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Oregon Bulletin

July 1, 2013

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

Rule Caption: Expansion of Medicaid In-Home Service Eligibility for Individuals Residing in Relative Adult Foster Homes

Adm. Order No.: SPD 10-2013(Temp)

Filed with Sec. of State: 5-23-2013

Certified to be Effective: 5-23-13 thru 11-19-13

Notice Publication Date:

Rules Amended: 411-030-0002, 411-030-0020, 411-030-0033, 411-030-0040, 411-030-0050, 411-030-0055, 411-030-0080, 411-030-0090, 411-050-0405

Subject: The Department of Human Services (Department) is immediately amending the in-home services rules in OAR chapter 411, division 030 to:

 • Redefine the meaning and modify the scope of in-home services to expand Medicaid funded in-home service eligibility to individuals residing in relative adult foster homes; and

 • Replace references to the Title XIX Home and Community-Based Services waiver with the term Medicaid funded in-home services in order to recognize services available through Medicaid Home and Community-Based Services waivers and State Plan options.

 OAR 411-050-0405 for the licensure of relative adult foster homes for older adults and adults with physical disabilities is also being immediately amended. Payments for relative adult foster home services can’t be paid through the Medicaid system in the new State Plan option. Therefore, no new applications will be accepted for relative adult foster homes and individuals currently receiving services in relative adult foster homes will transition to Medicaid in-home services while maintaining their current living arrangements and relative providers.

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

411-030-0002

Purpose

(1) The rules in OAR chapter 411, division 030 ensure that in-home services maximize independence, empowerment, dignity, and human potential through the provision of flexible, efficient, and suitable services. In-home services fill the role of complementing and supplementing an individual’s own personal abilities to continue to live in his or her own home or the home of a relative.

(2) Medicaid in-home services are provided through the Consumer-Employed Provider Program, Spousal Pay Program, Relative Provider Program, the Independent Choices Program and other approved service providers.

Stat. Auth.: ORS 410.070
Stats. Implemented: ORS 410.070
Hist.: SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13

411-030-0020

Definitions

As used in these rules:

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

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

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

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

(5) “Area Agency on Aging (AAA)” means the Department designated agency charged with the responsibility to provide a comprehensive and coordinated system of services to older adults or individuals with disabilities in a planning and service area. For purposes of these rules, the term Area Agency on Aging is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 and described in 410.210 to 410.300.

(6) “Assistive Devices” means any category of durable medical equipment, mechanical apparatus, electrical appliance, or instrument of technology used to assist and enhance an individual’s independence in performing any activity of daily living. Assistive devices include the use of service animals, general household items, or furniture to assist the individual.

(7) “Business Days” means Monday through Friday and excludes Saturdays, Sundays, and state or federal holidays.

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

(9) “Case Manager” means an employee of the Department or Area Agency on Aging who assesses the service needs of an applicant, determines eligibility, and offers service choices to the eligible individual. The case manager authorizes and implements the service plan, and monitors the services delivered.

(10) “Client Assessment and Planning System (CA/PS)” is a single entry data system used for completing a comprehensive and holistic assessment, surveying the individual’s physical, mental, and social functioning, and identifying risk factors, individual choices, and preferences, and the status of service needs. The CA/PS documents the level of need and calculates the individual’s service priority level in accordance with the rules in OAR chapter 411, division 015, calculates the service payment rates, and accommodates individual participation in service planning.

(11) “Collective Bargaining Agreement” means the ratified Collective Bargaining Agreement between the Home Care Commission and the Service Employee’s International Union, Local 503, Oregon Public Employees’ Union. The Collective Bargaining Agreement is maintained on the Department’s website: (http://www.oregon.gov/dhs/spd/adv/hcc/docs/contract1113.pdf). Printed copies may be obtained by contacting the Department of Human Services, Aging and People with Disabilities, ATTN: Rule Coordinator, 500 Summer Street NE, E-10, Salem, Oregon 97301.

(12) “Consumer” or “Consumer-Employer” means the individual eligible for in-home services. “Consumer” is synonymous with client and individual.

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

(14) “Contingency Fund” means a monetary amount set aside in the Independent Choices Program service budget that continues month to month if approved by the case manager, to purchase identified items that substitute for personal assistance.

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

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

(17) “Department” means the Department of Human Services (DHS). “Department” is synonymous with Seniors and People with Disabilities Division (SPD).

(18) “Discretionary Fund” means a monetary amount set aside in the Independent Choices Program service budget to purchase items not otherwise delineated in the monthly service budget or agreed to be savings for items not traditionally covered under waivered services. Discretionary funds must be expended at the end of each month.

(19) “Disenrollment” means either voluntary or involuntary termination of the participant from the Independent Choices Program.

(20) “DMAP” means the Oregon Health Authority, Division of Medical Assistance Programs.

(21) “Employee Provider” means a worker who provides services to, and is a paid provider for, a participant in the Independent Choices Program.

(22) “Employment Relationship” means the relationship involving the employee provider and the participant as employee and employer.

(23) “Exception” means an approval for payment of a service plan granted to a specific individual in their current residence or in the proposed residence identified in the exception request that exceeds the CA/PS assessed service payment levels for individuals residing in community-based care facilities or the maximum hours of service as described in OAR 411-030-0070 for individuals residing in their own homes or the home of a relative. The approval is based on the service needs of the individual and is contingent upon the service plan meeting the requirements in 411-027-0020, 411-027-0025, and 411-027-0050. The term “exception” is synonymous with “exceptional rate” or “exceptional payment.”

(24) “FICA” is the acronym for the Social Security payroll taxes collected under authority of the Federal Insurance Contributions Act.

(25) “Financial Accountability” refers to guidance and oversight which act as fiscal safeguards to identify budget problems on a timely basis and allow corrective action to be taken to protect the health and welfare of individuals.

(26) “FUTA” is the acronym for Federal Unemployment Tax Assessment which is a United States payroll (or employment) tax imposed by the federal government on both employees and employers.

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

(a) The term homecare worker includes consumer-employed providers in the Spousal Pay and Oregon Project Independence Programs. The term homecare worker also includes consumer-employed providers that provide state plan personal care services to older adults and individuals with physical disabilities. Relatives providing Medicaid in-home services to an individual living in the relative’s home are considered homecare workers.

(b) Homecare worker does not include Independent Choices Program providers or personal support workers enrolled through Developmental Disability Services or the Addictions and Mental Health Division.

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

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

(30) “ICP” means “Independent Choices Program” as defined in this rule.

(31) “Independent Choices Program (ICP)” means a self directed in-home services program in which the participant is given a cash benefit to purchase goods and services identified in a service plan and prior approved by the Department or Area Agency on Aging.

(32) “Individual” means the person applying for or eligible for services. The term “individual” is synonymous with “client”, “participant”, “consumer”, and “consumer-employer”.

(33) “Individualized Back-Up Plan” means a plan incorporated into the Independent Choices Program service plan to address critical contingencies or incidents that pose a risk or harm to the participant’s health and welfare.

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

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

(36) “Liability” refers to the dollar amount individuals with excess income must contribute to the cost of service pursuant to OAR 461-160-0610 and 461-160-0620.

(37) “Live-In Services” mean the in-home services provided when an individual requires activities of daily living, instrumental activities of daily living, and twenty-four hour availability. Time spent by any live-in employee doing instrumental activities of daily living and twenty-four hour availability are exempt from federal and state minimum wage and overtime requirements.

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

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

(40) “Participant” means an individual eligible for the Independent Choices Program.

(41) “Provider” means the individual who actually renders the service.

(42) “Rate Schedule” means the rate schedule maintained by the Department at http://www.oregon.gov/DHS/spd/provtools/rateschedule.pdf. Printed copies may be obtained by contacting the Department of Human Services, Aging and People with Disabilities, ATTN: Rule Coordinator, 500 Summer Street NE, E-10, Salem, Oregon 97301.

