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Oregon Bulletin

August 1, 2013

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

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

Adm. Order No.: SPD 13-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

Rules Amended: 411-340-0100, 411-340-0110, 411-340-0120, 411-340-0125, 411-340-0130, 411-340-0150

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

   Reflect new definitions applicable to Community First Choice State Plan services;

   Specify the eligibility requirements to reflect changes made as a result of the Community First Choice State Plan;

   Describe and coincide with the services available in the Community First Choice State Plan and Home and Community-Based Waiver amendments;

   Require a functional needs assessment as part of an individual’s service planning process; and

   Clarify the responsibilities of support services brokerages providing case management services.

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

411-340-0100

Eligibility for Support Service Brokerage Services

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

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

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

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

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

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

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

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

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

(c) Does not duplicate services and expenditures.

Stat. Auth.: ORS 409.050 & 410.070

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

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; Renumbered from 309-041-1840, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 18-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 21-2011(Temp), f. & cert. ef. 8-31-11 thru 12-28-11; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 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. 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 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 information required in OAR 411-340-0110(1) of this rule available using language, format, and presentation methods appropriate for effective communication according to individuals’ needs and abilities.

(3) ENTRY INTO BROKERAGE SERVICES.

(a) To enter brokerage services:

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

(B) The individual or the individual’s 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 the individual’s legal representative to end the service relationship;

(B) Effective July 1, 2013, 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 from brokerage services, when the individual 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;

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

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

Stat. Auth.: ORS 409.050 & 410.070

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

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

411-340-0120

Support Service Brokerage Services

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

(a) Assistance for individuals to determine needs, plan supports in response to needs, and, for individuals whose entry into support services occurred prior to October 1, 2013 develop individualized budgets based on available resources;

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

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

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

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

(f) Employer-related supports; and

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

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

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

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

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

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

(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 the individual’s legal representative within 10 working days from the date entry becomes known to the brokerage.

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

(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, the individual’s legal representative, and all current service providers within 10 working days of the change. The notification must be in writing and include the name, telephone number, and address of the new personal agent, if known, or of a contact person at the brokerage.

(d) If an individual loses OSIP-M eligibility, the 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 eligible 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) LEVEL OF CARE ASSESSMENT. 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 assessment. These individuals 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 assessment reviewed annually or at any time there is a significant change in the criteria that qualified the individual for institutional level of care. The level of care assessment must be documented in a case note in the individual’s record. The level of care assessment must be completed no more than 60 days prior to the authorization of the initial plan Individual Support Plan and the annual reauthorization.

(8) FUNCTIONAL NEEDS ASSESSMENT.

(a) The brokerage must complete a functional needs assessment at least annually. The FNAT must be completed:

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

(B) Within 60 days prior to the authorization of a plan renewal;

(C) For an individual whose initial or annual plan was authorized on or after October 1, 2013, within 45 days from the time the individual requests a functional needs assessment.

(b) After July 1, 2013, an individual who has not yet had an annual plan renewal may not request a FNAT unless the individual meets crisis criteria according to OAR 411-340-0125.

(9) WRITTEN PLAN REQUIRED.

(a) Unless circumstances allow exception under section (8)(c) of this section, an individual who meets the level of care and is OSIP-M eligible, must have an authorized ISP.

(A) The ISP must be written by a personal agent.

(B) The ISP must be dated within 60 days of the completion of an FNAT 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 representative.

(b) For an initial ISP that is authorized on or after July 1, 2013, and for an annual ISP that is authorized on or after October 1, 2013, the ISP must address all the support needs identified on the FNAT. The ISP or attached documents must include:

(A) The individual’s name;

(B) A description of the supports required, including the reason the support is necessary. For an initial ISP that is authorized on or after July 1, 2013, and for an annual ISP that is authorized on or after October 1, 2013, the description must be consistent with the FNAT;

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

(D) For an initial or annual ISP that is authorized prior to October 1, 2013 projected costs, with sufficient detail to support estimates;

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

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

(G) Schedule of ISP reviews; and

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

(i) The amount of support services funds required;

(ii) The amount of support services required;

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

(iv) The type of support provider.

(I) For individuals whose entry into support services occurred prior to October 1, 2013, and for an annual ISP that is authorized on or after October 1, 2013, the ISP must reflect any changes in support needs identified on a FNAT.

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

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

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

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

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

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

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

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

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

(d) An Annual Plan must be completed for an individual who does not meet the level of care or is not eligible for OSIP-M.

(10) PROFESSIONAL OR OTHER SERVICE PLANS.

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

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

(11) ISP AUTHORIZATION.

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

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

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

(d) An ISP is authorized when:

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

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

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

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

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

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

(12) PERIODIC REVIEW OF PLAN AND RESOURCES.

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

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

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

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

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

(D) Record final support services fund costs.

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

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

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

Stat. Auth.: ORS 409.050 & 410.070

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

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

411-340-0125

Crisis Supports in Support Services

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

(a) Entered in support services; and

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

(2) CRISIS DETERMINATION.

(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 caregiver due to caregiver 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.

(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) On or after October 1, 2013, an FNAT must be completed for any individual determined to be in crisis as described in this section of the 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 Plan of Care Crisis Addendum when an individual in emergent status requires a short-term, out-of-home, residential placement; and

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

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

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

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

(E) For an individual accessing support services who is not OSIP-M eligible, the 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 eligible OSIP-M eligible.

(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 & 410.070

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

411-340-0130

Using Support Services Funds to Purchase Supports

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

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

(b) For an initial ISP that is authorized on or after July 1, 2013, and for an annual ISP that is authorized on or after October 1, 2013 an FNAT has determined the supports to be necessary;

(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 ISP;

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

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

(f) For individuals whose entry into support services occurred prior to October 1, 2013, or whose annual ISP is authorized prior to October 1, 2013, the ISP projects the amount of support services funds, if any, that may be required to purchase the remainder of necessary supports ; 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 subsection (c) or (d) in the following circumstances:

(a) An individual meets the crisis criteria listed in 411-340-0125; or

(b) Up to the individual’s 18th birthday the individual was enrolled in the Children’s Intensive In-home Services (CIIS) Program as described in OAR chapter 411, division 300 or Long Term Supports as described in OAR chapter 411, division 308.

(3) The individual may no longer access support services after 10 days when an individual is eligible for support services based on section (1)(f); and

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

(b) The Social Security Administration or the Department’s Presumptive Medicaid Disability Determination Team finds that an 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 whose entry into support services occurred prior to October 1, 2013, the use of support services funds to purchase individual supports in any plan year is limited to the individual’s annual benefit level.

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

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

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

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

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

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

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

(6) EXCEPTIONS TO BASIC BENEFIT FINANCIAL LIMITS.

(a) Exceptions to the basic benefit annual support services fund limits do not apply to individuals whose entry into support services occurs on or after October 1, 2013 or whose annual ISP is authorized on or after October 1, 2013.

(b) Exceptions to the basic benefit annual support services fund limit for individuals whose entry into support services occurs prior to October 1, 2013 or whose annual ISP is authorized prior to October 1, 2013 may be only as follows:

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

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

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

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

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

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

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

(iii) A notice of planned action.

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

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

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

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

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

(C) Although costs for crisis diversion services may bring the individual’s total plan year cost temporarily above the individual cost limit, the individual’s costs may not exceed the cost of the state’s current ICF/IDD daily cost per individual. Plan year expenses at or above the individual cost limit do not make the individual eligible for comprehensive services.

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

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

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

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

(e) 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 the individual’s legal representative at least annually and must make budget reductions when allowed by the ISP.

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

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

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

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

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

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

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

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

(vi) Delegated nursing tasks.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) Shopping;

(ii) Transportation;

(iii) Money management;

(iv) Mileage reimbursement;

(v) Social companionship; or

(vi) Respite.

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

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

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

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

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

(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 representative.

(8) TYPES OF SUPPORTS PURCHASED PRIOR TO JULY 1, 2013. For ISPs authorized for implementation prior to July 1, 2013, 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(9); 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 caregivers.

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

(f) Occupational therapy services;

(g) Personal emergency response systems;

(h) Physical therapy services;

(i) Respite;

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

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

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

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

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

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

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

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

(C) Devices, aids, controls, supplies, or appliances primarily and customarily used to enable an individual to increase the individual’s abilities to perform ADLs or to perceive, control, or communicate with the environment in which the individual lives, may be purchased with support services funds when the individual’s 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, (i.e., utensils, trays, cups, bowls that are specially designed to assist an individual to feed him or herself);

(ii) Positioning devices;

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

(iv) Assistive technology items;

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

(vi) Augmentative communication devices;

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

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

(l) Specialized supports;

(m) Speech and language therapy services;

(n) Supported employment; and

(o) Transportation.

(9) TYPES OF SUPPORTS PURCHASED ON OR AFTER JULY 1, 2013. For an initial or annual ISP that is authorized after July 1, 2013, supports eligible for purchase with support services funds are:

(a) Community First Choice state plan 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) Personal care as described in section (12) of this rule;

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

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

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

(G) Respite 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) Alternatives to employment — habilitation as described in section (20) of this rule;

(B) Pre-vocational services as described in section (21) of this rule;

(C) Supported employment as described in section (22) of this rule;

(D) Family training as described in section (23) of this rule;

(E) Occupational therapy as described in section (24) of this rule;

(F) Physical therapy as described in section (25) of this rule; and

(G) Speech, hearing, and language services as described in section (26) of this rule.

(10) COMMUNITY NURSING SERVICES. Community nursing services includes:

(a) Evaluation and identification of supports that minimize health risks while promoting an individual’s autonomy and self-management of healthcare;

(b) Medication reviews;

(c) Collateral contact with a services coordinator regarding an individual’s community health status to assist in monitoring safety and well-being and to address needed changes to the person-centered Individual Support Plan; and

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

(11) CHORE SERVICES. Chore services may be provided only in situations where no one else in the home 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;

(12) PERSONAL CARE SERVICES (ADL/IADL).

(a) Personal care services include but are not limited to:

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

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

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

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

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

(F) Delegated nursing tasks;

(G) 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 gathering and washing soiled clothing and linens.

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

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

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

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

(b) Personal care 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 also require verbal reminding to complete one of the tasks described in subsection (b) of this section.

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

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

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

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

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

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

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

(13) SKILLS TRAINING. Skills training are specifically tied to the FNAT and IHS Plan and are a means to increase independence, preserve functioning, and reduce dependency of an individual.

(14) TRANSPORTATION.

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

(A) 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 in a rural area into the nearest town once a week for shopping and recreational opportunities;

(C) Assistance with the purchase of a bus pass; and

(D) Reimbursement of operational expenses of agency or staff vehicles used for transporting individuals not to exceed established rates.

(b) Transportation services do not include medical transportation, purchase of individual or family vehicles, routine vehicle maintenance and repair, ambulance services, payment to the spouse of an individual receiving IHS 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 IHS 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 devices, aids, controls, supplies, or appliances primarily and customarily used to enable an individual to increase the individual’s abilities to perform and support activities of daily living or to perceive, control, or communicate with the environment in which the individual lives.

(b) Specialized equipment and supplies may be purchased with IHS funds when an individual’s intellectual or developmental disability otherwise prevents or limits the individual’s independence in the areas described in section (5) of this rule

(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 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 and 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 allow self direction of care and maximize independence such as motion/sound sensors, two-way communication systems, automatic faucets and soap dispensers, incontinent and fall sensors, or other electronic backup systems;

(i) Limit of $5000 per year without Department approval.

(ii) Any single device or assistance costing more than $500 in a plan year must be approved by the Department.

(D) Assistive devices. Examples include durable medical equipment, mechanical apparatus, electrical appliance or information technology device to assist and enhance an individual’s independence in performing ADL/IADLs, not covered by other Medicaid programs.

(i) Limit of $5000 per year without Department approval.

(ii) Any single device or assistance costing more than $500 must be approved by the department.

(16) RESPITE.

(a) Respite may be provided in an 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 an individual’s provider to attend school or work.

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

(d) 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) Assessment of an individual or the needs of the individual’s family and the environment;

(B) Development of positive behavior support strategies including a Behavior Support Plan if needed;

(C) Implementation of a positive Behavior Support Plan with the provider or family; and

(D) Revision and monitoring of the plan as needed.

(b) Behavior support services may include:

(A) Training, modeling, and mentoring the family;

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

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

(c) Behavior support services does not include:

(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 the individual at school; or

(E) Assessment in the 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 detectors, light fixtures, and appliances;

(G) Sound and visual monitoring systems;

(H) Fencing;

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

(J) Adaptation of kitchen cabinets and sinks;

(K) Widening of doorways;

(L) Handrails;

(M) Modification of bathroom facilities;

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

(O) Installation of non-skid surfaces;

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

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

(R) Modifications for the primary vehicle used by the individual that are necessary to meet the unique needs of the individual (lift or interior alterations such as seats, head, and leg rests; and belts, special safety harnesses, or other unique modifications to keep the individual safe in the vehicle); 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 modifications are limited to $5,000 per modification. A services coordinator may request approval for additional expenditures through the Department’s prior to expenditure. Approval is based on the individual’s need and goals and the Department’s determination of appropriateness and cost-effectiveness.

(d) Environmental modifications must be tied to supporting activities of daily living, instrumental activities of daily living, and health-related tasks as identified in the IHS Plan.

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

(f) Environmental modifications 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/IDD, or acute care hospital to a home or community-based setting where the individual resides.

(b) Services 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 expenditures must be through the Department prior to expenditure. Approval is based on the individual’s need and the Department’s determination of appropriateness and cost-effectiveness.

(c) Financial assistance is limited to:

(A) Moving and move-in costs including movers, cleaning and security deposits, payment for background/credit check (related to housing), 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 (i.e. bed); and

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

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

(e) Basic household furnishings and other items are limited to one time per year.

(20) ALTERNATIVES TO EMPLOYMENT — HABILITATION is assistance with acquisition, retention, or improvement in self-help, socialization, and adaptive skills that takes place in a non-residential setting, separate from the home in which an individual with an intellectual or developmental disability resides.

(21) PRE-VOCATIONAL SERVICES. The IHS Plan must reflect that prevocational services are directed to habilitative rather than explicit employment objectives.

(22) 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 may not replace or duplicate services that the individual currently receives through the Department-contracted employment and alternative to employment services governed by OAR chapter 411, division 345.

(23) FAMILY TRAINING. Family training services are training and counseling services provided to the family of an individual to increase their capabilities 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 the IHS Plan;

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

(C) Organized conferences and workshops specifically related to the 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) Examples of what family training services do not provide include, but are not limited to:

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

(B) Training for paid caregivers;

(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 CDDP is required for attendance by family members at organized conferences and workshops funded with IHS funds.

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

(24) 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 Medicaid Plan, except that the limitation on amount, duration, and scope in the plan do not apply. These 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 Medicaid 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 do not include:

(A) Goods and services available through other public programs (e.g. OHP, schools, or Federal assistance programs) for which an individual is eligible or through an individual’s private insurance;

(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) 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 Medicaid Plan, except that the limitation on amount, duration, and scope in the plan do not apply. These 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 Medicaid 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 do not include:

(A) Goods and services available through either public programs (e.g. OHP, schools, or Federal assistance programs) for which an individual is eligible or through an individual’s private insurance;

(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) 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 Medicaid Plan, except that the limitation on amount, duration, and scope specified in the plan do not apply. These 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 Medicaid 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 do not include:

(A) Goods and services available through either public programs (e.g. OHP, schools, or Federal assistance programs) for which an individual is eligible, or through an individual’s private insurance;

(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.

(27) 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.

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

(a) In settings and under contractual conditions that allow the individual to freely 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 cannot be used to purchase existing, or create new, comprehensive services;

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

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

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

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

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

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

(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.

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

(a) Mandatory reporter responsibility to report suspected abuse;

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

(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 the ISP.

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

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

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

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

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

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

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

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

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

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

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

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

(I) Falsified required documentation;

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

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

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

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

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

(C) 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 Administrator.

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

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

Stat. Auth.: ORS 409.050 & 410.070

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

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1870, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 10-2004(Temp), f. & cert. ef. 4-30-04 thru 10-25-04; SPD 32-2004, f. & cert. ef. 10-25-04; SPD 38-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 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 daily brokerage operations in compliance with these rules and has authority to make budget, staffing, policy, and procedural decisions for the brokerage.

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

(a) A minimum of a bachelor’s degree and two years experience, including supervision, in 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 ISPs.

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

(c) Fiscal intermediary qualifications.

(A) A fiscal intermediary may not:

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

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

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

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

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

(5) PERSONAL AGENT QUALIFICATIONS.

(a) Each personal agent must have knowledge of the public service system for developmental disability services in Oregon and --

(A) Bachelor’s degree in a Behavioral Science, Social Science, or a closely related field; OR

(B) Bachelor’s degree in any field and one year of human services related experience (i.e., work providing assistance to individuals and groups with issue such as economically disadvantaged, employment, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, inadequate house); OR

(C) Associate’s degree in a Behavioral Science, Social Science or a closely related field AND two years of human services related experience (i.e. work providing assistance to individuals and groups with issues such as economically disadvantaged, employment, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, inadequate housing); OR

(D) Three years of human services related experience

(b) A brokerage must submit a written variance request to the Department prior to employment of a person not meeting the minimum qualifications for a personal agent set forth in 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. The proposal must specify activities, timelines, and responsibility for costs incurred in completing the plan. A person who fails to complete a plan for education and training to correct deficiencies may not fulfill the requirements for the qualifications.

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

(a) Principles of self-determination;

(b) Person-centered planning processes;

(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 served and must make these records available to the Department upon request. Individual records must include at minimum:

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

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

(c) Documents related to determining eligibility for brokerage services and, for individuals whose entry into support services occurred prior to October 1, 2013 the amount of support services funds available to the individual, including basic supplement criteria if applicable.

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

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

(f) Incident reports.

(g) The FNAT once completed and other assessments used to determine supports required, preferences, and resources.

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

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

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

(A) Type of service to be provided;

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

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

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

(A) Type of service to be provided;

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

(C) Any specific individual health, safety, and emergency procedures that may be required, including action to be taken if an individual is unable to provide for the individual’s own safety and is missing while in the community under the service of the 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 service by a personal agent to support each case service provided. Progress notes must be recorded chronologically and documented consistent with brokerage policies and procedures. All late entries must be appropriately documented. Progress notes must at a minimum include:

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

(B) The name of the person receiving service;

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

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

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

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

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

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

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

(A) Minimum acceptable records of expenditures:

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

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

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

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

(II) The date of the services; and

(III) A description of the services.

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

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

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

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

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

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

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

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

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

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

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

(9) QUALITY ASSURANCE.

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

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

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

(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 individuals; and

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

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

(10) BROKERAGE REFFERRAL TO AFFILIATED ENTITIES.

