorizations that have been issued.

(17) Upon submission of the billing form for payment, the provider must comply with:

(a) All rules in OAR chapter 407 and chapter 411;

(b) 45 CFR Part 84 which implements Title V, Section 504 of the Rehabilitation Act of 1973;

(c) Title II and Title III of the Americans with Disabilities Act of 1991; and

(d) Title VI of the Civil Rights Act of 1964.

(18) All billings must be for CIIS provided within the provider’s licensure.

(19) The provider must submit true and accurate information on the billing form. Use of a billing provider does not replace the provider’s responsibility for the truth and accuracy of submitted information.

(20) No person shall submit to the Department:

(a) A false billing form for payment;

(b) A billing form for payment that has been, or is expected to be, paid by another source; or

(c) Any billing form for CIIS that have not been provided.

(21) The Department only makes payment to the enrolled provider who actually performs the CIIS or the provider’s enrolled billing provider. Federal regulations prohibit the Department from making payment to collection agencies.

(22) Payments may be denied if any provisions of these rules are not complied with.

(23) The Department recoups all overpayments.

(a) The amount to be recovered:

(A) Is the entire amount determined or agreed to by the Department;

(B) Is not limited to the amount determined by criminal or civil proceedings; and

(C) Includes interest to be charged at allowable state rates.

(b) A request for repayment of the overpayment or notification of recoupment of future payments is delivered to the provider by registered or certified mail or in person.

(c) Payment schedules with interest may be negotiated at the discretion of the Department.

(d) If recoupment is sought from a child’s parent, hearing rights in OAR 411-300-0210 apply.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007, 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; 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 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0205

Complaints

(1) COMPLAINTS. The Department shall address all complaints in accordance with the Department’s written policies, procedures, and rules. Copies of the procedures for resolving complaints shall be maintained on file at the Department. At a minimum, these policies and procedures shall address:

(a) Informal resolution. The child’s parent has an opportunity to informally discuss and resolve any complaint regarding action taken by the Department that is contrary to law, rule, or policy and that does not meet the criteria for an abuse investigation. Choosing an informal resolution does not preclude the parent from pursuing resolution through formal complaint processes.

(b) Receipt of complaints. The Department shall maintain a log of all complaints regarding the provision of CIIS received via phone calls, e-mails, or writing.

(A) At a minimum, the complaint log shall include:

(i) The date the complaint was received;

(ii) The name of the person taking the complaint;

(iii) The nature of the complaint;

(iv) The name of the person making the complaint, if known; and

(v) The disposition of the complaint.

(B) Child welfare and law enforcement reports of abuse or neglect shall be maintained separately from the central complaint and grievance log.

(c) Response to complaints. Department staff response to the complaint must be provided within five working days following receipt of the complaint and must include an investigation of the facts supporting or disproving the complaint. Any agreement to resolve the complaint must be in writing and must be specifically approved by the complainant. The Department shall provide the complainant with a copy of the agreement.

(d) Review. A manager of the Department must review the complaint if the complaint involves Department staff or services or if the complaint is not, or may not, be resolved with Department staff. The manager’s response to the complaint must be made in writing within 30 days following receipt of the complaint and include a response to the complaint as described in subsection (1)(c) of this section.

(e) Third-party review when complaints are not resolved by a Department manager. Unless the complainant is a Medicaid recipient who has elected to initiate the hearing process according to OAR 411-300-0210, a complaint involving the provision of service or a service provider may be submitted to the Department for an administrative review.

(A) The complainant must submit to the Department a request for an administrative review within 15 days from the date of the decision by the Department manager.

(B) Upon receipt of a request for an administrative review, the Department’s director shall appoint an Administrative Review Committee and name the chairperson. The Administrative Review Committee shall be comprised of two representatives of the Department. Committee representatives may not have any direct involvement in the provision of services to the complainant or have a conflict of interest in the specific case being reviewed.

(C) The Administrative Review Committee must review the complaint and the decision by the Department manager and make a recommendation to the Department’s director within 45 days of receipt of the complaint, unless the complainant and the Administrative Review Committee mutually agree to an extension.

(D) The Department’s director shall consider the report and recommendations of the Administrative Review Committee and make a final decision. The decision must be in writing and issued within 10 days of receipt of the recommendation by the Administrative Review Committee. The written decision must contain the rationale for the decision.

(E) The decision of the Department’s director is final. Any further review is pursuant to the provision of ORS 183.484 for judicial review.

(f) Documentation of complaint. Documentation of each complaint and the resolution of the complaint must be filed or noted in the complainant’s record.

(2) NOTIFICATION. Upon enrollment and annually thereafter, the Department must inform each child’s parent orally and in writing, using language, format, and methods of communication appropriate to the parent’s needs and abilities, of the following:

(a) The Department’s complaint policy and procedures, including the right to an administrative review and the method to obtain an administrative review; and

(b) The right of a Medicaid recipient to a hearing pursuant to OAR 411-300-0210 and the procedure to request a hearing.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; SPD 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0210

Denial, Termination, Suspension, Reduction, or Eligibility for Services for Individual Medicaid Recipients

(1) HEARING RIGHTS. Each time the Department takes an action to deny, terminate, suspend, or reduce a child’s access to services covered under Medicaid, the Department shall notify the child’s parent of the right to a hearing and the method to request a hearing. The Department shall mail the notice by certified mail or personally serve the notice to the parent 10 days or more prior to the effective date of the action.

(a) The Department shall use the Notice of Hearing Rights or a comparable Department-approved form. A notice of hearing rights is not required if an action is part of, or fully consistent with, a child’s ISP, or the child’s parent has agreed with the action by signature to the ISP. The notice of hearing rights shall be given directly to the parent when the ISP is signed.

(b) The child’s parent may appeal a denial of a request for additional or different services only if the request has been made in writing and submitted to the address on the notice to expedite the process.

(c) A notice required by this section of this rule must include:

(A) The action the Department intends to take;

(B) The reasons for the intended action;

(C) The specific Oregon administrative rules that supports, or the change in federal or state law that requires, the action;

(D) The appealing party’s right to request a hearing in accordance with OAR chapter 137, Oregon Attorney General’s Model Rules, ORS Chapter 183, and 42 CFR Part 431, Subpart E;

(E) A statement that the Department files on the subject of the hearing automatically becoming part of the hearing record upon default for the purpose of making a prima facie case;

(F) A statement that the actions specified in the notice shall take effect by default if the Department representative does not receive a request for hearing from the party within 45 days from the date that the Department mails the notice of action;

(G) In cases of an action based upon a change in law, the circumstances under which a hearing shall be granted; and

(H) An explanation of the circumstances under which CIIS shall be continued if a hearing is requested.

(d) If the child’s parent disagrees with the decision or proposed action of the Department to deny, terminate, suspend, or reduce a child’s access to services covered under Medicaid, the parent may request a hearing as provided in ORS Chapter 183. The request for a hearing must be in writing on form DHS 443 and signed by the parent. The signed form (DHS 443) must be received by the Department within 45 days from the date of the Department’s notice of action.

(e) The child’s parent may request an expedited hearing if the parent feels that there is an immediate, serious threat to the child’s life or health if the normal timing of the hearing process is followed.

(f) If the child’s parent requests a hearing before the effective date of the proposed actions and requests that the existing services be continued, the Department shall continue the services.

(A) The Department shall continue the services until whichever of the following occurs first:

(i) The current authorization expires;

(ii) The administrative law judge issues a proposed order and the Department issues a final order; or

(iii) The child is no longer eligible for Medicaid benefits.

(B) The Department shall notify the child’s parent that the Department is continuing the service. The notice shall inform the parent that if the hearing is resolved against the child, the Department may recover the cost of any services continued after the effective date of the continuation notice.

(g) The Department may reinstate services if:

(A) The Department takes an action without providing the required notice and the child’s parent requests a hearing;

(B) The Department fails to provide the notice in the time required in this rule and the child’s parent requests a hearing within 10 days of the mailing of the notice of action; or

(C) The post office returns mail directed to the child’s parent but the location of the parent becomes known during the time that the child is still eligible for services.

(h) The Department shall promptly correct the action taken up to the limit of the original authorization, retroactive to the date the action was taken, if the hearing decision is favorable to the child or the Department decides in the child’s favor before the hearing.

(i) The Department representative and the child’s parent 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 child’s parent to settle the matter;

(B) Ensure the child’s parent understands the reason for the action that is the subject of the hearing request;

(C) Give the child’s parent an opportunity to review the information that is the basis for that action;

(D) Inform the child’s parent of the rules that serve as the basis for the contested action;

(E) Give the child’s parent and the Department the chance to correct any misunderstanding of the facts;

(F) Determine if the child’s parent wishes to have any witness subpoenas issued; and

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

(j) The child’s parent 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 the additional conference facilitates the hearing process.

(k) The Department may provide the child’s parent the relief sought at any time before the final order is issued.

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

(2) PROPOSED AND FINAL ORDERS.

(a) In a contested case, the administrative law judge must serve a proposed order on the child and the Department.

(b) If the administrative law judge issues a proposed order that is adverse to the child, the child’s parent may file an exception to the proposed order to be considered by the Department. The exception must be in writing and must be received by the Department no later than 10 days after service of the proposed order. The parent may not submit additional evidence after this period unless the Department grants prior approval.

(c) After receiving the exception, the Department may adopt the proposed order as the final order or may prepare a new order. Prior to issuing the final order, the Department may issue an amended proposed order.

(3) The provider or billing provider must submit relevant documentation to the Department within five working days at the request of the Department when a hearing has been requested.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 13-2004, f. & cert. ef. 6-1-04; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; SPD 53-2013, f. 12-27-13. cert. ef. 12-28-13

411-300-0220

Provider Sanctions for Children’s Intensive In-Home Services

(1) Sanctions may be imposed on a provider when any of the following conditions is determined by the Department to have occurred:

(a) The provider has been convicted of any crime that would have resulted in an unacceptable background check upon hiring or issuance of a provider number;

(b) The provider has been convicted of unlawfully manufacturing, distributing, prescribing, or dispensing a controlled substance;

(c) The provider’s license has been suspended, revoked, otherwise limited, or surrendered;

(d) The provider has failed to safely and adequately provide the CIIS authorized as determined by the child’s parent or the services coordinator;

(e) The provider has had a founded report of child abuse or substantiated abuse;

(f) The provider has failed to cooperate with any investigation or grant access to or furnish, records or documentation as requested;

(g) The provider has billed excessive or fraudulent charges or has been convicted of fraud;

(h) The provider has made a false statement concerning conviction of crime or substantiation of abuse;

(i) The provider has falsified required documentation;

(j) The provider has not adhered to the provisions of these rules; or

(k) The provider has been suspended or terminated as a provider by the Department or Oregon Health Authority.

(2) The Department may impose the following sanctions on a provider:

(a) Termination from providing CIIS;

(b) Suspension from providing CIIS for a specified length of time or until specified conditions for reinstatement are met and approved by the Department; or

(c) Withholding payments to the provider.

(3) If the Department makes a decision to sanction a provider, the provider must be notified by mail of the intent to sanction.

(a) The provider may appeal a sanction by requesting an administrative review by the Department’s director.

(b) For an appeal to be valid, written notice of the appeal must be received by the Department within 45 days of the date the sanction notice was mailed to the provider.

(c) The provider must appeal a sanction separately from any appeal of audit findings and overpayments.

(4) At the discretion of the Department, providers who have previously been terminated or suspended by the Department or the Oregon Health Authority may not be re-enrolled as providers of Medicaid services.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007, 430.215

Hist.: SDSD 12-2002, f. 12-26-02, cert. ef. 12-28-02; SPD 13-2004, f. & cert. ef. 6-1-04; SPD 11-2009, f. 7-31-09, cert. ef. 8-1-09; 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 53-2013, f. 12-27-13. cert. ef. 12-28-13


Rule Caption: In-Home Support for Children with Intellectual or Developmental Disabilities

Adm. Order No.: SPD 54-2013

Filed with Sec. of State: 12-27-2013

Certified to be Effective: 12-28-13

Notice Publication Date: 12-1-2013

Rules Amended: 411-308-0010, 411-308-0020, 411-308-0030, 411-308-0040, 411-308-0050, 411-308-0060, 411-308-0070, 411-308-0080, 411-308-0090, 411-308-0100, 411-308-0110, 411-308-0120, 411-308-0130, 411-308-0140, 411-308-0150

Rules Repealed: 411-308-0010(T), 411-308-0020(T), 411-308-0030(T), 411-308-0050(T), 411-308-0060(T), 411-308-0070(T), 411-308-0080(T), 411-308-0100(T), 411-308-0120(T)

Subject: The Department of Human Services is permanently amending the rules in OAR chapter 411, division 308 for in-home support for children with intellectual or developmental disabilities.

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

411-308-0010

Statement of Purpose

(1) The rules in OAR chapter 411, division 308 prescribe standards, responsibilities, and procedures for providing in-home support for children with intellectual or developmental disabilities to prevent out-of-home placement, or to return a child with an intellectual or developmental disability back to the family home from a residential setting other than the child’s family home.

(2) In-home supports are designed to increase a family’s ability to care for a child with an intellectual or developmental disability in the family home.

Stat. Auth.: ORS 409.050,430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 21-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0020

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 308:

(1) “Abuse” means “abuse” of a child as defined in ORS 419B.005.

(2) “Activities of Daily Living (ADL)” means basic personal everyday activities, including but not limited to tasks such as eating, using the restroom, dressing, grooming, bathing, and transferring.

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

(4) “Annual Plan” means the written summary a services coordinator completes for a child, who is not enrolled in waiver or Community First Choice services. An Annual Plan is not an Individual Support Plan and is not a plan of care for Medicaid purposes.

(5) “Attendant Care” means the Medicaid state plan funded essential supportive daily care described in OAR 411-308-0120 that is delivered by a qualified provider to enable a child to remain in, or return to, the child’s family home.

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

(7) “Behavior Consultant” means a contractor with specialized skills who develops a Behavior Support Plan.

(8) “Behavior Support Plan” means the written strategy based on person-centered planning and a functional assessment that outlines specific instructions for a provider to follow to cause a child’s challenging behaviors to become unnecessary and to change the provider’s own behavior, adjust environment, and teach new skills.

(9) “Behavior Support Services” mean the services consistent with positive behavioral theory and practice that are provided to assist with behavioral challenges due to a child’s intellectual or developmental disability that prevents the child from accomplishing activities of daily living, instrumental activities of daily living, health related tasks, and cognitive supports to mitigate behavior. Behavior support services are provided in the home or community.

(10) “Case Management” means the functions performed by a services coordinator. Case management includes determining service eligibility, developing a plan of authorized services, and monitoring the effectiveness of services and supports.

(11) “CDDP” means “Community Developmental Disability Program” as defined in this rule.

(12) “Child” means an individual who is less than 18 years of age applying for, or determined eligible for, in-home support.

(13) “Children’s Intensive In-Home Services” means the services described in:

(a) OAR chapter 411, division 300, Children’s Intensive In-Home Services, Behavior Program;

(b) OAR chapter 411, division 350, Medically Fragile Children Services; or

(c) OAR chapter 411, division 355, Medically Involved Children’s Program.

(14) “Chore Services” mean the services described in OAR 411-308-0120 that are needed to restore a hazardous or unsanitary situation in a child’s family home to a clean, sanitary, and safe environment.

(15) “Community Developmental Disability Program (CDDP)” means the entity that is responsible for plan authorization, delivery, and monitoring of developmental disability services according to OAR chapter 411, division 320.

(16) “Community First Choice (K Plan)” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(17) “Community Nursing Services” mean the services described in OAR 411-308-0120 that include nurse delegation, training, and care coordination for a child living in the child’s family home.

(18) “Community Transportation” means the services described in OAR 411-308-0120 that enable a child to gain access to community services, activities, and resources that are not medical in nature.

(19) “Cost Effective” means that a specific service, support, or item of equipment meets a child’s service needs and costs less than, or is comparable to, other similar service, support, or equipment options considered.

(20) “CPMS” means the Client Processing Monitoring System.

(21) “Crisis” means the risk factors described in OAR 411-320-0160 are present for which no appropriate alternative resources are available and a child meets the eligibility requirements for crisis diversion services in OAR 411-320-0160.

(22) “Day” means a calendar day unless otherwise specified in these rules.

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

(24) “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.

(25) “Director” means the director of the Department’s Office of Developmental Disability Services or the director’s designee.

(26) “Employer-Related Supports” mean the activities that assist a family with directing and supervising provision of services described in a child’s Annual Plan. Employer-related supports include but are not limited to:

(a) Education about employer responsibilities;

(b) Orientation to basic wage and hour issues;

(c) Use of common employer-related tools, such as job descriptions; and

(d) Fiscal intermediary services.

(27) “Environmental Accessibility Adaptations” mean the physical adaptations described in OAR 411-308-0120 that are necessary to ensure the health, welfare, and safety of a child in the child’s family home, or that enable a child to function with greater independence in the family home.

(28) “Exit” means termination or discontinuance of in-home support.

(29) “Family”:

(a) Means a unit of two or more people that includes at least one child with an intellectual or developmental disability where the child’s primary caregiver is:

(A) Related to the child with an intellectual or developmental disability by blood, marriage, or legal adoption; or

(B) In a domestic relationship where partners share:

(i) A permanent residence;

(ii) Joint responsibility for the household in general, such as child-rearing, maintenance of the residence, and basic living expenses; and

(iii) Joint responsibility for supporting a child with an intellectual or developmental disability when the child is related to one of the partners by blood, marriage, or legal adoption.

(b) The term “family” is defined as described above for purposes of:

(A) Determining a child’s eligibility for in-home supports as a resident in the family home;

(B) Identifying people who may apply, plan, and arrange for individual supports; and

(C) Determining who may receive family training.

(30) “Family Home” means a child’s primary residence that is not under contract with the Department to provide services as a certified foster home for children with intellectual or developmental disabilities or a licensed or certified residential care facility, assisted living facility, nursing facility, or other residential support program site. Family home may include a certified child welfare foster home.

(31) “Family Training” means the training and counseling services described in OAR 411-308-0120 that are provided to a child’s family to increase the family’s capacity to care for, support, and maintain the child in the child’s family home.

(32) “Fiscal Intermediary” means a person or entity that receives and distributes in-home support funds on behalf of the family of an eligible child according to the child’s Individual Support Plan or Annual Plan.

(33) “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.

(34) “Functional Needs Assessment” means a comprehensive assessment that documents:

(a) Physical, mental, and social functioning; and

(b) Risk factors, choices and preferences, service and support needs, strengths, and goals.

(35) “General Business Provider” means an organization or entity selected by the parent or guardian of an eligible child and paid with in-home support funds that:

(a) Is primarily in business to provide the service chosen by the child’s parent or guardian to the general public;

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

(c) Receives compensation to recruit, supervise, and pay the person who actually provides support for the child.

(36) “Guardian” means a person or agency appointed and authorized by a court to make decisions about services for a child.

(37) “Home and Community-Based Waiver Services” mean the services approved by the Centers for Medicare and Medicaid Services in accordance with section 1915(c) and 1115 of the Social Security Act.

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

(39) “ICF/MR” means intermediate care facilities for the mentally retarded. Federal law and regulations use the term “intermediate care facilities for the mentally retarded (ICF/MR)”. The Department prefers to use the accepted term “individual with intellectual disability (ID)” instead of “mental retardation (MR)”. However, as ICF/MR is the abbreviation currently used in all federal requirements, ICF/MR is used.

(40) “In-Home Support” means individualized planning and service coordination, arranging for services to be provided in accordance with Individual Support Plans, and purchase of supports that are not available through other resources that are required for children with intellectual or developmental disabilities who are eligible for in-home support services to live in the child’s family home. In-home supports are designed to:

(a) Prevent unwanted out-of-home placement and maintain family unity; and

(b) Whenever possible, reunite families with children with intellectual or developmental disabilities who have been placed out of the family home.

(41) “In-Home Support Funds” mean public funds contracted by the Department to the community developmental disability program (CDDP) and managed by the CDDP to assist families with the identification and selection of supports for children with intellectual or developmental disabilities according to the child’s Individual Support Plan or Annual Plan.

(42) “Incident Report” means the written report of any injury, accident, act of physical aggression, or unusual incident involving a child.

(43) “Independent Provider” means a person selected by a child’s parent or guardian and paid with in-home support funds to personally provide services to the child.

(44) “Individual” means a person with an intellectual or developmental disability applying for, or determined eligible for, developmental disability services.

(45) “Individual Support Plan” means the written details of the supports, activities, and resources required for a child to achieve and maintain personal outcomes. The ISP is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. Individual support needs are identified through a functional needs assessment. The manner in which services are delivered, service providers, and the frequency of services are reflected in an ISP. The ISP is the child’s plan of care for Medicaid purposes and reflects whether services are provided through a waiver, state plan, or natural supports.

(46) “Instrumental Activities of Daily Living (IADL)” mean the activities other than activities of daily living, including but not limited to:

(a) Meal planning and preparation;

(b) Budgeting;

(c) Shopping for food, clothing, and other essential items;

(d) Performing essential household chores;

(e) Communicating by phone or other media; and

(f) Traveling around and participating in the community.

(47) “Intellectual Disability” means “intellectual disability” as defined in OAR 411-320-0020 and described in OAR 411-320-0080.

(48) “ISP” means “Individual Support Plan” as defined in this rule.

(49) “K Plan” means “Community First Choice” as defined in this rule.

(50) “Level of Care” means a child meets the following institutional level of care for an intermediate care facility for individuals with intellectual or developmental disabilities (formerly referred to as an ICF/MR):

(a) The child has a condition of an intellectual disability or a developmental disability as defined in OAR 411-320-0020 and meets the eligibility criteria for developmental disability services as described in OAR 411-320-0080; and

(b) The child has a significant impairment in one or more areas of adaptive functioning. Areas of adaptive functioning include self direction, self care, home living, community use, social, communication, mobility, or health and safety.

(51) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who comes in contact with and has reasonable cause to believe a child with or without an intellectual or developmental disability has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused a child with or without an intellectual or developmental disability, 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 affects the duty to report imposed by this section, except that a psychiatrist, psychologist, clergy, attorney, or guardian ad litem appointed under ORS 419B.231 is not required to report if the communication is privileged under ORS 40.225 to 40.295.

(52) “Natural Supports” means the parental responsibility for a child who is less than 18 years of age and the voluntary resources available to the child from the child’s relatives, friends, neighbors, and the community 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 the plan developed by a nurse that describes the medical, nursing, psychosocial, and other needs of a child and how those needs are met. The Nursing Care Plan includes the tasks that are taught or delegated to a qualified provider or the child’s family. When a Nursing Care Plan exists, it is a supporting document for an Individual Support Plan or Annual Plan.

(55) “OHP” means the Oregon Health Plan.

(56) “Oregon Intervention System” means the system of providing training to people who work with designated individuals to provide elements of positive behavior support and non-aversive behavior intervention. The Oregon Intervention System uses principles of pro-active support and describes approved protective physical intervention techniques that are used to maintain health and safety.

(57) “Parent” means biological parent, adoptive parent, stepparent, or legal guardian.