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

(44) “Representative” is a person either appointed by an individual to participate in service planning on the individual’s behalf or an individual’s natural support with longstanding involvement in assuring the individual’s health, safety, and welfare. There are additional responsibilities for the Independent Choices Program (ICP) representatives as described in OAR 411-030-0100. An ICP representative is not a paid employee provider regardless of relationship to the participant.

(45) “Service Budget” means the participant’s plan for the distribution of authorized funds that are under the control and direction of the participant within the Independent Choices Program. The service budget is a required component of the service plan.

(46) “Service Need” means the assistance an individual requires from another person for those functions or activities identified in OAR 411-015-0006 and 411-015-0007.

(47) “SUTA” is the acronym for State Unemployment Tax Assessment. State unemployment taxes are paid by employers to finance the unemployment benefit system that exists in each state.

(48) “These Rules” mean the rules in OAR chapter 411, division 030.

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090
Stats. Implemented: ORS 410.010, 410.020 & 410.070
Hist.: SSD 5-1983, f. 6-7-83, ef. 7-1-83; SSD 3-1985, f. & ef. 4-1-85; SSD 5-1987, f. & ef. 7-1-87; SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SSD 6-1994, f. & cert. ef. 11-15-94; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 18-2003(Temp), f. & cert. ef. 12-11-03 thru 6-7-04; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 3-2007(Temp), f. 4-11-07, cert. ef. 5-1-07 thru 10-28-07; SPD 17-2007, f. 10-26-07, cert. ef. 10-28-07; SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13

411-030-0033

In-Home Service Living Arrangements

(1) The following terms are used in this rule:

(a) “Informal arrangement” means a paid or unpaid arrangement for shelter or utility costs that does not include the elements of a property manager’s rental agreement.

(b) “Property manager’s rental agreement” means a payment arrangement for shelter or utility costs with a property owner, property manager, or landlord that includes all of the following elements:

(A) The name and contact information for the property manager, landlord, or leaser;

(B) The period or term of the agreement and method for terminating the agreement;

(C) The number of tenants or occupants;

(D) The rental fee and any other charges (such as security deposits);

(E) The frequency of payments (such as monthly);

(F) What costs are covered by the amount of rent charged (such as shelter, utilities, or other expenses); and

(G) The duties and responsibilities of the property manager and the tenant, such as:

(i) The person responsible for maintenance;

(ii) If the property is furnished or unfurnished; and

(iii) Advance notice requirements prior to an increase in rent

(c) “Provider-owned dwelling” means a dwelling that is owned by a provider or the provider’s spouse when the provider is proposing to be paid through Medicaid in-home services and the provider or the provider’s spouse is not related to an individual by blood, marriage, or adoption. . Provider-owned dwellings include, but are not limited to:

(A) Houses, apartments, and condominiums;

(B) A portion of a house such as basement or a garage even when remodeled to be used as a separate dwelling;

(C) Trailers and mobile homes; or

(D) Duplexes, unless the structure displays a separate address from the other residential unit and was originally built as a duplex.

(d) “Provider-rented dwelling” means a dwelling that is rented or leased by a provider or the provider’s spouse when the provider is proposing to be paid through Medicaid in-home services and the provider or the provider’s spouse is not related to an individual by blood, marriage, or adoption.

(2) An individual is eligible for Medicaid in-home services if the individual:

(a) Resides in a dwelling the individual owns or rents;

(b) Resides in a provider-owned or provider-rented dwelling and the individual’s name is added to the property deed, mortgage, title, or property manager’s rental agreement; or

(c) Resides, either through an informal arrangement or property manager’s rental agreement, in a dwelling owned or rented by a relative as defined in OAR 411-030-0020.

(3) An individual is not eligible for Medicaid in-home services if the individual resides in a provider-owned or rented dwelling through an informal arrangement. A provider-owned or rented dwelling may meet the requirements for a limited adult foster home as described in OAR 411-050-0405.

Stat. Auth.: ORS 409.050, 410.070 & 410.090
Stats. Implemented: ORS 410.010, 410.020 & 410.070
Hist.: SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 18-2003(Temp), f. & cert. ef. 12-11-03 thru 6-7-04; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13

411-030-0040

Eligibility Criteria

(1) In-home services are provided to individuals who meet the established priorities for service as described in OAR chapter 411, division 015 who have been assessed to be in need of in-home services.

(a) Payments for in-home services are not intended to replace the resources available to an individual from an individual’s natural supports.

(b) An individual whose service needs are sufficiently and appropriately met by available natural supports is not eligible for in-home services.

(2) Individuals receiving Medicaid in-home services or served under the Independent Choices Program must:

(a) Meet the established priorities for service as described in OAR chapter 411, division 015;

(b) Be current recipients of OSIPM (Oregon Supplemental Income Program Medical) as defined in OAR 461-101-0010;

(c) Reside in a living arrangement described in OAR 411-030-0033; and

(d) Be 18 years of age or older.

(3) To be eligible for Medicaid in-home services, an individual must employ an enrolled homecare worker or contracted in-home care agency. To be eligible for ICP, participants must employ an employee provider.

(4) Initial eligibility for Medicaid in-home services or the ICP does not begin until a service plan has been authorized by the Department or the Department’s designee. The service plan must identify the provider who delivers the authorized services, include the date when the provision of services begins, and include the maximum number of hours authorized. Service plans must be based upon the least costly means of providing adequate services.

(5) If, for any reason, the employment relationship between an individual and provider is discontinued, an enrolled homecare worker or contracted in-home care agency must be employed within 14 business days for the individual to remain eligible for in-home services. Participants of ICP must employ an employee provider within 14 business days to remain eligible for ICP services.

(6) An eligible individual who has been receiving in-home services who temporarily enters a nursing facility or medical institution must employ an enrolled homecare worker or contracted in-home care agency within 14 business days of discharge from the facility or institution for the individual to remain eligible for in-home services. Participants of ICP must employ an employee provider within 14 business days of discharge to remain eligible for ICP services.

(7) EMPLOYER RESPONSIBILITIES.

(a) In order to be eligible for in-home services provided by a homecare worker, an individual must be able to, or designate a representative to:

(A) Locate, screen, and hire a qualified homecare worker;

(B) Supervise and train the homecare worker;

(C) Schedule work, leave, and coverage;

(D) Track the hours worked and verify the authorized hours completed by the homecare worker;

(E) Recognize, discuss, and attempt to correct any performance deficiencies with the homecare worker; and

(F) Discharge unsatisfactory workers.

(b) Individuals who have demonstrated, after intervention and assistance, that they are unable to meet the responsibilities in subsection (a) of this section are ineligible for in-home services provided by a homecare worker. Individuals ineligible for in-home services provided by a homecare worker are offered other available, community-based service options to meet the individual’s service needs, including contracted in-home care agency services when possible. Nursing facility services, if available, may be offered as an alternative to meet an individual’s service needs.

(c) Individuals determined ineligible for in-home services provided by a homecare worker may request in-home services provided by a homecare worker at the individual’s next annual re-assessment. To be eligible for in-home services provided by a homecare worker, individuals must appoint a representative or attend training, and acquire or otherwise demonstrate the ability to meet the employer responsibilities in subsection (a) of this section. Improvements in health and cognitive functioning may be factors in demonstrating the ability to meet employer responsibilities. If an individual is able to demonstrate the ability to meet employer responsibilities sooner than the next annual re-assessment, the waiting period may be shortened.

(d) An individual must designate a different representative or select other available services if the individual’s designated representative is unable to meet the employer responsibilities in subsection (a) of this section.

(8) REPRESENTATIVE.

(a) The Department or the Department’s designee may deny an individual’s request for any representative if the representative has a history of a substantiated adult protective service complaint as described in OAR chapter 411, division 020. The individual may select another representative.

(b) An individual with a guardian must have a representative for service planning purposes. A guardian may designate themselves the representative.

(9) Additional eligibility criteria for Medicaid in-home services exist for individuals eligible for:

(a) The Consumer-Employed Provider Program as described in OAR chapter 411, division 031;

(b) The Independent Choices Program as described in OAR 411-030-0100 of these rules; or

(c) The Spousal Pay Program as described in OAR 411-030-0080 of these rules.