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

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

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

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

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

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

(C) A process for arriving at the option for selecting the 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 of which the brokerage is a part or otherwise directly affiliated; and

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

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

Stat. Auth.: ORS 409.050 & 410.070

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

Hist.: MHD 9-2001(Temp), f. 8-30-01, cert. ef. 9-1-01 thru 2-27-02; MHD 5-2002, f. 2-26-02 cert. ef. 2-27-02; MHD 4-2003(Temp); f. & cert. ef. 7-1-03 thru 12-27-03; Renumbered from 309-041-1890, SPD 22-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 32-2004, f. & cert. ef. 10-25-04; SPD 8-2005, f. & cert. ef. 6-23-05; SPD 17-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 21-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-29-08; SPD 8-2008, f. 6-27-08, cert. ef. 6-29-08; SPD 8-2009, f. & cert. ef. 7-1-09; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 13-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13


Rule Caption: Medicaid Services — Home and Community-Based Waivered and State Plan Services

Adm. Order No.: SPD 14-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

Rules Amended: 411-001-0510, 411-015-0005, 411-015-0008, 411-015-0015, 411-015-0100, 411-030-0070, 411-030-0100, 411-040-0000, 411-045-0010, 411-045-0050, 411-048-0150, 411-048-0160, 411-048-0170, 411-065-0000, 411-070-0033

Subject: The Department of Human Services (Department) is immediately amending the rules for Aging and People with Disabilities (APD) in OAR chapter 411 to be in compliance with new Medicaid authority to provide both home and community-based waivered and state plan services.

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

411-001-0510

Lay Representation in Contested Case Hearings

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

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

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

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

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

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

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

(a) “Legal argument” includes arguments on:

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

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

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

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

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

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

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

(D) The admissibility of evidence; and

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

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

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

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

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

Stat. Auth: ORS 409.050

Stats Implemented: ORS 183.452 & 409.010

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

411-015-0005

Definitions

(1) “Aging and People with Disabilities Division (APD)” means the part of the Department of Human Services responsible for the administration of programs to older adults and individuals with physical disabilities. Many of the services are provided to individuals through local Area Agency on Aging (AAA) and disability (AAAD) offices. The term “Aging and People with Disabilities Division” is synonymous with “Seniors and People with Disabilities Division” and “Department”.

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

(3) “Alternative Service Resources” means other possible resources for the provision of services to meet the individual’s needs. This includes, but is not limited to, natural supports (relatives, friends, significant others, roommates, neighbors or the community), Risk Intervention services, Older Americans Act programs, or other community supports. Alternative Service Resources are not paid by Medicaid.

(4) “Architectural Modifications” means any service leading to the alteration of the structure of a dwelling to meet the specific service need of the 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 seniors and possibly individuals with disabilities in a planning and service area. For purposes of these rules, the term Area Agency on Aging (AAA) is inclusive of both Type A and Type B Area Agencies on Aging as defined in ORS 410.040 through 410.300.

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

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

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

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

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

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

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

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

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

(7) “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 (ADL). This definition includes the use of service animals, general household items or furniture to assist the individual.

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

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

(10) “Case Manager” means a Department or AAA employee who assesses the service needs of an applicant or eligible individual, determines eligibility and offers service choices to eligible individuals. The Case Manager authorizes and implements the service plan and monitors the services delivered.

(11) “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 OAR chapter 411, division 015 rules, calculates the service payment rates, and accommodates individual participation in service planning.

(12) “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 consist of the available services on the Department’s published rate schedule, the utilization of assistive devices or architectural modifications and alternative service resources. Less costly alternatives may include resources not paid for by the Department.

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

(14) “Extraordinary Circumstances” means:

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

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

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

(16) “Independent” means the individual does not meet the definition of “Assist” or “Full Assist” when assessing an Activity of Daily Living as defined in OAR 411-015-0006 or, when assessing an Instrumental Activity of Daily Living as defined in OAR 411-015-0007.

(17) “Individual” means the person applying or eligible for services. “Client” is synonymous with individual.

(18) “Mental or Emotional Disorder” means a schizophrenic, mood, paranoid, panic or other anxiety disorder; somatoform, personality, dissociative, factitious, eating, sleeping, impulse control or adjustment disorder or other psychotic disorder, as defined in the Diagnostic and Statistical Manual, published in 1994 by the American Psychiatric Association.

(19) “Natural Supports” or “Natural Support System” means the resources available to an individual from their relatives, friends, significant others, neighbors, roommates and the community. Services provided by natural supports are resources not paid for by the Department. Exceptions are permitted in the Independent Choices Program defined in OAR chapter 411, division 036, at service re-assessments only.

(20) “Service Priority Level (SPL)” means the order in which Department and AAA staff identifies individuals eligible for a Nursing Facility, Oregon Project Independence, or home and community-based waivered or state plan services. A lower service priority level number indicates greater or more severe functional impairment. The number is synonymous with the service priority level.

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

(22) “Substance Abuse Related Disorders” means disorders related to the taking of a drug or toxin of abuse (including alcohol) and the side effects of medication. These disorders include substance dependency and substance abuse, alcohol dependency and alcohol abuse, substance induced disorders and alcohol induced disorders as defined in the Diagnostic and Statistical Manual, published in 1994 by the American Psychiatric Association. Substance abuse related disorders are not considered physical disabilities. Dementia or other long term physical or health impairments resulting from substance abuse may be considered physical disabilities.

(23) “Without Supports” means lacking the assistance of another person, a care setting and its staff or an alternative service resource defined in OAR 411-015-0005.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.060, 410.070 & 414.065

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

411-015-0008

Assessments

(1) ASSESSMENT. The assessment process will identify the individual’s ability to perform activities of daily living, instrumental activities of daily living (self-management tasks), and determine the individual’s ability to address health and safety concerns and his or her preferences to meet needs. The case manager will conduct this assessment in accordance with standards of practices established by the Department.

(a) The case manager must assess the individual’s abilities regardless of architectural modifications, assistive devices or services provided by care facilities, alternative service resources or other community providers.

(b) The time frame reference for evaluation is how the individual functioned during the thirty days prior to the assessment date, with consideration of how the person is likely to function in the thirty days following the assessment date:

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

(B) The time frame for assessing the Cognition/Behavior Activity of Daily Living may be extended as noted in OAR 411-015-0006.

(c) The assessment will be conducted by a case manager or other qualified Department or Area Agency on Aging representative no less than annually, with a standardized assessment tool approved by the Department.

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

(e) Effective July 1, 2006, individuals will be sent a notice of the need for re-assessment a minimum of fourteen (14) days in advance. Re-assessments based on a change in the individual’s condition or needs are exempt from the 14-day advance notice requirement.

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

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

(2) SERVICE PLAN:

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

(b) The case manager has responsibility for determining eligibility for specific services, presenting alternatives to the individual, identifying risks and assessing the cost effectiveness of the plan. The case manager will monitor the plan and make adjustments as needed based on the service needs of the individual.

(c) The eligible individual, or their representative, has the responsibility to choose and assist in developing less costly service alternatives.

(d) The Service Plan payment will be considered full payment for the services rendered under Title XIX. Under no circumstances may any provider demand or receive additional payment for Title XIX-covered services from the eligible individual or any other source.

(3) The applicant or their representative has the responsibility to participate in and provide information necessary to complete assessments and re-assessments within the time frame requested by the Department. Failure to participate in or provide requested assessment or re-assessment information within the application time frame will result in a denial of service eligibility for a Nursing Facility or home and community-based waivered or state plan services. The Department may allow additional time if there are circumstances beyond the control of the individual or the individual’s representative which prevent timely participation or timely submission of information.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-015-0015

Current Limitations

The Department has the authority to establish by Administrative Rule service eligibility within which to manage its limited resources. The Department is currently able to serve:

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

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

(3) Individuals needing Risk Intervention Services in areas designated to provide such services. Individuals with the lowest service priority level number under OAR 411-015-0010 will be served first.

(4) The following persons:

(a) Individuals sixty-five years of age or older determined eligible for Developmental Disability services or having a primary diagnosis of a mental or emotional disorder are eligible for nursing facility or home and community-based waivered or state plan services if they meet sections (1), (2), or (3) of this rule and are not in need of specialized mental health treatment services or other specialized Department residential program intervention as identified through the PASRR process defined in OAR 411-070-0043 or mental health assessment process.

(b) Individuals under sixty-five years of age determined eligible for developmental disability services or having a primary diagnosis of a mental or emotional disorder are not eligible for Department nursing facility services unless determined appropriate through the PASRR process defined in OAR 411-070-0043.

(c) Individuals under sixty-five years of age determined to be eligible for developmental disabilities services are not eligible for home and community-based waivered or state plan services administered by the Department’s Aging and People with Disabilities Division. Eligibility for home and community-based waivered or state plan services for individuals with intellectual or developmental disabilities is determined by the Department’s Office of Developmental Disabilities or designee.

(d) Individuals under sixty-five years of age who have a diagnosis of mental or emotional disorder or substance abuse related disorder are not eligible for home and community-based waivered or state plan services unless:

(A) They have a medical non-psychiatric diagnosis or physical disability; and

(B) Their need for services is based on their medical non-psychiatric diagnosis or physical disability; and

(C) They provide supporting documentation demonstrating that their need for services is based on the medical, non-psychiatric diagnosis or physical disability. The Department will authorize documentation sources through approved and published policy transmittals.

(5) Home and community-based waivered or state plan services are not intended to replace the resources available to an individual from their natural support system. Natural supports are voluntary in nature and must not be assumed. Natural supports must have the skills and abilities to perform the services needed by an individual. Individuals whose service needs are met by their alternative service resources are not eligible for home and community-based waivered or state plan services. Services may be authorized only when the alternative service resources are unavailable, insufficient or inadequate to meet the needs of the individual.

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

Stat. Auth.: ORS 410.070 & 411.070

Stats. Implemented: ORS 410.070

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

411-015-0100

Eligibility for Nursing Facility or Home and Community-Based Waivered or State Plan Services

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

(a) Be age 18 or older; and

(b) Be eligible for OSIPM; and

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

(d) To be eligible to have services paid through the State Spousal Pay Program, the person must meet requirements as listed above in subsection (a), (b), & (c), and in addition, the requirements in OAR 411-030-0080.

(2) Individuals who are age 17 or younger and reside in a nursing facility are eligible for nursing facility services only. They are not eligible to receive home and community-based waivered or state plan services.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.060, 410.070 & 414.065

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

411-030-0070

Maximum Hours of Service

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

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

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

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

(2) MAXIMUM MONTHLY HOURS FOR ADL.

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

(A) Eating:

(i) Minimal assistance, 5 hours;

(ii) Substantial assistance, 20 hours;

(iii) Full assistance, 30 hours;

(B) Dressing/Grooming:

(i) Minimal assistance, 5 hours;

(ii) Substantial assistance, 15 hours;

(iii) Full assistance, 20 hours;

(C) Bathing and Personal Hygiene:

(i) Minimal assistance, 10 hours;

(ii) Substantial assistance, 15 hours;

(iii) Full assistance, 25 hours;

(D) Mobility:

(i) Minimal assistance, 10 hours;

(ii) Substantial assistance, 15 hours;

(iii) Full assistance, 25 hours;

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

(i) Minimal assistance, 10 hours;

(ii) Substantial assistance, 20 hours;

(iii) Full assistance, 25 hours;

(F) Cognition/Behavior:

(i) Minimal assistance, 5 hours;

(ii) Substantial assistance, 10 hours;

(iii) Full assistance, 20 hours.

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

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

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

(3) MAXIMUM MONTHLY HOURS FOR IADL.

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

(A) Medication and Oxygen Management:

(i) Minimal assistance, 2 hours;

(ii) Substantial assistance, 4 hours;

(iii) Full assistance, 6 hours;

(B) Transportation or Escort Assistance:

(i) Minimal assistance, 2 hours;

(ii) Substantial assistance, 3 hours;

(iii) Full assistance, 5 hours;

(C) Meal Preparation:

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

(I) Breakfast, 4 hours;

(II) Lunch, 4 hours;

(III) Supper, 8 hours.

(ii) Minimal assistance effective January 1, 2012:

(I) Breakfast, 3 hours;

(II) Lunch, 3 hours;

(III) Supper, 7 hours.

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

(I) Breakfast, 8 hours;

(II) Lunch, 8 hours;

(III) Supper, 16 hours.

(iv) Substantial assistance effective January 1, 2012:

(I) Breakfast, 7 hours;

(II) Lunch, 7 hours;

(III) Supper, 14 hours.

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

(I) Breakfast, 12 hours;

(II) Lunch, 12 hours;

(III) Supper, 24 hours.

(vi) Full assistance effective January 1, 2012:

(I) Breakfast, 10 hours;

(II) Lunch, 10 hours;

(III) Supper, 21 hours.

(D) Shopping:

(i) Minimal assistance, 2 hours;

(ii) Substantial assistance, 4 hours;

(iii) Full assistance, 6 hours;

(E) Housecleaning:

(i) Minimal assistance:

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

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

(ii) Substantial assistance:

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

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

(iii) Full assistance:

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

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

(b) Rates shall be paid in accordance with the rate schedule. When a live-in employee is present, these hours may be paid at less than minimum wage according to the Fair Labor Standards Act. The Independent Choices Program cash benefit is based on the hours authorized for IADL tasks paid at the hourly rates. Participants of the Independent Choices Program may determine their own employee provider pay rates.

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

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

(4) TWENTY-FOUR HOUR AVAILABILITY.

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

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

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

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

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

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

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

(i) Full assist in cognition; or

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

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

(i) Assist in transfer; and

(ii) Assist in ambulation; and

(iii) Full assist in cognition; or

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

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

(i) The authorized provider cannot get at least five continuous hours of sleep in an eight hour period during a 24-hour work period; and

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

(I) Full assist in transfer; and

(II) Assist in mobility; or

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

(IV) Full assist in cognition.

(c) Service plans that include full-time live-in homecare workers or Independent Choices Program employee providers must include a minimum of 60 hours per month of 24-hour availability. When a live-in homecare worker or Independent Choices Program employee provider is employed less than full time, the hours must be pro-rated. Full-time means the live-in homecare worker is providing services to the consumer-employer seven days per week throughout a calendar month.

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

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

(5) Under no circumstances shall any provider receive payment from the Department for more than the total amount authorized by the Department on the service plan authorization form. All service payments must be prior-authorized by the Department/AAA.

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

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

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

(9) EXCEPTIONS TO MAXIMUM HOURS OF SERVICE.

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

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

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

411-030-0100

Independent Choices Program

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

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

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

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

(c) As vacancies occur, eligible individuals on the waiting list shall be offered the ICP in order according to their place on the waiting list.

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

(3) INITIAL ELIGIBILITY REQUIREMENTS.

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

(A) Meet all program requirements of the In-Home Services Program in these rules;

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

(C) Sign the ICP participation agreement;

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

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

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

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

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

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

(c) If the participant is unable to manage ICP cash payment accounting, tax, or payroll responsibilities and does not have a representative, the participant must arrange and purchase the ongoing services of a fiscal intermediary, such as an accountant, bookkeeper, or equivalent financial services. Participants, or their representative, who have met the eligibility criteria in section (3)(b) of this rule, may also choose to use a fiscal intermediary. The participant is responsible for any fees or payment to the fiscal intermediary and may allocate the fees or payment from their discretionary funds or other non ICP funds.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(6) SELECTION OF EMPLOYEE PROVIDERS.

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

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

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

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

(e) Participant’s relatives may be employed as employee providers.

(7) CASH BENEFIT.

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

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

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

(A) Community health supports;

(B) Contracted community transportation;

(C) Home delivered meals; and

(D) Emergency response systems.

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

(e) The cash benefit shall be directly deposited into the participant’s ICP designated checking account.

(8) SERVICE BUDGET.

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

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

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

(9) CONTINGENCY FUND.

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

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

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

(10) DISCRETIONARY FUND.

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

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

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

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

(11) ISSUING BENEFITS.

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

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

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

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

(12) CASE MANAGER RESPONSIBILITIES.

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

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

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

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

Stat. Auth.: ORS 410.090

Stats. Implemented: ORS 410.070

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

411-040-0000

Home Delivered Meals

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

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

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

(4) The Department’s unit staff are responsible for establishing, authorizing, purchasing, and monitoring a plan for home-delivered meals.

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

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

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

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

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

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

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

Stat. Auth.: ORS 410.070, 411.060 & 411.070

Stats. Implemented: ORS 410.070

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

411-045-0010

Definitions

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

(2) Advance Directive — A process that allows a person to have another person make health care decisions when he or she cannot make the decision and tells a doctor what life sustaining measures to take if he or she is near death.

(3) Aging and People with Disabilities Division (APD) — A division within the Department that is the designated State Unit on Aging (SUA) that also administers Medicaid’s long-term care program. APD is responsible for nursing facility and home and community-based waivered or state plan services for eligible elderly and disabled individuals. APD includes local offices and the AAAs who have contracted to perform specific functions of the licensing and enrollment processes. The term “Aging and People with Disabilities Division” is synonymous with “Seniors and People with Disabilities Division (SPD)”.

(4) Alternate Service Settings — Residential 24 hour care facilities that include, but are not limited to, Residential Care Facilities, Assisted Living Facilities, Adult Foster Homes, and Nursing Facilities.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(18) Department — For the purposes of this rule, Department will indicate the programs that contract with the PACE program: Aging and People with Disabilities (APD) and the Oregon Health Authority, Addictions and Mental Health Division (AMH) and Division of Medical Assistance Programs (DMAP).

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

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

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

(22) Enrollment — A process for the PACE program. A PACE participant’s enrollment with a PACE program indicates that the PACE participant must obtain from, or be referred by, the PACE program for all covered services.

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

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

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

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

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

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

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

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

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

(g) Dietician and Pharmacist as indicated; and

(h) In addition to the positions listed above in paragraphs (25)(a)–(g), the IDT must include the PACE Center Manager, the Home Care Coordinator, Personal Care Attendant and the Driver or Transportation Coordinator.

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

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

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

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

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

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

(28) Medicare — The federal health insurance program for the aged and disabled administered by the Health Care Financing Administration under Title XVIII of the Social Security Act.