(58) “Person-Centered Planning”:

(a) Means a timely and formal or informal process for gathering and organizing information that helps:

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

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

(C) Identify, use, and strengthen naturally occurring opportunities for support at home and in the community.

(b) The methods for gathering information vary, but all are consistent with a child’s cultural considerations, needs, and preferences.

(59) “Personal Care Services” means assistance with activities of daily living, instrumental activities of daily living, and health-related tasks through cueing, monitoring, reassurance, redirection, set-up, hands-on, standby assistance, and reminding.

(60) “Plan of Care” means the written plan of Medicaid services required by Medicaid regulation. Oregon’s plan of care is the Individual Support Plan.

(61) “Plan Year” means 12 consecutive months from the start date specified on a child’s authorized Individual Support Plan or Annual Plan.

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

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

(b) Uses the least intervention possible;

(c) Ensures that abusive or demeaning interventions are never used; and

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

(63) “Primary Caregiver” means a child’s parent, guardian, relative, or other non-paid parental figure that provides direct care at the times that a paid provider is not available.

(64) “Protective Physical Intervention” means any manual physical holding of, or contact with, a child that restricts the child’s freedom of movement.

(65) “Provider” means a person who is qualified as described in OAR 411-308-0130 to receive payment from the Department for providing support and services to a child according to the child’s Individual Support Plan or Annual Plan.

(66) “Provider Organization” means an entity selected by a child’s parent or guardian and paid with in-home support funds that:

(a) Is primarily in business to provide supports for children with intellectual or developmental disabilities;

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

(c) Receives compensation to recruit, supervise, and pay the person who actually provides support for the child.

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

(68) “Regional Process” means a standardized set of procedures through which a child’s needs and funding to implement supports are reviewed for approval. The regional process includes review of the potential risk of out-of-home placement, the appropriateness of the proposed supports, and cost effectiveness of the child’s Annual Plan. Children who meet the crisis eligibility under OAR 411-308-0060(2) may be granted access to in-home supports through the regional process.

(69) “Relief Care” means the intermittent services described in OAR 411-308-0120 that are provided on a periodic basis of not more than 14 consecutive days for the relief of, or due to the temporary absence of, a child’s primary caregiver.

(70) “Services Coordinator” means an employee of a community developmental disability program, Department, or other agency that contracts with the county or Department, who is selected to plan, procure, coordinate, and monitor in-home support, and to act as a proponent for children with intellectual or developmental disabilities and their families. A services coordinator is a child’s person-centered plan coordinator as defined in the Community First Choice state plan,

(71) “Specialized Equipment and Supplies” means the devices, aids, controls, supplies, or appliances described in OAR 411-308-0120 that enable a child to increase the child’s ability to perform activities of daily living or to perceive, control, or communicate with the environment in which the child lives.

(72) “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.

(73) “Supplant” means take the place of.

(74) “Support” means the assistance that a child and the child’s family requires, solely because of the effects of the child’s intellectual or developmental disability, to maintain or increase the child’s age-appropriate independence, achieve a child’s age-appropriate community presence and participation, and to maintain the child in the child’s family home. Support is subject to change with time and circumstances.

(75) “These Rules” mean the rules in OAR chapter 411, division 308.

(76) “Volunteer” means any person providing services without pay to support the services and supports provided to a child.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; 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 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11; SPD 20-2011, f. & cert. ef. 8-1-11; SPD 21-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0030

In-Home Support Administration and Operation

(1) FISCAL INTERMEDIARY SERVICES. The CDDP must provide, or arrange a third party to provide, fiscal intermediary services for all families. The fiscal intermediary receives and distributes in-home support funds on behalf of a child’s family. The responsibilities of the fiscal intermediary include payments to vendors as well as all activities and records related to payroll and payment of employer-related taxes and fees as an agent of a child’s family who employs a person to provide services, supervision, or training in the family home or community. In this capacity, the fiscal intermediary may not recruit, hire, supervise, evaluate, dismiss, or otherwise discipline employees.

(2) GENERAL RECORD REQUIREMENTS. The CDDP must maintain records of services to children in accordance with OAR 411-320-0070, ORS 179.505, 192.515 to 192.518, 45 CFR 205.50, 45 CFR 164.512, Health Insurance Portability and Accountability Act (HIPAA), 42 CFR Part 2 HIPAA, and any Department administrative rules and policies pertaining to service records.

(a) DISCLOSURE. For the purpose of disclosure from medical records under these rules, CDDPs are considered “providers” as defined in ORS 179.505(1) and ORS 179.505 is applicable.

(A) Access to records by the Department does not require authorization by a child’s family.

(B) For the purposes of disclosure from non-medical records, all or portions of the information contained in the non-medical record may be exempt from public inspection under the personal privacy information exemption to the public records law set forth in ORS 192.502(2).

(b) SERVICE RECORDS. Records for children who receive in-home support must be kept up-to-date and must include:

(A) An easily accessed summary of basic information as described in OAR 411-320-0070, including the date of the child’s enrollment in in-home support;

(B) Records related to receipt and disbursement of in-home support funds, including expenditure authorizations, expenditure verification, copies of CPMS expenditure reports, verification that providers meet requirements of OAR 411-308-0130, and documentation of family acceptance or delegation of the record keeping responsibilities outlined in this rule. Records must include:

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

(ii) Signed contracts and itemized invoices for any services purchased from independent contractors and professionals;

(iii) Written professional support plans, assessments, and reviews to document the acceptable provision of behavior support, nursing, and other professional training and consultation services; and

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

(C) Incident reports, including those involving CDDP staff;

(D) Assessments used to determine required supports, preferences, and resources;

(E) When a child is not Medicaid eligible, documentation of the child’s eligibility for crisis services and approval of the child’s services through a regional process;

(F) The child’s ISP or Annual Plan and reviews;

(G) The services coordinator’s correspondence and notes related to plan development and outcomes; and

(H) Family satisfaction information.

(c) GENERAL FINANCIAL POLICIES AND PRACTICES. The CDDP must:

(A) Maintain up-to-date accounting records consistent with generally accepted accounting principles that accurately reflect all in-home support revenue by source, all expenses by object of expense, and all assets, liabilities, and equities; and

(B) Develop and implement written statements of policy and procedure as are necessary and useful to assure compliance with any Department administrative rule pertaining to fraud and embezzlement.

(d) RECORDS RETENTION. Records must be retained in accordance with OAR chapter 166, division 150, Secretary of State, Archives Division.

(A) Financial records, supporting documents, statistical records, and all other records (except service records) must be retained for a minimum of three years after the close of the contract period, or until audited.

(B) Service records must be kept for a minimum of seven years.

(3) COMPLAINTS AND APPEALS. The CDDP must provide for review of complaints and appeals by or on behalf of children related to in-home support as set forth in OAR 411-320-0170.

(4) DENIAL, TERMINATION, SUSPENSION, OR REDUCTION OF SERVICES FOR MEDICAID RECIPIENTS.

(a) Each time the CDDP takes an action to deny, terminate, suspend, or reduce a child’s access to services covered under Medicaid, the CDDP must notify the child’s parent or guardian of the right to a hearing and the method to request a hearing. The CDDP must mail the notice by certified mail or personally serve the notice to the child’s parent or guardian 10 days or more prior to the effective date of the action.

(A) The CDDP must use the Notification of Planned Action form or a comparable Department-approved form for such notification.

(B) This notification requirement does not apply if an action is part of, or fully consistent with, a child’s ISP and the child’s parent or guardian has agreed with the action by signing the child’s ISP.

(b) A notice required by subsection (a) of this section must include:

(A) The action the CDDP intends to take;

(B) The reasons for the intended action;

(C) The specific Oregon Administrative Rules that support, or the change in federal or state law that requires, the action;

(D) The appealing party’s right to request a hearing in accordance with OAR chapter 137, ORS chapter 183, and 42 CFR Part 431, Subpart E;

(E) A statement that the CDDP files on the subject of the hearing automatically becoming part of the hearing record upon default for the purpose of making a prima facie case;

(F) A statement that the actions specified in the notice take effect by default if a Department representative does not receive a request for a hearing within 45 days from the date that the CDDP mails or personally serves the notice of planned action;

(G) In cases of an action based upon a change in law, the circumstances under which a hearing is granted; and

(H) An explanation of the circumstances under which CDDP services are continued if a hearing is requested.

(c) If a child’s parent or guardian disagrees with a decision or proposed action by the CDDP to deny, terminate, suspend, or reduce the child’s access to services covered under Medicaid, the party may request a hearing as provided in ORS chapter 183. The request for a hearing must be in writing on a Department approved form and signed by the child’s parent or guardian. The signed form must be received by the Department within 45 days from the date the CDDP mailed the notice of action.

(d) A child’s parent or guardian may request an expedited hearing if the child’s parent or guardian feels that there is an immediate, serious threat to the child’s life or health if the normal timing of the hearing process is followed.

(e) If a child’s parent or guardian requests a hearing before the effective date of the proposed action and requests that the existing services be continued, the Department shall continue the services.

(A) The Department must continue the services until whichever of the following occurs first:

(i) The current authorization expires;

(ii) The administrative law judge issues a proposed order and the Department issues a final order; or

(iii) The child is no longer eligible for Medicaid benefits.

(B) The Department must notify the child’s parent or guardian that the Department is continuing the service. The notice must inform the child’s parent or guardian that, if the hearing is resolved against the child, the Department may recover the cost of any services continued after the effective date of the continuation notice.

(f) The Department may reinstate services if:

(A) The Department takes an action without providing the required notice and the child’s parent or guardian requests a hearing;

(B) The Department fails to provide the notice in the time required in this rule and the child’s parent or guardian requests a hearing within 10 days of the mailing of the notice of action; or

(C) The post office returns mail directed to the child’s parent or guardian, but the location of the child’s parent or guardian becomes known during the time that the child is still eligible for services.

(g) The Department must promptly correct the action taken up to the limit of the original authorization, retroactive to the date the action was taken, if the hearing decision is favorable to the child, or the Department decides in the child’s favor before the hearing.

(h) The Department representative and the child’s parent or guardian 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 child’s parent or guardian to settle the matter;

(B) Ensure the child’s parent or guardian understands the reason for the action that is the subject of the hearing request;

(C) Give the child’s parent or guardian an opportunity to review the information that is the basis for that action;

(D) Inform the child’s parent or guardian of the rules that serve as the basis for the contested action;

(E) Give the child’s parent or guardian and the Department the chance to correct any misunderstanding of the facts;

(F) Determine if the child’s parent or guardian wishes to have any witness subpoenas issued; and

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

(i) The child’s parent or guardian 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.

(j) The Department may provide the child’s parent or guardian the relief sought at any time before the final order is issued.

(k) The child’s parent or guardian may withdraw a hearing request at any time prior to the issuance of a final order. The withdrawal is effective on the date the Department or the Office of Administrative Hearings receives the withdrawal. The Department must issue a final order confirming the withdrawal to the last known address of the child’s parent or guardian. The child’s parent or guardian may cancel the withdrawal up to 10 working days following the date the final order is issued.

(l) Proposed and final orders.

(A) In a contested case, the administrative law judge must serve a proposed order to the child’s parent or guardian and the Department.

(B) If the administrative law judge issues a proposed order that is adverse to the child, the child’s parent or guardian may file exceptions to the proposed order to be considered by the Department. The exception must be in writing and must be received by the Department no later than 10 days after service of the proposed order. The child’s parent or guardian may not submit additional evidence after this period unless the Department grants prior approval.

(C) After receiving the exceptions, if any, the Department may adopt the proposed order as the final order or may prepare a new order. Prior to issuing the final order, the Department may issue an amended proposed order.

(5) OTHER OPERATING POLICIES AND PROCEDURES. The CDDP 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 CDDP to accomplish its objectives and to meet the requirements of these rules and other applicable standards and rules.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; 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 21-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0040

Required In-Home Support

(1) The CDDP must provide or arrange for the following services to support all children receiving in-home support in the family home:

(a) SERVICE COORDINATION.

(A) Assistance for families to determine needs, plan supports in response to needs, and develop individualized plans based on available natural supports and public resources;

(B) Assistance for families to find and arrange the resources to provide planned supports;

(C) Assistance for families and children (as appropriate) to effectively put the child’s ISP or Annual Plan into practice including help to monitor and improve the quality of personal supports and to assess and revise the child’s ISP or Annual Plan goals; and

(D) Assistance to families to access information, referral, and local capacity building services through the county’s family support program under OAR chapter 411, division 305.

(b) EMPLOYER-RELATED SUPPORTS.

(A) Fiscal intermediary services in the receipt and accounting of in-home support services on behalf of families in addition to making payment with the authorization of families; and

(B) Assistance to families to fulfill roles and obligations as employers of support staff when staff is paid with in-home support funds.

(2) The CDDP must inform families about in-home support when a child is determined eligible for developmental disability services. The CDDP must provide accurate, up-to-date information that must include:

(a) Criteria for entry and for determining how much assistance with supports shall be available, including information about eligibility for in-home supports and how these supports are different from family support services the child and family may have received under OAR chapter 411, division 305;

(b) An overview of common processes encountered in using - in-home support, including the in-home support planning process and the regional processes (as applicable);

(c) Responsibility of providers of in-home support and CDDP employees as mandatory reporters of child abuse;

(d) A description of family responsibilities in regard to use of public funds;

(e) An explanation of family rights to select and direct the providers of services authorized through an eligible child’s ISP or Annual Plan and purchased with in-home support funds from among those qualified according to OAR 411-308-0130 to provide supports; and

(f) Information on complaint and appeal rights and how to raise and resolve concerns about in-home supports.

(3) The CDDP must make information required in sections (1) and (2) of this rule available using language, format, and presentation methods appropriate for effective communication according to each family’s needs and abilities.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0050

Financial Limits of In-Home Support

(1) In any plan year, support must be limited to the amount of support determined to be necessary by a functional needs assessment and specified in a child’s ISP or Annual Plan. For a child who is not Medicaid eligible, the amount of support specified in the child’s Annual Plan may not exceed the maximum allowable monthly plan amount published in the Department’s rate guidelines in any month during the plan year.

(2) Payment rates used to establish the limits of financial assistance for specific service in the child’s Annual Plan must be based on the Department’s rate guidelines for costs of frequently-used services. Department rate guidelines notwithstanding, final costs may not exceed local usual and customary charges for these services as evidenced by the CDDP’s own documentation.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11; SPD 20-2011, f. & cert. ef. 8-1-11; SPD 21-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0060

Eligibility for In-Home Support

(1) STANDARD ELIGIBILITY. In order to be eligible for in-home support, a child must:

(a) Be under the age of 18;

(b) Be receiving the full Medicaid benefit through the Oregon Health Plan;

(c) Be determined eligible for developmental disability services by the CDDP of the child’s county of residence as described in OAR 411-320-0080; and

(d) After completion of an assessment, meet the level of care as defined in OAR 411-308-0020.

(2) CRISIS ELIGIBILITY. When the standard eligibility criteria described in section (1) of this rule are not met, the CDDP of a child’s county of residence may find a child eligible for in-home support when the child:

(a) Is experiencing a crisis as defined in OAR 411-308-0020 and may be safely served in the family home;

(b) Has exhausted all appropriate alternative resources, including but not limited to natural supports and children’s intensive in-home services as defined in OAR 411-308-0020;

(c) Does not receive or may stop receiving other Department-paid in-home or community living services other than state Medicaid plan services, adoption assistance, or short-term assistance, including crisis services provided to prevent out-of-home placement; and

(d) Is at risk of out-of-home placement and requires in-home support to be maintained in the family home; or

(e) Resides in a Department-paid residential service and requires in-home support to return to the family home.

(3) CONCURRENT ELIGIBLITY. Children are not eligible for in-home support from more than one CDDP unless the concurrent service:

(a) Is necessary to transition from one county to another with a change of residence;

(b) Is part of a collaborative plan developed by both CDDPs; and

(c) Does not duplicate services and expenditures.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11; SPD 20-2011, f. & cert. ef. 8-1-11; SPD 21-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0070

In-Home Support Entry, Duration, and Exit

(1) ENTRY. An eligible child may enter in-home support when in-home support needs are assessed through a functional needs assessment. In-home supports must be authorized on an annual basis, prior to the beginning of a new ISP or Annual Plan.

(2) DURATION OF SERVICES. Once a child has entered in-home support, the child and the child’s family may continue receiving in-home supports from the CDDP until the child turns 18. The child must remain eligible for in-home support and in-home support funds must be available at the CDDP and authorized by the Department to continue services. The child’s ISP or Annual Plan must be developed each year and kept current.

(3) CHANGE OF COUNTY OF RESIDENCE. If a child and the child’s family move outside the CDDP’s area of service, the originating CDDP must arrange for services purchased with in-home support funds to continue, to the extent possible, in the new county of residence. The originating CDDP must:

(a) Provide information about the need to apply for services in the new CDDP and assist the family with application for services if necessary; and

(b) Contact the new CDDP to negotiate the date on which the in-home support, including responsibility for payments, transfers to the new CDDP.

(4) EXIT. A child must leave a CDDP’s in-home support --

(a) When the child no longer resides in the family home;

(b) At the written request of the child’s parent or guardian to end the in-home supports;

(c) When the in-home supports are no longer necessary to prevent out-of-home placement due to either;

(A) The risk of out of home placement no longer exists due to changes in either the child’s support needs or the family’s ability to provide the support; or

(B) Appropriate alternative resources become available, including but not limited to supports through children’s intensive in-home services as defined in OAR 411-308-0020.

(d) On the child’s 18th birthday;

(e) When the child and the child’s family moves to a county outside the CDDP’s area of service, unless transition services have been previously arranged and authorized by the CDDP as required in section (3) of this rule; or

(f) No less than 30 days after the CDDP has served written notice, in the language used by the family, of intent to terminate services because:

(A) The child’s family either cannot be located or has not responded to repeated attempts by CDDP staff to complete the child’s ISP or Annual Plan development and monitoring activities and does not respond to the notice of intent to terminate; or

(B) The CDDP has sufficient evidence that the child’s family has engaged in fraud or misrepresentation, failed to use resources as agreed upon in the child’s ISP or Annual Plan, refused to cooperate with documenting expenses, or otherwise knowingly misused public funds associated with in-home support.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11; SPD 20-2011, f. & cert. ef. 8-1-11; SPD 21-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0080

Written Plan Required

(1) The CDDP must provide an annual planning process to assist families in establishing outcomes, determining needs, planning for supports, and reviewing and redesigning support strategies for all children eligible for in-home support. The planning process must occur in a manner that:

(a) Identifies and applies existing abilities, relationships, and resources while strengthening naturally occurring opportunities for support at home and in the community;

(b) Is consistent in both style and setting with the child’s and the child’s family’s needs and preferences, including but not limited to informal interviews, informal observations in home and community settings, or formally structured meetings; and

(c) Includes completing a functional needs assessment using a person-centered planning approach.

(2) The CDDP, the child (as appropriate), and the child’s family must develop a written ISP or Annual Plan for the child as a result of the planning process prior to purchasing supports with in-home support funds and annually thereafter. The child’s ISP or Annual Plan must include but not be limited to:

(a) The eligible child’s legal name and the name of the child’s parent (if different than the child’s last name) or the name of the child’s guardian;

(b) A description of the supports required, including the reason the support is necessary. The description must be consistent with the needs identified in the functional needs assessment;

(c) Beginning and end dates of the plan year as well as when specific activities and supports are to begin and end;

(d) A list of personal, community, and public resources that are available to the child and how the resources may be applied to provide the required supports. Sources of support may include waiver services, state plan services, general funds, or natural supports;

(e) Signatures of the child’s services coordinator, the child’s parent or guardian, and the child (as appropriate); and

(f) The schedule of the child’s ISP or Annual Plan reviews.

(3) The ISP must also include the following:

(a) Projected costs with sufficient detail to support estimates;

(b) The manner in which services are delivered and the frequency of services;

(c) Service providers;

(d) The child’s strengths and preferences;

(e) Individually identified goals and desired outcomes;

(f) The services and supports (paid and unpaid) to assist the child to achieve identified goals and the providers of the services and supports, including voluntarily provided natural supports;

(g) The risk factors and the measures in place to minimize the risk factors, including back-up plans;

(h) The identity of the person responsible for case management and monitoring the ISP or Annual Plan; and

(i) A provision to prevent unnecessary or inappropriate care.

(4) The child’s ISP or Annual Plan, or records supporting development of each child’s ISP or Annual Plan, must include evidence that:

(a) When the child is not Medicaid eligible, in-home support funds are used only to purchase goods or services necessary to prevent the child from out-of-home placement, or to return the child from a community placement to the family home;

(b) The services coordinator has assessed the availability of other means for providing the supports before using in-home support funds, and other public, private, formal, and informal resources available to the child have been applied and new resources have been developed whenever possible;

(c) Basic health and safety needs and supports have been addressed, including but not limited to identification of risks, including risk of serious neglect, intimidation, and exploitation;

(d) Informed decisions by the child’s parent or guardian regarding the nature of supports or other steps taken to ameliorate any identified risks; and

(e) Education and support for the child and the child’s family to recognize and report abuse.

(5) The services coordinator must obtain and attach a Nursing Care Plan to the child’s written ISP or Annual Plan when in-home supports are used to purchase care and services requiring the education and training of a nurse.

(6) The services coordinator must obtain and attach a Behavior Support Plan to the child’s written ISP or Annual Plan when the Behavior Support Plan is implemented by the child’s family or providers during the plan year.

(7) In-home supports may only be provided after the child’s ISP or Annual Plan is developed as described in this rule, authorized by the CDDP, and signed by the child’s parent or guardian.

(8) The services coordinator must review and reconcile receipts and records of purchased supports authorized by the child’s ISP or Annual Plan and subsequent ISP or Annual Plan documents, at least quarterly during the plan year.

(9) At least annually, the services coordinator must conduct and document reviews of the child’s ISP or Annual Plan and resources with the child’s family as follows:

(a) Evaluate progress toward achieving the purposes of the child’s ISP or Annual Plan;

(b) Record actual in-home support fund costs;

(c) Note effectiveness of purchases based on services coordinator observation as well as family satisfaction;

(d) Determine whether changing needs or availability of other resources have altered the need for specific supports or continued use of in-home supports; and

(e) For children who meet the crisis eligibility under OAR 411-308-0060(2), a review of the child’s continued risk for out-of-home placement and the availability of alternate resources, including eligibility for children’s intensive in-home services as defined in OAR 411-308-0020.

(10) When the eligible child and the child’s family moves to a county outside the area of service, the originating CDDP must assist in-home support recipients by:

(a) Continuing in-home supports authorized by the child’s ISP or Annual Plan which is current at the time of the move, if the support is available, until the transfer date agreed upon according to OAR 411-308-0070; and

(b) Transferring the unexpended portion of the child’s in-home supports to the new CDDP of residence.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11; SPD 20-2011, f. & cert. ef. 8-1-11; SPD 21-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0090

Managing and Accessing In-Home Support Funds

(1) Funds contracted to a CDDP by the Department to serve a specifically-named child must only be used to support that specified child. Services must be provided according to each child’s approved ISP or Annual Plan. The funds may only be used to purchase supports described in OAR 411-308-0120. Continuing need for services must be regularly reviewed according to the Department’s procedures described in these rules.