(10) Residents of licensed community-based care facilities, nursing facilities, prisons, hospitals, and other institutions that provide assistance with ADLs are not eligible for in-home services.

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090
Stats. Implemented: ORS 410.010, 410.020 & 410.070
Hist.: SSD 3-1985, f. & ef. 4-1-85; SSD 4-1993, f. 4-30-93, cert. ef. 6-12-93, Renumbered from 411-030-0001; SPD 2-2003(Temp), f. 1-31-03, cert. ef. 2-1-03 thru 7-30-03; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 18-2003(Temp), f. & cert. ef. 12-11-03 thru 6-7-04; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 1-2006(Temp), f. & cert. ef. 1-13-06 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13

411-030-0050

Case Management

(1) ASSESSMENT. The assessment process identifies an individual’s ability to perform ADLs, IADLs, and determines an individual’s ability to address health and safety concerns.

(a) The case manager must conduct an assessment in accordance with the standards of practices established by the Department in OAR 411-015-0008.

(b) The assessment must be conducted by a case manager or other qualified Department or AAA representative with a standardized assessment tool approved by the Department in the home of the eligible individual, no less than annually.

(2) SERVICE OPTIONS.

(a) An individual and the individual’s case manager, with the assistance of others involved, must consider in-home service options as well as assistive devices, architectural modifications, and other community-based care resources to meet the service needs identified in the assessment process.

(A) The individual, or the individual’s representative, is responsible for choosing and assisting in developing less costly service alternatives, including the Consumer-Employed Provider Program and contracted in-home care agency services.

(B) The case manager is responsible for determining eligibility for specific services, presenting alternatives to the individual, identifying risks, and assessing the cost effectiveness of the service plan. The case manager must monitor the service plan and make adjustments as needed.

(b) The Department takes necessary safeguards to protect an individual’s health, safety, and welfare in implementing the service plan in accordance with 42 CFR 441.302. When an individual with the ability to make an informed decision selects a service choice that jeopardizes health and safety, the Department or AAA shall offer or recommend options to the individual in order to minimize those risks. For the purpose of this rule, an “informed decision” means the individual understands the benefits, risks, and consequences of the service choice selected. Options that minimize risks may include offering or recommending:

(A) Natural supports to provide assistance with safety or health emergencies;

(B) An emergency response system;

(C) A back-up plan for assistance with service needs;

(D) Resources for emergency disaster planning;

(E) A referral for long term care community nursing services;

(F) Resources for provider training;

(G) Assistive devices; or

(H) Architectural modifications.

(c) The Department or AAA may not authorize a service provider, service setting, or a combination of services selected by the eligible individual or the individual’s representative when:

(A) The service setting has dangerous conditions that jeopardize the health or safety of the individual and necessary safeguards cannot be taken to improve the setting;

(B) Services cannot be provided safely or adequately by the service provider based on:

(i) The extent of the individual’s service needs; or

(ii) The choices or preferences of the eligible individual or the individual’s representative;

(C) Dangerous conditions in the service setting jeopardize the health or safety of the service provider that is authorized and paid for by the Department, and necessary safeguards cannot be taken to minimize the dangers; or

(D) The individual does not have the ability to make an informed decision, does not have a designated representative to make decisions on his or her behalf, and the Department or AAA cannot take necessary safeguards to protect the safety, health, and welfare of the individual.

(d) The case manager must present the individual or the individual’s representative with information on service alternatives and provide assistance to assess other choices when the service provider or service setting selected by the individual or the individual’s representative is not authorized.

(3) PAYMENT.

(a) The service plan payment is considered full payment for the services rendered. Under no circumstances is the service provider to demand or receive additional payment for these services from the consumer or any other source.

(b) Additional payment to homecare workers or ICP employee providers for the same services covered by Medicaid in-home services or the Spousal Pay Program is prohibited.

(c) For ICP, the service plan must include the service budget as described in OAR 411-030-0100.

(d) For service plans in which the consumer lives in the relative homecare workers home, subsection (a) of this section does not apply to rent and living expenses.

(4) HARDSHIP SHELTER ALLOWANCE. The Department may not authorize a hardship shelter allowance associated with employing a live-in provider on or after June 1, 2006. Individuals eligible for and authorized to receive a hardship shelter allowance before June 1, 2006 may continue to receive a hardship shelter allowance on or after June 1, 2006 at the rate established by the Department if one of the following conditions is met:

(a) The individual is forced to move from their current dwelling and the individual’s current average monthly rent or mortgage costs exceed current OSIP and OSIPM standards for a one-person need group as outlined in OAR 461-155-0250; or

(b) Service costs significantly increase as a result of the individual being unable to provide living quarters for a necessary live-in provider.

Stat. Auth.: ORS 409.050, 410.070 & 410.090
Stats. Implemented: ORS 410.010, 410.020 & 410.070
Hist.: SSD 5-1983, f. 6-7-83, ef. 7-1-83; SSD 3-1985, f. & ef. 4-1-85; SSD 12-1985(Temp), f. & ef. 9-19-85; SSD 16-1985, f. 12-31-85, ef. 1-1-86; SSD 4-1987(Temp), f. & ef. 7-1-87; SSD 1-1988, f. & cert. ef. 3-1-88; SSD 6-1988, f. & cert. ef. 7-1-88; SSD 9-1989, f. 6-30-89, cert. ef. 7-1-89; SSD 11-1989(Temp), f. & cert. ef. 9-1-89; SSD 18-1989, f. 12-29-89, cert. ef. 1-1-90; SSD 7-1990(Temp), f. & cert. ef. 3-1-90; SSD 16-1990, f. & cert. ef. 8-20-90; SSD 1-1992, f. & cert. ef. 2-21-92; SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93, Renumbered from 411-030-0022; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13

411-030-0055

Service-Related Transportation

(1) Service-related transportation (non-medical) may be prior-authorized for reasons related to an eligible individual’s safety or health, in accordance with an individual’s service plan. Service-related transportation is offered through contracted transportation providers or by homecare workers.

(2) Service-related transportation may be authorized to assist an eligible individual in getting to and from the individual’s place of employment when that individual is approved for the Employed Persons with Disabilities Program (OSIPM-EPD).

(3) Natural supports, volunteer transportation, and other transportation services available to the eligible individual are considered a prior resource and are not to be replaced with transportation paid for by the Department.

(4) DMAP is a resource for medical transportation to a physician, hospital, clinic, or other medical service provider. Medical transportation costs are not reimbursed through service-related transportation.

(5) Service-related transportation is not provided by the Department to obtain medical or non-medical items that may be delivered by a supplier or sent by mail order without cost to the eligible individual.

(6) Service-related transportation must be prior authorized by an individual’s case manager and documented in the individual’s service plan. Under no circumstances shall any provider receive payment from the Department for more than the total number of hours, miles, or rides authorized by the Department or AAA in the service plan.

(a) Contracted transportation providers are reimbursed according to the terms of their contract with the Department. Service-related transportation services provided through contracted transportation providers must be authorized by a case manager based on an estimate of a total count of one way rides per month.

(b) Homecare workers that use their own personal vehicle for service-related transportation are reimbursed according to the terms defined in their Collective Bargaining Agreement between the Home Care Commission and Service Employees International Union, Local 503, OPEU. Any mileage reimbursement authorized to a homecare worker must be based on an estimate of the monthly maximum miles required to drive to and from the destination authorized in the service plan. Service-related transportation hours are authorized in accordance with OAR 411-030-0070.

(c) The Department or AAA does not authorize reimbursement for travel to or from the residence of the homecare worker. The Department or AAA only authorizes service-related transportation and mileage from the home of the eligible individual to the destination authorized in the service plan and back to the eligible individual’s home.

(7) The Department is not responsible for any vehicle damage or personal injury sustained while using a personal motor vehicle for service-related transportation.

Stat. Auth.: ORS 409.050, 410.070 & 410.090
Stats. Implemented: ORS 410.010, 410.020 & 410.070
Hist.: SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13

411-030-0080

Spousal Pay Program

(1) The Spousal Pay Program is one of the live-in service options under in-home services for those who qualify.