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

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

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

(32) Addictions and Mental Health Division (AMH) — The division within the Oregon Health Authority responsible for the administration of the state’s mental health and addiction services programs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Has been received within the time limitations prescribed in these rules; and

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

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

Stat. Auth.: ORS 410.090

Stats. Implemented: ORS 410.070

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

411-045-0050

Enrollment

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

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

(b) Be 55 years of age or older;

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

(d) Be determined by the local Department/AAA agency to need the level of care required under Oregon’s State Medicaid Plan for coverage of nursing facility services in accordance with OAR 411-015-0000–411-015-0100 Service Priority, Current Limitations and Eligibility for Nursing Facility or home and community-based waivered or state plan services;

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

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

(2) The criteria for determining that an individual cannot live safely in the community and thereby may be denied enrollment is as follows:

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

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

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

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

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

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

(4) Enrollment/Screening and Intake:

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

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

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

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

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

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

Stat. Auth.: ORS 410.090

Stats. Implemented: ORS 410.070

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

411-048-0150

Purpose

(1) The rules in OAR chapter 411, division 048 establish standards and procedures for Medicaid enrolled providers who provide long term care community nursing services. Long term care community nursing services provide ongoing registered nurse (RN) services to eligible individuals who are receiving Medicaid funded home and community-based waivered or state plan services in a home based or foster home setting.

(2) Long term care community nursing services provide:

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

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

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

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

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-048-0160

Definitions

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

(2) “Abuse” means:

(a) Abuse of a child:

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

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

(b) Abuse of an adult or older adult:

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

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

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

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

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

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

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

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

(8) “CDDP” means the Community Developmental Disability Program responsible for the 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.

(9) “Delegation” means, for the purpose of these rules, the standards and processes described in OAR chapter 851, division 047 (Standards for Community Based Care Registered Nurse Delegation).

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

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

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

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

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

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

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

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

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

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

(17) “Home” means a non-licensed setting where an individual is receiving home and community-based waivered or state plan services.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(29) “These Rules” mean the rules in OAR chapter 411, division 048.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-048-0170

Eligibility and Limitations

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

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

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

(A) Long term supports for children with developmental disabilities as described in OAR chapter 411, division 308;

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

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

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

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

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

(G) 1915C Nursing Facility Waiver; or

(H) State Plan K Community First Choice;

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

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

(2) LIMITATIONS.

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

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

(B) An individual enrolled in a brokerage, Independent Choices, or other support services not funded by home and community-based waivered or state plan services; or

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

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

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

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

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

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-065-0000

Purpose

The purpose of these rules is to establish standards for specialized living service contracts. The standards provide an enhanced continuum of quality care in a home-like environment for specific target groups who are eligible for a live-in attendant, but because of special needs, cannot live independently or be served in other community-based care facilities and who would otherwise require nursing facility care. Services provided to residents in the Specialized Living Services Program are those covered in Oregon’s Home and Community-based Waiver or State Plan, which may include specific services required because of physical, intellectual or behavioral limitations in meeting self-care needs.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-070-0033

Post Hospital Extended Care Benefit

(1) The post hospital extended care benefit (OAR 410-120-1210(3)(a)(F)) is an Oregon Health Plan benefit that consists of a stay of up to 20 days in a nursing facility to allow discharge from hospitals.

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

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

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

(b) Not be Medicare eligible;

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

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

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

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

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

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

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

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

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

(5) Individuals eligible for the 20 day post-hospital extended care benefit are not eligible for long term care nursing facility or home and community-based waivered or state plan services unless the individual meets the eligibility criteria in OAR 411-015-0100 or OAR 411-320-0020(28).

Stat. Auth.: ORS 409, 410.070 & 414.065

Stats. Implemented: 410.070 & 414.065

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


Rule Caption: Aging and People with Disabilities — Case Management Services

Adm. Order No.: SPD 15-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

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

Subject: The Department of Human Services (Department) is immediately adopting rules in OAR chapter 411, division 028 to ensure case management services support the independence, empowerment, dignity, and human potential of a Medicaid service recipient with the purpose of helping the service recipient reside in his or her own home or in a community-based setting.

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

411-028-0000

Purpose

(1) The rules in OAR chapter 411, division 028 ensure Title XIX waivered case management services support the independence, empowerment, dignity, and human potential of a Medicaid service recipient with the purpose of helping the Medicaid service recipient reside in his or her own home or in a community-based setting.

(2) Title XIX waivered case management services are a component of a Medicaid service recipient’s comprehensive, person-centered plan for services.

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-028-0010

Definitions

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

(1) “Case Management” means the functions described in OAR 411-028-0020 performed by a case manager, services coordinator, or manager. Case management includes determining service eligibility, developing a plan of authorized services, and monitoring the effectiveness of services and supports.

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

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

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

(5) “Designee” means an organization that the Department contracts with or has an interagency agreement with for the purposes of providing case management services to individuals eligible for home and community-based waivered or state plan services.

(6) “Home and Community-Based Services” mean services approved for Oregon by the Centers for Medicare and Medicaid Services for older adults and individuals with physical disabilities in accordance with Sections 1915 (k), 1915 (j) and 1115 of Title XIX of the Social Security Act.

(7) “Individual” means a person applying or determined eligible for home and community-based waivered or state plan services.

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

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-028-0020

Scope of Case Management Services

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

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

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

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

(d) Risk assessment and monitoring:

(A) Identifying and documenting risks;

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

(C) Developing and implementing a Risk Mitigation Plan;

(D) Monitoring risks over time; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-028-0030

Eligibility for Case Management Services

To be eligible for waivered case management services an individual must:

(1) Be 18 years of age or older;

(2) Be eligible for OSIP-M; and

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

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-028-0040

Qualified Case Manager

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

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

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

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

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

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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

411-028-0050

Frequency of Case Management Services

A case manager who meets the requirements in OAR 411-028-0040 must provide the following case management services to an eligible individual receiving home and community-based waivered or state plan services no less than one time every calendar month:

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

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

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

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


Rule Caption: Medicaid In-Home Services — Home and Community-Based Waivered and State Plan Services

Adm. Order No.: SPD 16-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 11-19-13

Notice Publication Date:

Rules Amended: 411-030-0020

Rules Suspended: 411-030-0020(T)

Subject: The Department of Human Services (Department) is immediately amending OAR 411-030-0020 to be in compliance with new Medicaid authority to provide both home and community-based waivered and state plan services.

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

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 ORS 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 home and community-based waivered or state plan 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 home and community-based waivered or state plan 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; SPD 16-2013(Temp), f. & cert. ef. 7-1-13 thru 11-19-13


Rule Caption: Pediatric Nursing Facilities

Adm. Order No.: SPD 17-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

Rules Amended: 411-070-0452

Subject: The Department of Human Services (Department) is immediately amending OAR 411-070-0452 to update the rebase relationship percentage that determines the rate for pediatric nursing facilities. The rebase relationship percentage is being updated on July 1, 2013 to 93% to more accurately reflect the cost of services for pediatric residents.

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 of even numbered years for biennial rebasing.

(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) On July 1 of each non-rebasing year after 1999, the pediatric rate is increased by the annual change in the DRI Index, as measured in the previous 4th quarter. Beginning in 2001 rate rebasing occurs in alternate years. Rebasing of pediatric nursing facility rates is calculated using the method described in subsection (1)(b)(B) of this section.

(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 must 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 & 2011 OL Ch. 630

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


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

Adm. Order No.: SPD 18-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

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

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

   Immediately amend the definition of fiscal improprieties to protect a homecare worker employed by a relative from an allegation of fiscal improprieties; and

   Comply with new Medicaid authority to provide both home and community-based waivered and state plan services.

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

411-031-0020

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 031:

(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 a consumer for continued well-being, which are essential for the consumer’s health and safety. Activities include eating, dressing/grooming, bathing/personal hygiene, mobility (ambulation and transfer), elimination (toileting, bowel, and bladder management), and cognition/behavior as defined in OAR 411-015-0006.

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

(4) “Adult Protective Services” mean the services described in OAR chapter 411, division 020, OAR chapter 407, division 045, and OAR chapter 943, division 045 provided in response to the need for protection from harm or neglect to a consumer 18 years of age or older regardless of income.

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

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

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

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

(9) “CEP” means “Consumer-Employed Provider Program” as defined in this rule.

(10) “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: Rules Coordinator, 500 Summer Street NE, E-10, Salem, Oregon 97301.

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

(12) “Consumer” or “Consumer-Employer” means an older adult or an individual with a physical disability eligible for in-home services.

(13) “Consumer-Employed Provider Program (CEP)” refers to the program wherein a provider is directly employed by a 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) “Department” means the Department of Human Services.

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

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

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

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

(17) “HCW” means “Homecare Worker” as defined in this rule.

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

(a) The term homecare worker includes:

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

(B) A consumer-employed provider that provides state plan personal care services to older adults and individuals with physical disabilities; and

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

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

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

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

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

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

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

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

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

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

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

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

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

(30) “Provider” means an individual who actually renders in-home services.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(42) “Violation of Protective Service and Abuse Rules” means based on a substantiated allegation of abuse, a homecare worker was found to have violated the protective service and abuse rules described in OAR chapter 411, division 020, OAR chapter 407, division 045, or OAR chapter 943, division 045.

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

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

411-031-0040

Consumer-Employed Provider Program

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

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

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

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

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

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

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

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

(8) PROVIDER ENROLLMENT.

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

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

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

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

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

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

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

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

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

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

(B) The applicant has committed fiscal improprieties;

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

(D) The applicant has an unacceptable background check;

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

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

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

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

(c) BACKGROUND CHECKS.

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

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

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

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

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

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

(d) RESTRICTED PROVIDER ENROLLMENT.

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

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

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

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

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

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

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

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

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

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

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

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

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

(9) PAID LEAVE.

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

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

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

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

(D) CASH OUT OF PAID LEAVE.

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

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

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

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

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

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

(b) HOURLY HOMECARE WORKERS.

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

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

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

(D) UTILIZATION OF HOURLY PAID LEAVE.

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

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

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

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

(G) CASH OUT OF PAID LEAVE.

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

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

(10) DEPARTMENT FISCAL AND ACCOUNTABILITY RESPONSIBILITY.

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

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

(c) ANCILLARY CONTRIBUTIONS.

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

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

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

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

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

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

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

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

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

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

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

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

(e) STATE AND FEDERAL INCOME TAX WITHHOLDING.

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

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

(11) REIMBURSEMENT FOR SERVICE PLAN RELATED TRANSPORTATION.

(a) A homecare worker may be reimbursed at $0.485 cents per mile when the homecare worker uses his or her own personal motor vehicle for service plan related transportation, if prior authorized by a consumer’s case manager. If unscheduled transportation needs arise during non-office hours, the homecare worker must provide an explanation as to the need for the transportation and the transportation must be approved by the consumer’s case manager prior to reimbursement.

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

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

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

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

(a) Overpayments are categorized as follows:

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

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

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

(b) Overpayments are recovered as follows:

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

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

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

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090

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

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


Rule Caption: State Plan Personal Care Services

Adm. Order No.: SPD 19-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

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

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

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

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

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

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

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

411-034-0000

Purpose

The rules in OAR chapter 411, division 034 ensure State Plan personal care services support and augment independence, empowerment, dignity, and human potential through the provision of flexible, efficient, and suitable services to individuals eligible for state plan services. State Plan personal care services are intended to supplement an individual’s own personal abilities and resources.

Stat. Auth.: ORS 409.010, 410.020 & 410.070

Stats. Implemented: ORS 410.020, 410.070 & 410.710

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

411-034-0010

Definitions

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

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

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

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

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

(5) “Background Check” means a criminal records check and abuse check as defined in OAR 407-007-0210 (Criminal Records and Abuse Check for Providers).

(6) “Case Management” means the functions performed by a case manager as described in OAR 411-028-0040, the functions performed by a services coordinator as described in OAR 411-320-0090, or the functions performed by a personal agent as described in OAR chapter 411, division 340. Case management includes determining service eligibility, developing a plan of authorized services, and monitoring the effectiveness of services and supports.

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

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

(9) “Community Developmental Disability Program (CDDP)” means the Department’s designee that is responsible for the planning and delivery of services for individuals with intellectual or 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.

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

(11) “Cost Effective” means being responsible and accountable with Department resources by offering choices that may or may not be paid for by the Department. Cost effective choices may include other programs available from the Department, the utilization of assistive devices or assistive supports, natural supports, architectural modifications, or alternative service resources (defined in OAR 411-015-0005).

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

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

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

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

(16) “Division” means the:

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

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

(c) Area Agencies on Aging (AAA);

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

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

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

(g) Support Services Brokerage.

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

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

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

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

(19) “Homecare Worker” means a provider, as described in OAR 411-031-0040, that is directly employed by an eligible individual to provide State Plan personal care services to older adults and individuals with physical disabilities. The term homecare worker does not include a personal support worker enrolled through the Office of Developmental Disability Services or the Addictions and Mental Health Division.

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

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

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

(23) “Legal Representative” means:

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

(b) For an adult, a spouse, a family member who has legal custody or legal guardianship according to ORS 125.005, 125.300, 125.315, and 125.310, an attorney at law who has been retained by or for an individual, or a person or agency authorized by the courts to make decisions about services for an individual.

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

(25) “Natural Supports” or “Natural Support System” means the resources available to an individual from the individual’s community and the individual’s relatives, friends, significant others, neighbors, and roommates that possess the skills and abilities to provide services. Services provided by natural supports are voluntary and not paid for by the Department.

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

(27) “Personal Agent” means a person who works directly with an individual and the individual’s family to provide or arrange for services and supports, is a case manager for the provision of case management services, meets the qualifications set forth in OAR 411-340-0150, and is a trained employee of a support services brokerage or a person who has been engaged under contract to the brokerage to allow the brokerage to meet responsibilities in geographic areas where personal agent resources are severely limited.

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

(29) “Personal Support Worker” means:

(a) A provider:

(A) Who is hired by an individual with an intellectual or developmental disability or the individual’s representative;

(B) Who receives money from the Department for the purpose of providing services to an individual with an intellectual or developmental disability in the individual’s home or community; and

(C) Whose compensation is provided in whole or in part through the Department or Community Developmental Disability Program.

(b) This definition of personal support worker is intended to reflect the term as defined in ORS 410.600.

(30) “Provider” or “Qualified Provider” means a homecare worker or personal support worker that meets the qualifications in OAR 411-034-0050 that performs State Plan personal care services.

(31) “Provider Enrollment” means the homecare worker’s or personal support worker’s authorization to work as a provider employed by an eligible individual, for the purpose of receiving payment for services authorized by the Department. Provider enrollment includes the issuance of a Medicaid provider number.

(32) “Provider Number” means an identifying number issued to each homecare worker or personal support worker who is enrolled as a provider through the Department.

(33) “Representative” means:

(a) A person appointed by an individual to participate in service planning on the individual’s behalf that is either the individual’s guardian or natural support with longstanding involvement in assuring the individual’s health, safety and welfare; and

(b) For the purpose of obtaining State Plan personal care services through a homecare or personal support worker, the person selected by an individual or the individual’s legal representative to act on the individual’s behalf to provide the employer responsibilities described in OAR 411-034-0040.

(34) “Respite” means services for the relief of a person normally providing supports to an individual unable to care for him or herself.

(35) “Service Need” means the assistance with personal care and supportive services needed by an individual served by the Department under Title XIX.

(36) “Service Plan” or “Service Authorization” means an individual’s written plan for services that identifies:

(a) The individual’s qualified provider who shall deliver the authorized services;

(b) The date when the provision of services begins; and

(c) The maximum monthly hours of personal care and supportive services authorized by the Department or the Department’s designee.

(37) “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, monitor an individual’s plan for services, and to act as a proponent for individuals with intellectual or developmental disabilities.

(38) “State Plan Personal Care Services” means the assistance with personal care and supportive services described in OAR 411-034-0020 provided to an individual by a homecare worker or personal support worker. The assistance may include cueing, monitoring, reassurance, redirection, set-up, hands-on, or standby assistance as defined in OAR 411-015-0005. The assistance may also require verbal reminding to complete one of the personal care tasks described in OAR 411-034-0020.

(39) “Sub-Acute Care Facility” means a care center or facility that provides short-term rehabilitation and complex medical services to an individual with a condition that does not require acute hospital care but prevents the individual from being discharged to his or her home.

(40) “Support Services Brokerage (Brokerage)” means an entity, or distinct operating unit within an existing entity, that uses the principles of self-determination to perform the functions listed in OAR 411-340-0120 associated with planning and implementation of support services for individuals with intellectual or developmental disabilities.

(41) “These Rules” mean the rules in OAR chapter 411, division 034.

Stat. Auth.: ORS 410.020 & 410.070

Stats. Implemented: ORS 410.020, 410.070, 410.710 & 411.675

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-034-0020

State Plan Personal Care Services

(1) State Plan personal care services are essential services that enable an individual to move into or remain in his or her own home. State Plan personal care services are provided in accordance with an individual’s authorized plan for services by a homecare or personal support worker meeting the requirements in OAR 411-034-0050.

(a) To receive State Plan personal care services, an individual must demonstrate the need for assistance with personal care and supportive services and meet the eligibility criteria described in OAR 411-034-0030.

(b) State Plan personal care services are provided directly to an eligible individual and are not meant to provide respite or other services to an individual’s natural support system. State Plan personal care services may not be implemented for the purpose of benefiting an individual’s family members or the individual’s household in general.

(c) State Plan personal care services are limited to 20 hours per month per eligible individual.

(d) To meet an extraordinary personal care or supportive services need, an individual may request an exception to the 20 hour per month limitation. An exception must be requested through the central office of the Division serving the individual. The Division has up to 45 days upon receipt of the exception request to determine whether an individual’s assessed personal care and supportive services needs warrant exceeding the 20 hour per month limitation.

(2) Personal care services include:

(a) Basic personal hygiene — providing or assisting an individual with such needs as bathing (tub, bed bath, shower), washing hair, grooming, shaving, nail care, foot care, dressing, skin care, mouth care, and oral hygiene;

(b) Toileting, bowel, or bladder care — assisting to and from bathroom, on and off toilet, commode, bedpan, urinal, or other assistive device used for toileting, changing incontinence supplies, following a toileting schedule, cleansing an individual or adjusting clothing related to toileting, emptying a catheter drainage bag or assistive device, ostomy care, and bowel care;

(c) Mobility, transfers, or repositioning — assisting an individual with ambulation or transfers with or without assistive devices, turning an individual or adjusting padding for physical comfort or pressure relief, and encouraging or assisting with range-of-motion exercises;

(d) Nutrition — preparing meals and special diets, assisting with adequate fluid intake or adequate nutrition, assisting with food intake (feeding), monitoring to prevent choking or aspiration, assisting with special utensils, cutting food, and placing food, dishes, and utensils within reach for eating;

(e) Medication or oxygen management — assisting with ordering, organizing, and administering oxygen or prescribed medications (including pills, drops, ointments, creams, injections, inhalers, and suppositories), monitoring for choking while taking medications, assisting with the administration of oxygen, maintaining clean oxygen equipment, and monitoring for adequate oxygen supply;

(f) Delegated nursing tasks as defined in OAR 411-034-0010.