(2) No child receiving in-home support may concurrently receive services through:

(a) Children’s intensive in home services as defined in OAR 411-308-0020;

(b) Direct assistance or immediate access funds under family support; or

(c) In-home support from another CDDP unless short-term concurrent services are necessary when a child moves from one CDDP to another and the concurrent supports are arranged in accordance with OAR 411-308-0060(3).

(3) Children receiving in-home support may receive short-term crisis diversion services provided through the CDDP or region. Children receiving in-home support may utilize family support information and referral services, other than direct assistance or immediate access funds, while receiving in-home support. The CDDP must clearly document the services and demonstrate that the services are arranged in a manner that does not allow duplication of funding.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; 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 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11; SPD 20-2011, f. & cert. ef. 8-1-11; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0100

Conditions for In-Home Support Purchases

(1) A CDDP must only use in-home support funds to assist families to purchase supports for the purpose defined in OAR 411-308-0010 and in accordance with the child’s ISP or Annual Plan that meets the requirements for development and content in OAR 411-308-0080.

(2) The CDDP must arrange for supports purchased with in-home support funds to be provided:

(a) In settings and under purchasing arrangements and conditions that enable the family to receive supports and services from another qualified provider;

(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 child or others;

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

(C) Interferes with community participation;

(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 family 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; and

(f) In accordance with OAR 411-308-0130 governing provider qualifications.

(3) When in-home support funds are used to purchase services, training, supervision, or other personal assistance for children, the CDDP must require and document that providers are informed of:

(a) Mandatory reporter responsibility to report suspected child abuse;

(b) Responsibility to immediately notify the child’s parent or guardian, or any other person specified by the child’s parent or guardian, of any injury, illness, accident, or unusual circumstance involving the child 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;

(c) Limits of payment:

(A) In-home support 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 family or any other source.

(B) The provider must bill all third party resources before using in-home support funds.

(d) The provisions of section (6) of this rule regarding sanctions that may be imposed on providers;

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

(f) The payment process, including payroll or contractor payment schedules or timelines.

(4) The method and schedule of payment must be specified in written agreements between the CDDP and the child’s parent or guardian.

(a) Support expenses must be separately projected, tracked, and expensed, including separate contracts, employment agreements, and timekeeping for staff working with more than one eligible child.

(b) The CDDP is specifically prohibited from reimbursement of families for expenses or advancing funds to families to obtain services. The CDDP must issue payment, or arrange through fiscal intermediary services to issue payment, directly to the qualified provider on behalf of the family after approved services described in the child’s ISP or Annual Plan have been satisfactorily delivered.

(5) The CDDP must inform families in writing of records and procedures required in OAR 411-308-0030 regarding expenditure of in-home support funds. During development of a child’s ISP or Annual Plan, the services coordinator must determine the need or preference for the CDDP to provide support with documentation and procedural requirements and must delineate responsibility for maintenance of records in written service agreements.

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

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

(A) Been convicted of any crime that would have resulted in an unacceptable background 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 certificate, or had his or her professional license or certificate suspended, revoked, or otherwise limited;

(D) Failed to safely and adequately provide the authorized in-home support services, or other similar services in a Department program;

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

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

(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 section (4) of this rule and OAR 411-308-0130; or

(K) Been suspended or terminated as a provider by 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 in-home support funds; or

(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 CDDP or the Department, as applicable.

(c) If the CDDP makes a decision to sanction a provider, the CDDP 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 may appeal a sanction by requesting an administrative review by the Department’s director.

(B) For an appeal regarding provision of Medicaid services, 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) A provider may be immediately suspended by the CDDP as a protective service action or in the case of alleged criminal activity that may pose a danger to the child. The suspension may continue until the issues are resolved.

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

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; 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 21-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0110

Using In-Home Support Funds for Certain Purchases is Prohibited

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

(2) Section (1) of this rule does not apply to employees of a parent, employees of a general business provider, or employees of a provider organization who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(3) In-home support funds may not be used for:

(a) Services that:

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

(B) Replace normal parental responsibilities for the child’s care, education, recreation, and general supervision;

(C) Provide financial assistance with food, clothing, shelter, and laundry needs common to children with or without disabilities;

(D) Replace other governmental or community services available to the child or the child’s family; or

(E) Exceed the actual cost or level of supports that must be provided for the child to be supported in the family home.

(b) Services, supplies, or supports that are illegal, experimental, or determined unsafe for the general public by recognized child and consumer safety agencies;

(c) Services or activities that are carried out in a manner that constitutes abuse;

(d) Notwithstanding abuse as defined in OAR 411-308-0020, services from a person who engages in verbal mistreatment and subjects a child to the use of derogatory names, phrases, profanity, ridicule, harassment, coercion, or intimidation by threatening injury or withholding of services or supports;

(e) Notwithstanding abuse as defined in OAR 411-308-0020, services that restrict a child’s freedom of movement by seclusion in a locked room under any condition;

(f) Purchase of family vehicles;

(g) Purchase of service animals or costs associated with the care of service animals;

(h) Health and medical costs that the general public normally must pay, including but not limited to:

(A) Medical or therapeutic treatments;

(B) Health insurance co-payments and deductibles;

(C) Prescribed or over-the-counter medications;

(D) Mental health treatments and counseling;

(E) Dental treatments and appliances;

(F) Dietary supplements and vitamins; or

(G) Special diet or treatment supplies not related to incontinence or infection control.

(i) Ambulance services;

(j) Legal fees, including but not limited to the costs of representation in educational negotiations, establishment of trusts, or creation of guardianship;

(k) Vacation costs or any costs associated with the vacation;

(l) Services, training, support, or supervision that has not been arranged according to applicable state and federal wage and hour regulations;

(m) Employee wages or contractor payments for time or services when the child 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;

(n) Services, activities, materials, or equipment that are not necessary, cost effective, or do not meet the definition of support;

(o) Education and services provided by schools as part of a free and appropriate education for children and young adults under the Individuals with Disabilities Education Act;

(p) Services, activities, materials, or equipment that the CDDP determines may be obtained by the family through other available means, such as private or public insurance, philanthropic organizations, or other governmental or public services;

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

(r) Purchase of services when there is sufficient evidence to believe that the child’s parent or guardian, or the service provider chosen by the child’s family, has engaged in fraud or misrepresentation, failed to use resources as agreed upon in the child’s ISP or Annual Plan, refused to cooperate with record keeping required to document use of in-home support funds, or otherwise knowingly misused public funds associated with in-home support.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; 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 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0120

Supports Purchased with In-Home Support Funds

(1) For an initial or annual ISP, when conditions of purchase are met and provided purchases are not prohibited under OAR 411-308-0110, in-home support funds may be used to purchase a combination of the following supports based upon the needs of the child consistent with the child’s functional needs assessment, ISP, and available funding:

(a) Community First Choice state plan services:

(A) Specialized consultation including behavior consultation as described in section (2) of this rule;

(B) Community nursing services as described in section (3) of this rule;

(C) Environmental accessibility adaptations as described in section (4) of this rule;

(D) Attendant care as described in section (5) of this rule;

(E) Relief care as described in section (6) of this rule;

(F) Specialized equipment and supplies as described in section (7) of this rule;

(G) Chore services as described in section (8) of this rule; and

(H) Community transportation as described in section (9) of this rule.

(b) As a waiver service, family training as described in section (10) of this rule.

(2) SPECIALIZED CONSULTATION - BEHAVIOR CONSULTATION. Behavior consultation is only authorized to support a child’s primary caregiver in their caregiving role. Behavior consultation is only authorized, as needed, to respond to specific problems identified by a primary caregiver or a services coordinator. Behavior consultants must:

(a) Work with the child’s primary caregiver to identify:

(A) Areas of a child’s family home life that are of most concern for the child and the child’s parent;

(B) The formal or informal responses the child’s family or the provider has used in those areas; and

(C) The unique characteristics of the child’s family that may influence the responses that may work with the child.

(b) Assess the child. The assessment must include:

(A) Specific identification of the behaviors or areas of concern;

(B) Identification of the settings or events likely to be associated with, or to trigger, the behavior;

(C) Identification of early warning signs of the behavior;

(D) Identification of the probable reasons that are causing the behavior and the needs of the child that are being met by the behavior, including the possibility that the behavior is:

(i) An effort to communicate;

(ii) The result of a medical condition;

(iii) The result of an environmental cause; or

(iv) The symptom of an emotional or psychiatric disorder.

(E) Evaluation and identification of the impact of disabilities (i.e. autism, blindness, deafness, etc.) that impact the development of strategies and affect the child and the area of concern; and

(F) An assessment of current communication strategies.

(c) Develop a variety of positive strategies that assist the child’s primary caregiver and the provider to help the child use acceptable, alternative actions to meet the child’s needs in the most cost effective manner. These strategies may include changes in the physical and social environment, developing effective communication, and appropriate responses by a primary caregiver and a provider to the early warning signs.

(A) Interventions must be done in accordance with positive behavioral theory and practice as defined in OAR 411-300-0110.

(B) The least intrusive intervention possible must be used.

(C) Abusive or demeaning interventions must never be used.

(D) The strategies must be adapted to the specific disabilities of the child and the style or culture of the child’s family.

(d) Develop emergency and crisis procedures to be used to keep the child and the child’s primary caregiver and the provider safe. When interventions in the behavior of the child are necessary, positive, preventative, non-aversive interventions that conform to the Oregon Intervention System must be utilized;

(e) Develop a written Behavior Support Plan using clear, concrete language that is understandable to the child’s primary caregiver and the provider that describes the assessment, strategies, and procedures to be used;

(f) Teach the child’s primary caregiver and the provider the strategies and procedures to be used; and

(g) Monitor and revise the Behavior Support Plan as needed.

(3) COMMUNITY NURSING SERVICES.

(a) Community nursing services include:

(A) Evaluation, including medication reviews, and identification of supports that minimize health risks while promoting a child’s autonomy and self-management of healthcare;

(B) Collateral contact with a services coordinator regarding a child’s community health status to assist in monitoring safety and well-being and to address needed changes to the child’s ISP; and

(C) Delegation and training of nursing tasks to a child’s primary caregiver and a provider so the caregivers may safely perform health related tasks.

(b) Community nursing services exclude direct nursing care.

(c) Community nursing services are not covered by other Medicaid spending authorities.

(4) ENVIRONMENTAL ACCESSIBILITY ADAPTATIONS. Environmental accessibility adaptations are physical adaptations to a child’s family home that are necessary to ensure the health, welfare, and safety of the child in the family home due to the child’s intellectual or developmental disability or that are necessary to enable the child to function with greater independence around the family home and in family activities.

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

(A) An environmental modification consultation to determine the appropriate type of adaptation to ensure the health, welfare, and safety of the child;

(B) Installation of shatter-proof windows;

(C) Hardening of walls or doors;

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

(E) An alarm system for doors or windows;

(F) Protective covering for smoke alarms, 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 a child whose temperature sensitivity issues create behaviors or medical conditions that put the child 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 child;

(R) Modifications for the primary vehicle used by the child that are necessary to meet the unique needs of the child and ensure the health, welfare, and safety of the child, such as lift, interior alterations to seats, head and leg rests, belts, special safety harnesses, or other unique modifications to keep the child safe in the vehicle; and

(S) Adaptations to control lights, heat, stove, etc.

(b) Environmental accessibility adaptations exclude:

(A) Adaptations or improvements to the child’s family home that are of general utility and are not for the direct safety, remedial, or long term benefit to the child;

(B) Adaptations that add to the total square footage of the child’s family home; and

(C) General repair or maintenance and upkeep required for the child’s family home or motor vehicle, including repair of damage caused by the child.

(c) Environmental accessibility adaptations are limited to $5,000 per modification. A services coordinator may request approval for additional expenditures through the Department prior to expenditure. Approval is based on the child’s service needs and goals and the Department’s determination of appropriateness and cost-effectiveness.

(d) Environmental accessibility adaptations must be tied to supporting ADL, IADL, and health-related tasks as identified in the child’s ISP.

(e) Environmental accessibility adaptations over $500 must be completed by a state licensed contractor. Any modification requiring a permit must be inspected by a local inspector and certified as in compliance with local codes. Certification of compliance must be filed in the provider’s file prior to payment.

(f) Environmental accessibility adaptations must be made within the existing square footage of the child’s family home, except for external ramps, and may not add to the square footage of the building.

(g) Payment to the contractor is to be withheld until the work meets specifications.

(h) Environmental accessibility adaptations that are provided in a rental structure must be authorized in writing by the owner of the structure prior to initiation of the work. This does not preclude any reasonable accommodations required under the Americans with Disabilities Act.

(5) ATTENDANT CARE. Attendant care services include the purchase of direct provider support provided to a child in the child’s family home or community by qualified individual providers and agencies. Provider assistance provided through attendant care must support the child to live as independently as appropriate for the child’s age, support the child’s family in their primary caregiver role, and be based on the identified needs of the child. A child’s primary caregiver is expected to be present or available during the provision of attendant care.

(a) Attendant care services provided by qualified providers or agencies include:

(A) Basic personal hygiene — Assistance with bathing and grooming;

(B) Toileting, bowel, and bladder care — Assistance in the bathroom, diapering, external cleansing of perineal area, and care of catheters;

(C) Mobility — Transfers, comfort, positioning, and assistance with range of motion exercises;

(D) Nutrition — Feeding and monitoring intake and output;

(E) Skin care — Dressing changes;

(F) Physical healthcare, including delegated nursing tasks;

(G) Supervision — Providing an environment that is safe and meaningful for the child and interacting with the child to prevent danger to the child and others and maintain skills and behaviors required to live in the child’s family home and community;

(H) Assisting the child with appropriate leisure activities to enhance development in the child’s family home and community and provide training and support in personal environmental skills;

(I) Communication - Assisting the child in communicating using any means used by the child;

(J) Neurological - Monitoring of seizures, administering medication, and observing status; and

(K) Accompanying the child and the child’s family to health related appointments.

(b) Attendant care services must:

(A) Be previously authorized by the services coordinator before services begin;

(B) Be delivered through the most cost effective method as determined by the services coordinator; and

(C) Only be provided when the child is present to receive services.

(c) Attendant care services exclude:

(A) Hours that supplant parental responsibilities, other natural supports, and services available from the child’s family, community, other government or public services, insurance plans, schools, philanthropic organizations, friends, or relatives;

(B) Hours solely to allow a child’s primary caregiver to work or attend school;

(C) Hours that exceed what is necessary to support the child;

(D) Support generally provided at the child’s age by the child’s parent or other family members;

(E) Educational and supportive services provided by schools as part of a free and appropriate education for children and young adults under the Individuals with Disabilities Education Act;

(F) Services provided by the child’s family; and

(G) Home schooling.

(d) Attendant care services may not be provided on a 24-hour shift-staffing basis.

(6) RELIEF CARE. Relief care services are provided to a child on a periodic or intermittent basis furnished because of the temporary absence of, or need for relief of, the child’s primary caregiver.

(a) Relief care may include both day and overnight services that may be provided in:

(A) The child’s family home;

(B) A licensed, certified, or otherwise regulated setting;

(C) A qualified provider’s home. If overnight relief care is provided in a qualified provider’s home, the services coordinator and the child’s parent must document that the home is a safe setting for the child;

(D) A disability-related or therapeutic recreational camp; or

(E) The community, during the provision of ADL, IADL, health related tasks, and other supports identified in the child’s ISP.

(b) Relief care services are not authorized for the following:

(A) Solely to allow a child’s primary caregiver to attend school or work;

(B) For ongoing services that occur on more than a periodic schedule, such as eight hours a day, five days a week;

(C) For more than 14 consecutive overnight stays in a calendar month;

(D) For more than 10 days per individual plan year when provided at a specialized camp;

(E) For vacation, travel, and lodging expenses; or

(F) To pay for room and board if provided at a licensed site or specialized camp.

(7) SPECIALIZED EQUIPMENT AND SUPPLIES. Specialized equipment and supplies include the purchase of devices, aids, controls, supplies, or appliances that are necessary to enable a child to increase the child’s abilities to perform and support ADLs and IADLs or to perceive, control, or communicate with the environment in which the child lives. Specialized equipment and supplies must meet applicable standards of manufacture, design, and installation.

(a) Specialized equipment and supplies include:

(A) Electronic devices to secure assistance in an emergency in the community and other reminders, such as medication minders, alert systems for ADL or IADL supports, or mobile electronic devices. Expenditures for electronic devices are limited to $500 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(B) Assistive technology to provide additional security and replace the need for direct interventions to enable self direction of care and maximize independence, such as motion or sound sensors, two-way communication systems, automatic faucets and soap dispensers, incontinent and fall sensors, or other electronic backup systems.

(i) Expenditures for assistive technology are limited to $5,000 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(C) Assistive devices not covered by other Medicaid programs to assist and enhance a child’s independence in performing ADLs or IADLs, such as durable medical equipment, mechanical apparatus, electrical appliances, or information technology devices.

(i) Expenditures for assistive devices are limited to $5,000 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(b) Specialized equipment and supplies may include the cost of a professional consultation, if required to assess, identify, adapt, or fit specialized equipment. The cost of professional consultation may be included in the purchase price of the equipment.

(c) To be authorized by a services coordinator, specialized equipment and supplies must be --

(A) In addition to any medical equipment and supplies furnished under OHP and private insurance;

(B) Determined necessary to the daily functions of the child; and

(C) Directly related to a child’s disability.

(d) Specialized equipment and supplies exclude:

(A) Items that are not necessary or of direct medical or remedial benefit to the child;

(B) Specialized equipment and supplies intended to supplant similar items furnished under OHP or private insurance;

(C) Items available through a child’s family, community, or other governmental resources;

(D) Items that are considered unsafe for a child;

(E) Toys or outdoor play equipment; and

(F) Equipment and furnishings of general household use.

(e) Funding for specialized equipment and supplies with an expected life of more than one year is one time funding that is not continued in subsequent plan years. Specialized equipment and supplies may only be included in a child’s ISP when all other public and private resources have been exhausted.

(f) The services coordinator must secure use of specialized equipment or supplies costing more than $500 through a written agreement between the Department and the child’s parent that specifies the time period the item is to be available to the child and the responsibilities of all parties if the item is lost, damaged, or sold within that time period. The Department may immediately recover any specialized equipment or supplies purchased with in-home support funds that are not used according to the child’s ISP or according to the written agreement between the Department and the parent.

(8) CHORE SERVICES. Chore services may be provided only in situations where no one else in a child’s family home is able 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.

(a) Chore services include heavy household chores such as --

(A) Washing floors, windows, and walls;

(B) Tacking down loose rugs and tiles; and

(C) Moving heavy items of furniture for safe access and egress.

(b) Chore services may include yard hazard abatement to ensure the outside of a child’s family home is safe for the child to traverse and enter and exit the home.

(9) COMMUNITY TRANSPORTATION. Community transportation is provided in order to enable a child to gain access to community services, activities, and resources as specified in the child’s ISP. Community transportation excludes:

(a) Transportation provided by a child’s family members;

(b) Transportation used for behavioral intervention or calming;

(c) Transportation normally provided by schools;

(d) Transportation normally provided by the child’s primary caregiver for a child of similar age without disabilities;

(e) Purchase of any family vehicle;

(f) Vehicle maintenance and repair;

(g) Reimbursement for out-of-state travel expenses;

(h) Ambulance services or medical transportation; or

(i) Transportation services that may be obtained through other means, such as OHP or other public or private resources available to the child.

(10) FAMILY TRAINING. Family training services include the purchase of training, coaching, counseling, and support that increase the abilities of a child’s family to care for and maintain the child in the child’s family home. Family training services include:

(a) Instruction about treatment regimens and use of equipment specified in the child’s ISP;

(b) Counseling services that assist the child’s family with the stresses of having a child with an intellectual or developmental disability.

(A) To be authorized, the counseling services must:

(i) Be provided by licensed providers, including but not limited to psychologists licensed under ORS 675.030, professionals licensed to practice medicine under ORS 677.100, social workers licensed under ORS 675.530, or counselors licensed under ORS 675.715;

(ii) Directly relate to the child’s intellectual or developmental disability and the ability of the child’s family to care for the child; and

(iii) Be short-term.

(B) Counseling services exclude:

(i) Therapy that may be obtained through OHP or other payment mechanisms;

(ii) General marriage counseling;

(iii) Therapy to address the psychopathology of the child’s family members;

(iv) Counseling that addresses stressors not directly attributed to the child;

(v) Legal consultation;

(vi) Vocational training for the child’s family members; and

(vii) Training for families to carry out educational activities in lieu of school.

(c) Registration fees for organized conferences, workshops, and group trainings that offer information, education, training, and materials about the child’s intellectual or developmental disability, medical, or health conditions.

(A) Conferences, workshops, or group trainings must be prior authorized by the services coordinator, directly relate to the child’s intellectual or developmental disability, and increase the knowledge and skills of the child’s family to care for and maintain the child in the child’s family home.

(B) Conference, workshop, or group training costs exclude:

(i) Registration fees in excess of $500 per family for an individual event;

(ii) Travel, food, and lodging expenses;

(iii) Services otherwise provided under OHP or available through other resources; or

(iv) Costs for individual family members who are employed to care for the child.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 4-2011(Temp), f. & cert. ef. 2-1-11 thru 7-31-11; SPD 20-2011, f. & cert. ef. 8-1-11; SPD 21-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0130

Standards for Providers Paid with In-Home Support Funds

Independent providers, provider organizations, and general business providers paid with in-home support funds must be qualified. At the discretion of the Department, providers who have previously been terminated or suspended by the Department or Oregon Health Authority may not be authorized as providers of service. Providers must meet the following qualifications:

(1) Each independent provider paid as a contractor, a self-employed person, or an employee of a child’s parent or guardian to provide the services listed in OAR 411-308-0120 must:

(a) Be at least 18 years of age;

(b) Have approval to work based on a background check completed by the Department in accordance with OAR 407-007-0200 to 407-007-0370. A subject individual as defined in OAR 407-007-0210 may be approved for one position to work in multiple homes within the jurisdiction of the qualified entity as defined in OAR 407-007-0210. The Department’s Background Check Request Form must be completed by the subject individual to show intent to work at various homes;

(c) Effective July 28, 2009, not have been convicted of any of the disqualifying crimes listed in OAR 407-007-0275;

(d) Be legally eligible to work in the United States;

(e) Not be a parent, adoptive parent, stepparent, foster parent, or other person legally responsible for the child receiving supports;

(f) Demonstrate by background, education, references, skills, and abilities that he or she is capable of safely and adequately performing the tasks specified on the child’s ISP or Annual Plan, with such demonstration confirmed in writing by the child’s parent or guardian, including:

(A) Ability and sufficient education to follow oral and written instructions and keep any records required;

(B) Responsibility, maturity, and reputable character exercising sound judgment;

(C) Ability to communicate with the child; and

(D) Training of a nature and type sufficient to ensure that the provider has knowledge of emergency procedures specific to the child being cared for;

(g) Hold current, valid, and unrestricted appropriate professional license or certification where services and supervision requires specific professional education, training, and skill;

(h) Understand requirements of maintaining confidentiality and safeguarding information about the child and family;

(i) Not be on the Office of Inspector General’s list of excluded or debarred providers (http://exclusions.oig.hhs.gov/); and

(j) If transporting the child, have a valid driver’s license and proof of insurance, as well as any other license or certification that may be required under state and local law, depending on the nature and scope of the transportation.