(2) For the purposes of the Spousal Pay Program, a spouse is defined as a person who is legally married per OAR 461-001-0000 to an individual eligible for Medicaid in-home services.

(3) ELIGIBILITY. An individual may be eligible for the Spousal Pay Program when all of the following conditions are met:

(a) The individual has met all eligibility requirements for in-home services;

(b) The individual requires full assistance in at least four of the six ADLs described in OAR 411-015-0006 as determined by the assessment described in OAR chapter 411, division 015;

(c) The individual would otherwise require nursing facility services without Medicaid in-home services;

(d) The individual has a medically-diagnosed, progressive, debilitating condition that limits additional ADL, or has experienced a spinal cord injury or similar disability with permanent impairment of the ability to perform ADLs;

(e) At the time of requesting enrollment in the Spousal Pay Program, the individual is determined, through a pre-admission screening (PAS) assessment (as defined in OAR 411-070-0005) to meet the requirements described in sections (3)(b), (3)(c) and (3)(d) of this rule. The PAS assessment is a second, independent assessment, conducted by the Department or AAA using the CA/PS;

(f) The individual’s service needs exceed in both extent and duration the usual and customary services rendered by one spouse to another;

(g) The spouse demonstrates the capability and health to provide the services and actually provides the principal services, including the majority of service plan hours, for which payment has been authorized;

(h) The spouse meets all requirements for enrollment as a homecare worker in the Consumer-Employed Provider Program as described in OAR 411-031-0040; and

(i) The Department has reviewed the request and approved program eligibility at enrollment and annually upon re-assessment.

(4) PAYMENTS.

(a) All payments must be prior authorized by the Department or the Department’s designee.

(b) The hours authorized in the service plan must consist of one-half of the assessed hours for twenty-four hour availability, one-half of the assessed hours for IADLs, plus all of the hours for specific ADLs based on the service needs of the individual.

(c) Except as described otherwise in subsection (4)(d) of this section, spousal pay providers are paid at live-in homecare worker rates for ADLs, IADLs, and twenty-four hour availability as bargained in the Collective Bargaining Agreement between the Home Care Commission and Service Employees International Union, Local 503, OPEU.

(d) Homecare workers who marry their consumer-employer retain the same standard of compensation, if their employer meets the spousal pay eligibility criteria as described in section (3) of this rule. Additional IADL hours may be authorized in the service plan when necessary to prevent a loss of compensation to the homecare worker following marriage to the consumer-employer.

(e) Spousal pay providers may not claim payment from the Department for hours that the spousal pay provider did not work unless paid leave is utilized.

(5) Spousal pay providers are subject to the provisions in OAR chapter 411, division 031 governing homecare workers enrolled in the Consumer-Employed Provider Program.

(6) Individuals receiving Spousal Pay Program services who have excess income must contribute to the cost of services pursuant to OAR 461-160-0610 and 461-160-0620.

Stat. Auth.: ORS 409.050, 410.070 & 410.090
Stats. Implemented: ORS 410.010, 410.020, 410.070, 411.802 & 411.803
Hist.: SSD 4-1984, f. 4-27-84, ef. 5-1-84; SSD 3-1985, f. & ef. 4-1-85; SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93, Renumbered from 411-030-0027; SDSD 2-2000, f. 3-27-00, cert. ef. 4-1-00; SPD 2-2003(Temp), f. 1-31-03, cert. ef. 2-1-03 thru 7-30-03; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 3-2007(Temp), f. 4-11-07, cert. ef. 5-1-07 thru 10-28-07; SPD 17-2007, f. 10-26-07, cert. ef. 10-28-07; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 13-2012(Temp), f. & cert. ef. 9-26-12 thru 3-25-13; SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13

411-030-0090

Contracted In-Home Care Agency Services

(1) Contracted in-home care agency services are one of the in-home service options for individuals eligible for Medicaid in-home services.

(2) In-home care agencies must be licensed in accordance with OAR chapter 333, division 536. The geographic service area in which the agency provides services must comply with OAR 333-536-0050. The specific services provided must be described in each contract’s statement of work.

Stat. Auth.: ORS 409.050, 410.070 & 410.090
Stats. Implemented: ORS 410.010, 410.020 & 410.070
Hist.: SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 2-2007(Temp), f. & cert. ef. 3-30-07 thru 9-25-07; SPD 13-2007, f. 8-31-07, cert. ef. 9-4-07; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13

411-050-0405

License Required

(1) Any facility, which meets the definition of an adult foster home in OAR 411-050-0400, must apply for and obtain a license from the Division or an exempt area county.

(2) A person or entity may not represent themselves as operating an adult foster home or accept placement of an individual without being licensed as an adult foster home.

(3) RELATIVE ADULT FOSTER HOME.

(a) Any home, which meets the definition of a relative adult foster home, must have a license from the Division if receiving compensation from the Department.

(A) To qualify for this license and for compensation from the Department, the applicant or licensee must submit:

(i) A completed application for initial and renewal licenses;

(ii) The Department’s Health History and Physician or Nurse Practitioner’s Statement that indicates the applicant is physically, cognitively, and emotionally capable of providing care to his or her relative. The completed form must be submitted initially and every third year or sooner if there is reasonable cause for health concerns;

(iii) The Department’s Background Check Request form completed by each subject individual and approved according to OAR 411-050-0412.

(B) The applicant or licensee must demonstrate a clear understanding of the resident’s care needs;

(C) The applicant or licensee must meet minimal fire safety standards including:

(i) Functional smoke alarms installed in all sleeping areas and hallways or access ways that adjoin sleeping areas; and

(ii) A functional 2-A-10BC fire extinguisher on each floor of the home.

(D) The applicant or licensee must obtain any training and maintain resident record documentation deemed necessary by the Division to provide adequate care for the resident.

(E) A spouse is not eligible for compensation as a relative adult foster care licensee. A relative adult foster home license is not required if services are provided to a relative without compensation to the licensee from the Department.

(b) The Department is not accepting new applications for Relative Adult Foster Homes effective May 23, 2013.

(c) The following rules shall be suspended effective July 1, 2013:

(A) OAR 411-050-0400(46); and

(B) OAR 411-050-0405(3)(a)(A) to (E).

(4) LIMITED FOSTER HOME. If a home meets the definition of a limited license, the home must be licensed by the Division if the caregiver receives compensation privately or from the Department. The license shall be limited to the care of a specific individual and the licensee shall make no other admissions. The individual receiving care shall be named on the license. The licensee may be subject to the requirements specified in Standards and Practices for Care and Services (See OAR 411-050-0447).

(a) To qualify for a limited foster home license the applicant or licensee must submit:

(A) A completed application for initial and renewal licenses;

(B) The Department’s Health History and Physician or Nurse Practitioner’s Statement that indicates the applicant is physically, cognitively, and emotionally capable of providing care to his or her relative. The completed form must be submitted initially and every third year or sooner if there is reasonable cause for health concerns; and

(C) The Department’s Background Check Request form completed by each subject individual and approved according to OAR 411-050-0412.

(b) The applicant or licensee must obtain any training and maintain resident record documentation deemed necessary by the Division to provide adequate care for the resident.

(c) The applicant or licensee must demonstrate a clear understanding of the resident’s care needs.

(d) The applicant or licensee must meet minimal fire safety standards including:

(A) Functional smoke alarms installed in all sleeping areas and hallways or access ways that adjoin sleeping areas; and

(B) A functional 2-A-10BC fire extinguisher on each floor of the home.

Stat. Auth.: ORS 410.070
Stats. Implemented: ORS 443.725
Hist.: SSD 14-1985, f. 12-31-85, ef. 1-1-1986; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13


 

Rule Caption: Oregon Project Independence (OPI)

Adm. Order No.: SPD 11-2013

Filed with Sec. of State: 5-31-2013

Certified to be Effective: 7-1-13

Notice Publication Date: 4-1-2013

Rules Amended: 411-032-0000, 411-032-0001, 411-032-0005, 411-032-0010, 411-032-0015, 411-032-0020, 411-032-0044

Rules Repealed: 411-032-0013

Subject: The Department of Human Services is permanently updating the Oregon Project Independence (OPI) rules in OAR chapter 411, division 032 to reflect statutory changes made by House Bill 3037, passed during the 2011 Legislative Session.