(3) When any of the services listed in section (2) of this rule are essential to the health, safety, and welfare of an individual and the individual is receiving a personal care paid by the Department, the following supportive services may also be provided:

(a) Housekeeping tasks necessary to maintain the eligible individual in a healthy and safe environment, including cleaning surfaces and floors, making the individual’s bed, cleaning dishes, taking out the garbage, dusting, and gathering and washing soiled clothing and linens. Only the housekeeping activities related to the eligible individual’s needs may be considered in housekeeping;

(b) Arranging for necessary medical appointments including help scheduling appointments and arranging medical transportation services (described in OAR chapter 410, division 136) and assistance with mobility and transfers or cognition in getting to and from appointments or to an office within a medical clinic or center;

(c) Observing the individual’s health status and reporting any significant changes to physicians, health care professionals, or other appropriate persons;

(d) First aid and handling of emergencies, including responding to medical incidents related to conditions such as seizures, spasms, or uncontrollable movements where assistance is needed by another person and responding to an individual’s call for help during an emergent situation or for unscheduled needs requiring immediate response; and

(e) Cognitive assistance or emotional support provided to an individual by another person due to confusion, dementia, behavioral symptoms, or mental or emotional disorders. Cognitive assistance or emotional support includes helping the individual cope with change and assisting the individual with decision-making, reassurance, orientation, memory, or other cognitive symptoms.

(4) Payment may not be made for any of the following excluded services:

(a) Shopping;

(b) Transportation;

(c) Money management;

(d) Mileage reimbursement;

(e) Social companionship;

(f) Day care, adult day services (described in OAR chapter 411, division 066), respite, or baby-sitting services;

(g) Home delivered meals (described in OAR chapter 411, division 040) funded by Medicaid;

(h) Caring, grooming, or feeding pets or other animals; or

(i) Yard work, gardening, or home repair.

Stat. Auth.: ORS 409.010, 410.020, 410.070 & 410.608

Stats. Implemented: ORS 409.010, 410.020, 410.070 & 410.608

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. & cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-034-0030

Eligibility for State Plan Personal Care Services

(1) To be eligible for State Plan personal care services, an individual must:

(a) Require assistance as defined in OAR 411-034-0010 with one or more of the personal care tasks described in OAR 411-034-0020(2); and

(b) Be a current service recipient of at least one of the following programs defined in OAR 461-101-0010:

(A) EXT — Extended Medical Assistance;

(B) MAA — Medical Assistance Assumed;

(C) MAF — Medical Assistance to Families;

(D) OHP — Oregon Health Plan;

(E) OSIP-M — Oregon Supplemental Income Program — Medical (OSIPM);

(F) TANF — Temporary Assistance to Needy Families; or

(G) REF — Refugee Assistance.

(2) An individual is not eligible to receive State Plan personal care services if:

(a) The individual is receiving assistance with activities of daily living (as described in OAR 411-015-0006) from a licensed 24-hour residential services program (such as an adult foster home, assisted living facility, group home, or residential care facility);

(b) The individual is in a prison, hospital, sub-acute care facility, nursing facility, or other medical institution;

(c) The individual’s service needs are met through the individual’s natural support system;

(d) The individual receives services under other Medicaid home and community-based waivered services options;

(3) Payment for State Plan personal care services is not intended to replace the resources available to an individual from the individual’s natural support system as defined in OAR 411-034-0010.

(4) State Plan personal care services are not intended to replace routine care commonly needed by an infant or child typically provided by the infant’s or child’s parent.

(5) State Plan personal care services may not be used to replace other governmental services.

(6) The Department, Division or Designee has the authority to close the eligibility and authorization for State Plan personal care services if an individual fails to:

(a) Employ a provider that meets the requirements in OAR 411-034-0050; or

(b) Receive personal care from a qualified provider paid by the Department for 30 continuous calendar days or longer.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 409.010, 410.020, 410.070, 410.608 & 410.710

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. & cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-034-0035

Applying for State Plan Personal Care Services

(1) An individual with an intellectual or developmental disability eligible for or receiving services through the Department’s Office of Developmental Disabilities Services (ODDS) or a community developmental disability program (CDDP) must apply for State Plan personal care services through the local CDDP or the local support services brokerage.

(2) An older adult or an individual with a physical disability eligible for or receiving case management services from the Department’s Aging and People With Disabilities (APD) or Area Agency on Aging (AAA) must apply for State Plan personal care services through the local APD or AAA office.

(3) If an individual is receiving benefits through the Department’s Self-Sufficiency Programs (SSP) and the individual --

(a) Is eligible for or receiving services through ODDS or a CDDP, the individual must apply for State Plan personal care services through the local CDDP or support services brokerage. If the individual is determined eligible for State Plan personal care services, the CDDP or support services brokerage is responsible for a service assessment and any planning and payment authorization.

(b) Is eligible for or receiving case management services through the local APD or AAA office, the individual must apply for State Plan personal care services through the local APD or AAA office. If the individual is determined eligible for State Plan personal care services, the local APD or AAA office is responsible for a service assessment and any planning and payment authorization.

(c) Is eligible for State Plan personal care services as described in OAR 309-016-0690, the individual must apply through a local Community Mental Health Program or agency contracted with the Oregon Health Authority, Addictions and Mental Health Division (AMHD).

(4) Individuals applying for State Plan personal care services that are not eligible for or receiving services through ODDS or APD are referred to the appropriate AMHD office.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 410.020, 410.070, 410.608, 410.710 & 411.116

Hist.: SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-034-0040

Employer-Employee Relationship

(1) EMPLOYER - EMPLOYEE RELATIONSHIP. The relationship between a provider and an eligible individual or the individual’s representative is that of employer and employee.

(2) JOB DESCRIPTION. As an employer, it is the responsibility of an individual or the individual’s representative to create and maintain a job description for a potential provider that is in coordination with the individual’s plan for services.

(3) PROVIDER BENEFITS. The only benefits available to homecare and personal support workers are those negotiated in a collective bargaining agreement and provided in statute. The collective bargaining agreement does not include participation in the Public Employees Retirement System or the Oregon Public Service Retirement Plan. Homecare and personal support workers are not state or Division employees.

(4) EMPLOYER RESPONSIBILITIES. For an individual to be eligible for State Plan personal care services provided by a homecare worker or personal support worker, the individual or the individual’s representative must demonstrate the ability to:

(a) Locate, screen, and hire a provider meeting the requirements in OAR 411-034-0050;

(b) Supervise and train a provider;

(c) Schedule work, leave, and coverage;

(d) Track the hours worked and verify the authorized hours completed by a provider;

(e) Recognize, discuss, and attempt to correct any performance deficiencies with the provider and provide appropriate, progressive, disciplinary action as needed; and

(f) Discharge an unsatisfactory provider.

(5) An eligible individual exercises control as the employer and directs the provider in the provision of the services.

(6) The Department makes payment for State Plan personal care services to the provider on an individual’s behalf. Payment for services is not guaranteed until the Department, Division, or Designee has verified that an individual’s provider meets the qualifications in OAR 411-034-0050.

(7) In order to receive State Plan personal care services from a personal support worker or homecare worker, an individual must be able to:

(a) Meet all of the employer responsibilities described in section (4) of this rule; or

(b) Designate a representative to meet the employer responsibilities described in section (4) of this rule.

(8) TERMINATION OF PROVIDER EMPLOYMENT. Termination and the grounds for termination of employment are determined by an individual or the individual’s representative. An individual has the right to terminate an employment relationship with a provider at any time and for any reason. An individual or the individual’s representative must establish an employment agreement at the time of hire. The employment agreement may include grounds for dismissal, notice of resignation, work scheduling, and absence reporting.

(9) After appropriate intervention, an individual unable to meet the employer responsibilities in section (4) of this rule may be determined ineligible for State Plan personal care services provided by a homecare worker or personal support worker.

(a) Contracted in-home care agency services are offered when an individual is ineligible for State Plan personal care services provided by a homecare worker or personal support worker. Other community-based or nursing facility services are offered to an individual if the individual meets the eligibility criteria for community-based or nursing facility services.

(b) An individual determined ineligible for State Plan personal care services provided by a homecare worker or personal support worker may request State Plan personal care services provided by a homecare worker or personal support worker at the individual’s next annual re-assessment. Improvements in health and cognitive functioning may be factors in demonstrating the individual’s ability to meet the employer responsibilities described in section (4) of this rule. The waiting period may be shortened if an individual is able to demonstrate the ability to meet the employer responsibilities sooner than the individual’s next annual re-assessment.

(10) REPRESENTATIVE

(a) An individual or an individual’s legal representative may designate a representative to act on the individual’s behalf to meet the employer responsibilities in section (4) of this rule. An individual’s legal representative may be designated as the individual’s representative.

(b) The Department, Division, or Designee may deny an individual’s request for a representative if the representative has --

(A) A history of a substantiated abuse of an adult as described in OAR chapter 411, division 020, OAR chapter 407, division 045, or OAR chapter 943, division 045;

(B) A history of founded abuse of a child as described in ORS 419B.005;

(C) Participated in billing excessive or fraudulent charges; or

(D) Failed to meet the employer responsibilities in section (4) of this rule, including previous termination as a result of failing to meet the employer responsibilities in section (4) of this rule.

(c) An individual is given the option to select another representative if the Department, Division, or Designee suspends, terminates, or denies an individual’s request for a representative for the reasons described in subsection (b) of this section.

(d) An individual with a guardian must have a representative for service planning purposes. A guardian may designate themselves the individual’s representative.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 410.020, 410.070, 410.608, 410.710 & 411.590

Hist.: SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-034-0050

Provider Qualifications for Enrollment

(1) A qualified provider is a person who, in the judgment of the Department, Division, or Designee, may demonstrate by background, skills, and abilities the skills, knowledge, and ability to perform, or to learn to perform, the required work.

(a) A qualified provider must maintain a drug-free work place.

(b) A qualified provider must complete the background check process described in OAR 407-007-0200 to 407-007-0370 with an outcome of approved or approved with restrictions. The Department, Division, or the Designee may allow a homecare worker or personal support worker to work on a preliminary basis in accordance with OAR 407-007-0315 if the homecare worker or personal support worker meets the other qualifications described in this rule.

(c) A qualified provider paid by the Department may not be an individual’s legal representative.

(d) A qualified provider must be authorized to work in the United States in accordance with U.S. Department of Homeland Security, Bureau of Citizenship and Immigration rules.

(e) A qualified provider must be 18 years of age or older. A homecare worker enrolled in the Consumer-Employed Provider Program who is at least 16 years of age may be approved for restricted enrollment as a qualified provider, as described in OAR 411-031-0040.

(f) A qualified provider may be employed through a contracted in-home care agency or enrolled as a homecare worker or personal support worker under a provider number. Rates for services are established by the Department.

(g) Providers that provide State Plan personal care services --

(A) Enrolled in the Consumer-Employed Provider Program must meet all of the standards in OAR chapter 411, division 031.

(B) As personal support workers must meet the provider enrollment and termination criteria described in OAR 411-031-0040.

(2) BACKGROUND RECHECKS:

(a) Background rechecks are conducted at least every other year from the date a provider is enrolled. The Department, Division, or Designee may conduct a recheck more frequently based on additional information discovered about a provider, such as possible criminal activity or other allegations.

(b) Prior background check approval for another Department provider type is inadequate to meet background check requirements for homecare or personal support workers.

(c) A homecare or personal support worker’s provider enrollment may be inactivated when the homecare or personal support worker fails to comply with the background recheck process. Once a provider’s enrollment is inactivated, the provider must reapply and meet the standards described in this rule to reactivate his or her provider enrollment.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 409.010, 410.020, 410.070 & 410.608

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-034-0055

Provider Termination

(1) The Department, Division, or Designee may deny or terminate a homecare worker’s provider enrollment and provider number as described in OAR 411-031-0040.

(2) The Department, Division, or Designee may deny or terminate a personal support worker’s provider enrollment and provider number when:

(a) The personal support worker has been appointed the legal guardian of an individual;

(b)The personal support worker’s background check results in a closed case pursuant to OAR 407-007-0325;

(c) The personal support worker lacks the skills, knowledge, or ability to perform, or learn to perform, the required work;

(d) Violates the protective service and abuse rules in OAR chapter 411, division 020, OAR chapter 407, division 045, and OAR chapter 943, division 045;

(e) Commits fiscal improprieties;

(f) Fails to provide the authorized services required by an eligible individual;

(g) Has been repeatedly late in arriving to work or has absences from work not authorized in advance by an individual;

(h) Has been intoxicated by alcohol or drugs while providing authorized services to an individual or while in the individual’s home;

(i) Has manufactured or distributed drugs while providing authorized services to an individual or while in the individual’s home; or

(j) Has been excluded as a provider by the U.S. Department of Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, or any other federal health care programs.

(3) A provider may contest the Department’s, Division’s, or Designee’s decision to terminate the provider’s enrollment and provider number.

(a) A designated Department, Division, or Designee employee reviews a termination and notifies the provider of his or her decision.

(b) A provider may file a request for a hearing with the Department’s, Division’s, or Designee’s local office if all levels of administrative review have been exhausted and the provider continues to dispute the Department’s, Division’s, or Designee’s decision. The local office files the request for a hearing with the Office of Administrative Hearings as described in OAR chapter 137, division 003. The request for a hearing must be filed within 30 calendar days of the date of the written notice from the Department, Division, or Designee.

(c) An Administrative Law Judge (ALJ) with the Office of Administrative Hearings determines whether the Department’s, Division’s, or the Designee’s decision to terminate the provider enrollment number is affirmed or reversed. The ALJ issues a Final Order with the decision to all appropriate parties.

(d) No additional hearing rights have been granted to a provider by this rule other than the right to a hearing on the Department’s, Division’s, or Designee’s decision to terminate provider enrollment.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 409.010, 410.020, 410.070, & 411.675

Hist.: SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. & cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-034-0070

State Plan Personal Care Service Assessment, Authorization, and Monitoring

(1) Case Manager Responsibilities:

(a) Assessment and Re-Assessment:

(A) The Case Manager or designated person will meet in person with the individual to assess the individual’s ability to perform the tasks listed in OAR 411-034-0020.

(B) The individual’s natural supports may participate in the assessment if requested by the individual.

(C) The Case Manager will assess the individual’s service needs, identify the resources meeting any, some or all of the person’s needs, and determine if the individual is currently eligible for State Plan Personal Care or other services.

(D) The Case Manager will meet with the individual in person at least once every 365 days to review the individual’s service needs.

(b) Service Planning:

(A) The Case Manager will prepare a service plan identifying those tasks for which the individual requires assistance and the monthly number of authorized hours of service. The Case Manager will document the natural supports that currently meet some or all of those assistance needs.

(B) The service plan will describe the tasks to be performed by the qualified provider and will authorize the maximum monthly hours that can be reimbursed for those services.

(C) When developing service plans, Case Managers will consider the cost effectiveness of services that adequately meet the individual’s service needs.

(D) Payment for State Plan Personal Care services must be prior authorized by the Case Manager based on the service needs of the individual as documented in the written service plan.

(c) Ongoing Monitoring and Authorization:

(A) When there is an indication that the individual’s Personal Assistance Service needs have changed, the Case Manager will conduct a re-assessment in person with the individual (and any natural supports if requested by the individual).

(B) Following annual re-assessments and those conducted after a change in Personal Assistance Service needs, the Case Manager will review service eligibility, the cost effectiveness of the service plan and whether the services provided are meeting the identified service needs of the individual. The Case Manager may adjust the hours or services in the plan and will authorize a new service plan, if appropriate, based on the individual’s current service needs.

(d) Ongoing Case Management: The Case Manager will provide ongoing coordination of State Plan Personal Care services, including authorizing changes in service providers and service hours, addressing risks, and providing information and referral to the individual when indicated.

(e) Contract Registered Nurse Referral: A Contract Registered Nurse (RN) is a licensed, registered nurse who has been approved under a contract or provider agreement with Seniors and People with Disabilities Division to provide nursing assessment for indicators identified in section (1)(f)(A) of this rule and may provide on-going nursing services as identified in section (1)(f)(B) of this rule to certain individuals served by the Division. Individuals served by the Contract RN Program are primarily seniors and people with physical disabilities.

(f) The Case Manager may refer a Contract RN where available, for nursing assessment and monitoring when it appears the individual needs assistance to manage health care needs and may need delegated nursing tasks, nurse assessment and consultation, teaching, or services requiring RN monitoring.

(A) Indicators of the need for Contract RN assessment and monitoring include:

(i) Complex health problem or multiple diagnoses resulting in the need for assistance with health care coordination;

(ii) Medical instability, as demonstrated by frequent emergency care, physician visits or hospitalizations;

(iii) Behavioral symptoms or changes in behavior or cognition;

(iv) Nutrition, weight, or dehydration issues;

(v) Skin breakdown or risk for skin breakdown;

(vi) Pain issues;

(vii) Medication safety issues or concerns;

(viii) A history of recent, frequent falls; or

(ix) The service provider would benefit from teaching or training about the health support needs of the eligible individual.

(B) Following the completion of an initial nursing assessment in the individual’s home by the Contract RN, the provision of ongoing Contract RN services may be prior-authorized by the Case Manager and may include:

(i) Ongoing health monitoring and teaching for an eligible individual specific to the identified needs;

(ii) Medication education for an eligible individual and provider;

(iii) Instructing or training a provider or natural support to address an eligible individual’s health needs;

(iv) Consultation with other health care professionals serving the eligible individual and advocating for the individual’s medical and restorative needs in a non-facility setting; or

(v) Delegation of nursing tasks defined in OAR 411-034-0010 to a non-family provider.

(2) Contract RN Services:

(a) Assessment: A Contract Registered Nurse that accepts a referral from a Case Manager will assess the individual for health care needs, including the indicators identified in section (1)(d)(A) of this rule, in the individual’s home.

(b) Nursing Plan of Care:

(A) The nursing plan of care developed by the Contract RN must comply with the Oregon State Board of Nursing Oregon Administrative Rules in chapter 851, divisions 045 and 047.

(B) The nursing plan of care developed by the Contract RN must be a written plan and must indicate the interventions needed, the expected outcomes of care and the plan for any follow-up nursing visits based on the individual’s identified needs.

(C) The frequency of review will be based on the individual’s needs, but the plan will be reviewed and approved by the Case Manager at least every 180 days. Any additional Contract RN services suggested by the review must be prior authorized by the Case Manager.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 409.010, 410.020, 410.070, 410.608 & 410.710

Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. & cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-034-0090

Payment Limitations for State Plan Personal Care Services

(1) The number of State Plan personal care service hours authorized for an individual per calendar month is based on projected amounts of time to perform specific personal care and supportive services to the eligible individual. The total of these hours are limited to 20 hours per individual per month. Individuals whose assessed service needs exceed the 20 hour limit may receive approval for additional hours through the exception process described in OAR 411-034-0020. State Plan personal care service hours are authorized in accordance with an individual's service plan and may be scheduled throughout the month to meet the service needs of the individual.