(2) Section (1)(c) of this rule does not apply to employees of a parent, employees of a general business provider, or employees of a provider organization who were hired prior to July 28, 2009 and remain in the current position for which the employee was hired.

(3) All providers must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and OAR 407-007-0290. The provider must notify the Department or the Department’s designee within 24 hours.

(4) Nursing consultants must have a current Oregon nursing license and submit a resume to the CDDP indicating the education, skills, and abilities necessary to provide nursing services in accordance with state law.

(5) Behavior consultants may include but are not limited to autism specialists, licensed psychologists, or other behavioral specialists who:

(a) Have education, skills, and abilities necessary to provide behavior consultation services, including knowledge and experience in developing plans based on positive behavioral theory and practice;

(b) Have received at least two days of training in the Oregon Intervention System and have a current certificate; and

(c) Submit a resume to the CDDP indicating at least one of the following:

(A) A bachelor’s degree in special education, psychology, speech and communication, occupational therapy, recreation, art or music therapy, or a behavioral science field, and at least one year of experience with individuals who present difficult or dangerous behaviors; or

(B) Three years experience with individuals who present difficult or dangerous behaviors and at least one year of that experience must include providing the services of a behavior consultant.

(6) Provider organizations must hold any current license or certification required by Oregon law to provide services to children. In addition, all people directed by the provider organization as employees, contractors, or volunteers to provide services paid for with in-home support funds must meet the standards for qualification of independent providers described in section (1) of this rule.

(7) General business providers must hold any current license appropriate to function required by Oregon or federal law or regulation. Services purchased with in-home support funds must be limited to those within the scope of the general business provider’s license. Such licenses include but are not limited to:

(a) For a home health agency, a license under ORS 443.015;

(b) For an in-home care agency, a license under ORS 443.315;

(c) For providers of environmental accessibility adaptations involving building modifications or new construction, a current license and bond as a building contractor as required by either OAR chapter 812 (Construction Contractor’s Board) or OAR chapter 808 (Landscape Contractors Board), as applicable;

(d) For environmental accessibility consultants, a current license as a general contractor as required by OAR chapter 812, including experience evaluating homes, assessing the needs of a child, and developing cost effective plans to make homes safe and accessible;

(e) For vendors and medical supply companies providing specialized equipment and supplies, a current retail business license, including enrollment as Medicaid providers through the Division of Medical Assistance Programs if vending medical equipment; and

(f) A current business license for providers of personal emergency response systems.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; 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 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0140

Quality Assurance

The CDDP must participate in statewide quality assurance, service evaluation, and regulation activities as directed by the Department in OAR 411-320-0045.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13

411-308-0150

Variances

(1) Variances may be granted to a CDDP if the CDDP:

(a) Lacks the resources needed to implement the standards required in these rules;

(b) If implementation of the proposed alternative services, methods, concepts, or procedures shall result in services or systems that meet or exceed the standards in these rules; or

(c) If there are other extenuating circumstances.

(2) Variances are not granted for OAR 411-308-0110 and OAR 411-308-0130.

(3) The CDDP requesting a variance must submit a written application to the Department that contains the following:

(a) The section of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The proposed alternative practice, service, method, concept, or procedure;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) If the variance applies to a child’s service, evidence that the variance is consistent with the child’s current ISP or Annual Plan.

(4) The Department may approve or deny the variance request.

(5) The Department’s decision shall be sent to the CDDP and to all relevant Department programs or offices within 30 calendar days of the receipt of the variance request.

(6) The CDDP may appeal the denial of a variance request by sending a written request for review to the Department’s director, whose decision is final.

(7) The Department shall determine the duration of the variance.

(8) The CDDP may implement a variance only after written approval from the Department.

Stat. Auth.: ORS 409.050 & 430.662

Stats. Implemented: ORS 427.005, 427.007, 430.610, 430.620, 430.662 - 430.670

Hist.: SPD 7-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; SPD 20-2009, f. 12-23-09, cert. ef. 12-28-09; SPD 54-2013, f. 12-27-13, cert. ef. 12-28-13


Rule Caption: Medically Fragile Children’s Services

Adm. Order No.: SPD 55-2013

Filed with Sec. of State: 12-27-2013

Certified to be Effective: 12-28-13

Notice Publication Date: 12-1-2013

Rules Amended: 411-350-0010, 411-350-0020, 411-350-0030, 411-350-0040, 411-350-0050, 411-350-0080, 411-350-0100, 411-350-0110, 411-350-0115, 411-350-0118, 411-350-0120

Rules Repealed: 411-350-0020(T), 411-350-0030(T), 411-350-0040(T), 411-350-0050(T)

Subject: The Department of Human Services is permanently amending the rules in OAR chapter 411, division 350 for medically fragile children’s services.

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

411-350-0010

Statement of Purpose

(1) The rules in OAR chapter 411, division 350 establish the policy of, and prescribe the standards and procedures for, the provision of medically fragile children’s (MFC) services. These rules are established to ensure that MFC services augment and support independence, empowerment, dignity, and development of medically fragile children through the provision of flexible and efficient services to eligible families.

(2) MFC services are exclusively intended to enable a child who is medically fragile to have a permanent and stable familial relationship. MFC services are intended to supplement the natural supports and services provided by a child’s family and provide the support necessary to enable the family to meet the needs of caring for a medically fragile child.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007, 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0100, SPD 14-2004, f. & cert. ef. 6-1-04; SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; SPD 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0020

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 350:

(1) “Abuse” means “abuse” of a child as defined in ORS 419B.005.

(2) “Activities of Daily Living (ADL)” means basic personal everyday activities, including but not limited to tasks such as eating, using the restroom, grooming, dressing, bathing, and transferring.

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

(4) “Aide” means a non-licensed caregiver who may, or may not, be a certified nursing assistant.

(5) “Attendant Care” means Medicaid state plan funded essential supportive daily care described in OAR 411-350-0050 that is delivered by a qualified provider to enable a child to remain in, or return to, the child’s family home.

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

(7) “Behavior Consultant” means a contractor with specialized skills who develops a Behavior Support Plan.

(8) “Behavior Support Plan” means the written strategy based on person-centered planning and a functional assessment that outlines specific instructions for a provider to follow to cause a child’s challenging behaviors to become unnecessary and to change the provider’s own behavior, adjust environment, and teach new skills.

(9) “Billing Provider” means an organization that enrolls and contracts with the Department to provide services through employees that bills the Department for the provider’s services.

(10) “Case Management” means the functions performed by a services coordinator. Case management includes determining service eligibility, developing a plan of authorized services, and monitoring the effectiveness of services and supports.

(11) “Child” means an individual who is less than 18 years of age applying for, or eligible for, medically fragile children’s services.

(12) “Chore Services” mean the services described in OAR 411-350-0050 that are needed to restore a hazardous or unsanitary situation in a child’s family home to a clean, sanitary, and safe environment.

(13) “Clinical Criteria (Form DHS-0519)” means the assessment tool used by the Department to evaluate the intensity of the challenges and care needs of medically fragile children.

(14) “Community First Choice (K Plan)” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(15) “Community Nursing Services” mean the services described in OAR 411-350-0050 that include nurse delegation, training, and care coordination for a child living in the child’s family home.

(16) “Community Transportation” means the services described in OAR 411-350-0050 that enable a child to gain access to community services, activities, and resources that are not medical in nature.

(17) “Cost Effective” means that in the opinion of a services coordinator, a specific service, support, or item of equipment meets a child’s service needs and costs less than, or is comparable to, other similar service, support, or equipment options considered.

(18) “Day” means a calendar day unless otherwise specified in these rules.

(19) “Delegation” means that a registered nurse authorizes an unlicensed person to perform nursing tasks and confirms that authorization in writing. Delegation may occur only after a registered nurse follows all steps of the delegation process as outlined in OAR chapter 851, division 047. Delegation by a physician is also allowed.

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

(21) “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.

(22) “Direct Nursing Services” mean the nursing services described in OAR 411-350-0050 that are determined medically necessary to support a child receiving medically fragile children’s services in the child’s family home.

(23) “Director” means the director of the Department’s Office of Developmental Disability Services or the director’s designee.

(24) “Environmental Accessibility Adaptations” mean the physical adaptations described in OAR 411-350-0050 that are necessary to ensure the health, welfare, and safety of a child in the child’s family home, or that enable a child to function with greater independence in the family home.

(25) “Family” means a unit of two or more people that includes at least one child with an intellectual or developmental disability where the child’s primary caregiver is:

(a) Related to the child with an intellectual or developmental disability 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, such as child-rearing, maintenance of the residence, and basic living expenses; and

(C) Joint responsibility for supporting a child with an intellectual or developmental disability when the child is related to one of the partners by blood, marriage, or legal adoption.

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

(27) “Family Training” means the training and counseling services described in OAR 411-350-0050 that are provided to a child’s family to increase the family’s capacity to care for, support, and maintain the child in the child’s family home.

(28) “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.

(29) “Functional Needs Assessment” means a comprehensive assessment that documents:

(a) Physical, mental, and social functioning; and

(b) Risk factors, choices and preferences, service and support needs, strengths, and goals.

(30) “Grievance” means a process by which a person may air complaints and seek remedies.

(31) “Home and Community-Based Waiver Services” mean the services approved by the Centers for Medicare and Medicaid Services in accordance with section 1915(c) and 1115 of the Social Security Act.

(32) “Hospital Model Waiver” means the waiver program granted by the federal Centers for Medicare and Medicaid Services that allows Title XIX funds to be spent on children living in the family home who otherwise would have to be served in a hospital if the waiver program was not available.

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

(34) “ICF/MR” means intermediate care facilities for the mentally retarded. Federal law and regulations use the term “intermediate care facilities for the mentally retarded (ICF/MR)”. The Department prefers to use the accepted term “individual with intellectual disability (ID)” instead of “mental retardation (MR)”. However, as ICF/MR is the abbreviation currently used in all federal requirements, ICF/MR is used.

(35) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required for a child to achieve and maintain personal outcomes. The ISP is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. Individual support needs are identified through a functional needs assessment. The manner in which services are delivered, service providers, and the frequency of services are reflected in an ISP. The ISP is the child’s plan of care for Medicaid purposes and reflects whether services are provided through a waiver, state plan, or natural supports.

(36) “Instrumental Activities of Daily Living (IADL)” means the activities other than activities of daily living, including but not limited to:

(a) Meal planning and preparation;

(b) Budgeting;

(c) Shopping for food, clothing, and other essential items;

(d) Performing essential household chores;

(e) Communicating by phone or other media; and

(f) Traveling around and participating in the community.

(37) “Intellectual Disability” means “intellectual disability” as defined in OAR 411-320-0020 and described in OAR 411-320-0080.

(38) “ISP” means “Individual Support Plan” as defined in this rule.

(39) “K Plan” means “Community First Choice” as defined in this rule.

(40) “Level of Care” means a child meets the following hospital level of care:

(a) The child has a documented medical condition and demonstrates the need for active treatment as assessed by the clinical criteria; and

(b) The child’s medical condition requires the care and treatment of services normally provided in an acute medical hospital.

(41) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who comes in contact with and has reasonable cause to believe a child with or without an intellectual or developmental disability has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused a child with or without an intellectual or developmental disability, 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 affects the duty to report imposed by this section, except that a psychiatrist, psychologist, clergy, attorney, or guardian ad litem appointed under ORS 419B.231 is not required to report if the communication is privileged under ORS 40.225 to 40.295.

(42) “Medically Fragile Children (MFC)” means children who have a health impairment that requires long term, intensive, specialized services on a daily basis, who have been found eligible for medically fragile children’s services by the Department.

(43) “Medically Fragile Children’s Unit (MFCU)” means the program for medically fragile children’s services administered by the Department.

(44) “MFC” means “medically fragile children” as defined in this rule.

(45) “MFCU” means “medically fragile children’s unit” as defined in this rule.

(46) “Natural Supports” means the parental responsibilities for a child who is less than 18 years of age and the voluntary resources available to the child from the child’s relatives, friends, neighbors, and the community that are not paid for by the Department.

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

(48) “Nursing Care Plan” means the plan developed by a nurse that describes the medical, nursing, psychosocial, and other needs of a child and how those needs are met. The Nursing Care Plan includes the tasks that are taught or delegated to the child’s primary caregiver or a qualified provider. When a Nursing Care Plan exists, it is a supporting document for an Individual Support Plan.

(49) “Nursing Tasks or Services” mean the care or services that require the education and training of a licensed professional nurse to perform. Nursing tasks or services may be delegated.

(50) “OHP” means the Oregon Health Plan.

(51) “Oregon Intervention System” means the system of providing training to people who work with designated individuals to provide elements of positive behavior support and non-aversive behavior intervention. The Oregon Intervention System uses principles of pro-active support and describes approved protective physical intervention techniques that are used to maintain health and safety.

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

(53) “Parent” means biological parent, adoptive parent, stepparent, or legal guardian.

(54) “Person-Centered Planning”:

(a) Means a timely and formal or informal process for gathering and organizing information that helps --

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

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

(C) Identify, use, and strengthen naturally occurring opportunities for support at home and in the community.

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

(55) “Personal Care Services” means assistance with activities of daily living, instrumental activities of daily living, and health-related tasks through cueing, monitoring, reassurance, redirection, set-up, hands-on, standby assistance, and reminding.

(56) “Plan of Care” means the written plan of Medicaid services required by Medicaid regulation. Oregon’s plan of care is the Individual Support Plan.

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

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

(b) Uses the least intervention possible;

(c) Ensures that abuse or demeaning interventions are never used; and

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

(58) “Primary Caregiver” means a child’s parent, guardian, relative, or other non-paid parental figure that provides direct care at the times that a paid provider is not available.

(59) “Protective Physical Intervention” means any manual physical holding of, or contact with, a child that restricts the child’s freedom of movement

(60) “Provider” means a person who is qualified as described in OAR 411-350-0080 to receive payment from the Department for providing support and services to a child according to the child’s Individual Support Plan. A provider works directly with a medically fragile child. A provider may be an employee of a billing provider, employee of a child’s parent, or an independent contractor.

(61) “Relief Care” means the intermittent services described in OAR 411-350-0050 that are provided on a periodic basis of not more than 14 consecutive days for the relief of, or due to the temporary absence of, a child’s primary caregiver.

(62) “Service Level” means the services allotted for the care of a child based on the clinical criteria. The service level consists of state plan services, including Community First Choice state plan services, and if the child is on a waiver, waiver services. Service levels increase or decrease in direct relationship to the increasing or decreasing clinical criteria score.

(63) “Services Coordinator” means an employee of the Department who ensures a child’s eligibility for medically fragile children’s services and provides assessment, case management, service implementation, and evaluation of the effectiveness of the services. A services coordinator is a child’s person-centered plan coordinator as defined in the Community First Choice state plan.

(64) “Special Diet” means the specially prepared food or particular types of food described in OAR 411-350-0050 that are specific to a child’s medical condition or diagnosis and needed to sustain the child in the child’s family home.

(65) “Specialized Equipment and Supplies” means the devices, aids, controls, supplies, or appliances described in OAR 411-350-0050 that enable a child to increase the child’s ability to perform activities of daily living or to perceive, control, or communicate with the environment in which the child lives.

(66) “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.

(67) “Supplant” means take the place of.

(68) “Support” means the assistance that a child and the child’s family requires, solely because of the effects of the child’s intellectual or developmental disability or medical condition, to maintain or increase the child’s age-appropriate independence, achieve a child’s age-appropriate community presence and participation, and to maintain the child in the child’s family home. Support is subject to change with time and circumstances.

(69) “These Rules” mean the rules in OAR chapter 411, division 350.

(70) “Volunteer” means any person providing services without pay to support the services and supports provided to a child.

(71) “Waiver Services” means the menu of disability related services and supplies, exclusive of attendant care and the Oregon Health Plan, that are specifically identified by the Title XIX Centers for Medicare and Medicaid Services Waiver.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007, 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0110, SPD 14-2004, f. & cert. ef. 6-1-04; SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; 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 28-2013(Temp), f. & cert. ef. 7-2-13 thru 12-29-13; SPD 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0030

Eligibility

(1) ELIGIBILITY.

(a) In order to be eligible for MFC services, a child must:

(A) Be under the age of 18;

(B) Be a U.S. citizen;

(C) Be eligible for OSIP-M;

(D) Be eligible to receive Title XIX (Medicaid) or Title XXI (CHIPS) services;

(E) After completion of an assessment, meet the level of care as defined in OAR 411-350-0020;

(F) Be accepted by the Department by scoring 50 or greater on the clinical criteria and have a status of medical need that is likely to last for more than two months;

(G) Reside in the family home; and

(H) Be capable of being safely served in the family home. This includes but is not limited to the child’s primary caregiver demonstrating the willingness, skills, and ability to provide direct care not paid for in a child’s Individual Support Plan, as determined by the services coordinator within the limitations of OAR 411-350-0050.

(b) A child that resides in a foster home that meets the eligibility criteria in subsection (a)(A) to (F) of this section is eligible for direct nursing services as described in OAR 411-350-0050.

(2) INELIGIBILITY. A child is not eligible for MFC services if the child:

(a) Resides in a hospital, school, sub-acute facility, nursing facility, intermediate care facility for individuals with intellectual or developmental disabilities (formerly referred to as ICF/MR), residential facility, or other institution. A child that resides in a foster home is eligible for only direct nursing services as described in OAR 411-350-0050;

(b) Does not require waiver services, Community First Choice state plan services, or has sufficient family, government, or community resources available to provide for his or her care; or

(c) Is not safely served in the family home as described in section (1)(h) of this rule.

(3) REDETERMINATION. The Department redetermines a child’s eligibility for MFC services using the clinical criteria at a minimum of every six months, or as the child’s status changes.

(4) TRANSITION. A child who meets the following criteria must begin a transition period to phase out of MFC services within 60 days and at the end of the 60 days transition period, is no longer eligible to receive MFC services:

(a) The child has been previously eligible for MFC services;

(b) The needs of the child have decreased; and

(c) The score on the clinical criteria remains at less than 30 during the transition period.

(5) WAIT LIST. If the allowable number of children on the Hospital Model Waiver are already receiving services, the Department may place a child eligible for MFC services on a wait list, based on the date of referral. A child on the wait list may access other waiver, state plan personal care, or Community First Choice state plan services as determined eligible.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007, 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0120, SPD 14-2004, f. & cert. ef. 6-1-04; SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; SPD 28-2013(Temp), f. & cert. ef. 7-2-13 thru 12-29-13; SPD 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0040

Individual Support Plan

(1) To develop an ISP, a services coordinator must complete a functional needs assessment using a person-centered planning approach and assess the service needs of the child. The assessment must take place in person and the services coordinator must interview the child’s parent, other caregivers, and when appropriate any other person at the parent’s request. The assessment must identify the following:

(a) The services for which the child is currently eligible;

(b) The services currently being provided; and

(c) All available family, private health insurance, and government or community resources that meet any, some, or all of the child’s needs.

(2) The services coordinator must prepare, with the input of the child’s parent and any other person at the parent’s request, a written ISP that identifies:

(a) The service needs of the child;

(b) The most cost effective services for safely and appropriately meeting the child’s service needs; and

(c) The methods, resources, and strategies that address the child’s service needs.

(3) The ISP must include:

(a) A description of the supports required, including the reason the support is necessary. The description must be consistent with the needs identified in the functional needs assessment;

(b) A list of personal, community, and public resources that are available to the child and how the resources may be applied to provide the required supports. Sources of support may include waiver services, state plan services, or natural supports;

(c) The maximum hours of provider services authorized for the child;

(d) The annual service level;

(e) The number of hours of MFC services authorized for the child;

(f) Additional services authorized by the Department for the child; and

(g) The estimated number of hours that an aide is authorized and the number of hours that a licensed nurse is authorized;

(A) RN hours are not authorized when an LPN may safely perform the duties.

(B) RN or LPN hours are not authorized when an aide may safely perform the duties.

(h) The projected date of when specific services are to begin and end, as well as the end date, if any, of the period of service covered by the ISP;

(i) Projected costs with sufficient detail to support estimates;

(j) The manner in which services are delivered and the frequency of services;

(k) Service providers;

(l) The child’s strengths and preferences;

(m) If the child has a determined service level, the clinical and support needs as identified through the functional needs assessment;

(n) Individually identified goals and desired outcomes;

(o) The services and supports (paid and unpaid) to assist the child to achieve identified goals and the providers of the services and supports, including voluntarily provided natural supports;

(p) The risk factors and the measures in place to minimize the risk factors, including back-up plans;

(q) The identity of the person responsible for case management and monitoring the ISP;

(r) The date of the next ISP review that, at a minimum, must be completed within 12 months of the last ISP or more frequently if the child’s medical status changes;

(s) The Nursing Care Plan as a supporting document, when one exists;

(t) A provision to prevent unnecessary or inappropriate care; and

(u) If the child has a determined service level, any changes in support needs identified through a functional needs assessment.

(4) The child’s parent must review the ISP prior to implementation. The parent and the services coordinator must sign the ISP and a copy must be provided to the parent.

(5) A services coordinator must reflect significant changes in the needs of a child in the ISP, as they occur, and provide a copy of the revised ISP to the child’s parent.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0130, SPD 14-2004, f. & cert. ef. 6-1-04; SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; SPD 28-2013(Temp), f. & cert. ef. 7-2-13 thru 12-29-13; SPD 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0050

Scope and Limitations of Medically Fragile Children’s Services

(1) MFC services are intended to support, not supplant, the natural supports supplied by a child’s primary caregiver. MFC services are not available to replace services provided by a primary caregiver or to replace other governmental or community services.

(2) The Department only authorizes MFC services to enable a child’s primary caregiver to meet the needs of caring for a child on the Hospital Model Waiver. All MFC services funded by the Department must be based on the actual and customary costs related to best practice standards of care for children with similar disabilities.

(3) When multiple children in the same family home or setting qualify for MFC services, the same primary caregiver must provide services to all qualified children if services may be safely delivered by a single primary caregiver, as determined by the services coordinator.

(4) For an initial or annual ISP, MFC services may include a combination of the following waiver and other Medicaid services based upon the needs of a child as determined by a services coordinator and as consistent with the child’s functional needs assessment:

(a) Community First Choice state plan services:

(A) Specialized consultation, including behavior consultation as described in section (5) of this rule;

(B) Community nursing services as described in section (6) of this rule;

(C) Environmental accessibility adaptations as described in section (7) of this rule;

(D) Attendant care as described in section (8) of this rule;

(E) Relief care as described in section (9) of this rule;

(F) Specialized equipment and supplies as described in section (10) of this rule;

(G) Chore services as described in section (11) of this rule; and

(H) Community transportation as described in section (12) of this rule.