 The permanent rules include updates to the authorized services list and provide for statewide consistency in prioritization of authorized services. Additional changes include updates to the fee-for-services to allow for administrative efficiency regarding fee collection as well as general housekeeping language clean-up.

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

411-032-0000

Definitions

(1) “AAA” means “Area Agency on Aging”.

(2) “Activities of Daily Living (ADL)” mean those personal care functional activities required by an individual for continued well being, health, and safety. For the purposes of these rules, ADLs consist of eating, dressing/grooming, bathing/personal hygiene, mobility (ambulation and transfer), elimination (toileting, bowel, and bladder management), and cognition/behavior as described in OAR 411-015-0006.

(3) “Adjusted Income” means the income for all household members after deductions for household medical expenses as described in OAR 411-032-0044.

(4) “ADL” means “Activities of Daily Living”.

(5) “Administrative Costs” mean those expenses associated with the overall operation of OPI that are not directly attributed to an authorized service. Administrative costs include, but are not limited to, costs associated with accounting services, indirect costs, facility expenses, etc.

(6) “Adult Day Service” means a community-based group program designed to meet the needs of adults with functional impairments through service plans. These structured, comprehensive, non-residential programs provide health, social and related support services in a protective setting during part of a day, but for less than 24 hours per day.

(7) “Advisory Council” means an advisory council of the authorized AAA.

(8) “Alzheimer’s Disease or a Related Disorder” means a progressive and degenerative neurological disease that is characterized by dementia including the insidious onset of symptoms of short-term memory loss, confusion, behavior changes, and personality changes. It includes dementia caused from any one of the following disorders:

(a) Multi-Infarct Dementia (MID);

(b) Normal Pressure Hydrocephalus (NPH);

(c) Inoperable Tumors of the Brain;

(d) Parkinson’s Disease;

(e) Creutzfeldt-Jakob Disease;

(f) Huntington’s Disease;

(g) Multiple Sclerosis;

(h) Uncommon Dementia such as Pick’s Disease, Wilson’s Disease, and Progressive Supranuclear Palsy; or

(i) All other related disorders recognized by the Alzheimer’s Association.

(9) “Area Agency on Aging (AAA)” means the agency designated by the Department as an AAA that is charged with the responsibility to provide a comprehensive and coordinated system of services to older adults and individuals with physical disabilities in a planning and service area. For purposes of these rules, the term “Area Agency on Aging” is inclusive of both Type A and B AAAs as defined in ORS 410.040 to 410.350.

(10) “Area Plan” means the approved plan for providing authorized services under OPI.

(11) “Assisted Transportation” means escort services that provide assistance to an individual who has difficulties (physical or cognitive) using regular vehicular transportation.

(12) “Assistive Technology Device” means any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of an individual.

(13) “Authorized Service” means any service designated by the Department and these rules to be eligible for OPI funding.

(14) “Chore” means assistance such as heavy housework, yard work, or sidewalk maintenance provided on an intermittent or one-time basis to assure health and safety.

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

(16) “DAS” means the Department of Administrative Services for the State of Oregon.

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

(18) “Diagnosed” means, for purposes of these rules, that an individual’s physician has reason to believe and indicates that the individual has Alzheimer’s Disease or a related disorder.

(19) “Director” means the Director of the Department of Human Services, or that person’s designee.

(20) “Direct Service Costs” mean those expenses for direct labor that are attributable to the authorized services specified in OAR 411-032-0010(1)(a)(A) and (1)(c). For example, the direct service cost of home care is the cost of time actually spent providing home care supportive services in the home. Other direct service costs are those that are directly attributable to an individual-related function.

(21) “Eligibility Determination” means the process of deciding if a prospective individual meets the requirements necessary to receive authorized services under OPI.

(22) “Evidence-Based Health Promotion” means individual or group programs that have been tested through randomized control trials and have been shown to be effective at helping participants adopt healthy behaviors, improve their health status, and reduce their use of health services.

(23) “Exception” means that an agency or individual contractor or subcontractor is not required to meet one or more specific requirements of these rules.

(24) “Fiscal Records and Data” means all information pertaining to the financial operation of an agency or program.

(25) “Gross Income” means household income from salaries, interest and dividends, pensions, Social Security, railroad retirement benefits, and any other income prior to any deductions.

(26) “Health Care Costs” mean health-related expenses paid out-of-pocket that include but are not limited to medical, dental, health insurance, prescription drugs, over-the-counter drugs, hearing aids, and eyeglasses.

(27) “Home Care” means assistance with IADLs such as housekeeping, laundry, shopping, transportation, medication management, and meal preparation.

(28) “Home Care Supportive Services” means in-home or community-based services that assist an individual in achieving the greatest degree of independent functioning in the individual’s place of residence.

(29) “Homecare Worker” means a provider, as defined in OAR 411-030-0020 and described in 411-031-0040, who is directly employed by an eligible individual via the Consumer-Employed Provider Program to provide hourly services to eligible individuals.

(30) “Home Delivered Meal” means a service that includes a meal provided to an eligible individual in the individual’s place of residence. Home Delivered Meals:

(a) Are prepared and delivered in compliance with applicable state and local laws;

(b) Meet a minimum of 33 1/3 percent of Dietary Reference Intakes and Dietary Guidelines;

(c) Include meal menus approved by a registered dietitian;

(d) Require an in-person initial assessment and a minimum annual assessment; and

(e) Provide nutrition education to the individual one time per year.

(31) “Hourly Services” mean the in-home services, including ADLs and IADLs, provided at regularly scheduled times. Hourly services are not exempt from federal or state minimum wage or overtime laws.

(32) “Household” means the individual, spouse, and any dependents as defined by the Internal Revenue Service.

(33) “IADL” means “Instrumental Activities of Daily Living”.

(34) “Indirect Cost” means:

(a) Incurred for a common or joint purpose benefiting more than one cost objective; and

(b) Not readily assignable to the cost objectives specifically benefited, without effort disproportionate to the results achieved. The term “indirect cost,” as used herein, applies to costs of this type originating in the grantee department, as well as those incurred by other departments in supplying goods, services, and facilities. To facilitate equitable distribution of indirect expenses, to the cost objectives served, it may be necessary to establish a number of pools of indirect costs. Indirect cost pools are distributed to benefited cost objectives on bases that produce an equitable result in consideration of relative benefits derived.

(35) “In-Home Care Agency” means an incorporated entity or equivalent licensed in accordance with OAR chapter 333, division 536 to provide hourly contracted in-home service to individuals in that individual’s place of residence.

(36) “Institution” means any state, community, or private hospital and any nursing facility.

(37) “Instrumental Activities of Daily Living (IADL)” mean the self-management tasks that consist of housekeeping including laundry, shopping, transportation, medication management, and meal preparation as described in OAR 411-015-0007.

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

(39) “OPI” means Oregon Project Independence.

(40) “Options Counseling” means counseling that supports informed long term care decision making through assistance provided to individuals and families to help them understand their strengths, needs, preferences, and unique situations and translate this knowledge into possible support strategies, plans, and tactics based on the choices available in the community.

(41) “Personal Care” means in-home services provided to maintain, strengthen, or restore an individual’s functioning in their own home when an individual is dependent in one or more ADLs, or when an individual requires assistance for ADL needs. Assistance is provided either by an in-home care agency or by a homecare worker.

(42) “Place of Residence” means the physical location of an individual’s legal residence. For purposes of these rules “place of residence” does not include an adult foster home, assisted living facility, residential care facility, or nursing facility licensed by the Department.

(43) “Priority” means the order in which the AAA determines individuals to be eligible for OPI.

(44) “Program Records and Data” means any information of a non-fiscal nature.