(2) The monthly maximum hours for State Plan personal care services described in section (1) of this rule do not include authorized LTC Community Nurse assessment and monitoring services.

(3) The Department does not guarantee payment for State Plan personal care services until all acceptable provider enrollment standards have been verified and both the employer and provider have been formally notified in writing that payment by the Department is authorized.

(4) In accordance with OAR 410-120-1300, all provider claims for payment must be submitted within 12 months of the date of service.

(5) Payment may not be claimed by a provider until the hours authorized for the payment period have been completed, as directed by an eligible individual or the individual's representative.

Stat. Auth.: ORS 409.050, 410.070
Stats. Implemented: ORS 410.020, 410.070, 410.710, 411.590 & 411.675
Hist.: SSD 2-1996, f. 3-13-96, cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13


Rule Caption: Children’s Intensive In-Home Services for Children with Intellectual or Developmental Disabilities

Adm. Order No.: SPD 20-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

Rules Amended: 411-300-0110, 411-300-0120, 411-300-0130, 411-300-0140, 411-300-0150

Subject: The Department of Human Services (Department) is immediately amending the children’s intensive in-home services rules for children with intellectual or developmental disabilities in OAR chapter 411, division 300 to:

   Reflect new definitions applicable to Community First Choice State Plan services;

   Specify the eligibility requirements to reflect changes made as a result of the Community First Choice State Plan;

   Describe and coincide with the services available in the Community First Choice State Plan and Home and Community-Based Waiver amendments;

   Require a functional needs assessment as part of a child’s service planning process; and

   Clarify the responsibilities of a services coordinator when developing a child’s Plan of Care.

Rules Coordinator: Christina Hartman—(503) 945-6398

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)” mean those personal, functional activities required by a child for continued well-being that are essential for health and safety.

(3) “Background Check” means a criminal records check and abuse check as defined in OAR 407-007-0210 (Criminal Records and Abuse Check for Providers).

(4) “Behavior Consultant” means a contractor with specialized skills who develops a Behavior Support Plan.

(5) “Behavior Support Plan (BSP)” means a 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.

(6) “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 budget for the child.

(7) “Billing Provider” means an organization that enrolls and contracts with the Department to provide services through an employee and bills the Department for the provider’s services.

(8) “Case Management” means an organized service to assist individuals to select, obtain, and utilize resources and services.

(9) “CDDP” means “Community Developmental Disability Program” as defined in this rule.

(10) “Child” means an individual under the age of 18, eligible for developmental disability services, and applying for or accepted for children’s intensive in-home services under the ICF/IDD Behavioral Waiver.

(11) “Chore Services” mean the services described in OAR 411-300-0150 needed to maintain a clean, sanitary, and safe environment in a child’s home. Chore services include heavy household chores such as washing floors, windows, and walls, tacking down loose rugs and tiles, and moving heavy items of furniture for safe access and egress. Chore services may include yard hazard abatement to ensure the outside of the home is safe for the child to traverse and enter and exit the home.

(12) “CIIS” means children’s intensive in-home services.

(13) “Community Developmental Disability Program (CDDP)” means the entity that is responsible for the planning and delivery of services for children with intellectual or 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.

(14) “Community First Choice State 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 411-300-0150 that include nurse delegation and care coordination for a child living in his or her own home. Community nursing services do not include direct nursing care and are not covered by other Medicaid spending authorities

(16) “Cost Effective” means that in the opinion of a services coordinator, a specific service or item of equipment meets a child’s needs and costs less than, or is comparable to, other service or equipment options considered.

(17) “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 Plan of Care.

(18) “Department” means the Department of Human Services (DHS). The term “Department” is synonymous with “Seniors and People with Disabilities Division (Division)”.

(19) “Developmental Disability (DD)” 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.

(20) “Director” means the Director of the Department’s Office of Developmental Disability Services or the Director’s designee.

(21) “Environmental Accessibility Adaptations” mean the physical adaptations as described in OAR 411-300-0150 that are necessary to ensure the health, welfare, and safety of a child in the home, or that enable the child to function with greater independence in the home.

(22) “Exit” means termination or discontinuance of children’s intensive in-home services.

(23) “Family Home” means a child’s primary residence that is not under contract with the Department to provide services as a licensed, endorsed, or certified foster home, residential care facility, assisted living facility, nursing facility, or other residential support program site.

(24) “Family Training” means training and counseling services for the family of a child that increase the family’s capacity to care for, support, and maintain the child in the home as described in OAR 411-300-0150.

(a) Family training includes:

(A) Instruction about treatment regimens and use of equipment specified in the child’s Plan of Care;

(B) Information, education, and training about the child’s intellectual or developmental disability, medical, or behavioral conditions; and

(C) Counseling for the family to relieve the stress associated with caring for a child with an intellectual or developmental disability.

(b) To determine who may receive family training, family means a unit of two or more persons that include at least one child with an intellectual or developmental disability where the primary caregiver is:

(A) Related to the child 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 (e.g. child-rearing, maintenance of the residence, basic living expenses); and

(iii) Joint responsibility for supporting the child and the child is related to one of the partners by blood, marriage, or legal adoption.

(25) “Founded Reports” means the Department’s Children, Adults, and Families Division or Law Enforcement Authority (LEA) determination, based on the evidence, that there is reasonable cause to believe that conduct in violation of the child abuse statutes or rules has occurred and such conduct is attributable to the person alleged to have engaged in the conduct.

(26) “Functional Needs Assessment (FNAT)” means an assessment that documents the level of need, accommodates a child’s participation in service planning, and includes:

(a) Completing a comprehensive and holistic assessment;

(b) Surveying physical, mental, and social functioning; and

(c) Identifying risk factors, choices and preferences, and service needs.

(27) “Home and Community-Based Waivered 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.

(28) “ICF/IDD Behavioral Waiver” means the waiver program granted by the federal Centers for Medicare and Medicaid Services that allows Medicaid funds to be spent on children living in the family home who otherwise would have to be served in an intermediate care facility if the waiver program was not available.

(29) “In-Home Daily Care (IHDC)” means Medicaid state plan funded essential supportive daily care as described in OAR 411-300-0150 delivered by a qualified provider that enables a child to remain in, or return to, the family home.

(30) “Instrumental Activities of Daily Living (IADL)” mean those activities, other than activities of daily living, required to continue independent living.

(31) “Intellectual Disability” has the meaning set forth in OAR 411-320-0020 and described in OAR 411-320-0080.

(32) “Level of Care” means an assessment completed by a services coordinator has determined a child meets institutional level of care. A child meets institutional level of care for an intermediate care facility for individuals with intellectual or developmental disabilities if:

(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.

(33) “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, 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 such information communicated by a person if the communication is privileged under ORS 40.225 to 40.295.

(34) “Natural Supports” or “Natural Support System” means the resources available from relatives, friends, significant others, neighbors, roommates, and the community. Services provided by natural supports are resources that are not paid for by the Department.

(35) “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.

(36) “Nursing Care Plan” means the plan of care 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 parent or service provider.

(37) “OSIP-M” means Oregon Supplemental Income Program-Medical as defined in OAR 461-101-0010. OSIP-M is Oregon Medicaid insurance coverage for those who meet the eligibility criteria as described in OAR chapter 461.

(38) “Parent” means biological parent, adoptive parent, stepparent, or legal guardian.

(39) “Person-Centered Planning” means:

(a) A process, either formal or informal, for gathering and organizing information that helps:

(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 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 needs and preferences.

(40) “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.

(41) “Plan of Care” means the written details of the supports, activities, and resources required for a child to achieve personal outcomes. 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 a Plan of Care. The Plan of Care is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. The Plan of Care includes a Nursing Care Plan when one exists. The Plan of Care reflects whether services are provided through a waiver, state plan, or through a child’s natural supports.

(42) “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.

(43) “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.

(44) “Protective Physical Intervention (PPI)” means any manual physical holding of, or contact with, a child that restricts the child’s freedom of movement. The term “protective physical intervention” is synonymous with “physical restraint”.

(45) “Provider or Performing Provider” means a person who is qualified as described in OAR 411-300-0170 to receive payment from the Department for in-home daily care. Providers work directly with children. Providers may be employees of billing providers, employees of a child’s parent, or independent contractors.

(46) “Respite” means intermittent services as described in OAR 411-300-0150 provided on a periodic basis, but not more than 14 consecutive days, for the relief of, or due to the temporary absence of a child’s primary caregiver.

(47) “Service Budget” means the annual dollar amount allotted for the care of a child based on the behavior criteria. The service budget consists of in-home daily care and waivered services. The monthly service budget is 1/12th of the annual amount if the Plan of Care is developed for less than a full year. The service budget is flexible and may be distributed as necessary to meet the needs of a child as outlined in the child’s Plan of Care.

(48) “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.

(49) “Social Benefit” means a service or financial assistance provided to a family solely intended to assist a child 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 a child’s services coordinator and provided according to the description and financial limits written in a child’s Plan of Care.

(a) Social benefits may not:

(A) Duplicate benefits and services otherwise available to persons regardless of intellectual or developmental disability;

(B) Replace normal parental responsibilities for the child’s services, education, recreation, and general supervision;

(C) Provide financial assistance with food, clothing, shelter, and laundry needs common to people with or without disabilities; or

(D) Replace other governmental or community services available to the child or the child’s family.

(b) Financial assistance provided as a social benefit may not exceed the actual cost of the support provided for the child to be supported in the family home.

(50) “Specialized Diet” means specially prepared food or particular types of food as described in OAR 411-300-0150, ordered by a physician and periodically monitored by a dietician, specific to a child’s medical condition or diagnosis that are needed to sustain a child in the family home. Specialized diets are supplements and are not intended to meet a child’s complete daily nutritional requirements.

(51) “Specialized Equipment and Supplies” mean devices, aids, controls, supplies, or appliances as described in OAR 411-300-0150 that meet applicable standards of manufacture, design, and installation that enable children to increase their abilities to perform activities of daily living or to perceive, control, or communicate with the environment in which they live. Specialized equipment and supplies do not include items not of direct benefit to a child.

(52) “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.

(53) “Supplant” means take the place of.

(54) “Support” means the assistance that a child and the child’s parent require, solely because of the effects of an 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 family home. Support is subject to change with time and circumstances.

(55) “These Rules” mean the rules in OAR chapter 411, division 300.

(56) “Transportation” means services as described in OAR 411-300-0150 that allow a child to gain access to community services, activities, and resources that are not medical in nature.

(57) “Waivered Services” mean a menu of disability related services and supplies, exclusive of in-home daily care and the Oregon Health Plan, that are specifically identified by the ICF/IDD Behavioral Waiver.

(58) “Volunteer” means any person providing services without pay to support the services provided to a child.

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

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 determined eligible for developmental disability services by the CDDP of the child’s county of residence as described in OAR 411-320-0080;

(e) After completion of an assessment, meet the level of care defined in OAR 411-300-0110;

(f) 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;

(g) Be financially and otherwise eligible to receive Medicaid services;

(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 parent demonstrating the willingness, skills, and ability to provide the direct care as outlined in the Plan of Care 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, residential facility, foster home, or other institution;

(b) Does not require waivered 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 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 representative of the community developmental disability program, the 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 notice of intent to terminate services and requests continuing services as described in OAR 411-300-0210.

(5) WAIT LIST. A child eligible for CIIS may be placed on a wait list if the maximum numbers of children on the ICF/IDD Behavioral Waiver are already being served.

(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/IDD 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

411-300-0130

Plan of Care

(1) To develop the Plan of Care, the services coordinator must complete an FNAT 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, or others requested by the child’s parent when appropriate. 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 parent and any other person at the parent’s request, a written Plan of Care that identifies:

(a) The service needs of the child and the child’s family;

(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 some or all of the child’s service needs;

(3) The Plan of Care must include:

(a) A description of the supports required, including the reason the support is necessary. For an initial or annual Plan of Care that is authorized after July 1, 2013, the description must be consistent with the FNAT;

(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 waivered or state plan services, state general funds, or natural supports;

(c) The maximum hours of authorized provider services;

(d) The annual and monthly service level;

(e) The number of hours of in-home daily care or behavior consultation authorized for the child;

(f) Additional services authorized by the Department for the child:

(g) The date of the next Plan of Care review that, at a minimum, must be completed within 12 months of the last Plan of Care; and

(h) The child’s Nursing Care Plan, when one exists.

(4) The Plan of Care must be reviewed with the parent prior to implementation, signed by both the parent and the services coordinator, and a copy must be provided to the parent.

(5) The Plan of Care is translated, as necessary, upon request.

(6) Significant changes in the needs of the child must be reflected in the Plan of Care, as they occur, and a copy must be provided to the parent. Changes in service needs funded by the Department must be documented in a Plan of Care amendment signed by the parent and the services coordinator.

(7) The Plan of Care 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

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

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 primary caregiver. CIIS are not available to replace services provided by a primary caregiver or to replace other governmental or community services. Regardless of other services available, a primary caregiver must provide a minimum of 40 hours per week of in-home daily care for a child.

(2) CIIS are only authorized to enable a primary caregiver to meet the needs of caring for a child on the ICF/IDD Behavioral Waiver and Community First Choice State Plan. 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 Plan of Care that is authorized on or after July 1, 2013, CIIS may include a combination of the following waivered and other Medicaid services based upon the needs of a child as determined by the services coordinator and as consistent with the child’s Plan of Care:

(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) In-home daily care as described in section (7) of this rule;

(E) Respite 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) Transportation as described in section (11) of this rule.

(b) Waivered services:

(A) Family training as described in section (12) of this rule;

(B) Specialized diets 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 primary caregiver in their caregiving role. Behavior consultation is only authorized, as needed, to respond to specific problems identified by a primary caregiver or services coordinator. Behavior consultants must:

(a) Work with the primary caregiver to identify:

(A) Areas of a child’s family home life that are of most concern for the parent and child;

(B) The formal or informal responses the family or provider has used in those areas; and

(C) The unique characteristics of the 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 primary caregiver and 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 411-300-0110.

(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 family.

(d) Develop emergency and crisis procedures to be used to keep the child, primary caregiver, and provider safe. Protective physical intervention must only be utilized in accordance with OAR 411-300-0140.

(e) Develop a written Behavior Support Plan that includes the following:

(A) Use of clear, concrete language that is understandable to the primary caregiver and provider; and

(B) Describes the assessment, strategies, and procedures to be used.

(f) Teach the provider and primary caregiver the strategies and procedures to be used.

(g) Monitor and revise the Behavior Support Plan as needed.

(5) COMMUNITY NURSING SERVICES.

(a) Evaluation and identification of supports that minimize health risks, while promoting the child’s autonomy and self-management of healthcare;

(b) Medication reviews;

(c) Collateral contact with the services coordinator regarding the child’s community health status to assist in monitoring safety and well-being and to address needed changes to the person-centered Plan of Care; and

(d) Delegation of nursing tasks to a provider and primary caregiver so that caregivers may safely perform health related tasks.

(6) ENVIRONMENTAL ACCESSIBILITY ADAPTATIONS. Environmental accessibility adaptations are physical adaptations to a 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 detectors, light fixtures, and appliances;

(G) Sound and visual monitoring systems;

(H) Fencing;

(I) Installation of ramps, grab-bars, and electric door openers;

(J) Adaptation of kitchen cabinets and sinks;

(K) Widening of doorways;

(L) Handrails;

(M) Modification of bathroom facilities;

(N) Individual room air conditioners for 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 (lift or interior alterations such as seats, head, and leg rests; and 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 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 family home; and

(C) General repair or maintenance and upkeep required for the family home or motor vehicle, including repair of damage caused by the child.

(c) Environmental modifications 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 modifications must be tied to supporting activities of daily living, instrumental activities of daily living, and health-related tasks as identified in the Plan of Care.

(e) Modifications over $500 must be completed by a state licensed contractor. Any modification requiring a permit must be inspected and be certified as in compliance with local codes by local inspectors and filed in provider file prior to payment. Environmental modifications must be made within the existing square footage of the family home, except for external ramps, and cannot add to the square footage of the building. Payment to the contractor is to be withheld until the work meets specifications.

(f) 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) IN-HOME DAILY CARE. In-home daily 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 in-home daily care must support the child to live as independently as appropriate for the child’s age and must be based on the identified needs of the child, supporting the family in a primary caregiving role. Primary caregivers are expected to be present or immediately available during the provision of in-home daily care.

(a) In-home daily 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 home and community;

(H) Assisting the child with appropriate leisure activities to enhance development in the 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 family to health related appointments.

(b) In-home daily 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) In-home daily care services exclude:

(A) Hours that supplant the natural supports and services available from family, community, other government or public services, insurance plans, schools, philanthropic organizations, friends, or relatives;

(B) Hours to allow a primary caregiver to work or attend school;

(C) Support generally provided at the child’s age by parents or other family members;

(D) 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;

(E) Services provided by the family; and

(F) Home schooling.

(d) In-home daily care services may not be provided on a 24-hour shift-staffing basis. The child’s primary caregiver is expected to provide at least 40 hours of care each week and supervise the child each day with the exception of overnight respite. The 40 hours of care and supervision may not include hours when the child’s primary caregiver is sleeping.

(8) RESPITE. Respite 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 primary caregiver.

(a) Respite may include both day and overnight services that may be provided in:

(A) The family home;

(B) A licensed, certified, or otherwise regulated setting;

(C) A qualified provider’s home. If overnight respite 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; or

(D) A disability-related or therapeutic recreational camp.

(b) The services coordinator does not authorize respite services:

(A) To allow primary caregivers to attend school or work;

(B) That are ongoing and occur on more than a periodic schedule, such as eight hours a day, five days a week;

(C) On 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 activities of daily living, or to perceive, control, or communicate with the environment in which the child lives.

(a) Electronic devices to secure assistance in an emergency in the community and other reminders such as medication minders and alert systems for ADL/IADL supports, or mobile electronic devices. Expenditures for electronic devices of more than $500 in a plan year require Department approval.

(b) Assistive technology to provide additional security and replace the need for direct interventions to allow self direction of care and maximize independence. Examples include motion sound sensors, two-way communication systems, automatic faucets and soap dispensers, incontinent and fall sensors, or other electronic backup systems.

(A) Limit of $5000 per year without Department approval.

(B) Any single device or assistance costing more than $500 must be approved by the Department.

(c) Assistive devices. Examples include durable medical equipment, mechanical apparatus, electrical appliance or information technology device to assist and enhance an individual’s independence in performing ADL/IADLs, not covered by other Medicaid programs. Limit of $5000 per year without Department approval. Any single device or assistance costing more than $500 must be approved by the department.

(d) The purchase of 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.