(b) Waiver services:

(A) Family training as described in section (13) of this rule;

(B) Special diet as described in section (14) of this rule; and

(C) Translation as described in section (15) of this rule.

(c) State plan services - Direct nursing services as described in section (16) of this rule.

(5) SPECIALIZED CONSULTATION – BEHAVIOR CONSULTATION. Behavior consultation is only authorized to support a child’s primary caregiver in their caregiving role. Behavior consultation is only authorized, as needed, to respond to specific problems identified by a primary caregiver or a services coordinator. Behavior consultants must:

(a) Work with the child’s primary caregiver to identify:

(A) Areas of a child’s family home life that are of most concern for the child and the child’s parent;

(B) The formal or informal responses the child’s family or the provider has used in those areas; and

(C) The unique characteristics of the child’s family that may influence the responses that may work with the child.

(b) Assess the child. The assessment must include:

(A) Specific identification of the behaviors or areas of concern;

(B) Identification of the settings or events likely to be associated with, or to trigger, the behavior;

(C) Identification of early warning signs of the behavior;

(D) Identification of the probable reasons that are causing the behavior and the needs of the child that are being met by the behavior, including the possibility that the behavior is:

(i) An effort to communicate;

(ii) The result of a medical condition;

(iii) The result of an environmental cause; or

(iv) The symptom of an emotional or psychiatric disorder.

(E) Evaluation and identification of the impact of disabilities (i.e. autism, blindness, deafness, etc.) that impact the development of strategies and affect the child and the area of concern; and

(F) An assessment of current communication strategies.

(c) Develop a variety of positive strategies that assist the child’s primary caregiver and the provider to help the child use acceptable, alternative actions to meet the child’s needs in the most cost effective manner. These strategies may include changes in the physical and social environment, developing effective communication, and appropriate responses by a primary caregiver and provider to the early warning signs.

(A) Interventions must be done in accordance with positive behavioral theory and practice as defined in OAR 411-350-0020.

(B) The least intrusive intervention possible must be used.

(C) Abusive or demeaning interventions must never be used.

(D) The strategies must be adapted to the specific disabilities of the child and the style or culture of the child’s family.

(d) Develop emergency and crisis procedures to be used to keep the child and the child’s primary caregiver and the provider safe. When interventions in the behavior of the child are necessary, positive, preventative, non-aversive interventions that conform to the Oregon Intervention System must be utilized;

(e) Develop a written Behavior Support Plan using clear, concrete language that is understandable to the child’s primary caregiver and the provider that describes the assessment, strategies, and procedures to be used;

(f) Teach the child’s primary caregiver and the provider the strategies and procedures to be used; and

(g) Monitor and revise the Behavior Support Plan as needed.

(6) COMMUNITY NURSING SERVICES.

(a) Community nursing services include:

(A) Evaluation, including medication reviews, and identification of supports that minimize health risks while promoting a child’s autonomy and self-management of healthcare;

(B) Collateral contact with a services coordinator regarding a child’s community health status to assist in monitoring safety and well-being and to address needed changes to the child’s ISP; and

(C) Delegation and training of nursing tasks to a child’s primary caregiver and a provider so the caregivers may safely perform health related tasks.

(b) Community nursing services exclude direct nursing care.

(c) Community nursing services are not covered by other Medicaid spending authorities.

(7) ENVIRONMENTAL ACCESSIBILITY ADAPTATIONS. Environmental accessibility adaptations are physical adaptations to a child’s family home that are necessary to ensure the health, welfare, and safety of the child in the family home due to the child’s medical condition or intellectual or developmental disability or that are necessary to enable the child to function with greater independence around the family home and in family activities.

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

(A) An environmental modification consultation to determine the appropriate type of adaptation to ensure the health, welfare, and safety of the child;

(B) Installation of shatter-proof windows;

(C) Hardening of walls or doors;

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

(E) An alarm system for doors or windows;

(F) Protective covering for smoke alarms, 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 a child whose temperature sensitivity issues create behaviors or medical conditions that put the child 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 child;

(R) Modifications for the primary vehicle used by the child that are necessary to meet the unique needs of the child and ensure the health, welfare, and safety of the child, such as lift, interior alterations to seats, head and leg rests, belts, special safety harnesses, or other unique modifications to keep the child safe in the vehicle; and

(S) Adaptations to control lights, heat, stove, etc.

(b) Environmental accessibility adaptations exclude:

(A) Adaptations or improvements to the child’s family home that are of general utility and are not for the direct safety, remedial, or long term benefit to the child;

(B) Adaptations that add to the total square footage of the child’s family home; and

(C) General repair or maintenance and upkeep required for the child’s family home or motor vehicle, including repair of damage caused by the child.

(c) Environmental accessibility adaptations are limited to $5,000 per modification. A services coordinator may request approval for additional expenditures through the Department prior to expenditure. Approval is based on the child’s service needs and goals and the Department’s determination of appropriateness and cost-effectiveness.

(d) Environmental accessibility adaptations must be tied to supporting ADL, IADL, and health-related tasks as identified in the child’s ISP.

(e) Environmental accessibility adaptations over $500 must be completed by a state licensed contractor. Any modification requiring a permit must be inspected by a local inspector and certified as in compliance with local codes. Certification of compliance must be filed in the provider’s file prior to payment.

(f) Environmental accessibility adaptations must be made within the existing square footage of the child’s family home, except for external ramps, and may not add to the square footage of the building.

(g) Payment to the contractor is to be withheld until the work meets specifications.

(h) Environmental accessibility adaptations that are provided in a rental structure must be authorized in writing by the owner of the structure prior to initiation of the work. This does not preclude any reasonable accommodations required under the Americans with Disabilities Act.

(8) ATTENDANT CARE. Attendant care services include the purchase of direct provider support provided to a child in the family home or community by qualified individual providers and agencies. Provider assistance provided through attendant care must support the child to live as independently as appropriate for the child’s age, support the child’s family in their primary caregiver role, and be based on the identified needs of the child. A child’s primary caregiver is expected to be present or available during the provision of attendant care.

(a) Attendant care services provided by qualified providers or agencies include:

(A) Basic personal hygiene — Assistance with bathing and grooming;

(B) Toileting, bowel, and bladder care — Assistance in the bathroom, diapering, external cleansing of perineal area, and care of catheters;

(C) Mobility — Transfers, comfort, positioning, and assistance with range of motion exercises;

(D) Nutrition — Feeding and monitoring intake and output;

(E) Skin care — Dressing changes;

(F) Physical healthcare including delegated nursing tasks;

(G) Supervision — Providing an environment that is safe and meaningful for the child and interacting with the child to prevent danger to the child and others and maintain skills and behaviors required to live in the child’s family home and community;

(H) Assisting the child with appropriate leisure activities to enhance development in the child’s family home and community and provide training and support in personal environmental skills;

(I) Communication — Assisting the child in communicating, using any means used by the child;

(J) Neurological — Monitoring of seizures, administering medication, and observing status; and

(K) Accompanying the child and the child’s family to health related appointments.

(b) Attendant care services must:

(A) Be previously authorized by the services coordinator before services begin;

(B) Be delivered through the most cost effective method as determined by the services coordinator; and

(C) Only be provided when the child is present to receive services.

(c) Attendant care services exclude:

(A) Hours that supplant parental responsibilities or other natural supports and services available from the child’s family, community, other government or public services, insurance plans, schools, philanthropic organizations, friends, or relatives;

(B) Hours solely to allow a child’s primary caregiver to work or attend school;

(C) Hours that exceed what is necessary to support the child;

(D) Support generally provided at the child’s age by the child’s parent or other family members;

(E) Educational and supportive services provided by schools as part of a free and appropriate education for children and young adults under the Individuals with Disabilities Education Act;

(F) Services provided by the child’s family; and

(G) Home schooling.

(d) Attendant care services may not be provided on a 24-hour shift-staffing basis.

(9) RELIEF CARE. Relief care services are provided to a child on a periodic or intermittent basis furnished because of the temporary absence of, or need for relief of, the child’s primary caregiver.

(a) Relief care may include both day and overnight services that may be provided in:

(A) The child’s family home;

(B) A licensed, certified, or otherwise regulated setting;

(C) A qualified provider’s home. If overnight relief care is provided in a qualified provider’s home, the services coordinator and the child’s parent must document that the home is a safe setting for the child;

(D) A disability-related or therapeutic recreational camp; or

(E) The community, during the provision of ADL, IADL, health related tasks, and other supports identified in the child’s ISP.

(b) Relief care services are not authorized for the following:

(A) Solely to allow a child’s primary caregiver to attend school or work;

(B) For ongoing services that occur on more than a periodic schedule, such as eight hours a day, five days a week;

(C) For more than 14 consecutive overnight stays in a calendar month;

(D) For more than 10 days per individual plan year when provided at a specialized camp;

(E) For vacation travel and lodging expenses; or

(F) To pay for room and board if provided at a licensed site or specialized camp.

(10) SPECIALIZED EQUIPMENT AND SUPPLIES. Specialized equipment and supplies include the purchase of devices, aids, controls, supplies, or appliances that are necessary to enable a child to increase the child’s abilities to perform and support ADLs and IADLs or to perceive, control, or communicate with the environment in which the child lives. Specialized equipment and supplies must meet applicable standards of manufacture, design, and installation.

(a) Specialized equipment and supplies include:

(A) Electronic devices to secure assistance in an emergency in the community and other reminders, such as medication minders, alert systems for ADL or IADL supports, or mobile electronic devices. Expenditures for electronic devices are limited to $500 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(B) Assistive technology to provide additional security and replace the need for direct interventions to enable self direction of care and maximize independence, such as motion or sound sensors, two-way communication systems, automatic faucets and soap dispensers, incontinent and fall sensors, or other electronic backup systems.

(i) Expenditures for assistive technology are limited to $5,000 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(C) Assistive devices not covered by other Medicaid programs to assist and enhance a child’s independence in performing ADLs or IADLs, such as durable medical equipment, mechanical apparatus, electrical appliances, or information technology devices.

(i) Expenditures for assistive devices are limited to $5,000 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(b) Specialized equipment and supplies may include the cost of a professional consultation, if required, to assess, identify, adapt, or fit specialized equipment. The cost of professional consultation may be included in the purchase price of the equipment.

(c) To be authorized by a services coordinator, specialized equipment and supplies must be:

(A) In addition to any medical equipment and supplies furnished under OHP and private insurance;

(B) Determined necessary to the daily functions of the child; and

(C) Directly related to a child’s disability.

(d) Specialized equipment and supplies exclude:

(A) Items that are not necessary or of direct medical or remedial benefit to the child;

(B) Specialized equipment and supplies intended to supplant similar items furnished under OHP or private insurance;

(C) Items available through family, community, or other governmental resources;

(D) Items that are considered unsafe for a child;

(E) Toys or outdoor play equipment; and

(F) Equipment and furnishings of general household use.

(e) Funding for specialized equipment and supplies with an expected life of more than one year is one time funding that is not continued in subsequent plan years. Specialized equipment and supplies may only be included in a child’s ISP when all other public and private resources have been exhausted.

(f) The services coordinator must secure use of specialized equipment or supplies costing more than $500 through a written agreement between the Department and the child’s parent that specifies the time period the item is to be available to the child and the responsibilities of all parties if the item is lost, damaged, or sold within that time period. The Department may immediately recover any specialized equipment or supplies purchased with MFC funds that are not used according to the child’s ISP or according to the written agreement between the Department and the child’s parent.

(11) CHORE SERVICES. Chore services may be provided only in situations where no one else in a child’s family home is able 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

(a) Chore services include heavy household chores such as —

(A) Washing floors, windows, and walls;

(B) Tacking down loose rugs and tiles; and

(C) Moving heavy items of furniture for safe access and egress.

(b) Chore services may include yard hazard abatement to ensure the outside of a child’s family home is safe for the child to traverse and enter and exit the home.

(12) COMMUNITY TRANSPORTATION. Community transportation is provided in order to enable a child to gain access to community services, activities, and resources as specified in the child’s ISP. Community transportation excludes:

(a) Transportation provided by a child’s family members;

(b) Transportation used for behavioral intervention or calming;

(c) Transportation normally provided by schools;

(d) Transportation normally provided by the child’s primary caregiver for a child of similar age without disabilities;

(e) Purchase of any family vehicle;

(f) Vehicle maintenance and repair;

(g) Reimbursement for out-of-state travel expenses;

(h) Ambulance services or medical transportation; or

(i) Transportation services that may be obtained through other means, such as OHP or other public or private resources available to the child.

(13) FAMILY TRAINING. Family training services include the purchase of training, coaching, counseling, and support that increase the abilities of a child’s family to care for and maintain the child in the child’s family home. Family training services include:

(a) Instruction about treatment regimens and use of equipment specified in the child’s ISP;

(b) Counseling services that assist the child’s family with the stresses of having a child with an intellectual or developmental disability or medical condition.

(A) To be authorized, the counseling services must:

(i) Be provided by licensed providers, including but not limited to psychologists licensed under ORS 675.030, professionals licensed to practice medicine under ORS 677.100, social workers licensed under 675.530, or counselors licensed under 675.715;

(ii) Directly relate to the child’s intellectual or developmental disability or medical condition and the ability of the child’s family to care for the child; and

(iii) Be short-term.

(B) Counseling services exclude:

(i) Therapy that may be obtained through OHP or other payment mechanisms;

(ii) General marriage counseling;

(iii) Therapy to address the psychopathology of the child’s family members;

(iv) Counseling that addresses stressors not directly attributed to the child;

(v) Legal consultation;

(vi) Vocational training for the child’s family members; and

(vii) Training for families to carry out educational activities in lieu of school.

(c) Registration fees for organized conferences, workshops, and group trainings that offer information, education, training, and materials about the child’s medical or health condition.

(A) Conferences, workshops, or group trainings must be prior authorized by the services coordinator, directly relate to the child’s intellectual or developmental disability or medical condition, and increase the knowledge and skills of the child’s family to care for and maintain the child in the child’s family home.

(B) Conference, workshop, or group training costs exclude:

(i) Registration fees in excess of $500 per family for an individual event;

(ii) Travel, food, and lodging expenses;

(iii) Services otherwise provided under OHP or available through other resources; or

(iv) Costs for individual family members who are employed to care for the child.

(14) SPECIAL DIETS. Special diets do not constitute a full nutritional regime.

(a) In order for a special diet to be authorized:

(A) The foods must be on the approved list developed by the Department;

(B) The special diet must be ordered at least annually by a physician licensed by the Oregon Board of Medical Examiners;

(C) The special diet must be periodically monitored by a dietician or physician; and

(D) The special diet may not be reimbursed through OHP or any other source of public or private funding.

(b) A special diet excludes restaurant and prepared foods, vitamins, and supplements.

(15) TRANSLATION. If the primary language of a child or the child’s primary caregiver is not English, translation service is provided to enable the child or the primary caregiver to communicate with providers of MFC services.

(16) DIRECT NURSING SERVICES. If a child’s service needs require the presence of an RN or LPN on a routine basis as determined necessary based on the child’s assessed needs, direct hourly nursing services may be allocated to ensure medically necessary supports are provided.

(a) Direct nursing services may be provided on a shift staffing basis as necessary.

(b) Direct nursing services must be delivered by a licensed RN or LPN, as determined by the child’s service needs and documented in the child’s ISP.

(17) The Department may expend funds through contract, purchase order, use of credit card, payment directly to the vendor, or any other legal payment mechanism.

(18) MFC services for a child not on the Hospital Model Waiver are limited to attendant care services only.

(19) All MFC services authorized by the Department must be included in a written ISP in order to be eligible for payment. The ISP must use the most cost effective services for safely meeting a child’s needs as determined by a services coordinator.

(20) SERVICE LEVELS. The Department bases the average monthly service level for the MFC services authorized in the ISP on the child’s service level as follows:

(a) Level I.

(A) A child who is eligible for level I services must:

(i) Be ventilator-dependent for 20 or more hours per day;

(ii) Have a score on the clinical criteria of 75 or greater; and

(iii) Require that the provider or primary caregiver be awake for the full 24 hours.

(B) A child must be ventilator-dependent 24 hours per day for the maximum service budget to be allowed.

(b) Level II.

(A) A child who is eligible for level II services must:

(i) Be ventilator-dependent for 14 to 20 hours per day;

(ii) Have a score on the clinical criteria between 70 and 74; and

(iii) Require the provider or primary caregiver to remain awake for the full 24 hours.

(B) A child must be ventilator-dependent 20 hours per day for the maximum service budget to be allowed.

(c) Level III.

(A) A child who is eligible for level III services must:

(i) Be ventilator-dependent for 6 to 13 hours per day;

(ii) Have a score on the clinical criteria between 65 and 69; and

(iii) Require the provider or primary caregiver to remain awake for the full 24 hours.

(B) A child must be ventilator-dependent 13 hours per day for the maximum service budget to be allowed.

(d) Level IV.

(A) A child who is eligible for level IV services must:

(i) Be ventilator-dependent for up to 6 hours per day;

(ii) Have a score on the clinical criteria between 60 and 64; and

(iii) Require the provider or primary caregiver to remain awake for the full 24 hours.

(B) A child must be ventilator-dependent 6 hours per day for the maximum budget to be allowed.

(e) Level V. A child who is eligible for level V services must:

(A) Have a score on the clinical criteria between 50 and 59; and

(B) Require close proximity of the provider or primary caregiver to monitor for the full 24 hours.

(f) Level VI. A child who is eligible for level VI services must:

(A) Have a score on the clinical criteria less than 50;

(B) Meet the eligibility criteria in OAR 411-350-0030; and

(C) Not have been transitioned out of MFC services.

(21) EXCEPTIONS.

(a) Exceptions are only authorized by the Department in the following circumstances:

(A) To prevent a child’s hospitalization;

(B) To provide initial teaching of new service needs; or

(C) A significant medical condition or event occurs that prevents or seriously impedes the child’s primary caregiver from providing services as documented by a physician.

(b) Exceptions may not exceed 60 consecutive days without MFCU supervisor review and approval.

(22) The Department does not pay for MFC services that are:

(a) Notwithstanding abuse as defined in ORS 419B.005, abusive, aversive, or demeaning;

(b) Experimental;

(c) Illegal, including crimes identified in OAR 407-007-0275;

(d) Determined unsafe for the general public by recognized child and consumer safety agencies;

(e) Not necessary or cost effective;

(f) Educational services for school-age children, including professional instruction, formal training, and tutoring in communication, socialization, and academic skills;

(g) Services or activities that the legislative or executive branch of Oregon government has prohibited use of public funds;

(h) Medical treatments; or

(i) Services or supplies provided by private health insurance or OHP.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0140, SPD 14-2004, f. & cert. ef. 6-1-04; SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; 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 28-2013(Temp), f. & cert. ef. 7-2-13 thru 12-29-13; SPD 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0080

Standards for Providers

(1) A provider must:

(a) Be at least 18 years of age;

(b) Maintain a drug-free work place;

(c) Provide evidence satisfactory to the Department that demonstrates by background, education, references, skills, and abilities, the provider is capable of safely and adequately providing the services authorized;

(d) Consent to and pass a background check by the Department as described in OAR 407-007-0200 to 407-007-0370, and be free of convictions or founded allegations of abuse by the appropriate agency, including but not limited to the Department;

(A) Background rechecks must be performed biannually, or as needed if a report of a criminal activity has been received.

(B) PORTABILITY OF BACKGROUND CHECK APPROVAL. A subject individual as defined in OAR 407-007-0210 may be approved for one position to work in multiple homes within the jurisdiction of the qualified entity as defined in OAR 407-007-0210. The Department’s Background Check Request Form must be completed by the subject individual to show intent to work at various homes.

(e) Effective July 28, 2009, not have been convicted of any of the disqualifying crimes listed in OAR 407-007-0275;

(f) Not be the child’s primary caregiver, parent, stepparent, foster provider, residential services provider, or legal guardian; and

(g) Sign a Medicaid provider agreement and be enrolled as a Medicaid provider prior to delivery of any attendant care services.

(2) Section (1)(e) of this rule does not apply to employees of the child’s parent or employees of billing providers who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(3) All providers must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and 407-007-0290. The provider must notify the Department or the Department’s designee within 24 hours.

(4) A provider who is providing attendant care services as a nurse must have:

(a) A current Oregon nursing license; and

(b) Be in good standing with appropriate professional associations and boards.

(5) A provider is not an employee of the Department or the state of Oregon and is not eligible for state benefits and immunities, including but not limited to the Public Employees’ Retirement System or other state benefit programs.

(6) If the provider or billing provider is an independent contractor during the terms of the contract, the provider or billing provider must maintain in force, at the providers own expense, professional liability insurance with a combined single limit of not less than $1,000,000 for each claim, incident, or occurrence. Professional liability insurance is to cover damages caused by error, omission, or negligent acts related to the professional services.

(a) The provider or billing provider must provide written evidence of insurance coverage to the Department prior to beginning work.

(b) There must be no cancellation of insurance coverage without 30 days written notice to the Department.

(7) If the provider is an employee of the child’s parent, the provider must submit documentation of immigration status required by federal statute to the Department. The Department maintains documentation of immigration status required by federal statute as a service to the parent, who is the employer.

(8) A billing provider that wishes to enroll with the Department must maintain and submit evidence of the following upon initial application or upon the Department’s request:

(a) A current, valid, non-restricted Oregon nurses’ licenses for each employee who is providing services as a nurse;

(b) A current background check on each employee who provides services in a child’s family home that shows the employee has no disqualifying criminal convictions, including crimes as described in OAR 407-007-0275;

(c) Professional liability insurance that meets the requirements of section (6) of this rule; and

(d) Any licensure required of the agency by the state of Oregon or federal law or regulation.

(9) A provider must immediately notify a child’s parent and the Department of injury, illness, accidents, or any unusual circumstances that may have a serious effect on the health, safety, physical, emotional well being, or level of service required by the child for whom services are being provided.

(10) Providers are mandatory reporters and are required to report suspected child abuse to their local Department office or to the police in the manner described in ORS 419B.010.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0170, SPD 14-2004, f. & cert. ef. 6-1-04; SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; 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 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0100

Documentation Needs for Medically Fragile Children’s Services

(1) Original, accurate timesheets of MFC services must be dated and signed by the provider and the child’s primary caregiver after the services are provided and maintained and submitted to the Department with any request for payment for services.

(2) Requests for payment for MFC services must:

(a) Include an original copy of the billing form indicating prior authorization for the services;

(b) Be signed by the provider or billing provider, acknowledging agreement with the terms and condition of the billing form and attesting that the hours were delivered as billed; and

(c) Be signed by the child’s primary caregiver after the services were delivered, verifying that the services were delivered as billed.

(3) Documentation of provided MFC services must be provided to the services coordinator upon request and maintained in the family home or the place of business of the provider of services. The Department does not pay for services unrelated to a child’s disability as outlined in the child’s ISP.

(4) A Nursing Care Plan must be developed within seven days of the initiation of MFC services and submitted to the Department for approval when attendant care services are provided by a nurse.