(45) “Program Support Costs” mean those expenses associated with managing the services provided either through contract or directly by the AAA, that are attributable to a specific service.

(46) “Provider” means the individual who actually renders the service.

(47) “Registered Nurse Services” mean services provided by a registered nurse on a short-term or intermittent basis that include but are not limited to:

(a) Interviewing the individual and, when appropriate, other relevant parties;

(b) Assessing the individual’s ability to perform tasks;

(c) Preparing a service plan that includes treatment needed by the individual;

(d) Monitoring medication; and

(e) Training and educating providers around the provisions of the service plan.

(48) “Respite” means paid temporary services to provide relief for families or other caregivers who are unpaid. In-home and out-of-home respite may be provided on an hourly or daily basis, including 24-hour respite service for several consecutive days. The range of tasks provided may include supervision, companionship, and personal care services usually provided by the primary caregiver.

(49) “Service Coordination” means a service designed to individualize and integrate social and health care options with an individual being served. The goal of service coordination is to provide access to an array of service options to assure appropriate levels of service and to maximize coordination in the service delivery system.

(50) “Service Coordination Costs” mean those expenses associated with individualizing and integrating social and health care options with an individual receiving a service. Cost elements include time spent with the individual, travel to and from an individual’s place of residence, mandated training time, case recording, reporting, time spent arranging for and coordinating services for an individual, and supervision and staffing time related to an individual. Service coordination costs also include the time spent on the initial assessment of an individual who does not become eligible for OPI.

(51) “Service Determination” means the process of determining the proper authorized service for each eligible individual.

(52) “Service Need” means those functions or activities for which an individual requires the support of the Department or AAA.

(53) “Service Provider” means any agency or program that provides one or more authorized services under OPI.

(54) “These Rules” mean the rules in OAR chapter 411, division 032.

Stat. Auth.: ORS 410.070 & ORS 410.435
Stats. Implemented: ORS 410.410 - 410.480
Hist.: SSD 11-1984, f. 11-30-84, ef. 12-1-84; SSD 6-1987, f. & ef. 7-1-87; SSD 12-1988, f. & cert. ef. 12-2-89; SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90; SSD 5-1990, f. & cert. ef. 2-1-90; SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94; SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97; SDSD 7-1999, f. 6-30-99, cert. ef. 7-1-99; SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03; SPD 11-2003, f. & cert. ef. 5-2-03; SPD 18-2004, f. & cert. ef. 5-28-04; SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06; SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13

411-032-0001

Goals

The goals of Oregon Project Independence are to:

(1) Promote quality of life and independent living among older adults and people with physical disabilities;

(2) Provide preventive and long-term care services to eligible individuals to reduce the risk for institutionalization and promote self-determination;

(3) Provide services to frail and vulnerable adults who are lacking or have limited access to other long-term care services; and

(4) Optimize eligible individuals’ personal resources and natural supports.

Stat. Auth.: ORS 410.070 & 410.435
Stats. Implemented: ORS410.410 - 410.480
Hist.: SSD 12-1988, f. & cert. ef. 12-2-89; SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03; SPD 11-2003, f. & cert. ef. 5-2-03; SPD 18-2004, f. & cert. ef. 5-28-04; SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06; SPD 14-2010(Temp), f. & cert. ef. 6-30-10 thru 12-27-10; SPD 16-2010(Temp), f. & cert. ef. 7-1-10 thru 12-28-10; SPD 21-2010(T), f. & cert. ef. 7-30-10 thru 12-28-10; Administrative correction 1-25-11; SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13

411-032-0005

Administration

(1) ADVISORY COUNCIL. Each AAA must show evidence that the advisory council of the AAA, and the community were involved in the identification of need, selection of services to be offered, and the development of an Area Plan.

(2) AREA PLAN.

(a) Each AAA must submit an Area Plan to the Department on forms provided by the Department by the date specified.

(b) The Area Plan must, at a minimum, contain:

(A) The types and amounts of authorized services to be offered;

(B) The costs of authorized services;

(C) How the AAA ensures timely response to inquiries for service;

(D) How individuals receive initial and ongoing periodic screening for other community services, including Medicaid;

(E) How eligibility is determined;

(F) How authorized services are provided;

(G) The policy for prioritizing OPI service delivery;

(H) The policy for denial, reduction, or termination of authorized services;

(I) The policy for informing individuals of their right to grieve adverse eligibility, service determination decisions, and consumer complaints;

(J) How fees for services are developed, billed, collected, and utilized;

(K) The policy for addressing individual non-payment of fees, including when exceptions are made for repayment and when fees are waived;

(L) How service providers are monitored and evaluated; and

(M) The conflict of interest policy for any direct provision of services for which a fee is set.

(3) CONTRACTS.

(a) Contracts between the Department and AAA for OPI are effective each year on July 1, unless otherwise agreed to by the Department. These contracts are based on the Area Plan and must, at a minimum, contain:

(A) A budget showing the amounts of OPI funds;

(B) The types of authorized services to be offered;

(C) The stipulation that contracted authorized services must be in accordance with the standards and requirements provided in these rules, and in accordance with the in-home services rules (OAR chapter 411, divisions 030 and 031) and the service priority rules (OAR chapter 411, division 015), and if applicable, in accordance with the in-home care agency rules (OAR chapter 333, division 536);

(D) The stipulation that required data must be gathered, reported, and monitored in accordance with these rules and the Department;

(E) A section pertaining to general provisions as required by DAS;

(F) A provision that AAAs must submit service provider contracts and amendments to the Department upon request from the Department; and

(G) Fee for service schedules developed in accordance with these rules.

(b) Contracts between AAAs and service providers must be signed and kept on file by the AAA for not less than three years for all services funded through OPI. The contracts must at a minimum contain:

(A) A budget or a maximum amount of OPI funds, as well as all other resources devoted to OPI under the contract;

(B) The types and amounts of authorized services to be offered and the rate per unit for each authorized service;

(C) The stipulation that authorized services must be offered in accordance with the standards and requirements provided in these rules, and in accordance with the in-home services rules (OAR chapter 411, divisions 030 and 31) and the service priority rules (OAR chapter 411, division 015);

(D) The stipulation that required data must be gathered and reported in accordance with these rules and the Department; and

(E) A section pertaining to general provisions as required by DAS.

(c) All contracts as described in this rule may be amended with the consent of both parties.

(d) All contracts as described in this rule must contain provisions for cancellation of the contract for non-performance and violation of the terms of the contract.

(4) PERSONNEL PRACTICES AND PROCEDURES.

(a) Each AAA and service provider must maintain written personnel policies.

(b) The personnel policies must contain all items required by state and federal laws and regulations, including such items as:

(A) An affirmative action plan; and

(B) Evidence that the AAA and service provider are equal opportunity employers.

(c) Each AAA and service provider must maintain a personnel record on each employee.

(5) NON-COMPLIANCE.

(a) Non-compliance to these rules may result in a reduction or termination of OPI funding, except in those cases where an exception has been granted by the Department;

(b) The determination of the amount of reduced funding is made by the Director of the Department;

(c) Any funds that are either reduced or terminated from a funding grant are reserved by the Department for redistribution at the Department’s discretion. At the end of the biennium, unexpended funds are returned to the General Fund unless otherwise directed by the Legislative Assembly.

Stat. Auth.: ORS 410.070 & 410.435
Stats. Implemented: ORS 410.410 - 410.480
Hist.: SSD 11-1984, f. 11-30-84, ef. 12-1-84; SSD 12-1988, f. & cert. ef. 12-2-89; SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90; SSD 5-1990, f. & cert. ef. 2-1-90; SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94; SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97; SDSD 7-1999, f. 6-30-99, cert. ef. 7-1-99; SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03; SPD 11-2003, f. & cert. ef. 5-2-03; SPD 18-2004, f. & cert. ef. 5-28-04; SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06; SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13

411-032-0010

Authorized Services and Allowable Costs

(1) AUTHORIZED SERVICES.