(e) To be authorized by the services coordinator, specialized equipment and supplies must be:

(A) In addition to any medical equipment and supplies furnished under the Oregon Health Plan and private insurance;

(B) Determined necessary to the daily functions of the child; and

(C) Directly related to a child’s disability.

(f) 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 the Oregon Health Plan 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.

(g) Funding for specialized equipment with an expected life of more than one year is one time funding that is not continued in subsequent plan years. Specialized equipment may only be included in a child’s annual Plan of Care when all other public and private resources for the equipment have been exhausted.

(h) The services coordinator must secure use of equipment or furnishings 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. Any equipment or supplies purchased with CIIS funds that are not used according to the child’s annual Plan of Care, or according to the written agreement between the Department and the child’s parent, may be immediately recovered.

(10) 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

(11) TRANSPORTATION. Non-medical transportation is provided in order to enable a child to gain access to community services, activities, and resources as specified in the child’s Plan of Care. Non-medical transportation excludes:

(a) Transportation provided by family members;

(b) Transportation used for behavioral intervention or calming;

(c) Transportation normally provided by schools and by the primary caregiver for children of similar age without disabilities;

(d) Purchase of any family vehicle;

(e) Vehicle maintenance and repair;

(f) Reimbursement for out-of-state travel expenses;

(g) Ambulance services; or

(h) Transportation services that may be obtained through other means such as the Oregon Health Plan 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 family home. Family training services include:

(a) Counseling services that assist the 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 family to care for the child; and

(iii) Be short-term.

(B) Counseling services are excluded for:

(i) Therapy that could be obtained through the Oregon Health Plan or other payment mechanisms;

(ii) General marriage counseling;

(iii) Therapy to address the psychopathology of family members;

(iv) Counseling that addresses stressors not directly attributed to the child;

(v) Legal consultation;

(vi) Vocational training for family members; and

(vii) Training for families to carry out educational activities in lieu of school.

(b) 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 and include those that:

(i) Directly relate to the child’s intellectual or developmental disability; and

(ii) Increase the knowledge and skills of the child’s family to care for and maintain the child in the 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 the Oregon Health Plan or available through other resources; or

(iv) Costs for individual family members who are employed to care for the child.

(13) SPECIALIZED DIETS. Specialized diets do not constitute a full nutritional regime.

(a) In order for a specialized diet to be authorized:

(A) The foods must be on the approved list developed by the Department;

(B) The specialized diet must be ordered at least annually by a physician licensed by the Oregon Board of Medical Examiners;

(C) The specialized diet must be periodically monitored by a dietician or physician; and

(D) The specialized diet may not be reimbursed through the Oregon Health Plan or any other source of public and private funding.

(b) Restaurant and prepared foods, vitamins, and supplements are specifically excluded from a specialized diet.

(14) TRANSLATION. If the primary caregiver or the child’s primary language is not English, translation service is provided to allow the child or the primary caregiver to communicate with providers of CIIS.

(15) All CIIS authorized by the Department must be included in a written Plan of Care in order to be eligible for payment. The Plan of Care must use the most cost effective services for safely and appropriately meeting a child’s service needs.

(16) Service budgets increase or decrease in direct relationship to the increasing or decreasing behavior criteria score.

(17) If the primary caregiver’s primary language is not English, cost of interpretation or translation services related to CIIS are not considered part of the child’s service budget.

(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) A child is at immediate risk of loss of family home without the expenditure;

(b) The expenditure provides supports for a child’s emerging or changing care needs or behaviors;

(c) A significant medical condition or event occurs that prevents the primary caregiver from providing care or services as documented by a physician; or

(d) The services coordinator determines, with a behavior consultant, that a 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 all caregivers, including the child’s parents, have been trained in behavior management and that all other feasible recommendations from the behavior consultant and 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


Rule Caption: Long-Term Support for Children with Intellectual or Developmental Disabilities

Adm. Order No.: SPD 21-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

Rules Amended: 411-308-0010, 411-308-0020, 411-308-0030, 411-308-0050, 411-308-0060, 411-308-0070, 411-308-0080, 411-308-0100, 411-308-0120

Subject: The Department of Human Services (Department) is immediately amending the long-term support rules for children with intellectual or developmental disabilities in OAR chapter 411, division 308 to:

   Reflect new definitions applicable to Community First Choice State Plan services;

   Specify the eligibility requirements to reflect changes made as a result of the Community First Choice State Plan;

   Clarify hearing rights;

   Describe and coincide with the services available in the Community First Choice State Plan and Home and Community-Based Waiver amendments;

   Require a functional needs assessment as part of a child’s service planning process; and

   Clarify the responsibilities of a services coordinator when developing a child’s Plan of Care.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-308-0010

Statement of Purpose and Principles

(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) Long-term supports are designed to increase a family’s ability to care for a child with an intellectual or developmental disability in the family home. Long-term supports may resolve a crisis by providing supports to prevent the need for the child to be placed or remain in a residential setting other than the child’s family home.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007 & 430.610 - 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

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)” mean those personal, functional activities required by a child for continued well-being that are essential for health and safety.

(3) “Annual Support Plan” means the written details of the supports, activities, and resources required for a child to achieve personal outcomes and be supported by the family in the family home. A child’s 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 Annual Support Plan. The Annual Support Plan is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. A child’s Annual Support Plan is the only plan of care required by the Department for a child receiving long-term supports.

(4) “Behavior Consultant” means a contractor with specialized skills who develops a Behavior Support Plan.

(5) “Behavior Support Plan (BSP)” means a 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.

(6) “Behavior Support Services” mean services 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, and health related tasks.

(7) “Case Management” means an organized service to assist individuals to select, obtain, and utilize resources and services.

(8) “CDDP” means “Community Developmental Disability Program” as defined in this rule.

(9) “Child” means an individual under the age of 18 applying for or determined eligible for long-term support.

(10) “Children’s Intensive In-Home Services” mean 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.

(11) “Chore Services” mean the services described in OAR 411-308-0120 needed to maintain a clean, sanitary, and safe environment in a child’s home. Chore services include heavy household chores such as washing floors, windows, and walls, tacking down loose rugs and tiles, and moving heavy items of furniture for safe access and egress. Chore services may include yard hazard abatement to ensure the outside of the home is safe for the child to traverse and enter and exit the home.

(12) “Community Developmental Disability Program (CDDP)” means the entity that is responsible for the planning and delivery of services for children with intellectual or 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.

(13) “Community First Choice State Plan” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(14) “Community Nursing Services” mean the services described in OAR 411-308-0120 that include nurse delegation and care coordination for a child living in his or her own home. Community nursing services do not include direct nursing care and are not covered by other Medicaid spending authorities

(15) “Cost Effective” means that a specific service or support meets a child’s service needs and costs less than, or is comparable to, other service options considered.

(16) “CPMS” means the Client Processing Monitoring System.

(17) “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.

(18) “Department” means the Department of Human Services (DHS). The term “Department” is synonymous with “Seniors and People with Disabilities Division (Division)”.

(19) “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.

(20) “Director” means the Director of the Department’s Office of Developmental Disability Services, or the Director’s designee. The term “Director” is synonymous with “assistant director” and “administrator”.

(21) “Employer-Related Supports” mean activities that assist a family with directing and supervising provision of services described in a child’s Annual Support Plan. Supports to a family assuming the role of employer 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.

(22) “Environmental Accessibility Adaptations” mean the physical adaptations as described in OAR 411-308-0120 that are necessary to ensure the health, welfare, and safety of a child in the home, or that enable the child to function with greater independence in the home.

(23) “Exit” means termination or discontinuance of long-term support.

(24) “Family”

(a) Means a unit of two or more persons that includes at least one child with an intellectual or developmental disability where the 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 (e.g. child-rearing, maintenance of the residence, basic living expenses); and

(iii) Joint responsibility for supporting the child when the child with an intellectual or developmental disability 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 long-term supports as a resident in the family home;

(B) Identifying persons who may apply, plan, and arrange for individual supports; and

(C) Determining who may receive family training.

(25) “Family Home” means a child’s primary residence that is not under contract with the Department to provide services as a licensed, endorsed, or certified foster home, residential care facility, assisted living facility, nursing facility, or other residential support program site.

(26) “Family Training” means training and counseling services for the family of a child that increase the family’s capacity to care for, support, and maintain the child in the home as described in OAR 411-308-0120. Family training includes:

(a) Instruction about treatment regimens and use of equipment specified in the child’s Annual Support Plan;

(b) Information, education, and training about the child’s intellectual or developmental disability, medical, or behavioral conditions; and

(c) Counseling for the family to relieve the stress associated with caring for a child with an intellectual or developmental disability.

(27) “Fiscal Intermediary” means a person or entity that receives and distributes long-term support funds on behalf of the family of an eligible child according to the child’s Annual Support Plan.

(28) “Founded Reports” means the Department’s Children, Adults, and Families Division or Law Enforcement Authority (LEA) determination, based on the evidence, that there is reasonable cause to believe that conduct in violation of the child abuse statutes or rules has occurred and such conduct is attributable to the person alleged to have engaged in the conduct.

(29) “Functional Needs Assessment (FNAT)” means an assessment that documents the level of need, accommodates a child’s participation in service planning, and includes --

(a) Completing a comprehensive and holistic assessment;

(b) Surveying physical, mental, and social functioning; and

(c) Identifying risk factors, choices and preferences, and service needs.

(30) “General Business Provider” means an organization or entity selected by the parent or guardian of an eligible child, and paid with long-term 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 persons who actually provide support for the child.

(31) “Guardian” means a person or agency appointed and authorized by a court to make decisions about services for a child.

(32) “Home and Community-Based Waivered 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.

(33) “Incident Report” means the written report of any injury, accident, act of physical aggression, or unusual incident involving a child.

(34) “Independent Provider” means a person selected by a child’s parent or guardian and paid with long-term support funds to personally provide services to the child.

(35) “Individual” means a child with an intellectual or developmental disability applying for or determined eligible for developmental disability services.

(36) “In-Home Daily Care (IHDC)” means Medicaid state plan funded essential supportive daily care as described in OAR 411-308-0120 that is delivered by a qualified provider that enables a child to remain in, or return to, the family home.

(37) “Instrumental Activities of Daily Living (IADL)” mean those activities, other than activities of daily living, required to continue independent living.

(38) “Intellectual Disability” has the meaning set forth in OAR 411-320-0020 and described in OAR 411-320-0080.

(39) “Level of Care” means an assessment completed by a services coordinator has determined a child meets institutional level of care. A child meets institutional level of care for an intermediate care facility for individuals with intellectual or developmental disabilities if:

(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.

(40) “Long-Term Support” means individualized planning and service coordination, arranging for services to be provided in accordance with Annual 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 long term support services to live in the family home. Long-term 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 home.

(41) “Long-Term 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 Annual Support Plan..

(42) “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, 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 such information communicated by a person if the communication is privileged under ORS 40.225 to 40.295.

(43) “Natural Supports” or “Natural Support System” means the resources available from relatives, friends, significant others, neighbors, roommates, and the community. Services provided by natural supports are resources that are not paid for by the Department.

(44) “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.

(45) “Nursing Care Plan” means the plan of care 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.

(46) “OHP” means the Oregon Health Plan.

(47) “Oregon Intervention System (OIS)” means a system of providing training to people who work with designated individuals to intervene physically or non-physically to keep individuals from harming self or others. OIS is based on a positive approach that includes methods of effective evasion, deflection, and escape from holding.

(48) “OSIP-M” means Oregon Supplemental Income Program-Medical as defined in OAR 461-101-0010. OSIP-M is Oregon Medicaid insurance coverage for those who meet the eligibility criteria as described in OAR chapter 461.

(49) “Person-Centered Planning” means:

(a) A process, either formal or informal, for gathering and organizing information that helps:

(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 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 needs and preferences.

(50) “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.

(51) “Plan Year” means twelve consecutive months from the start date specified on a child’s authorized Annual Support Plan.

(52) “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.

(53) “Protective Physical Intervention (PPI)” means any manual physical holding of, or contact with, a child that restricts the child’s freedom of movement. The term “protective physical intervention” is synonymous with “physical restraint”.

(54) “Provider Organization” means an entity selected by a child’s parent or guardian and paid with long-term support funds that:

(a) Is primarily in business to provide supports for individuals 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 persons who actually provide support for the child.

(55) “Quality Assurance” means a systematic procedure for assessing the effectiveness, efficiency, and appropriateness of services.

(56) “Regional Process” means a standardized set of procedures through which a child’s Annual Support Plan and funding to implement the Annual Support Plan 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 Annual Support Plan.

(57) “Respite” means intermittent services as described in OAR 411-308-0120 provided on a periodic basis, but not more than 14 consecutive days, for the relief of, or due to the temporary absence of, a person normally providing supports to a child with an intellectual or developmental disability unable to care for him or herself.

(58) “Services Coordinator” means an employee of the community developmental disability program or other agency that contracts with the county or Department, who plans, procures, coordinates, and monitors long-term support, and acts as a proponent for children with intellectual or developmental disabilities and their families.

(59) “Specialized Equipment and Supplies” mean devices, aids, controls, supplies, or appliances as described in OAR 411-308-0120 that meet applicable standards of manufacture, design, and installation that enables a child to increase the child’s abilities to perform activities of daily living or to perceive, control, or communicate with the environment in which they live. Specialized equipment and supplies do not include items not of direct benefit to a child.

(60) “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.

(61) “Supplant” means take the place of.

(62) “Support” means the assistance that a child and the child’s family require, solely because of the effects of and 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 family home. Support is subject to change with time and circumstances.

(63) “Transportation” means services as described in OAR 411-308-0120 that allow a child to gain access to community services, activities, and resources that are not medical in nature.

(64) “These Rules” mean the rules in OAR chapter 411, division 308.

(65) “Volunteer” means any person providing services without pay to support the services provided to a child.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 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

411-308-0030

Long-Term 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 long-term support funds on behalf of the 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 families who employ persons 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.

(a) CONFIDENTIALITY. The CDDP must maintain records of services to individuals in accordance with OAR 411-320-0070, ORS 179.505, ORS 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.

(b) 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 the 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).

(c) INDIVIDUAL RECORDS. Records for children who receive long-term 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 date of enrollment in long-term support;

(B) Records related to receipt and disbursement of long-term 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 record keeping responsibilities outlined in this rule. Records must include:

(i) Itemized invoices and receipts to record 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 acceptable provision of behavior support, nursing, and other professional training and consultation services; and

(iv) Pay records, including timesheets signed by both employee and employer, to record employee services.

(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 Annual Support Plan through a regional process;

(F) The child’s Annual Support Plan and reviews;

(G) The services coordinator’s correspondence and notes related to plan development and outcomes; and

(H) Family satisfaction information.

(d) 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 long-term 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.

(e) 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 individual records) must be retained for a minimum of three years after the close of the contract period, or until audited.

(B) Individual 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 long-term 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 an action.

(A) The CDDP 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 the child’s Annual Support Plan, and the child’s parent or guardian has agreed with the action by signing the Annual Support Plan.

(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 hearing within 45 days from the date that the CDDP mails or personally serves 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 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 form DHS 443 and signed by the child’s parent or guardian. The signed form (DHS 443) 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 should the normal timing of the hearing process be 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 legal 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, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 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

411-308-0050

Financial Limits of Long-Term 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 Annual Support Plan. For a child who is not Medicaid eligible, the amount of support specified in the child’s Annual Support 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 Support 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, 410.070

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 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

411-308-0060

Eligibility for Long-Term Support

(1) STANDARD ELIGIBILITY. In order to be eligible for long-term support, a child must:

(a) Be under the age of 18;

(b) Be eligible for OSIP-M;

(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 standard eligibility criteria are not met, the CDDP of a child’s county of residence may find a child eligible for long-term 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 long-term support to be maintained in the family home; or

(e) Resides in a Department-paid residential service and requires long-term support to return to the family home.

(3) CONCURRENT ELIGIBLITY. Children are not eligible for long-term 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, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 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

411-308-0070

Long-Term Support Entry, Duration, and Exit

(1) ENTRY. An eligible child may enter long-term support when long-term support needs are assessed through an FNAT. Long-term supports must be authorized on an annual basis, prior to the beginning of a new Annual Support Plan.

(2) DURATION OF SERVICES. Once a child has entered long-term support, the child and family may continue receiving long-term supports from the CDDP through the last day of the month during which the child turns 18, as long as the supports continue to be necessary to prevent out-of-home placement, the child remains eligible for long-term support, and long-term support funds are available at the CDDP and authorized by the Department to continue services. The child’s Annual Support Plan must be developed each year and kept current.

(3) CHANGE IN SUPPORTS. All increases in the child’s Annual Support Plan, excluding statewide cost of living increases, must be approved through a regional process. Redirection of more than 25 percent of the long-term support funds in the child’s Annual Support Plan to purchase different supports than those originally authorized must be approved through a regional process.

(4) CHANGE OF COUNTY OF RESIDENCE. If a child and family move outside the CDDP’s area of service, the originating CDDP must arrange for services purchased with long-term 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 long-term support, including responsibility for payments, shall transfer to the new CDDP.

(5) EXIT. A child must leave a CDDP’s long-term 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 long-term supports;

(c) When the long-term 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) At the end of the last day of the month during which the child turns 18;

(e) When the child and 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 (4) 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 Annual Support 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 family has engaged in fraud or misrepresentation, failed to use resources as agreed upon in the child’s Annual Support Plan, refused to cooperate with documenting expenses, or otherwise knowingly misused public funds associated with long-term support.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 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

411-308-0080

Annual Support Plan

(1) The CDDP must provide or arrange for 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 long-term 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 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 an FNAT using a person-centered planning approach.

(2) The CDDP, the child (as appropriate), and the child’s family must develop a written Annual Support Plan for the child as a result of the planning process prior to purchasing supports with long-term support funds and annually thereafter. The child’s Annual Support 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. For an initial or annual support plan that is authorized after July 1, 2013, the description must be consistent with the FNAT;

(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 waivered or state plan services, state general funds, or natural supports.

(e) The type of provider, quantity, frequency, and per unit cost of supports to be purchased with long-term support funds;

(f) Total annual cost of supports;

(g) The schedule of the child’s Annual Support Plan reviews; and

(h) Signatures of the child’s services coordinator, the child’s parent or guardian, and the child (as appropriate).

(3) The child’s Annual Support Plan or records supporting development of each child’s Annual Support Plan must include evidence that:

(a) When the child is not Medicaid eligible, long-term support funds may only be used 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 long-term 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.

(4) The services coordinator must obtain and attach a Nursing Care Plan to the child’s written Annual Support Plan when long-term support funds are used to purchase care and services requiring the education and training of a nurse.

(5) The services coordinator must obtain and attach a Behavior Support Plan to the child’s written Annual Support Plan when the Behavior Support Plan is implemented by the child’s family or providers during the plan year.