(a) The Nursing Care Plan must be reviewed, updated, and resubmitted to the Department in the following instances:

(A) Every six months;

(B) Within seven working days of a change of the nurse who writes the Nursing Care Plan;

(C) With any request for authorization of an increase in hours of service; or

(D) After any significant change of condition, such as hospital admission or change in health status.

(b) The provider must share the Nursing Care Plan with the parent.

(5) Attendant care services provided by a nurse must be documented and maintained in a format acceptable to the Department, contain information required by the Department, and submitted to the Department upon request.

(6) Delegation, teaching, and assignment of nursing tasks and performance of nursing care must be in accordance with OAR chapter 851.

(7) The Department must be notified by the provider or the child’s primary caregiver within one working day of the hospitalization or death of any eligible child.

(8) The Department retains billing forms and timesheets for at least five years from the date of service.

(9) The billing provider must maintain documentation of provided services for at least seven years from the date of service. If a provider is a nurse and does not use a billing provider, the nurse must either maintain documentation of provided services for at least five years or send the documentation to the Department.

(10) Providers or billing providers must furnish requested documentation immediately upon the written request from the Department, the Oregon Department of Justice Medicaid Fraud Unit, Centers for Medicare and Medicaid Services, or their authorized representatives, or within the timeframe specified in the written request. Failure to comply with the request may be considered by the Department as reason to deny or recover payments.

(11) Access to records by the Department inclusive of medical, nursing, or financial records, to include providers and vendors providing goods and services, does not require authorization or release by the child’s primary caregiver.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0190, SPD 14-2004, f. & cert. ef. 6-1-04; SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; SPD 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0110

Payment for Medically Fragile Children’s Services

(1) Service levels are individually determined by the Department, based on the individual assessed needs of the child.

(2) Effective July 28, 2009, public 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.

(3) Section (2) of this rule does not apply to employees of a child’s parent or billing provider who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(4) Authorization must be obtained prior to the delivery of any MFC services for the services to be eligible for reimbursement.

(5) Providers must request payment authorization for MFC services provided during an unforeseeable emergency on the first business day following the emergency service. The services coordinator must determine if the service is eligible for payment.

(6) The delivery of authorized MFC services must occur so that any individual employee of the child’s parent does not exceed 40 hours per work week. The Department does not authorize services that require the payment of overtime, without prior written authorization by the MFCU Supervisor.

(7) The Department makes payment for MFC services, described in OAR 411-350-0050, after services are delivered as authorized and required documentation is received by the services coordinator.

(8) The Department makes payment to the individual employee of the child’s parent on behalf of the parent. The following are ancillary contributions:

(a) The Department pays the employer’s share of the Federal Insurance Contributions Act tax (FICA) and withholds the employee’s share of FICA as a service to the parent, who is the employer.

(b) The Department covers real and actual costs to the Employment Department in lieu of the parent, who is the employer.

(9) Holidays are paid at the same rate as non-holidays.

(10) Travel time to reach the job site is not reimbursable.

(11) In order to be eligible for payment, requests for payments must be submitted to the Department within six months of the delivery of MFC services.

(12) Payment by the Department for MFC services is considered full payment for the services rendered under Title XIX or Title XXI. A provider or billing provider may not demand or receive additional payment for MFC services from the child’s parent or any other source, under any circumstances.

(13) Medicaid funds are the payer of last resort. The provider or billing provider must bill all third party resources until all third party resources are exhausted.

(14) The Department reserves the right to make a claim against any third party payer before or after making payment to the provider of MFC services.

(15) The Department may void without cause prior authorizations that have been issued in the event of any of the following:

(a) Change in the status of the child, such as hospitalization, improvement in health status, or death of the child;

(b) Decision of the parent to change providers;

(c) Inadequate services, inadequate documentation, or failure to perform other expected duties;

(d) Documentation of a person who is subject to background checks on or after July 28, 2009, as required by administrative rule, has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275; or

(e) Any situation, as determined by the services coordinator that puts the child’s health or safety at risk.

(16) Section (15)(d) of this rule does not apply to employees of parents or billing providers who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(17) Upon submission of the billing form for payment, the provider must comply with:

(a) All rules in OAR chapter 407 and chapter 411;

(b) 45 CFR Part 84 that implements Title V, Section 504 of the Rehabilitation Act of 1973;

(c) Title II and Title III of the Americans with Disabilities Act of 1991; and

(d) Title VI of the Civil Rights Act of 1964.

(18) All billings must be for MFC services provided within the provider’s licensure.

(19) The provider must submit true and accurate information on the billing form. Use of a billing provider does not replace the provider’s responsibility for the truth and accuracy of submitted information.

(20) No person shall submit to the Department:

(a) A false billing form for payment;

(b) A billing form for payment that has been or is expected to be paid by another source; or

(c) Any billing form for MFC services that have not been provided.

(21) The Department only makes payment to the enrolled provider who actually performs the MFC services or the provider’s enrolled billing provider. Federal regulations prohibit the Department from making payment to collection agencies.

(22) Payments may be denied if any provisions of these rules are not complied with.

(23) The Department recoups all overpayments.

(a) The amount to be recovered:

(A) Is the entire amount determined or agreed to by the Department;

(B) Is not limited to the amount determined by criminal or civil proceedings; and

(C) Includes interest to be charged at allowable state rates.

(b) A request for repayment of the overpayment or notification of recoupment of future payments is delivered to the provider by registered or certified mail or in person.

(c) Payment schedules with the interest may be negotiated at the discretion of the Department.

(d) If recoupment is sought from a child’s parent, hearing rights in OAR 411-350-0118 apply.

(24) Payment for services provided to more than one child in the same setting at the same time may not exceed the maximum hourly rate for one child without prior written authorization by the MFCU Supervisor.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0200, SPD 14-2004, f. & cert. ef. 6-1-04; SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; 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 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0115

Complaints and Grievances

(1) COMPLAINTS AND GRIEVANCES. The Department shall address all grievances in accordance with Department written policies, procedures, and rules. Copies of the procedures for resolving grievances shall be maintained on file at the Department. These policies and procedures, at a minimum, shall address:

(a) The child’s parent has an opportunity to informally discuss and resolve any complaint or grievance regarding action taken by the Department that is contrary to law, rule, or policy and that does not meet the criteria for an abuse investigation. Choosing an informal resolution does not preclude the parent from pursuing resolution through formal grievance processes.

(b) The Department shall maintain a log of all complaints regarding the provision of MFC services received via phone calls, e-mails, or writing.

(A) At a minimum, the complaint log shall include:

(i) The date the complaint was received;

(ii) The name of the person taking the complaint;

(iii) The nature of the complaint;

(iv) The name of the person making the complaint, if known; and

(v) The disposition of the complaint.

(B) Child welfare and law enforcement reports of abuse or neglect shall be maintained separately from the central complaint and grievance log.

(c) Response to complaints. Department staff response to the complaint must be provided within five working days following receipt of the complaint and must include an investigation of the facts supporting or disproving the complaint. Any agreement to resolve the complaint must be in writing and must be specifically approved by the grievant. The Department shall provide the grievant with a copy of the agreement.

(d) Review. A manager of the Department must review the complaint if the complaint involves Department staff or services, or if the complaint is not or may not be resolved with Department staff. The manager’s response to the complaint must be made in writing within 30 days following receipt of the complaint, and include a response to the complaint as described in subsection (1)(c) of this section.

(e) Third-party review when complaints are not resolved by a Department manager. Unless the complainant is a Medicaid recipient who has elected to initiate the hearing process according to OAR 411-350-0118, a complaint involving the provision of service or a service provider may be submitted to the Department for an administrative review.

(A) The grievant must submit to the Department a request for an administrative review within 15 days from the date of the decision by the Department manager.

(B) Upon receipt of a request for an administrative review, the Department’s director shall appoint an Administrative Review Committee and name the chairperson. The Administrative Review Committee shall be comprised of two representatives of the Department. Committee representatives may not have any direct involvement in the provision of services to the grievant or have a conflict of interest in the specific case being grieved.

(C) The Administrative Review Committee must review the complaint and the decision by the Department manager and make a recommendation to the Department’s director within 45 days of receipt of the complaint unless the grievant and the Administrative Review Committee mutually agree to an extension.

(D) The Department’s director shall consider the report and recommendations of the Administrative Review Committee and make a final decision. The decision must be in writing and issued within 10 days of receipt of the recommendation by the Administrative Review Committee. The written decision must contain the rationale for the decision.

(E) The decision of the Department’s director is final. Any further review is pursuant to the provision of ORS 183.484 for judicial review.

(f) Documentation of complaint. Documentation of each complaint and the resolution of the complaint must be filed or noted in the complainant’s record.

(2) NOTIFICATION. Upon enrollment and annually thereafter, the Department must inform each child’s parent orally and in writing, using language, format, and methods of communication appropriate to the parent’s needs and abilities, of the following:

(a) The Department’s grievance policy and procedures, including the right to an administrative review and the method to obtain an administrative review; and

(b) The right of a Medicaid recipient to a hearing pursuant to OAR 411-350-0118 and the procedure to request a hearing.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; SPD 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0118

Denial, Termination, Suspension, Reduction, or Eligibility of Services for Individual Medicaid Recipients

(1) Each time the Department takes an action to deny, terminate, suspend, or reduce a child’s access to services covered under Medicaid, the Department shall notify the child’s parent of the right to a hearing and the method to request a hearing. The Department shall mail the notice by certified mail, or personally serve the notice to the parent 10 days or more prior to the effective date of the action.

(a) The Department shall use the Notice of Hearing Rights or a comparable Department-approved form. A notice of hearing rights is not required if an action is part of, or fully consistent with, a child’s ISP, or the child’s parent has agreed with the action by signature to the ISP. The notice of hearing rights shall be given directly to the parent when the ISP is signed.

(b) The child’s parent may appeal a denial of a request for additional or different services only if the request has been made in writing and submitted to the address on the notice to expedite the process.

(c) A notice required by this section of this rule must include:

(A) The action the Department intends to take;

(B) The reasons for the intended action;

(C) The specific Oregon Administrative Rules that supports, or the change in federal or state law that requires, the action;

(D) The appealing party’s right to request a hearing in accordance with OAR chapter 137, Oregon Attorney General’s Model Rules, ORS chapter 183, and 42 CFR Part 431, Subpart E;

(E) A statement that the Department files on the subject of the hearing automatically becoming part of the hearing record upon default for the purpose of making a prima facie case;

(F) A statement that the actions specified in the notice shall take effect by default if the Department representative does not receive a request for hearing from the party within 45 days from the date that the Department mails the notice of action;

(G) In cases of an action based upon a change in law, the circumstances under which a hearing shall be granted; and

(H) An explanation of the circumstances under which MFC services shall be continued if a hearing is requested.

(d) If the child’s parent disagrees with the decision or proposed action of the Department to deny, terminate, suspend, or reduce a child’s access to services covered under Medicaid, the parent may request a hearing as provided in ORS chapter 183. The request for a hearing must be in writing on Form DHS 443 and signed by the parent. The signed form (DHS 443) must be received by the Department within 45 days from the date of the Department’s notice of action.

(e) The child’s parent may request an expedited hearing if the parent feels that there is an immediate, serious threat to the child’s life or health if the normal timing of the hearing process is followed.

(f) If the child’s parent requests a hearing before the effective date of the proposed actions and requests that the existing services be continued, the Department shall continue the services.

(A) The Department shall continue the services until whichever of the following occurs first:

(i) The current authorization expires;

(ii) The administrative law judge issues a proposed order and the Department issues a final order; or

(iii) The child is no longer eligible for Medicaid benefits.

(B) The Department shall notify the child’s parent that the Department is continuing the service. The notice shall inform the parent that, if the hearing is resolved against the child, the Department may recover the cost of any services continued after the effective date of the continuation notice.

(g) The Department may reinstate services if:

(A) The Department takes an action without providing the required notice and the child’s parent requests a hearing;

(B) The Department fails to provide the notice in the time required in this rule and the child’s parent requests a hearing within 10 days of the mailing of the notice of action; or

(C) The post office returns mail directed to the child’s parent but the location of the parent becomes known during the time that the child is still eligible for services.

(h) The Department shall promptly correct the action taken up to the limit of the original authorization, retroactive to the date the action was taken, if the hearing decision is favorable to the child, or the Department decides in the child’s favor before the hearing.

(i) The Department representative and the child’s parent 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 child’s parent to settle the matter;

(B) Ensure the child’s parent understands the reason for the action that is the subject of the hearing request;

(C) Give the child’s parent an opportunity to review the information that is the basis for that action;

(D) Inform the child’s parent of the rules that serve as the basis for the contested action;

(E) Give the child’s parent and the Department the chance to correct any misunderstanding of the facts;

(F) Determine if the child’s parent wishes to have any witness subpoenas issued; and

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

(j) The child’s parent 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 the additional conference facilitates the hearing process.

(k) The Department may provide the child’s parent the relief sought at any time before the final order is issued.

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

(2) PROPOSED AND FINAL ORDERS.

(a) In a contested case, the administrative law judge must serve a proposed order on the child and the Department.

(b) If the administrative law judge issues a proposed order that is adverse to the child, the child’s parent may file an exception to the proposed order to be considered by the Department. The exceptions must be in writing and must be received by the Department no later than 10 days after service of the proposed order. The child’s parent may not submit additional evidence after this period unless the Department grants prior approval.

(c) After receiving the exceptions, if any, the Department may adopt the proposed order as the final order or may prepare a new order. Prior to issuing the final order, the Department may issue an amended proposed order.

(3) The provider or billing provider must submit relevant documentation to the Department within five working days at the request of the Department when a hearing has been requested.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0150, SPD 14-2004, f. & cert. ef. 6-1-04; Renumbered from 411-350-0060, SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; SPD 55-2013, f. 12-27-13, cert. ef. 12-28-13

411-350-0120

Sanctions for Providers of Medically Fragile Children’s Services

(1) Sanctions may be imposed on a provider when any of the following conditions is determined by the Department to have occurred:

(a) The provider has been convicted of any crime that would have resulted in an unacceptable background check upon hiring or issuance of a provider number;

(b) The provider has been convicted of unlawfully manufacturing, distributing, prescribing, or dispensing a controlled substance;

(c) The provider’s license has been suspended, revoked, otherwise limited, or surrendered;

(d) The provider has failed to safely provide the MFC services authorized as determined by the child’s parent or the services coordinator;

(e) The provider has had a founded report of child abuse or substantiated abuse;

(f) The provider has failed to cooperate with any investigation or grant access to or furnish records or documentation as requested;

(g) The provider has billed excessive or fraudulent charges or has been convicted of fraud;

(h) The provider has made a false statement concerning conviction of crime, founded report of child abuse, or substantiated abuse;

(i) The provider has falsified required documentation;

(j) The provider has been suspended or terminated as a provider by the Department or Oregon Health Authority; or

(k) The provider has not adhered to the provisions of these rules.

(2) The Department may impose the following sanctions on a provider:

(a) Termination from providing MFC services;

(b) Suspension from providing MFC services for a specified length of time or until specified conditions for reinstatement are met and approved by the Department; or

(c) Withholding payments to the provider.

(3) If the Department makes a decision to sanction a provider, the provider must be notified by mail of the intent to sanction.

(a) The provider may appeal a sanction by requesting an administrative review by the Department’s director.

(b) For an appeal to be valid, written notice of the appeal must be received by the Department within 45 days of the date the sanction notice was mailed to the provider.

(c) The provider must appeal a sanction separately from any appeal of audit findings and overpayments.

(4) At the discretion of the Department, providers who have previously been terminated or suspended by the Department or the Oregon Health Authority may not be re-enrolled as providers of Medicaid services.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.005, 427.007 & 430.215

Hist.: MHD 21-1998(Temp), f. 11-25-98, cert. ef. 12-1-98 thru 5-29-99; MHD 3-1999, f. 5-17-99, cert. ef. 5-28-99; MHD 8-2003(Temp) f. & cert. ef. 12-11-03 thru 6-7-04; Renumbered from 309-044-0210, SPD 14-2004, f. & cert. ef. 6-1-04; SPD 1-2009, f. 2-24-09, cert. ef. 3-1-09; 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 55-2013, f. 12-27-13, cert. ef. 12-28-13


Rule Caption: Medically Involved Children’s Program

Adm. Order No.: SPD 56-2013

Filed with Sec. of State: 12-27-2013

Certified to be Effective: 12-28-13

Notice Publication Date: 12-1-2013

Rules Amended: 411-355-0000, 411-355-0010, 411-355-0020, 411-355-0030, 411-355-0040, 411-355-0050, 411-355-0060, 411-355-0070, 411-355-0080, 411-355-0090, 411-355-0100, 411-355-0110, 411-355-0120

Rules Repealed: 411-355-0010(T), 411-355-0020(T), 411-355-0030(T), 411-355-0040(T)

Subject: The Department of Human Services is permanently amending the rules in OAR chapter 411, division 355 for the Medically Involved Children’s Program.

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

411-355-0000

Statement of Purpose

(1) The rules in OAR chapter 411, division 355 establish the policy of, and prescribe the standards and procedures for, the provision of services for children enrolled in the Medically Involved Children’s Program.

(2) MICP services are exclusively intended to enable a child who meets the nursing facility level of care to return to the family home, or remain at the family home, with specialized supports and services. MICP services specifically preserve a parent’s capacity to care for their child, assure the health and safety of the child within the family home, and enable a child who has been separated from their family due to their health and medical care needs to return to the family home to prevent out of home placement. MICP services complement and supplement the services that are available through the State Medicaid Plan and other federal, state, and local programs as well as the natural supports that families and communities provide.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 417.345, 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; SPD 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0010

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 355:

(1) “Abuse” means “abuse” of a child as defined in ORS 419B.005.

(2) “Activities of Daily Living (ADL)” means basic personal everyday activities, including but not limited to tasks such as eating, using the restroom, grooming, dressing, bathing, and transferring.

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

(4) “Attendant Care” means the Medicaid state plan funded essential supportive daily care described in OAR 411-355-0040 that is delivered by a qualified provider to enable a child to remain in, or return to, the child’s family home.

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

(6) “Behavior Consultant” means a contractor with specialized skills who meets the requirements of OAR 411-355-0050 and provides the services described in OAR 411-355-0040.

(7) “Behavior Support Plan” means the written strategy based on person-centered planning and a functional assessment that outlines specific instructions for a provider to follow to cause a child’s challenging behaviors to become unnecessary and to change the provider’s own behavior, adjust environment, and teach new skills.

(8) “Billing Form” means the document generated by the Department that acts as a prior authorization, contract, and payment mechanism for services.

(9) “Billing Provider” means an organization that enrolls and contracts with the Department to provide services through employees that bills the Department for the provider’s services.

(10) “Case Management” means the functions performed by a services coordinator. Case management includes determining service eligibility, developing a plan of authorized services, and monitoring the effectiveness of services and supports.

(11) “Child” means an individual who is less than 18 years of age applying for, or eligible for, the Medically Involved Children’s Program.

(12) “Chore Services” mean the services described in OAR 411-355-0040 that are needed to restore a hazardous or unsanitary situation in a child’s family home to a clean, sanitary, and safe environment.

(13) “CMS” means Centers for Medicare and Medicaid Services, the federal agency charged with delivery and oversight of all Medicare and Medicaid services.

(14) “Community First Choice (K Plan)” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(15) “Community Nursing Services” mean the services described in OAR 411-355-0040 that include nurse delegation, training, and care coordination for a child living in the child’s family home.

(16) “Community Transportation” means the services described in OAR 411-355-0040 that enable a child to gain access to community services, activities, and resources that are not medical in nature.

(17) “Cost Effective” means that in the opinion of a services coordinator, a specific service, support, or item of equipment meets a child’s service needs and costs less than, or is comparable to, other similar service, support, or equipment options considered.

(18) “Delegation” means that a registered nurse authorizes an unlicensed person to perform nursing tasks and confirms that authorization in writing. Delegation may occur only after a registered nurse follows all steps of the delegation process as outlined in OAR chapter 851, division 047. Delegation by a physician is also allowed.

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

(20) “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.

(21) “Director” means the director of the Department’s Office of Developmental Disability Services or the director’s designee.

(22) “Environmental Accessibility Adaptations” mean the physical adaptations described in OAR 411-355-0040 that are necessary to ensure the health, welfare, and safety of a child in the child’s family home, or that enable a child to function with greater independence in the family home.

(23) “Family” means a unit of two or more people that includes at least one child with an intellectual or developmental disability where the child’s primary caregiver is:

(a) Related to the child with an intellectual or developmental disability 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, such as child-rearing, maintenance of the residence, and basic living expenses; and

(C) Joint responsibility for supporting a child with an intellectual or developmental disability when the child is related to one of the partners by blood, marriage, or legal adoption.

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

(25) “Family Training” means the training and counseling services described in OAR 411-355-0040 that are provided to a child’s family to increase the family’s capacity to care for, support, and maintain the child in the child’s family home.

(26) “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.

(27) “Functional Needs Assessment” means a comprehensive assessment that documents:

(a) Physical, mental, and social functioning; and

(b) Risk factors, choices and preferences, service and support needs, strengths, and goals.

(28) “Grievance” means a process by which a person may air complaints and seek remedies.

(29) “Home and Community-Based Waiver Services” mean the services approved by the Centers for Medicare and Medicaid Services in accordance with section 1915(c) and 1115 of the Social Security Act.

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

(31) “ICF/MR” means intermediate care facilities for the mentally retarded. Federal law and regulations use the term “intermediate care facilities for the mentally retarded (ICF/MR)”. The Department prefers to use the accepted term “individual with intellectual disability (ID)” instead of “mental retardation (MR)”. However, as ICF/MR is the abbreviation currently used in all federal requirements, ICF/MR is used.

(32) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required for a child to achieve and maintain personal outcomes. The ISP is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. Individual support needs are identified through a functional needs assessment. The manner in which services are delivered, service providers, and the frequency of services are reflected in an ISP. The ISP is the child’s plan of care for Medicaid purposes and reflects whether services are provided through a waiver, state plan, or natural supports.

(33) “Instrumental Activities of Daily Living (IADL)” means the activities other than activities of daily living, including but not limited to:

(a) Meal planning and preparation;

(b) Budgeting;

(c) Shopping for food, clothing, and other essential items;

(d) Performing essential household chores;

(e) Communicating by phone or other media; and

(f) Traveling around and participating in the community.

(34) “Intellectual Disability” means “intellectual disability” as defined in OAR 411-320-0020 and described in OAR 411-320-0080.

(35) “ISP” means “Individual Support Plan” as defined in this rule.

(36) “Level of Care” means a child meets the following institutional level of care for nursing facility level of care for children with intellectual or developmental disabilities:

(a) The child has a documented medical condition that requires 24-hour professional nursing supervision and demonstrates the need for active treatment as assessed by the medically involved criteria as defined in this rule; and

(b) The child’s medical condition requires the care and treatment of services normally provided in a nursing facility.

(37) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who comes in contact with and has reasonable cause to believe a child with or without an intellectual or developmental disability has suffered abuse, or comes in contact with any person whom the official has reasonable cause to believe abused a child with or without an intellectual or developmental disability, 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 affects the duty to report imposed by this section, except that a psychiatrist, psychologist, clergy, attorney, or guardian ad litem appointed under ORS 419B.231 is not required to report if the communication is privileged under ORS 40.225 to 40.295.