(a) Authorized services for which OPI funds may be expended include:

(A) Home care supportive services limited to the following:

(i) Home care;

(ii) Chore;

(iii) Assistive technology device;

(iv) Personal care;

(v) Adult day services;

(vi) Registered nurse services; and

(vii) Home delivered meals.

(B) Service coordination.

(b) Other authorized services for which OPI funds may be expended are authorized on a case by case basis by the Director of the Department. Other authorized services may include:

(A) Services to support community caregivers and strengthen the natural support system of individuals;

(B) Evidence-based health promotion services;

(C) Options counseling; or

(D) Assisted transportation options that allow individuals to live at home and access the full range of community resources.

(c) Authorized services provided by an in-home care agency must meet the standards and requirements of in-home care agencies under ORS 443.305 to 443.350 and OAR chapter 333, division 536, and may only be offered through an in-home care agency licensed by the Oregon Health Authority.

(d) Authorized services provided by a homecare worker must meet the standards and requirements of the Home Care Commission under ORS 410.600 to 410.614 and OAR chapter 411, divisions 030 and 031.

(e) Authorized services provided using the Consumer-Employed Provider Program must meet the standards and requirements of OAR chapter 411, divisions 030 and 031.

(2) COMPUTATION OF ALLOWABLE COSTS. Allowable costs by AAAs are costs associated with the direct provision of authorized services to individuals and such administrative costs as may be required to assure adequate services and to provide information to the Department.

(3) ADMINISTRATIVE COSTS. Administrative costs cannot exceed ten percent of OPI funds.

Stat. Auth.: ORS 410.070 & 410.435
Stats. Implemented: ORS 410.410 - 410.480
Hist.: SSD 11-1984, f. 11-30-84, ef. 12-1-84; SSD 6-1987, f. & ef. 7-1-87; SSD 12-1988, f. & cert. ef. 12-2-89; SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90; SSD 5-1990, f. & cert. ef. 2-1-90; SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94; SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97; SDSD 9-2002(Temp), f. & cert. ef. SPD 11-2003, f. & cert. ef. 5-2-0311-1-02 thru 4-29-03; SPD 11-2003, f. & cert. ef. 5-2-03; SPD 18-2004, f. & cert. ef. 5-28-04; SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06; SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13

411-032-0015

Data Collection, Records, and Reporting

(1) DATA COLLECTION.

(a) The collection of required program and fiscal records and data associated with OPI must be on forms and data systems as approved by the Department.

(b) Each AAA and service provider must collect data on eligible individuals receiving authorized services as required by the Department.

(c) All authorized service data collected on eligible individuals, supported by OPI must contain the individual’s Social Security Number and date of birth.

(d) For individuals under the age of 60, documentation must be placed in the individual’s file that the individual has been diagnosed as having Alzheimer’s Disease or a related disorder. Documentation must come verbally or in writing from the individual’s physician. The type of “related disorder” must also be specified in this documentation.

(2) RECORDS.

(a) Each AAA and service provider must maintain all books, records, documents, and accounting procedures that reflect all administrative costs, program support costs, direct service costs, and service coordination costs expended on OPI. These records must be retained for not less than three years.

(b) Each AAA and service provider must make these records available upon request to representatives from the Department, or to those duly authorized by the Department.

(3) FISCAL AND PROGRAM REPORTING:

(a) Fiscal and program reports must be completed on forms provided by the Department.

(b) Fiscal and program reports must be submitted to the Department by the specified due dates.

(c) Fiscal and program reports must, at a minimum, include:

(A) Current cumulative expenditures;

(B) Cost per unit of authorized service;

(C) Administrative costs;

(D) Program support costs;

(E) Service coordination costs;

(F) Direct service costs;

(G) The amount of fee for service assessed, billed, expended, and collected and other funds received;

(H) Number of unduplicated recipients year to date served for each authorized service year to date, and unduplicated case count year to date;

(I) Number of units of service for each authorized service; and

(J) Demographic, social, medical, physical, functional, and financial data, including a breakdown of the income levels of OPI eligible individuals, as required by the Department on the Department’s Client Assessment/Planning System (CA/PS) and in Oregon ACCESS database.

(4) CONFIDENTIALITY. The use or disclosure by any party of any information concerning a recipient of authorized services described in these rules, for any purpose not directly connected with the administration of the responsibilities of the Department, AAA, or service provider is prohibited except with written consent of the recipient, or their legal representative. Disclosure of recipient information must meet Department requirements.

Stat. Auth.: ORS 410.070 & 410.435
Stats. Implemented: ORS 410.410 - 410.480
Hist.: SSD 11-1984, f. 11-30-84, ef. 12-1-84; SSD 6-1987, f. & ef. 7-1-87; SSD 12-1988, f. & cert. ef. 12-2-89; SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90; SSD 5-1990, f. & cert. ef. 2-1-90; SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97; SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03; SPD 11-2003, f. & cert. ef. 5-2-03; SPD 18-2004, f. & cert. ef. 5-28-04; SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06; SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13

411-032-0020

Eligibility and Determination of Authorized Services

(1) ELIGIBILITY.

(a) In order to qualify for authorized services from an AAA or service provider, each eligible individual must:

(A) Be 60 years old or older or be under 60 years of age and diagnosed as having Alzheimer’s Disease or a related disorder;

(B) Not be receiving financial assistance or Medicaid, except food stamps, or Qualified Medicare Beneficiary or Supplemental Low Income Medicare Beneficiary Programs; and

(C) Meet the requirements of the long-term care services priority rules in OAR chapter 411, division 015.

(b) Eligibility determination is required before any individual may receive authorized services from an AAA or service provider. The documentation required by OAR 411-032-0015 must be obtained before an individual under the age of 60 may be determined to be eligible.

(c) Eligibility determination is the responsibility of the AAA. In those instances when eligibility determination is performed by an agency other than the AAA, the AAA must have in place a system for evaluating the eligibility determination process, including an independent review by the AAA of a representative sample of cases.

(d) Any individual residing in a nursing facility, assisted living facility, residential care facility, or adult foster home setting is not eligible for authorized services. This does not restrict the ability to move an eligible individual from such institutions to their home to receive authorized services, when judged more appropriate, based on medical, financial, physical, functional, and social considerations.

(e) Any individual residing in a living setting that offers any services authorized under OAR 411-032-0010 is limited to receiving OPI authorized services that are not available in that setting.

(f) The Department determines the factors that constitute an individual being at risk of institutionalization. These factors are currently defined in the long-term care services priority rules, OAR chapter 411, division 015. These factors must be utilized by each AAA and service provider.

(g) Applicants must receive written notification of eligibility determination.

(2) SERVICE DETERMINATION.

(a) Service determination rests with the AAA. In those instances when service determination is performed by an agency other than the AAA, the AAA must have in place a system for evaluating the service determination process, including an independent review by the AAA of a representative sample of cases.

(b) Service determination is based on each individual’s financial, physical, functional, medical, and social need for such services and in accordance with OAR chapter 411, division 015.

(c) Service determination provided under OPI is limited to the authorized services allowed by these rules.

(d) Service determination is made:

(A) After eligibility determination; and

(B) At regular intervals but not less than once every twelve months.

(e) Individuals must receive written notification of the service determination:

(A) Notice must include the maximum monthly hours of authorized service, the hourly and maximum monthly fee, the service rate, and provider contact information.

(B) Written notification of the service determination must be provided to the individual upon initial service determination, at annual reassessment, and when there are changes to the service determination.

(3) PRIORITY FOR AUTHORIZED SERVICES.

(a) An AAA may establish local priorities for OPI authorized services. The AAA’s local priorities cannot conflict with this rule. In the event of a grievance, this rule takes precedence over local priorities.

(b) Priority for authorized services is:

(A) Maintaining eligible individuals already receiving authorized service as long as their condition indicates the service is needed.

(B) Individuals screened utilizing a Department authorized tool that measures risk for out of home placement based on an individual’s financial, physical, functional, medical, and social service needs. Individuals with the highest risk of out of home placement are given priority.