(6) Long-term supports may only be provided after the child’s Annual Support Plan is developed as described in this rule, authorized by the CDDP, and signed by the child’s parent or guardian.

(7) The services coordinator must review and reconcile receipts and records of purchased supports authorized by the child’s Annual Support Plan and subsequent Annual Support Plan documents, at least quarterly during the plan year.

(8) At least annually, the services coordinator must conduct and document reviews of the child’s Annual Support Plan and resources with the child’s family as follows:

(a) Evaluate progress toward achieving the purposes of the child’s Annual Support Plan;

(b) Record actual long-term support fund costs;

(c) Note effectiveness of purchases based on services coordinator observation as well as family satisfaction; and

(d) Determine whether changing needs or availability of other resources have altered the need for specific supports or continued use of long-term support funds to purchase supports. This must include 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.

(9) When the family and eligible child move to a county outside the area of service, the originating CDDP must assist long-term support recipients by:

(a) Continuing long-term support fund payments authorized by the child’s Annual Support 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 long-term support funds to the new CDDP of residence.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 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

411-308-0100

Conditions for Long-Term Support Purchases

(1) A CDDP must only use long-term support funds to assist families to purchase supports for the purpose defined in OAR 411-308-0010 and in accordance with the child’s Annual Support Plan that meets the requirements for development and content in OAR 411-308-0080.

(2) The CDDP must arrange for supports purchased with long-term support funds to be provided:

(a) In settings and under purchasing arrangements and conditions that allow the family to choose 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 to OAR 411-308-0130 governing provider qualifications.

(3) When long-term 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) Long-term 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 long-term 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 Annual Support 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 long-term support funds. During development of the child’s Annual Support 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 long-term 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 long-term 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, as requested, records or documentation;

(G) Billed excessive or fraudulent charges or been convicted of fraud;

(H) Made false statement concerning conviction of crime or substantiation of abuse;

(I) Falsified required documentation;

(J) Failed to comply with the provisions of section (4) of this rule and OAR 411-308-0130; or

(K) Been suspended or terminated as a provider by another Office within the Department.

(b) The following sanctions may be imposed on a provider:

(A) The provider may no longer be paid with long-term 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 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 could 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 any Office within the Department may not be authorized as providers of Medicaid services.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 430.670

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

411-308-0120

Supports Purchased with Long-Term Support Funds

(1) For an initial or annual support plan that is authorized on or after July 1, 2013, when conditions of purchase are met and provided purchases are not prohibited under OAR 411-308-0110, long-term 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 Annual Support Plan and available funding:

(a) Community First Choice State Plan services:

(A) Specialized consultation including behavior consultation as described in section (3) of this rule;

(B) Community nursing services as described in section (4) of this rule;

(C) Environmental accessibility adaptations as described in section (5) of this rule;

(D) In-home daily care as described in section (6) of this rule;

(E) Respite as described in section (7) of this rule;

(F) Specialized equipment and supplies as described in section (8) of this rule;

(G) Chore services as described in section (9) of this rule; and

(H) Transportation as described in section (10) of this rule.

(b) As a waivered service, family training as described in section (11) of this rule.

(2) Family caregiver supports shall not be included in an Annual Support Plan authorized on or after July 1, 2013.

(3) SPECIALIZED CONSULTATION – BEHAVIOR CONSULTATION. Behavior consultation is the purchase of individualized consultation provided only as needed in the family home to respond to a specific problem or behavior identified by the child’s parent or guardian and the services coordinator. Behavior consultation services must be documented in a Behavior Support Plan prior to final payment for the services.

(a) Behavior consultation is only authorized to support a primary caregiver in their caregiving role, not as a replacement for an educational service offered through the school.

(b) Behavior consultation must include:

(A) Working with the family to identify:

(i) Areas of a child’s family home life that are of most concern for the family and child;

(ii) The formal or informal responses the family or provider has used in those areas; and

(iii) The unique characteristics of the family that may influence the responses that may work with the child.

(B) ASSESSING THE CHILD. The behavior consultant utilized by the family must conduct an assessment and interact with the child in the family home and community setting in which the child spends most of their time. The assessment must include:

(i) Specific identification of the behaviors or areas of concern;

(ii) Identification of the settings or events likely to be associated with or to trigger the behavior;

(iii) Identification of early warning signs of the behavior;

(iv) 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.

(v) 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;

(vi) An assessment of current communication strategies; and

(vii) Identification of possible alternative or replacement behaviors.

(C) Developing a variety of positive strategies that assist the family and 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 family and provider to the early warning signs.

(i) Positive, preventive interventions must be emphasized.

(ii) The least intrusive intervention possible must be used.

(iii) Abusive or demeaning interventions must never be used.

(iv) The strategies must be adapted to the specific disabilities of the child and the style or culture of the family.

(D) Developing emergency and crisis procedures to be used to keep the child, family, and provider safe. When interventions in the behavior of the child are necessary, positive, preventative, non-aversive interventions that conform to OIS must be utilized. The Department does not pay a provider to use protective physical intervention on a child receiving long-term support.

(E) Developing a written Behavior Support Plan consistent with OIS that includes the following:

(i) Use of clear, concrete language and in a manner that is understandable to the family and provider; and

(ii) Describes the assessment, recommendations, strategies, and procedures to be used.

(F) Teaching the provider and family the recommended strategies and procedures to be used in the child’s natural environment.

(G) Monitoring, assessing, and revising the Behavior Support Plan as needed based on the effectiveness of implemented strategies. If protective physical intervention techniques are included in the Behavior Support Plan for use by the family, monthly practice of the technique must be observed by an OIS approved trainer.

(c) Behavior consultation does not include:

(A) Mental health therapy or counseling;

(B) Health or mental health plan coverage; or

(C) Educational services including but not limited to consultation and training for classroom staff, adaptations to meet the needs of the child at school, assessment in the school setting for the purposes of an Individualized Education Program, or any service identified by the school as required to carry out the child’s Individualized Education Program.

(4) COMMUNITY NURSING SERVICES. Community nursing services as defined in OAR 411-308-0020 include:

(a) Evaluation and identification of supports that minimize health risks, while promoting the child’s autonomy and self-management of healthcare;

(b) Medication reviews;

(c) Collateral contact with the services coordinator regarding the child’s community health status to assist in monitoring safety and well-being and to address needed changes to the person-centered Annual Support Plan; and

(d) Delegation of nursing tasks to a provider and parent or guardian so that they may safely perform health related tasks.

(5) ENVIRONMENTAL ACCESSIBILITY ADAPTATIONS. Environmental accessibility adaptations are physical adaptations to a 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 detectors, light fixtures, and appliances;

(G) Sound and visual monitoring systems;

(H) Fencing;

(I) Installation of ramps, grab-bars, and electric door openers;

(J) Adaptation of kitchen cabinets and sinks;

(K) Widening of doorways;

(L) Handrails;

(M) Modification of bathroom facilities;

(N) Individual room air conditioners for 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 (lift, belts, special safety harnesses, interior alterations such as seats, head, and leg rests, 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 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 family home; and

(C) General repair or maintenance and upkeep required for the family home or motor vehicle, including repair of damage caused by the child.

(c) Environmental modifications 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 modifications must be tied to supporting activities of daily living, instrumental activities of daily living, and health-related tasks as identified in the Plan of Care.

(e) Modifications over $500 must be completed by a state licensed contractor. Any modification requiring a permit must be inspected and be certified as in compliance with local codes by local inspectors and filed in provider file prior to payment. Environmental modifications must be made within the existing square footage of the family home, except for external ramps, and cannot add to the square footage of the building. Payment to the contractor is to be withheld until the work meets specifications.

(f) The CDDP must obtain written authorization from the owner of a rental structure before any environmental accessibility adaptations are made to that structure. This does not preclude any reasonable accommodation required under the Americans with Disabilities Act.

(6) IN-HOME DAILY CARE. In-home daily care services include the purchase of direct provider support provided to the child in the family home or community by qualified individual providers and agencies. Provider assistance provided through in-home daily care must support the child to live as independently as appropriate for the child’s age and must be based on the identified needs of the child, supporting the family in their primary caregiving role. Primary caregivers are expected to be present or immediately available during the provision of in-home daily care.

(a) In-home daily 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 home and community;

(H) Assisting the child with appropriate leisure activities to enhance development in the 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 family to health related appointments.

(b) In-home daily care services must:

(A) Be previously authorized by the CDDP 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) In-home daily care services exclude:

(A) Hours that supplant the natural supports and services available from family, community, other government or public services, insurance plans, schools, philanthropic organizations, friends, or relatives;

(B) Hours to allow a primary caregiver to work or attend school;

(C) Support generally provided at the child’s age by parents or other family members;

(D) 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;

(E) Services provided by the family; and

(F) Home schooling.

(d) In-home daily care services may not be provided on a 24-hour shift-staffing basis. The child’s primary caregiver is expected to provide at least 40 hours of care each week and supervise the child each day with the exception of overnight respite. The 40 hours of care and supervision may not include hours when the child’s primary caregiver is sleeping.

(7) RESPITE. Respite 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 primary caregiver.

(a) Respite may include both day and overnight services that may be provided in:

(A) The family home;

(B) A licensed, certified, or otherwise regulated setting;

(C) A qualified provider’s home. If overnight respite is provided in a qualified provider’s home, the CDDP and the child’s parent or guardian must document that the home is a safe setting for the child; or

(D) A disability-related or therapeutic recreational camp.

(b) The CDDP does not authorize respite services:

(A) To allow primary caregivers to attend school or work;

(B) That are ongoing and occur on more than a periodic schedule, such as eight hours a day, five days a week;

(C) On 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.

(8) 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 activities of daily living, or to perceive, control, or communicate with the environment in which the child lives.

(a) Electronic devices to secure assistance in an emergency in the community and other reminders such as medication minders and alert systems for ADL/IADL supports, or mobile electronic devices. Expenditures for electronic devices of more than $500 in a plan year require Department approval.

(b) Assistive technology to provide additional security and replace the need for direct interventions to allow self direction of care and maximize independence. Examples include motion sound sensors, two-way communication systems, automatic faucets and soap dispensers, incontinent and fall sensors, or other electronic backup systems.

(A) Limit of $5000 per year without Department approval.

(B) Any single device or assistance costing more than $500 must be approved by the Department.

(c) Assistive devices. Examples include durable medical equipment, mechanical apparatus, electrical appliance or information technology device to assist and enhance an individual’s independence in performing ADL/IADLs, not covered by other Medicaid programs. Limit of $5000 per year without Department approval. Any single device or assistance costing more than $500 must be approved by the department.

(d) The purchase of 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.

(e) To be authorized by the CDDP, 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 the child’s disability.

(f) 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 the child;

(E) Toys or outdoor play equipment; and

(F) Equipment and furnishings of general household use.

(g) Funding for specialized equipment with an expected life of more than one year is one time funding that is not continued in subsequent plan years. Specialized equipment may only be included in a child’s Annual Support Plan when all other public and private resources for the equipment have been exhausted.

(h) The CDDP must secure use of equipment or furnishings costing more than $500 through a written agreement between the CDDP and the child’s parent or guardian that specifies the time period the item is to be available to the child and the responsibilities of all parties should the item be lost, damaged, or sold within that time period. Any equipment or supplies purchased with long-term support funds that are not used according to the child’s Annual Support Plan, or according to the written agreement between the Department and the child’s parent or guardian, may be immediately recovered.

(9) 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

(10)TRANSPORTATION. Non-medical transportation is provided in order to enable a child to gain access to community services, activities, and resources as specified in the child’s Annual Support Plan. Non-medical transportation excludes:

(a) Transportation provided by family members;

(b) Transportation used for behavioral intervention or calming;

(c) Transportation normally provided by schools and by the primary caregiver for children of similar age without disabilities;

(d) Purchase of any family vehicle;

(e) Vehicle maintenance and repair;

(f) Reimbursement for out-of-state travel expenses;

(g) Ambulance services; or

(h) Transportation services that may be obtained through other means such as OHP or other public or private resources available to the child.

(11) FAMILY TRAINING. Family training services include the purchase of training, coaching, counseling, and support that increase the family’s ability to care for and maintain the child in the family home.

(a) Family training services include:

(A) Counseling services that assist the family with the stresses of having a child with an intellectual or developmental disability.

(i) 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 677.100, social workers licensed under 675.530, and counselors licensed under 675.715;

(II) Directly relate to the child’s intellectual or developmental disability and the ability of the family to care for the child; and

(III) Be short-term.

(ii) Counseling services are excluded for:

(I) Therapy that may be obtained through OHP or other payment mechanisms;

(II) General marriage counseling;

(III) Therapy to address family members’ psychopathology;

(IV) Counseling that addresses stressors not directly attributed to the child;

(V) Legal consultation;

(VI) Vocational training for family members; and

(VII) Training for families to carry out educational activities in lieu of school.

(B) 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.

(i) Conferences, workshops, or group trainings must be prior authorized by the services coordinator and include those that:

(I) Directly relate to the child’s intellectual or developmental disability; and

(II) Increase the knowledge and skills of the family to care for and maintain the child in the family home.

(ii) Conference, workshop, or group trainings 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.

(b) Funding for family training is one time funding that is not continued in subsequent plan years. Funding for each family training event must be specifically approved through a regional process to ensure the family training event is necessary to prevent out-of-home placement or to return the child to the family home, and to ensure the family training event is cost effective. Family training may only be included in a child’s Annual Support Plan when all other public and private resources for the event have been exhausted.

Stat. Auth.: ORS 409.050, 410.070

Stats. Implemented: ORS 427.005, 427.007, & 430.610 - 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


Rule Caption: Community Developmental Disability Programs

Adm. Order No.: SPD 22-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

Rules Amended: 411-320-0020, 411-320-0030, 411-320-0040, 411-320-0060, 411-320-0070, 411-320-0090, 411-320-0100, 411-320-0110, 411-320-0120, 411-320-0130

Subject: The Department of Human Services (Department) is immediately amending the rules for community developmental disability programs (CDDPs) in OAR chapter 411, division 320 to:

   Reflect new definitions applicable to Community First Choice State Plan services;

   Provide choice counseling to reflect the individual’s right to choice for provider types and services as is required by the Code of Federal Regulations for waivered and state plan services;

   Describe and coincide with the services available in the Community First Choice State Plan and Home and Community-Based Waiver amendments;

   Require a functional needs assessment as part of an individual’s service planning process;

   Clarify the service coordinator’s and personal agent’s responsibilities for Individual Support Plans to bring the Department into compliance with Code of Federal Regulations for waivered and state plan services; and

   Reflect new or revised responsibilities of the CDDPs, support services brokerages, and the Department as a result of Community First Choice State Plan services and Home and Community-Based Waiver amendments.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-320-0020

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 320:

(1) “24-Hour Residential Program” means a comprehensive residential home or facility licensed by the Department under ORS 443.410 to provide residential care and training to individuals with intellectual or developmental disabilities.

(2) “Abuse” means:

(a) Abuse of a child:

(A) As defined in ORS 419B.005; and

(B) Abuse as defined in OAR 407-045-0260, when a child resides in:

(i) Homes or facilities licensed to provide 24-hour residential services for children with intellectual or developmental disabilities; or

(ii) Agencies licensed or certified by the Department to provide proctor foster care for children with intellectual or developmental disabilities.

(b) Abuse of an adult as defined in OAR 407-045-0260.

(3) “Abuse Investigation and Protective Services” means reporting and investigation activities as required by OAR 407-045-0300 and any subsequent services or supports necessary to prevent further abuse as required by OAR 407-045-0310.

(4) “Accident” means an event that results in injury or has the potential for injury even if the injury does not appear until after the event.

(5) “Adaptive Behavior” means the degree to which an individual meets the standards of personal independence and social responsibility expected for age and culture group. Other terms used to describe adaptive behavior include but are not limited to adaptive impairment, ability to function, daily living skills, and adaptive functioning. Adaptive behaviors are everyday living skills including but not limited to walking (mobility), talking (communication), getting dressed or toileting (self-care), going to school or work (community use), and making choices (self-direction).

(a) Adaptive behavior is measured by a standardized test administered by a psychologist, social worker, or other professional with a graduate degree and specific training and experience in individual assessment, administration, and test interpretation of adaptive behavior scales for individuals with intellectual or developmental disabilities.

(b) “Significant impairment” in adaptive behavior means a composite score of at least two standard deviations below the norm or two or more areas of functioning that are at least two standard deviations below the norm including but not limited to communication, mobility, self-care, socialization, self-direction, functional academics, or self-sufficiency as indicated on a standardized adaptive test.

(6) “Administrative Review” means the formal process that is used by the Department when an individual or an individual’s representative is not satisfied with the decision made by the community developmental disability program or support services brokerage about a complaint involving the provision of services or a service provider.

(7) “Adult” means an individual 18 years or older with an intellectual or developmental disability.

(8) “Advocate” means a person other than paid staff who has been selected by an individual, or by the individual’s legal representative, to help the individual understand and make choices in matters relating to identification of needs and choices of services, especially when rights are at risk or have been violated.

(9) “Annual Plan” means a written summary the services coordinator completes for an individual 18 years or older who is not receiving support services or comprehensive services. (10) “Care” means supportive services including but not limited to provision of room and board, supervision, protection, and assistance in bathing, dressing, grooming, eating, management of money, transportation, or recreation. The term “care” is synonymous with “services”.

(11) “Case Management” means an organized service to assist individuals to select, obtain, and utilize resources and services.

(12) “CDDP” means “Community Developmental Disability Program”.

(13) “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.

(14) “Child” means an individual who is less than 18 years of age that has a provisional determination of an intellectual or developmental disability.

(15) “Choice” means an individual’s expression of preference, opportunity for, and active role in decision-making related to the services received and from whom, including but not limited to case management, service providers, 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.

(16) “Choice Counseling” means the sharing of information about case management and other service delivery options available to individuals with intellectual or developmental disabilities.

(17) “Choice Advisor” means an objective third party who meets the qualifications identified in OAR 411-320-0030(4)(c), who provides information in an impartial manner about the choices an eligible individual has regarding the provision of their case management services.

(18) “Community Developmental Disability Program (CDDP)” means the entity that is responsible for planning and delivery of services for individuals with intellectual or developmental disabilities in a specific geographic service area of the state operated by or under a contract with the Department or a local mental health authority.

(19) “Community First Choice State Plan” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(20) “Community Mental Health and Developmental Disability Program (CMHDDP)” means an entity that operates or contracts for all services for individuals with mental or emotional disturbances, drug abuse problems, intellectual or developmental disabilities, and alcoholism and alcohol abuse problems under the county financial assistance contract with the Department or Oregon Health Authority.

(21) “Complaint” means a verbal or written expression of dissatisfaction with services or service providers.