(38) “Medically Involved Children’s Program (MICP)” means the waiver program granted by the federal Centers for Medicare and Medicaid Services that allows Title XIX funds to be spent on a child living in the child’s family home who otherwise would have to be served in a nursing facility if the waiver program was not available.

(39) “Medically Involved Criteria (Form DHS-0521)” means the assessment tool used by the Department to evaluate the intensity of the challenges presented by a child eligible for the Medically Involved Children’s Program.

(40) “MICP” means “Medically Involved Children’s Program” as defined in this rule.

(41) “Natural Supports” means the parental responsibilities for a child who is less than18 years of age and the voluntary resources available to the child from the child’s relatives, friends, neighbors, and the community that are not paid for by the Department.

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

(43) “Nursing Care Plan” means the plan developed by a nurse that describes the medical, nursing, psychosocial, and other needs of a child and how those needs are met. The Nursing Care Plan includes the tasks that are taught or delegated to the child’s primary caregiver or a qualified provider. When a Nursing Care Plan exists, it is a supporting document for an Individual Support Plan.

(44) “Nursing Facility” means a residential medical facility.

(45) “Nursing Tasks or Services” mean the care or services that require the education and training of a licensed professional nurse to perform. Nursing tasks or services may be delegated.

(46) “OHP” means the Oregon Health Plan.

(47) “Oregon Intervention System” means the system of providing training to people who work with designated individuals to provide elements of positive behavior support and non-aversive behavior intervention. The Oregon Intervention System uses principles of pro-active support and describes approved protective physical intervention techniques that are used to maintain health and safety.

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

(49) “Parent” means biological parent, adoptive parent, stepparent, or legal guardian.

(50) “Person-Centered Planning”:

(a) Means a timely and formal or informal process for gathering and organizing information that helps:

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

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

(C) Identify, use, and strengthen naturally occurring opportunities for support at home and in the community.

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

(51) “Personal Care Services” means assistance with activities of daily living, instrumental activities of daily living, and health-related tasks through cueing, monitoring, reassurance, redirection, set-up, hands-on, standby assistance, and reminding.

(52) “Plan of Care” means the written plan of Medicaid services required by Medicaid regulation. Oregon’s plan of care is the Individual Support Plan.

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

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

(b) Uses the least intervention possible;

(c) Ensures that abuse or demeaning interventions are never used; and

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

(54) “Primary Caregiver” means a child’s parent, guardian, relative, or other non-paid parental figure that provides direct care at the times that a paid provider is not available.

(55) “Protective Physical Intervention” means any manual physical holding of, or contact with, a child that restricts the child’s freedom of movement.

(56) “Provider” means a person who is qualified as described in OAR 411-355-0050 to receive payment from the Department for providing support and services to a child according to the child’s Individual Support Plan. A provider works directly with a child. A provider may be an employee of a billing provider, employee of a child’s parent, or an independent contractor.

(57) “Relief Care” means the intermittent services described in OAR 411-355-0040 that are provided on a periodic basis of not more than 14 consecutive days for the relief of, or due to the temporary absence of, a child’s primary caregiver.

(58) “Service Level” means the services allotted for the care of a child based on the medically involved criteria. The service level consists of state plan services, including Community First Choice state plan services, and if the child is on a waiver, waiver services.

(59) “Services Coordinator” means an employee of the Department who ensures a child’s eligibility for the Medically Involved Children’s Program and provides assessment, case management, service implementation, and evaluation of the effectiveness of the services. A services coordinator is a child’s person-centered plan coordinator as defined in the Community First Choice state plan.

(60) “Special Diet” means the specially prepared food or particular types of food described in OAR 411-355-0040 that are specific to a child’s medical condition or diagnosis and needed to sustain the child in the child’s family home.

(61) “Specialized Equipment and Supplies” means the devices, aids, controls, supplies, or appliances described in OAR 411-355-0040 that enable a child to increase the child’s ability to perform activities of daily living or to perceive, control, or communicate with the environment in which the child lives.

(62) “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.

(63) “Supplant” means take the place of.

(64) “Support” means the assistance that a child and the child’s family requires, solely because of the effects of the child’s intellectual or developmental disability, to maintain or increase the child’s age-appropriate independence, achieve a child’s age-appropriate community presence and participation, and to maintain the child in the child’s family home. Support is subject to change with time and circumstances.

(65) “These Rules” mean the rules in OAR chapter 411, division 355.

(66) “Volunteer” means any person providing services without pay to support the services and supports provided to a child.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 417.345, 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; 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 29-2013(Temp), f. & cert. ef. 7-2-13 thru 12-29-13; SPD 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0020

Eligibility

(1) ELIGIBILITY. In order to be eligible for the MICP, a child must:

(a) Be under the age of 18;

(b) Be a U.S. citizen;

(c) Be eligible for OSIP-M;

(d) Be eligible to receive Title XIX (Medicaid) services;

(e) After completion of an assessment, meet the level of care as defined in OAR 411-355-0010;

(f) Be accepted by the Department by scoring 100 or greater on the medically involved criteria within four months of starting services;

(g) Require services offered under the MICP;

(h) Reside in the family home or reside in a nursing facility and wish to return to the family home; and

(i) Be capable of being safely served in the family home. This includes but is not limited to the child’s primary caregiver demonstrating the willingness, skills, and ability to provide direct care as outlined in the child’s ISP in a cost effective manner as determined by the service coordinator within the limitations of OAR 411-355-0040.

(2) INELIGIBILITY. A child is not eligible for the MICP if the child:

(a) Continues to reside in a hospital, school, sub-acute facility, nursing facility, intermediate care facility for individuals with intellectual or developmental disabilities (formerly referred to as ICF/MR), residential facility, foster home, or other institution;

(b) Does not require waiver services, Community First Choice state plan services, or has sufficient family, government, or community resources available to provide for his or her care; or

(c) Is not safely served in the family home as described in section (1)(i) of this rule.

(3) DISENROLLMENT. A child is disenrolled from the MICP when:

(a) The child no longer meets the medically involved criteria of section (1) of this rule; or

(b) The child’s medically involved criteria score falls below 80.

(4) REDETERMINATION. The Department redetermines a child’s eligibility for the MICP using the medically involved criteria at a minimum of every 12 months, or as the child’s status changes.

(5) ENROLLMENT. If a child meets the criteria of section (1) of this rule and space is available in the MICP, the child’s priority for enrollment is in accordance with ORS 417.345, CMS model waiver requirements, and geographical distribution for equal access to services. The date the initial application is complete is the date that the Department receives all of the required demographic and referral information on the child.

(6) WAIT LIST. If the allowable numbers of children in the MICP are already receiving services, the Department may place a child eligible for the MICP on a wait list. A child on the wait list may access other waiver, state plan personal care, or Community First Choice state plan services as determined eligible.

(a) The date the initial application for the MICP is completed determines the order on the wait list. A child previously enrolled in children’s intensive in-home services that currently meets eligibility criteria and applies for the MICP is put on the wait list as of the date the child’s original application for services was complete.

(b) Children on the wait list are served on a first come, first served basis according to the legislatively mandated enrollment priorities, per geographical region, and as space on the MICP allows.

(7) ASSESSMENT. Anyone may request an assessment for a child for MICP services.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 417.345, 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; SPD 29-2013(Temp), f. & cert. ef. 7-2-13 thru 12-29-13; SPD 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0030

Individual Support Plan

(1) To develop an ISP, a services coordinator must complete a functional needs assessment using a person-centered planning approach and assess the service needs of the child. The assessment must take place in person and the services coordinator must interview the child’s parent, provider, and when appropriate, any other person at the parent’s request. The assessment must identify the following:

(a) The current care needs of the child including ADL care, medication management, communication, supervisory needs, and physical environment;

(b) The services for which the child is currently eligible;

(c) The services currently being provided;

(d) All available family, private health insurance, and government or community resources that meet any, some, or all of the child’s needs; and

(e) Areas of unmet needs.

(2) The service coordinator must prepare, with the input of the child’s parent and any other person at the parent’s request, a written ISP that identifies:

(a) The service needs of the child;

(b) The most cost effective services for safely and appropriately meeting the child’s service needs; and

(c) The methods, resources, and strategies that address the child’s service needs.

(3) The ISP must include:

(a) A description of the supports required, including the reason the support is necessary. The description must be consistent with the needs identified in the functional needs assessment;

(b) A list of personal, community, and public resources that are available to the child and how the resources may be applied to provide the required supports. Sources of support may include waiver services, state plan services, state general funds, or natural supports;

(c) The maximum hours of provider services authorized for the child;

(d) The annual average service level;

(e) The number of hours of attendant care or other related services authorized for the child;

(f) Additional services authorized by the Department for the child;

(g) All behavior and specialized consultant services purchased through the MICP;

(h) The projected date of when specific services are to begin and end, as well as the end date, if any, of the period of service covered by the ISP;

(i) Projected costs with sufficient detail to support estimates;

(j) The manner in which services are delivered and the frequency of services;

(k) Service providers;

(l) The child’s strengths and preferences;

(m) If the child has a determined service level, the clinical and support needs as identified through the functional needs assessment;

(n) Individually identified goals and desired outcomes;

(o) The services and supports (paid and unpaid) to assist the child to achieve identified goals and the providers of the services and supports, including voluntarily provided natural supports;

(p) The risk factors and the measures in place to minimize the risk factors, including back-up plans;

(q) The identity of the person responsible for case management and monitoring the ISP;

(r) The date of the next ISP review that, at a minimum, must be completed within 12 months of the last ISP;

(s) The Nursing Care Plan as a supporting document, when one exists;

(t) A provision to prevent unnecessary or inappropriate care; and

(u) If the child has a determined service level, any changes in support needs identified through a functional needs assessment.

(4) The child’s parent must review the ISP prior to implementation. The parent and the services coordinator must sign the ISP and a copy must be provided to the parent.

(5) A services coordinator must reflect significant changes in the needs of a child in the child’s ISP, as they occur, and provide a copy of the revised ISP to the parent.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 417.345, 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; SPD 29-2013(Temp), f. & cert. ef. 7-2-13 thru 12-29-13; SPD 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0040

Scope and Limitations of MICP Services

(1) MICP services are intended to support, not supplant, the natural supports supplied by a child’s primary caregiver. MICP services are not available to replace services provided by a primary caregiver or to replace other governmental or community services.

(2) MICP services are only authorized to enable a child’s primary caregiver to meet the needs of caring for a child on the Medically Involved Model Waiver. All services funded by the Department must be based on the actual and customary costs related to best practice standards of care for children with similar disabilities.

(3) When multiple children in the same family home or setting qualify for MICP services, the same provider must provide services to all qualified children if services may be safely delivered by a single provider, as determined by the services coordinator.

(4) To be authorized and eligible for payment by the Department, all MICP supports and services must be:

(a) Directly related to the child’s disability;

(b) Required to maintain the health and safety of the child;

(c) Cost effective;

(d) Considered not typical for a child’s parent to provide a child of the same age;

(e) Required to help the child’s parent to continue to meet the needs of caring for the child; and

(f) Included in an approved ISP.

(5) For an initial or annual ISP, MICP services may include a combination of the following waiver and other Medicaid services based upon the needs of a child as determined by a services coordinator and as consistent with the child’s functional needs assessment:

(a) Community First Choice state plan services:

(A) Specialized consultation, including behavior consultation as described in section (6) of this rule;

(B) Community nursing services as described in section (7) of this rule;

(C) Environmental accessibility adaptations as described in section (8) of this rule;

(D) Attendant care as described in section (9) of this rule;

(E) Relief care as described in section (10) of this rule;

(F) Specialized equipment and supplies as described in section (11) of this rule;

(G) Chore services as described in section (12) of this rule; and

(H) Community transportation as described in section (13) of this rule.

(b) Waiver services:

(A) Family training as described in section (14) of this rule;

(B) Special diet as described in section (15) of this rule; and

(C) Translation as described in section (16) of this rule.

(6) SPECIALIZED CONSULTATION – BEHAVIOR CONSULTATION. Behavior consultation is only authorized to support a child’s primary caregiver in their caregiving role. Behavior consultation is only authorized, as needed, to respond to specific problems identified by a primary caregiver or a services coordinator. Behavior consultants must:

(a) Work with the child’s primary caregiver to identify:

(A) Areas of a child’s family home life that are of most concern for the child and the child’s parent;

(B) The formal or informal responses the child’s family or the provider has used in those areas; and

(C) The unique characteristics of the child’s family that may influence the responses that may work with the child.

(b) Assess the child. The assessment must include:

(A) Specific identification of the behaviors or areas of concern;

(B) Identification of the settings or events likely to be associated with, or to trigger, the behavior;

(C) Identification of early warning signs of the behavior;

(D) Identification of the probable reasons that are causing the behavior and the needs of the child that are being met by the behavior, including the possibility that the behavior is:

(i) An effort to communicate;

(ii) The result of a medical condition;

(iii) The result of an environmental cause; or

(iv) The symptom of an emotional or psychiatric disorder.

(E) Evaluation and identification of the impact of disabilities (i.e. autism, blindness, deafness, etc.) that impact the development of strategies and affect the child and the area of concern; and

(F) An assessment of current communication strategies.

(c) Develop a variety of positive strategies that assist the child’s primary caregiver and the provider to help the child use acceptable, alternative actions to meet the child’s needs in the most cost effective manner. These strategies may include changes in the physical and social environment, developing effective communication, and appropriate responses by a primary caregiver and a provider to the early warning signs.

(A) Interventions must be done in accordance with positive behavioral theory and practice as defined in OAR 411-355-0010.

(B) The least intrusive intervention possible must be used.

(C) Abusive or demeaning interventions must never be used.

(D) The strategies must be adapted to the specific disabilities of the child and the style or culture of the child’s family.

(d) Develop emergency and crisis procedures to be used to keep the child and the child’s primary caregiver and the provider safe. When interventions in the behavior of the child are necessary, positive, preventative, non-aversive interventions that conform to the Oregon Intervention System must be utilized;

(e) Develop a written Behavior Support Plan using clear, concrete language that is understandable to the child’s primary caregiver and the provider that describes the assessment, strategies, and procedures to be used;

(f) Teach the child’s primary caregiver and the provider the strategies and procedures to be used; and

(g) Monitor and revise the Behavior Support Plan as needed.

(7) COMMUNITY NURSING SERVICES.

(a) Community nursing services include:

(A) Evaluation, including medication reviews, and identification of supports that minimize health risks while promoting a child’s autonomy and self-management of healthcare;

(B) Collateral contact with a services coordinator regarding a child’s community health status to assist in monitoring safety and well-being and to address needed changes to the child’s ISP; and

(C) Delegation and training of nursing tasks to a child’s primary caregiver and a provider so the caregivers may safely perform health related tasks.

(b) Community nursing services exclude direct nursing care.

(c) Community nursing services are not covered by other Medicaid spending authorities.

(8) ENVIRONMENTAL ACCESSIBILITY ADAPTATIONS. Environmental accessibility adaptations are physical adaptations to a child’s family home that are necessary to ensure the health, welfare, and safety of the child in the family home due to the child’s intellectual or developmental disability or that are necessary to enable the child to function with greater independence around the family home and in family activities.

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

(A) An environmental modification consultation to determine the appropriate type of adaptation to ensure the health, welfare, and safety of the child;

(B) Installation of shatter-proof windows;

(C) Hardening of walls or doors;

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

(E) An alarm system for doors or windows;

(F) Protective covering for smoke alarms, 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 a child whose temperature sensitivity issues create behaviors or medical conditions that put the child 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 child;

(R) Modifications for the primary vehicle used by the child that are necessary to meet the unique needs of the child and ensure the health, welfare, and safety of the child, such as lift, interior alterations to seats, head and leg rests, belts, special safety harnesses, or other unique modifications to keep the child safe in the vehicle; and

(S) Adaptations to control lights, heat, stove, etc.

(b) Environmental accessibility adaptations exclude:

(A) Adaptations or improvements to the child’s family home that are of general utility and are not for the direct safety, remedial, or long term benefit to the child;

(B) Adaptations that add to the total square footage of the child’s family home; and

(C) General repair or maintenance and upkeep required for the child’s family home or motor vehicle, including repair of damage caused by the child.

(c) Environmental accessibility adaptations are limited to $5,000 per modification. A services coordinator may request approval for additional expenditures through the Department prior to expenditure. Approval is based on the child’s service needs and goals and the Department’s determination of appropriateness and cost-effectiveness.

(d) Environmental accessibility adaptations must be tied to supporting ADL, IADL, and health-related tasks as identified in the child’s ISP.

(e) Environmental accessibility adaptations over $500 must be completed by a state licensed contractor. Any modification requiring a permit must be inspected by a local inspector and certified as in compliance with local codes. Certification of compliance must be filed in the provider’s file prior to payment.

(f) Environmental accessibility adaptations must be made within the existing square footage of the child’s family home, except for external ramps, and may not add to the square footage of the building.

(g) Payment to the contractor is to be withheld until the work meets specifications.

(h) Environmental accessibility adaptations that are provided in a rental structure must be authorized in writing by the owner of the structure prior to initiation of the work. This does not preclude any reasonable accommodations required under the Americans with Disabilities Act.

(9) ATTENDANT CARE. Attendant care services include the purchase of direct provider support provided to a child in the child’s family home or community by qualified individual providers and agencies. Provider assistance provided through attendant care must support the child to live as independently as appropriate for the child’s age, support the child’s family in their primary caregiver role, and be based on the identified needs of the child. A child’s primary caregiver is expected to be present or available during the provision of attendant care.

(a) Attendant care services provided by qualified providers or agencies include:

(A) Basic personal hygiene — Assistance with bathing and grooming;

(B) Toileting, bowel, and bladder care — Assistance in the bathroom, diapering, external cleansing of perineal area, and care of catheters;

(C) Mobility — Transfers, comfort, positioning, and assistance with range of motion exercises;

(D) Nutrition — Feeding and monitoring intake and output;

(E) Skin care — Dressing changes;

(F) Physical healthcare including delegated nursing tasks;

(G) Supervision - Providing an environment that is safe and meaningful for the child and interacting with the child to prevent danger to the child and others and maintain skills and behaviors required to live in the child’s family home and community;

(H) Assisting the child with appropriate leisure activities to enhance development in the child’s family home and community and provide training and support in personal environmental skills;

(I) Communication — Assisting the child in communicating, using any means used by the child;

(J) Neurological — Monitoring of seizures, administering medication, and observing status; and

(K) Accompanying the child and the child’s family to health related appointments.

(b) Attendant care services must:

(A) Be previously authorized by the services coordinator before services begin;

(B) Be delivered through the most cost effective method as determined by the services coordinator; and

(C) Only be provided when the child is present to receive services.

(c) Attendant care services exclude:

(A) Hours that supplant parental responsibilities or other natural supports and services available from the child’s family, community, other government or public services, insurance plans, schools, philanthropic organizations, friends, or relatives;

(B) Hours solely to allow a child’s primary caregiver to work or attend school;

(C) Hours that exceed what is necessary to support the child;

(D) Support generally provided at the child’s age by the child’s parent or other family members;

(E) Educational and supportive services provided by schools as part of a free and appropriate education for children and young adults under the Individuals with Disabilities Education Act;

(F) Services provided by the child’s family; and

(G) Home schooling.

(d) Attendant care services may not be provided on a 24-hour shift-staffing basis.

(10) RELIEF CARE. Relief care services are provided to a child on a periodic or intermittent basis furnished because of the temporary absence of, or need for relief of, the child’s primary caregiver.

(a) Relief care may include both day and overnight services that may be provided in:

(A) The child’s family home;

(B) A licensed, certified, or otherwise regulated setting;

(C) A qualified provider’s home. If overnight relief care is provided in a qualified provider’s home, the services coordinator and the child’s parent must document that the home is a safe setting for the child;

(D) A disability-related or therapeutic recreational camp; or

(E) The community, during the provision of ADL, IADL, health related tasks, and other supports identified in the child’s ISP.

(b) Relief care services are not authorized for the following:

(A) Solely to allow a child’s primary caregiver to attend school or work;

(B) For ongoing services that occur on more than a periodic schedule, such as eight hours a day, five days a week;

(C) For more than 14 consecutive overnight stays in a calendar month;

(D) For more than 10 days per individual plan year when provided at a specialized camp;

(E) For vacation, travel, and lodging expenses; or

(F) To pay for room and board if provided at a licensed site or specialized camp.

(11) SPECIALIZED EQUIPMENT AND SUPPLIES. Specialized equipment and supplies include the purchase of devices, aids, controls, supplies, or appliances that are necessary to enable a child to increase the child’s abilities to perform and support ADLs and IADLs or to perceive, control, or communicate with the environment in which the child lives. Specialized equipment and supplies must meet applicable standards of manufacture, design, and installation.

(a) Specialized equipment and supplies include:

(A) Electronic devices to secure assistance in an emergency in the community and other reminders, such as medication minders, alert systems for ADL or IADL supports, or mobile electronic devices. Expenditures for electronic devices are limited to $500 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(B) Assistive technology to provide additional security and replace the need for direct interventions to enable self direction of care and maximize independence such as motion or sound sensors, two-way communication systems, automatic faucets and soap dispensers, incontinent and fall sensors, or other electronic backup systems.

(i) Expenditures for assistive technology are limited to $5,000 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(C) Assistive devices not covered by other Medicaid programs to assist and enhance a child’s independence in performing ADLs or IADLs, such as durable medical equipment, mechanical apparatus, electrical appliances, or information technology devices.

(i) Expenditures for assistive devices are limited to $5,000 per plan year. A services coordinator may request approval for additional expenditures through the Department prior to expenditure.

(ii) Any single device or assistance costing more than $500 must be approved by the Department prior to expenditure.

(b) Specialized equipment and supplies may include the cost of a professional consultation, if required, to assess, identify, adapt, or fit specialized equipment. The cost of professional consultation may be included in the purchase price of the equipment.

(c) To be authorized by a services coordinator, specialized equipment and supplies must be:

(A) In addition to any medical equipment and supplies furnished under OHP and private insurance;

(B) Determined necessary to the daily functions of the child; and

(C) Directly related to a child’s disability.

(d) Specialized equipment and supplies exclude:

(A) Items that are not necessary or of direct medical or remedial benefit to the child;

(B) Specialized equipment and supplies intended to supplant similar items furnished under OHP or private insurance;

(C) Items available through a child’s family, community, or other governmental resources;

(D) Items that are considered unsafe for a child;

(E) Toys or outdoor play equipment; and

(F) Equipment and furnishings of general household use.

(e) Funding for specialized equipment and supplies with an expected life of more than one year is one time funding that is not continued in subsequent plan years. Specialized equipment and supplies may only be included in a child’s ISP when all other public and private resources have been exhausted.

(f) The services coordinator must secure use of specialized equipment or supplies costing more than $500 through a written agreement between the Department and the child’s parent that specifies the time period the item is to be available to the child and the responsibilities of all parties if the item is lost, damaged, or sold within that time period. The Department may immediately recover any specialized equipment or supplies purchased with MFC funds that are not used according to the child’s ISP or according to the written agreement between the Department and the child’s parent.