(4) APPEALS. Individuals for whom services are denied, disallowed, or reduced through eligibility determination or service determination are entitled to request review of the decision through the AAA grievance review procedure set forth in policy.

(a) Individuals must continue to receive authorized services until the disposition of the local AAA grievance review.

(b) The AAA must provide the applicant with written notification of the grievance review determination decision.

(c) Applicants who disagree with the results of the AAA grievance review have a right to an administrative review with the Department, pursuant to ORS chapter 183. This information is provided to the applicant in a written notification at the time of the grievance review decision.

(d) Applicants requesting an administrative review from the Department are not eligible for continued OPI authorized.

(e) All individuals, including those who may have previously been terminated from OPI, have the right to apply for OPI authorized services at any time.

Stat. Auth.: ORS 410.070 & 410.435
Stats. Implemented: ORS 410.410 - 410.480
Hist.: SSD 11-1984, f. 11-30-84, ef. 12-1-84; SSD 12-1988, f. & cert. ef. 12-2-89; SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90; SSD 5-1990, f. & cert. ef. 2-1-90; SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94; SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97; SDSD 7-1999, f. 6-30-99, cert. ef. 7-1-99; SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03; SPD 11-2003, f. & cert. ef. 5-2-03; SPD 18-2004, f. & cert. ef. 5-28-04; SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06; SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13

411-032-0044

Fees for Authorized Service and Fees for Service Schedule

(1) FEE FOR AUTHORIZED SERVICES.

(a) A one-time fee is applied to all individuals receiving OPI authorized services who have adjusted income levels at or below federal poverty level. The fee is due at the time eligibility for OPI authorized services has been determined.

(b) Fees for authorized services, except service coordination and home delivered meals, are charged based on a sliding fee schedule to all eligible individuals whose annual gross income exceeds the minimum, as established by the Department. For purposes of these rules, an individual’s annual gross income includes:

(A) Salaries from the household;

(B) Interest and dividends from the household;

(C) Pensions, annuities, Social Security, and railroad retirement benefits from the household; and

(D) Any other income from the household.

(i) All out-of-pocket health care costs may be deducted from the individual’s annual gross income.

(ii) All child support paid by a non-custodial parent may be deducted from the individual’s annual gross income.

(c) Individuals must receive written notification of the hourly and maximum monthly fee for service upon initial service determination and whenever there is a change.

(d) The AAA must develop procedures for assessing, billing, collecting, and expending fees.

(A) The written policy addressing individual non-payment of fees to be reviewed and approved is included in the AAA’s Area Plan.

(B) Individuals must be given a copy of the AAA’s policy pertaining to individual non-payment of fees upon initial eligibility determination.

(C) The decision to terminate OPI authorized services for non-payment of assessed fees for service is the responsibility of the local AAA.

(e) A record of surcharges and all fees for services must be kept by each AAA and reported monthly to the Department.

(A) Minimum fees and fee for service determination forms must be a part of each individual’s case record. Fee for service determination forms must meet minimum requirements for documentation as established by the Department.

(B) The maximum monthly authorized fee for services must be recorded on each individual’s case record upon initial service determination and at least annually thereafter, at time of reassessment.

(f) Nothing in these rules prevent OPI individuals, or the individual’s family, from making a donation or contribution. Such donations are used to expand services under OPI. Expansion of services is limited to services authorized in OAR 411-032-0010 as identified in the AAA’s Area Plan.

(g) The minimum fee and all fees for service are used to expand services under OPI. Expansion of services is limited to services authorized in OAR 411-032-0010 as identified in the AAA’s Area Plan.

(h) The AAAs and service providers must have a Department reviewed fee collection policy.

(2) FEE FOR SERVICE SCHEDULE.

(a) The Department, after consultation with the AAAs, develops and publishes a fee schedule for services based on the federal poverty level and distributes the schedule to the AAAs annually.

(b) The fee for service schedule is applied to the local rate specific to the service and the type of provider for the individual.

Stat. Auth.: ORS 410.070 & 410.435
Stats. Implemented: ORS 410.410 - 410.480
Hist.: SSD 15-1985, f. 12-31-85, ef. 1-1-86; SSD 9-1988, f. & cert. ef. 8-1-88; SSD 13-1989, f. & cert. ef. 9-1-89; SSD 19-1989(Temp), f. 12-29-89, cert. ef. 1-1-90; SSD 5-1990, f. & cert. ef. 2-1-90; SSD-11-1990(Temp), f. & cert. ef. 4-27-90; SSD 17-1990, f. & cert. ef. 8-20-90; SSD 11-1991, f. & cert. ef. 6-14-91; SSD 11-1993, f. 12-30-93, cert. ef. 1-1-94; SSD 3-1997, f. 11-28-97, cert. ef. 12-1-97; SDSD 9-2002(Temp), f. & cert. ef. 11-1-02 thru 4-29-03; SPD 11-2003, f. & cert. ef. 5-2-03; SPD 18-2004, f. & cert. ef. 5-28-04; SPD 29-2006, f. 10-23-06, cert. ef. 11-1-06; SPD 11-2013, f. 5-31-13, cert. ef. 7-1-13


 

Rule Caption: Late Contested Case Hearing Requests

Adm. Order No.: SPD 12-2013

Filed with Sec. of State: 5-31-2013

Certified to be Effective: 6-1-13

Notice Publication Date: 5-1-2013

Rules Amended: 411-001-0520

Subject: The Department of Human Services is permanently amending OAR 411-001-0520 about contested case hearing requests to correct a scrivener’s error reflected in the permanent rule language that became effective April 2, 2013

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

411-001-0520

Late Contested Case Hearing Requests

(1) When the Department of Human Services (Department) receives a completed hearing request that is not filed within the timeframe required by the applicable rule in OAR chapter 411 but is filed no later than the deadlines set out in section (2) of this rule:

(a) The Department shall refer the hearing request to the Office of Administrative Hearings for a contested case hearing on the merits of the Department’s action described in the notice when:

(A) The Department finds that the claimant and claimant’s representative did not receive the notice and did not have actual knowledge of the notice; or

(B) The Department finds good cause that the claimant did not meet the timeframe required due to excusable mistake, surprise, excusable neglect (which may include neglect due to significant cognitive or health issues), circumstances beyond the claimant’s control, reasonable reliance on the statement of a Department employee or an adverse provider relating to procedural requirements, or due to fraud, misrepresentation, or other misconduct of the Department or a party adverse to the claimant.

(b) The Department refers the request for a hearing to the Office of Administrative Hearings for a contested case proceeding to determine whether the claimant is entitled to a hearing on the merits if there is a dispute between the claimant and the Department about either of the following paragraphs.

(A) The claimant or claimant’s representative received the notice or had actual knowledge of the notice. At the hearing, the Department must show that the claimant or claimant’s representative had actual knowledge of the notice or that the Department mailed or electronically mailed the notice to the correct address of the claimant or claimant’s representative, as provided to the Department.

(B) The claimant has established good cause for a contested case hearing on the merits under paragraph (a)(B) of this section.

(c) The Department may only dismiss such a request for hearing as untimely without a referral to the Office of Administrative Hearings if the following requirements are met:

(A) The undisputed facts show that the claimant does not qualify for a hearing under this section; and

(B) The notice was served personally or by registered or certified mail.

(2) The Department shall consider whether a late hearing request meets the late request criteria set out in section (1) of this rule:

(a) When the hearing request is received up to 120 days after a notice became a final order by default if no provider is a party to the contested case.

(b) When the hearing request is received up to 60 days after a notice became a final order by default if at least one provider is a party to the contested case.

(3) Unless required otherwise by the Servicemembers Civil Relief Act, the Department may dismiss a request for hearing as untimely if the Department receives a completed hearing request after the applicable deadline in section (2) of this rule.

Stat. Auth.: ORS 409.050 & 411.103
Stats. Implemented: ORS 409.010 & 411.103
Hist.: SPD 6-2013, f. & cert. ef. 4-2-13; SPD 12-2013, f. 5-31-13, cert. ef. 6-1-13

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

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