(12) CHORE SERVICES. Chore services may be provided only in situations where no one else in a child’s family home is able 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.

(a) Chore services include heavy household chores such as --

(A) Washing floors, windows, and walls;

(B) Tacking down loose rugs and tiles; and

(C) Moving heavy items of furniture for safe access and egress.

(b) Chore services may include yard hazard abatement to ensure the outside of the family home is safe for a child to traverse and enter and exit the home.

(13) COMMUNITY TRANSPORTATION. Community transportation is provided in order to enable a child to gain access to community services, activities, and resources as specified in the child’s ISP. Community transportation excludes:

(a) Transportation provided by family members;

(b) Transportation used for behavioral intervention or calming;

(c) Transportation normally provided by schools;

(d) Transportation normally provided by the child’s primary caregiver for a child of similar age without disabilities;

(e) Purchase of any family vehicle;

(f) Vehicle maintenance and repair;

(g) Reimbursement for out-of-state travel expenses;

(h) Ambulance services or medical transportation; or

(i) Transportation services that may be obtained through other means such as OHP or other public or private resources available to the child.

(14) FAMILY TRAINING. Family training services include the purchase of training, coaching, counseling, and support that increase the abilities of a child’s family to care for and maintain the child in the child’s family home. Family training services include:

(a) Instruction about treatment regimens and use of equipment specified in the child’s ISP;

(b) Counseling services that assist the child’s family with the stresses of having a child with an intellectual or developmental disability.

(A) To be authorized, the counseling services must:

(i) Be provided by licensed providers, including but not limited to psychologists licensed under ORS 675.030, professionals licensed to practice medicine under ORS 677.100, social workers licensed under ORS 675.530, or counselors licensed under ORS 675.715;

(ii) Directly relate to the child’s intellectual or developmental disability and the ability of the child’s family to care for the child; and

(iii) Be short-term.

(B) Counseling services exclude:

(i) Therapy that may be obtained through OHP or other payment mechanisms;

(ii) General marriage counseling;

(iii) Therapy to address the psychopathology of the child’s family members;

(iv) Counseling that addresses stressors not directly attributed to the child;

(v) Legal consultation;

(vi) Vocational training for the child’s family members; and

(vii) Training for families to carry out educational activities in lieu of school.

(c) Registration fees for organized conferences, workshops, and group trainings that offer information, education, training, and materials about the child’s intellectual or developmental disability, medical, or health conditions.

(A) Conferences, workshops, or group trainings must be prior authorized by the services coordinator, directly relate to the child’s intellectual or developmental disability, and increase the knowledge and skills of the child’s family to care for and maintain the child in the child’s family home.

(B) Conference, workshop, or group training costs exclude:

(i) Registration fees in excess of $500 per family for an individual event;

(ii) Travel, food, and lodging expenses;

(iii) Services otherwise provided under OHP or available through other resources; or

(iv) Costs for individual family members who are employed to care for the child.

(15) SPECIAL DIETS. Special diets do not constitute a full nutritional regime.

(a) In order for a special diet to be authorized:

(A) The foods must be on the approved list developed by the Department;

(B) The special diet must be ordered at least annually by a physician licensed by the Oregon Board of Medical Examiners;

(C) The special diet must be periodically monitored by a dietician or physician; and

(D) The special diet may not be reimbursed through OHP or any other source of public or private funding.

(b) A special diet excludes restaurant and prepared foods, vitamins, and supplements.

(16) TRANSLATION. If the primary language of a child or the child’s primary caregiver is not English, translation service is provided to enable the child or the primary caregiver to communicate with providers of MICP services.

(17) The annual average service level, as authorized by the Department in the ISP, dated from the initial ISP to the anniversary date, must not exceed the allowed maximum service level amount. Service levels increase or decrease in direct relationship to the increasing or decreasing medically involved criteria score.

(18) EXCEPTIONS.

(a) The Department authorizes 90 day exceptions in the following circumstances:

(A) The child is at immediate risk of loss of the child’s family home without the expenditure;

(B) The expenditure provides supports for emerging or changing care needs; or

(C) A significant medical condition or event occurs that prevents the child’s primary caregiver from providing care or services as documented by a physician.

(b) The Department evaluates exceptions beyond 90 days on an individual basis using the criteria in subsection (a) of this section.

(19) The Department does not pay for MICP services that are:

(a) Notwithstanding abuse as defined in ORS 419B.005, abusive, aversive, or demeaning;

(b) Experimental;

(c) Illegal, including crimes identified in OAR 407-007-0275;

(d) Determined unsafe for the general public by recognized child and consumer safety agencies;

(e) Not necessary or cost effective;

(f) Educational services for school-age children, including professional instruction, formal training, and tutoring in communication, socialization, and academic skills; or

(g) Services or activities that the legislative or executive branch of Oregon government has prohibited use of public funds.

Stat. Auth.: ORS 409.050

Stats. Implemented: ORS 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; 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 29-2013(Temp), f. & cert. ef. 7-2-13 thru 12-29-13; SPD 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0050

Standards for Providers Paid with MICP Funds

(1) PROVIDER QUALIFICATIONS.

(a) Each provider who is paid as a contractor, a self-employed individual, or an employee of the child’s parent to provide the services described in OAR 411-355-0040 must:

(A) Be at least 18 years of age;

(B) Maintain a drug-free work place;

(C) Be legally eligible to work in the United States;

(D) Not be on the current Office of Inspector General’s list of excluded or debarred providers (http://exclusions.oig.hhs.gov/);

(E) Not be the child’s primary caregiver, parent, stepparent, or legal guardian of the child;

(F) Consent to and pass a background check by the Department as described in OAR 407-007-0200 to 407-007-0370 and be free of convictions or founded allegations of abuse by the appropriate agency, including but not limited to the Department, prior to enrolling as a provider;

(i) Background rechecks must be performed biannually, or as needed if a report of criminal activity has been received by the Department.

(ii) PORTABILITY OF BACKGROUND CHECK APPROVAL. A subject individual as defined in OAR 407-007-0210 may be approved for one position to work in multiple homes within the jurisdiction of the qualified entity as defined in OAR 407-007-0210. The Department’s Background Check Request Form must be completed by the subject individual to show intent to work at various homes.

(G) Effective July 28, 2009, not have been convicted of any of the disqualifying crimes listed in OAR 407-007-0275;

(H) Sign a Medicaid provider agreement and be enrolled as a Medicaid provider prior to delivery of any attendant care services; and

(I) Provide evidence satisfactory to the Department that demonstrates by background, education, references, skills, and abilities, the provider is capable of safely and adequately providing the services authorized. The evidence must be confirmed in writing by the child’s parent and include:

(i) Ability and sufficient education to follow oral and written instructions and keep any records required;

(ii) Responsibility, maturity, exercising sound judgment, and reputable character;

(iii) Ability to communicate with the child;

(iv) Training of a nature and type sufficient to ensure that the provider has knowledge of emergency procedures specific to the child being cared for;

(v) Current, valid, and unrestricted appropriate professional license or certification where care and supervision requires specific professional education, training, and skill;

(vi) Understanding requirements of maintaining confidentiality and safeguarding the child’s information; and

(vii) If providing transportation, a valid driver’s license and proof of insurance, as well as other license or certification that may be required under state and local law depending on the nature and scope of the transportation service.

(b) Section (1)(a)(G) of this rule does not apply to employees of the child’s parent or employees of billing providers who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(c) All providers must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and 407-007-0290. The provider must notify the Department or the Department’s designee within 24 hours.

(d) A provider is not an employee of the Department or the state of Oregon and is not eligible for state benefits and immunities, including but not limited to the Public Employees’ Retirement System or other state benefit programs.

(e) If the provider or billing provider is an independent contractor, during the terms of the contract, the provider or billing provider must maintain in force, at the providers own expense, professional liability insurance with a combined single limit of not less than $1,000,000 for each claim, incident, or occurrence. Professional liability insurance is to cover damages caused by error, omission, or negligent acts related to the professional services.

(A) The provider or billing provider must provide written evidence of insurance coverage to the Department prior to beginning work.

(B) There must be no cancellation of insurance coverage without 30 days written notice to the Department.

(f) If the provider is an employee of the child’s parent, the provider must submit documentation of immigration status required by federal statute to the Department. The Department maintains documentation of immigration status required by federal statute as a service to the parent, who is the employer.

(g) A provider must immediately notify the child’s parent and, if appropriate, the Department, of injury, illness, accidents, or any unusual circumstances that may have a serious effect on the health, safety, physical, emotional well being, or level of service required by the child for whom MICP services are being provided.

(h) Providers are mandatory reporters and are required to report suspected child abuse to the police or their local Department office in the manner described in ORS 419B.010.

(2) BEHAVIOR CONSULTANT. A behavior consultant providing specialized consultations must:

(a) Have education, skills, and abilities necessary to provide behavior consultation services as outlined in OAR 411-355-0040, including knowledge and experience in developing plans based on positive behavioral theory and practice;

(b) Have current certification demonstrating completion of Level II training in Oregon Intervention Systems; and

(c) Submit a resume to the Department indicating at least one of the following:

(A) A bachelor’s degree in special education, psychology, speech and communication, occupational therapy, recreation, art or music therapy, or a behavioral science field, and at least one year of experience with individuals with intellectual or developmental disabilities who present difficult or dangerous behaviors; or

(B) Three years experience with individuals with intellectual or developmental disabilities who present difficult or dangerous behaviors and at least one year of that experience includes providing the services of a behavior consultant as outlined OAR 411-355-0040.

(d) Additional education or experience may be required to safely and adequately provide the services described in OAR 411-355-0040.

(3) NURSE. A nurse providing direct care or delegation services must:

(a) Have a current Oregon nursing license; and

(b) Submit a resume to the Department indicating the education, skills, and abilities necessary to provide nursing services in accordance with state law, including at least one year of experience with individuals with intellectual or developmental disabilities.

(4) ENVIRONMENTAL MODIFICATION CONSULTANTS. Environmental modification consultants must be licensed general contractors and have experience evaluating homes, assessing individual needs, and developing cost effective plans that make the family home safe and accessible for the child.

(5) ENVIRONMENTAL ACCESSIBILITY ADAPTATION PROVIDERS. Environmental accessibility adaptation providers must be building contractors licensed as applicable under either OAR chapter 812, Construction Contractor’s Board, or OAR chapter 808, Landscape Contractors Board.

(6) FAMILY TRAINING PROVIDERS. Providers of family training must be:

(a) Psychologists licensed under ORS 675.030;

(b) Clinical social workers licensed under ORS 675.530;

(c) Licensed professional counselors licensed under ORS 675.715; or

(d) Medical professionals licensed under ORS 677.100.

(7) DIETICIANS. Dieticians providing specialized diets must be licensed according to ORS 691.415 through 691.465.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 417.345, 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; 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 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0060

Standards for Provider Organizations Paid by SPD

(1) A provider organization may not require additional certification to provide relief care, community inclusion, or emergent services if they are licensed or certified as:

(a) Twenty-four hour residential programs under OAR chapter 411, division 325;

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

(c) Child care centers under OAR chapter 414, division 300; or

(d) Organizational camps under OAR chapter 333, division 030.

(2) Provider organizations licensed or certified as described in section (1) of this rule may be considered sufficient demonstration of ability to:

(a) Recruit, hire, supervise, and train qualified staff;

(b) Provide services according to an ISP; and

(c) Develop and implement operating policies and procedures required for managing an organization and delivering services, including provisions for safeguarding individuals receiving services.

(3) A provider organization that wishes to enroll with the MICP must maintain and submit evidence upon initial application and upon request by the Department the following:

(a) Current background checks on each employee who shall be providing services in a family home showing that the employee has no disqualifying criminal convictions, including crimes identified in OAR 407-007-0275;

(b) Professional liability insurance that meets the requirements of OAR 411-355-0050; and

(c) Any licensure required of the agency by the state of Oregon or federal law or regulation.

(4) Provider organizations must assure that all individuals directed by

the provider organization as employees, contractors, or volunteers to provide services paid for with MICP funds meet standards for qualification of providers outlined in OAR 411-355-0050.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; 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 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0070

Standards for General Business Providers paid by SPD

General business providers providing services to children paid with MICP funds must hold any current license appropriate to operate required by the state of Oregon or federal law or regulation.

(1) Home health agencies must be licensed under ORS 443.015.

(2) In-home care agencies must be licensed under ORS 443.315.

(3) Public transportation providers must be regulated according to established standards and private transportation providers must have business license and drivers licensed to drive in Oregon.

(4) Vendors and medical supply companies providing specialized medical equipment and supplies must have a current retail business license and, if vending medical equipment, be enrolled as Medicaid providers through the Division of Medical Assistance Programs.

(5) Providers of personal emergency response systems must have a current retail business license.

(6) Vendors and supply companies providing specialized diets must have a current retail business license.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 417.345, 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; SPD 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0080

Documentation Needs for MICP Services

(1) Original, accurate timesheets of MICP services, dated and signed by the provider and the parent after the services are provided, must be maintained and submitted to the Department with any request for payment for services.

(2) Requests for payment for MICP services must:

(a) Include the billing form indicating prior authorization for the services;

(b) Be signed by the parent after the services were delivered, verifying that the services were delivered as billed; and

(c) Be signed by the provider or billing provider, acknowledging agreement upon request with the terms and condition of the billing form and attesting that the hours were delivered as billed.

(3) Documentation of provided MICP services must be provided to the services coordinator and maintained in the family home or the place of business of the provider of services. The Department does not pay for services unrelated to a child’s disability as outlined in the child’s ISP.

(4) The Department retains billing forms and timesheets for at least five years from the date of service.

(5) Behavior consultants must submit to the Department the following written in clear, concrete language, understandable to the parent and provider:

(a) An evaluation of the child, the parent’s concerns, the environment of the child, current communication strategies used by the child and used by others with the child, and any other disability of the child that may impact the appropriateness of strategies to be used with the child; and

(b) Any behavior plan or instructions left with the parent or provider that describes the suggested strategies to be used with the child.

(6) Nurses providing delegation services must submit to the Department the following written in clear, concrete language, understandable to the parent and provider:

(a) A copy of the written statement acknowledging the specific provider receiving training, the nursing tasks delegated to that provider, and the date of the next scheduled review; and

(b) Any nursing delegation plan or instructions left with the parent or provider.

(7) Billing providers must maintain documentation of provided services for at least seven years from the date of service.

(8) Upon written request from the Department, the Oregon Department of Justice Medicaid Fraud Unit, CMS, or their authorized representatives, providers or billing providers must furnish requested documentation immediately or within the time frame specified in the written request. Failure to comply with the request may be considered by the Department as reason to deny or recover payments.

(9) Access to records by the Department inclusive of medical or nursing records, behavior or psychiatric records, or financial records, does not require authorization or release by the parent.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 417.345, 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; SPD 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0090

Payment for MICP Services

(1) The Department makes payment for MICP services, described in OAR 411-355-0040, after services are delivered as authorized and required documentation is received by the services coordinator.

(2) Effective July 28, 2009, public 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.

(3) Section (2) of this rule does not apply to employees of a parent or billing provider who were hired prior to July 28, 2009 that remain in the current position for which the employee was hired.

(4) Service levels are individually negotiated by the Department, based on the individual needs of the child.

(5) Authorization must be obtained prior to the delivery of any MICP services for the services to be eligible for payment.

(6) Providers must request payment authorization for MICP services provided during an unforeseeable emergency on the first business day following the emergency service. The services coordinator determines if the service is eligible for payment.

(7) The Department makes payment to the individual employee of the parent on behalf of the parent. The Department pays the employer’s share of the Federal Insurance Contributions Act (FICA) and withholds the employee’s share of FICA as a service to the parent as the provider’s employer.

(8) The delivery of authorized MICP services must occur so that any individual employee of the parent does not exceed 40 hours per work week. The Department does not authorize services that require the payment of overtime, without prior written authorization by the supervisor of children’s intensive in-home services.

(9) The Department does not pay for any hours of MICP services provided by a provider beyond 16 hours in any 24-hour period unless the hours are part of a 24-hour service budget negotiated by the Department and there is evidence the child may be safely served with a 24-hour service budget. Exceptions require written authorization by the supervisor of children’s intensive in-home services.

(10) Holidays are paid at the same rate as non-holidays.

(11) Travel time to reach the job site is not reimbursable.

(12) In order to be eligible for payment, requests for payments must be submitted to the Department within three months of the delivery of MICP services.

(13) Payment by the Department for MICP services is considered full payment for the services rendered under Title XIX. Under no circumstances may the provider or billing provider demand or receive additional payment for these services from the parent or any other source.

(14) Medicaid funds are the payor of last resort. The provider or billing provider must bill all third party resources until all third party resources are exhausted.

(15) The Department reserves the right to make a claim against any third party payer before or after making payment to the provider of MICP services.

(16) The Department may void without cause prior authorizations that have been issued.

(17) Upon submission of the billing form for payment, the provider must comply with:

(a) All rules in OAR chapter 411;

(b) Title V, Section 504 of the Rehabilitation Act of 1973;

(c) Title II and Title III of the Americans with Disabilities Act of 1991; and

(d) Title VI of the Civil Rights Act of 1964.

(18) All billings must be for MICP services provided within the provider’s licensure.

(19) The provider must submit true and accurate information on the billing form. Use of a billing provider does not replace the provider’s responsibility for the truth and accuracy of submitted information.

(20) No individual shall submit to the Department:

(a) A false billing form for payment;

(b) A billing form for payment that has been, or is expected to be, paid by another source; or

(c) Any billing form for MICP services that have not been provided.

(21) The Department only makes payment to the enrolled provider who actually performs the MICP services or the provider’s enrolled billing provider. Federal regulations prohibit the Department from making payment to collection agencies.

(22) Payments may be denied if any provisions of these rules are not complied with.

(23) The Department recoups all overpayments.

(a) The amount to be recovered:

(A) Is the entire amount determined or agreed to by the Department;

(B) Is not limited to the amount determined by criminal or civil proceedings; and

(C) Includes interest to be charged at allowable state rates.

(b) A request for repayment of the overpayment or notification of recoupment of future payments is delivered to the provider by registered or certified mail or in person.

(c) Payment schedules with the interest may be negotiated at the discretion of the Department.

(d) If recoupment is sought from a parent whose child received MICP services, hearing rights in OAR 411-355-0110 apply.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 417.345, 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; 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 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0100

Complaints and Grievances

(1) COMPLAINTS AND GRIEVANCES. The Department shall address all grievances in accordance with Department written policies, procedures, and rules. Copies of the procedures for resolving grievances shall be maintained on file at the Department. These policies and procedures, at a minimum, shall address:

(a) The parent of a child has an opportunity to informally discuss and resolve any complaint or grievance regarding action taken by the Department that is contrary to law, rule, or policy and that does not meet the criteria for an abuse investigation. Choosing an informal resolution does not preclude the parent to pursue resolution through formal grievance processes.

(b) The Department shall maintain a log of all complaints regarding the provision of MICP services received via phone calls, e-mails, or writing.

(A) At a minimum, the complaint log shall include:

(i) The date the complaint was received;

(ii) The name of the individual taking the complaint;

(iii) The nature of the complaint;

(iv) The name of the individual making the complaint, if known; and

(v) The disposition of the complaint.

(B) Child welfare and law enforcement reports of abuse or neglect shall be maintained separately from the central complaint and grievance log.

(c) Department staff response to the complaint must be provided within five working days following receipt of the complaint and must include:

(A) An investigation of the facts supporting or disproving the complaint; and

(B) Agreement to resolve the complaint. Any agreement to resolve the complaint must be reduced to writing and must be specifically approved by the grievant. The grievant must be provided with a copy of the agreement.

(d) If the complaint involves Department staff or services, or if the complaint is not or cannot be resolved with Department staff, a review by the Department manager must be completed. Department manager response to the complaint must be made in writing, within 30 days following receipt of the complaint, and must include a response to the complaint as described in section (1)(c) of this rule.

(e) Unless the grievant is a Medicaid recipient who has elected to initiate the hearing process according to OAR 411-355-0110, a complaint involving the provision of service or a service provider may be submitted to the Department for an administrative review.

(A) The grievant must submit to the Department a request for an administrative review within 15 days from the date of the decision by the Department manager.

(B) Upon receipt of a request for an administrative review, the Department’s director shall appoint an Administrative Review Committee and name the chairperson. The Administrative Review Committee shall be comprised of two representatives of the Department. Committee representatives must not have any direct involvement in the provision of services to the grievant or have a conflict of interest in the specific case being grieved.

(C) The Administrative Review Committee must review the complaint and the decision by the Department manager and make a recommendation to the Department’s director within 45 days of receipt of the complaint unless the grievant and the Administrative Review Committee mutually agree to an extension.

(D) The Department’s director shall consider the report and recommendations of the Administrative Review Committee and make a final decision. The decision must be in writing and issued within 10 days of receipt of the recommendation by the Administrative Review Committee. The written decision must contain the rationale for the decision.

(E) The decision of the Department’s director is final. Any further review is pursuant to the provision of ORS 183.484 for judicial review.

(f) Documentation of each complaint and its resolution must be filed or noted in the grievant’s record.

(2) NOTIFICATION. Upon enrollment and annually thereafter, the Department must inform each child’s parent orally and in writing, using language, format, and methods of communication appropriate to the parent’s needs and abilities, of the following:

(a) Department grievance policy and procedures, including the right to an administrative review, and the method to obtain an administrative review; and

(b) The right of a Medicaid recipient to a hearing pursuant to OAR 411-355-0110 and the procedure to request a hearing.

Stat. Auth.: ORS 409.050 & 417.345

Stats. Implemented: ORS 417.345, 427.007 & 430.215

Hist.: SPD 5-2008(Temp), f. & cert. ef. 4-15-08 thru 10-12-08; SPD 14-2008, f. & cert. ef 10-9-08; SPD 56-2013, f. 12-27-13, cert. ef. 12-28-13

411-355-0110

Denial, Termination, Suspension, Reduction or Eligibility for MICP Services for Individual Medicaid Recipients

(1) MEDICAID FAIR HEARING RIGHTS. Each time the Department takes an action to deny, terminate, suspend, or reduce a child’s access to services covered under Medicaid, the Department shall notify the child’s parent of the right to a hearing and the method to request a hearing. The Department shall mail the notice by certified mail, or personally serve it to the child’s parent 10 days or more prior to the effective date of an action.

(a) The Department shall use, Notice of Hearing Rights, or a comparable Department-approved form for such notification. This notification requirement does not apply if an action is part of, or fully consistent with, the ISP, or the child’s parent has agreed with the action by signature to the ISP. The notice shall be given directly to the parent when the ISP is signed.

(b) The parent may appeal a denial of a request for additional or different services only if the request has been made in writing and submitted to the address on the notice to expedite the process.

(c) A notice required by section (1) of this rule must include:

(A) The action the Department intends to take;

(B) The reasons for the intended action;

(C) The specific Oregon Administrative Rules that supports, or the change in federal or state law that requires, the action;

(D) The appealing party’s right