(22) “Complaint Investigation” means an investigation of any complaint that has been made to a proper authority that is not covered by an abuse investigation.

(23) “Comprehensive Services” mean developmental disability services and supports that include 24 hour residential services provided in a group 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.

(24) “County of Origin” means the individual’s county of residence, unless a minor, then county of origin means the county where the jurisdiction of the child’s guardianship exists.

(25) “Crisis” means:

(a) A situation as determined by a qualified services coordinator that would result in civil court commitment under ORS 427.215 to 427.306 and for which no appropriate alternative resources are available; or

(b) Risk factors described in OAR 411-320-0160(2) are present for which no appropriate alternative resources are available.

(26) “Crisis Diversion Services” mean short-term services provided for up to 90 days, or on a one-time basis, directly related to resolving a crisis, and provided to, or on behalf of, an individual eligible to receive crisis services.

(27) “Crisis Plan” means the community developmental disability program or regional crisis diversion program generated document, serving as the justification for, and the authorization of crisis supports and expenditures pertaining to an individual receiving crisis services provided under these rules.

(28) “Current Documentation” means documentation relating to an individual’s intellectual or developmental disability in regards to the individual’s functioning within the last three years. Current documentation may include but is not limited to annual plans, behavior support plans, educational records, medical assessments related to the intellectual or developmental disability, psychological evaluations, and assessments of adaptive behavior.

(29) “Department” means the Department of Human Services (DHS). The term “Department” is synonymous with “Division (SPD)”.

(30) “Developmental Disability (DD)” means a neurological condition that:

(a) Originates before the individual reaches the age of 22 years, except that in the case of intellectual disability, the condition is manifested before the age of 18;

(b) Originates in and directly affects the brain and has continued, or is expected to continue, indefinitely;

(c) Constitutes a significant impairment in adaptive behavior as diagnosed and measured by a qualified professional; and

(d) Is not primarily attributed to other conditions, including but not limited to mental or emotional disorder, sensory impairment, substance abuse, personality disorder, learning disability, or Attention Deficit Hyperactivity Disorder (ADHD).

(31) “DHS Quality Management Strategy” means the Department’s Quality Assurance Plan that includes the quality assurance strategies for the Department (http://www.oregon.gov/DHS/spd/qa/app_h_qa.pdf).

(32) “Director” means the Director of the Department’s Office of Developmental Disability Services, or the Director’s designee. The term “Director” is synonymous with “Assistant Director”.

(33) “Eligibility Determination” means a decision by a community developmental disability program or by the Department regarding a person’s eligibility for developmental disability services pursuant to OAR 411-320-0080 and is either a decision that a person is eligible or ineligible for developmental disability services.

(34) “Eligibility Specialist” means an employee of the community developmental disability program or other agency that contracts with the county or Department to determine developmental disability eligibility.

(35) “Entry” means admission to a Department-funded developmental disability service.

(36) “Exit” means termination or discontinuance of:

(a) Services from a service provider; or

(b) Department-funded developmental disability services.

(37) “Family Member” means husband or wife, domestic partner, natural parent, child, sibling, adopted child, adoptive parent, stepparent, stepchild, stepbrother, stepsister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, grandparent, grandchild, aunt, uncle, niece, nephew, or first cousin.

(38) “Founded Reports” means the Department’s Children, Adults, and Families Division or Law Enforcement Authority (LEA) determination, based on the evidence, that there is reasonable cause to believe that conduct in violation of the child abuse statutes or rules has occurred and such conduct is attributable to the person alleged to have engaged in the conduct.

(39) “Functional Needs Assessment (FNAT)” means an assessment that documents the level of need, accommodates an individual’s participation in service planning, and includes:

(a) Completing a comprehensive and holistic assessment;

(b) Surveying physical, mental, and social functioning; and

(c) Identifying risk factors, choices and preferences, and service needs.

(40) “Guardian” means the parent of a child, or the person or agency appointed and authorized by a court to make decisions about services for a child.

(41) “Health Care Provider” means the 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.

(42) “Health Care Representative” means:

(a) A health care representative as defined in ORS 127.505; or

(b) A person who has authority to make health care decisions for an individual under the provisions of OAR chapter 411, division 365.

(43) “Hearing” means the formal process following an action that would terminate, suspend, reduce, or deny a service. This is a formal process required by federal law (42 CFR 431.200-250). A hearing is also known as a Medicaid Fair Hearing, Contested Case Hearing, and Administrative Hearing.

(44) “Home” means an individual’s primary residence that is not under contract with the Department to provide services to an individual as a licensed or certified foster home, residential care facility, assisted living facility, nursing facility, or other residential support program site.

(45) “Home and Community-Based Waivered 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.

(46) “Imminent Risk” means:

(a) An adult who is in crisis and shall be civilly court-committed to the Department under ORS 427.215 to 427.306 within 60 days without the use of crisis diversion services; or

(b) A child who is in crisis and shall require out-of-home placement within 60 days without the use of crisis diversion services.

(47) “Incident Report” means the written report of any unusual incident involving an individual.

(48) “Independence” means the extent to which individuals exert control and choice over their own lives.

(49) “Individual” means an adult or a child with an intellectual or developmental disability applying for or determined eligible for developmental disability services.

(50) “Individualized Education Plan (IEP)” means the written plan of instructional goals and objectives developed in conference with an individual and the individual’s legal representative, teacher, and a representative of the school district.

(51) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required for an individual to achieve personal outcomes. 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 developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. The ISP includes an individual’s Plan of Care for Medicaid purposes and reflects whether services are purchased through a waiver, state plan, or provided through an individual’s natural supports.

(52) “Individual Support Plan (ISP) Team” means a team composed of an individual receiving services and the individual’s legal representative, services coordinator or personal agent, and others chosen by the individual. Others chosen by the individual may include service providers, family members, or other persons requested by the individual.

(53) “Informal Adaptive Behavior Assessment” means:

(a) Observations of the adaptive behavior impairments recorded in the individual’s progress notes by a services coordinator or a trained eligibility specialist, with at least two years experience working with individuals with intellectual or developmental disabilities.

(b) A standardized measurement of adaptive behavior such as a Vineland Adaptive Behavior Scale or Adaptive Behavior Assessment System that is administered and scored by a social worker, or other professional with a graduate degree and specific training and experience in individual assessment, administration, and test interpretation of adaptive behavior scales for individuals.

(54) “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 persons;

(b) Participation by individuals with intellectual or developmental disabilities in the same community activities in which persons without an intellectual or developmental disability participate, together with regular contact with persons 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 persons in the community.

(55) “Intellectual Disability” means significantly sub-average general intellectual functioning defined as intelligence quotient’s (IQ’s) under 70 as measured by a qualified professional and existing concurrently with significant impairment in adaptive behavior that are manifested during the developmental period, prior to 18 years of age. Individuals of borderline intelligence, IQ’s 70-75, may be considered to have intellectual disability if there is also significant impairment of adaptive behavior as diagnosed and measured by a qualified professional.

(56) “Intellectual Functioning” means functioning as assessed by a qualified professional using one or more individually administered general intelligence tests. For purposes of making eligibility determinations, intelligence tests do not include brief intelligence measurements.

(57) “ISP” means “Individual Support Plan” as defined in this rule.

(58) “Legal Representative” means:

(a) For a child, the parent unless a court appoints another person or agency to act as guardian; and

(b) For an adult, 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.

(59) “Level of Care” means an assessment completed by a services coordinator has determined an individual meets institutional level of care. An individual meets institutional level of care for an intermediate care facility for individuals with intellectual or developmental disabilities if:

(a) The individual has a condition of an intellectual disability or a developmental disability as defined in this rule 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.

(60) “Local Mental Health Authority (LMHA)” means:

(a) The county court or board of county commissioners of one or more counties that operate a community mental health and developmental disability program;

(b) The tribal council in the case of a Native American reservation;

(c) The board of directors of a public or private corporation if the county declines to operate or contract for all or part of a community mental health and developmental disability program; or

(d) The advisory committee for the community developmental disability program covering a geographic service area when managed by the Department.

(61) “Management Entity” means the community developmental disability program or private corporation that operates the regional crisis diversion program, including acting as the fiscal agent for regional crisis diversion funds and resources.

(62) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who:

(a) 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.

(b) 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 intellectual or developmental disabilities. Pursuant to ORS 430.765(2) psychiatrists, psychologists, clergy, and attorneys are not mandatory reporters with regard to information received through communications that are privileged under ORS 40.225 to 40.295.

(63) “Mechanical Restraint” means any mechanical device, material, object, or equipment that is attached or adjacent to an individual’s body that the individual cannot easily remove or easily negotiate around that restricts freedom of movement or access to the individual’s body.

(64) “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.

(65) “Mental Retardation” is synonymous with “intellectual disability”.

(66) “Monitoring” means the periodic review of the implementation of services identified in the Individual Support Plan or annual summary, and the quality of services delivered by other organizations.

(67) “Natural Supports” or “Natural Support System” means the resources available to an individual from the individual’s relatives, friends, significant others, neighbors, roommates, and the community. Services provided by natural supports are resources that are not paid for by the Department.

(68) “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.

(69) “OAPPI” means the Department’s Office of Adult Abuse Prevention and Investigation.

(70) “Oregon Intervention System (OIS)” 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. OIS uses principles of pro-active support and describes approved physical intervention techniques that are used to maintain health and safety.

(71) “OSIP-M” means Oregon Supplemental Income Program-Medical as defined in OAR 461-101-0010. OSIP-M is Oregon Medicaid insurance coverage for an individual who meets eligibility criteria as described in OAR chapter 461.

(72) “Personal Agent” means a person who is a case manager for the provision of case management services, works directly with individuals and the individuals’ families to provide or arrange for support services as described in OAR chapter 411, division 340, meets the qualifications set forth in OAR 411-340-0150, and is:

(a) A trained employee of a brokerage; or

(b) A person who has been engaged under contract to the brokerage to allow the brokerage to meet responsibilities in geographic areas where personal agent resources are severely limited.

(73) “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.

(74) “Physician” means a person licensed under ORS chapter 677 to practice medicine and surgery.

(75) “Physician Assistant” means a person licensed under ORS 677.505 to 677.525.

(76) “Plan of Care” means the Medicaid authorized written document within the context of an Individual Support Plan that is developed using person-centered planning that describes the supports, services, and resources provided or accessed to address the needs of an individual.

(77) “Productivity” 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.

(78) “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.

(79) “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”.

(80) “Psychologist” means:

(a) A person possessing a doctorate degree in psychology from an accredited program with course work in human growth and development, tests, and measurement; or

(b) A state certified school psychologist.

(81) “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.

(82) “Qualified Professional” means a:

(a) Licensed clinical psychologist (Ph.D., Psy.D.) or school psychologist;

(b) Medical doctor (MD);

(c) Doctor of osteopathy (DO); or

(d) Nurse Practitioner.

(83) “Region” means a group of Oregon counties defined by the Department that have a designated management entity to coordinate regional crisis and backup services and be the recipient and administration of funds for those services.

(84) “Regional Crisis Diversion Program” means the regional coordination of the management of crisis diversion services for a group of designated counties that is responsible for the management of the following developmental disability services:

(a) Crisis intervention services;

(b) Evaluation of requests for new or enhanced services for certain groups of individuals eligible for developmental disability services; and

(c) Other developmental disability services that the counties compromising the region agree shall be delivered more effectively or automatically on a regional basis.

(85) “Respite” means intermittent services provided on a periodic but 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 unable to care for him or herself.

(86) “Restraint” means any physical hold, device, or chemical substance that restricts, or is meant to restrict, the movement or normal functioning of an individual.

(87) “Review” means a request for reconsideration of a decision made by a service provider, community developmental disability program, support services brokerage, or the Department.

(88) “School Aged” means the age at which a child is old enough to attend kindergarten through high school.

(89) “Service Element” means a funding stream to fund programs or services including but not limited to foster care, 24-hour residential, case management, supported living, support services, crisis diversion services, in-home comprehensive services, or family support.

(90) “Service Provider” means a public or private community agency or organization that provides recognized developmental disability services and is approved by the Department, or other appropriate agency, to provide these services. The term “provider” or “program” is synonymous with “service provider.”

(91) “Services Coordinator” means an employee of the community developmental disability program or other agency that contracts with the county or Department, who is selected to plan, procure, coordinate, monitor Individual Support Plan services, and to act as a proponent for individuals.

(92) “State Training Center” means the Eastern Oregon Training Center.

(93) “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.

(94) “Support” means the assistance that an individual requires, solely because of the affects of an 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.

(95) “Support Services Brokerage” means an entity, or distinct operating unit within an existing entity, that uses the principles of self-determination to perform the functions associated with planning and implementation of support services for individuals with intellectual or developmental disabilities.

(96) “These Rules” mean the rules in OAR chapter 411, division 320.

(97) “Transfer” means movement of an individual from a service site to another service site, administered or operated by the same service provider that has not been addressed within the individual’s Individual Support Plan.

(98) “Transition Plan” means the written plan of services and supports for the period of time between an individual’s entry into a particular service and the development of the individual’s Individual Support Plan (ISP). The transition plan is approved by the individual’s services coordinator and includes a summary of the services necessary to facilitate adjustment to the services offered, the supports necessary to ensure health and safety, and the assessments and consultations necessary for the ISP development.

(99) “Unusual Incident” means any incident involving an individual that includes serious illness or accidents, death, injury or illness requiring inpatient or emergency hospitalization, suicide attempts, a fire requiring the services of a fire department, an act of physical aggression, or any incident requiring abuse investigation.

(100) “Variance” means the temporary exception from a regulation or provision of these rules that may be granted by the Department, upon written application by the community developmental disability program.

(101) “Volunteer” means any person assisting a service provider without pay to support the services and supports provided to an individual.

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 5-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 6-2010(Temp), f. 6-29-10, cert. ef. 7-4-10 thru 12-31-10; SPD 28-2010, f. 12-29-10, cert. ef. 1-1-11; SPD 31-2011, f. 12-30-11, cert. ef. 1-1-12; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-320-0030

Organization and Program Management

(1) ORGANIZATION AND INTERNAL MANAGEMENT. Each service provider of community developmental disability services funded by the Department must have written standards governing the operation and management of the program. Such standards must be up to date, available upon request, and include:

(a) An up-to-date organization chart showing lines of authority and responsibility from the LMHA to the CDDP manager and the components and staff within the agency;

(b) Position descriptions for all staff providing community developmental disability services;

(c) Personnel policies and procedures concerning:

(A) Recruitment and termination of employees;

(B) Employee compensation and benefits;

(C) Employee performance appraisals, promotions, and merit pay;

(D) Staff development and training;

(E) Employee conduct (including the requirement that abuse of an individual by an employee, staff, or volunteer of the CDDP is prohibited and is not condoned or tolerated); and

(F) Reporting of abuse (including the requirement that any employee of the CDDP is to report incidents of abuse when the employee comes in contact with and has reasonable cause to believe that an individual has suffered abuse). Notification of mandatory reporting status must be made at least annually to all employees and documented on forms provided by the Department.

(2) MANAGEMENT PLAN. The CDDP must maintain a current management plan assigning responsibility for the developmental disability services program management functions and duties described in this rule. The management plan must --

(a) Consider the unique organizational structure, policies, and procedures of the CDDP;

(b) Assure that the functions and duties are assigned to people who have the knowledge and experience necessary to perform them, as well as ensuring that the functions are implemented; and

(c) Reflect implementation of minimum quality assurance activities described in OAR 411-320-0045 that support the Department’s Quality Management Strategy for meeting Centers for Medicare and Medicaid Services’ waiver quality assurances, as required by 42 CFR 441.301 and 441.302.

(3) PROGRAM MANAGEMENT. Staff delivering developmental disability services must be organized under the leadership of a designated CDDP manager and receive clerical support services sufficient to perform their required duties.

(a) The LMHA, public entity, or the public or private corporation operating the CDDP must designate a full-time employee who must, on at least a part-time basis, be responsible for management of developmental disability services within a specific geographic service area.

(b) In addition to other duties as may be assigned in the area of developmental disability services, the CDDP must at a minimum develop and assure:

(A) Implementation of plans as may be needed to provide a coordinated and efficient use of resources available to serve individuals;

(B) Maintenance of positive and cooperative working relationships with families, advocates, service providers, support service brokerages, the Department, local government, and other state and local agencies with an interest in developmental disability services;

(C) Implementation of programs funded by the Department to encourage pursuit of defined program outcomes and monitor the programs to assure service delivery that is in compliance with related contracts and applicable local, state, and federal requirements;

(D) Collection and timely reporting of information as may be needed to conduct business with the Department including but not limited to licensing foster homes, collecting federal funds supporting services, and investigating complaints related to services or suspected abuse; and

(E) Use of procedures that attempt to resolve complaints involving individuals or organizations that are associated with developmental disability services.

(4) QUALIFIED STAFF. Each CDDP must provide a qualified CDDP manager, services coordinator, eligibility specialist, and abuse investigator specialist for adults with intellectual or developmental disabilities, or have an agreement with another CDDP to provide a qualified eligibility specialist and abuse investigator specialist for adults with intellectual or developmental disabilities.

(a) CDDP MANAGER.

(A) A CDDP manager must have knowledge of the public service system for developmental disability services in Oregon and at least:

(i) A bachelor’s degree in behavioral science, social science, health science, special education, public administration, or human service administration and a minimum of four years experience with at least two of those years of experience in developmental disability services that provided recent experience in program management, fiscal management, and staff supervision; or

(ii) Six years of experience with staff supervision; or

(iii) Six years of experience in technical or professional level staff work related to developmental disability services.

(B) On an exceptional basis, the CDDP may hire a person who does not meet the qualifications in subsection (A) of this section if the county and the Department have mutually agreed on a training and technical assistance plan that assures that the person quickly acquires all needed skills and experience.

(C) When the position of CDDP manager becomes vacant, an interim CDDP manager must be appointed to serve until a permanent CDDP manager is appointed. The CDDP must request a variance as described in section (7) of this rule if the person appointed as interim CDDP manager does not meet the qualifications in subsection (A) of this section and the term of the appointment totals more than 180 days.

(b) CDDP SUPERVISOR. A CDDP supervisor (when available) must have knowledge of the public service system for developmental disability services in Oregon and at least:

(A) A bachelor’s degree or equivalent course work in a field related to management such as business or public administration, or a field related to developmental disability services, may be substituted for up to three years required experience; or

(B) Five years of experience in staff supervision or five years of experience in technical or professional level staff work related to developmental disability services.

(c) SERVICES COORDINATOR. The services coordinator must have knowledge of the public service system for developmental disability services in Oregon and at least:

(A) A bachelor’s degree in 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 (i.e., work providing assistance to individuals and groups with issue such as economical disadvantages, employment, abuse and neglect, substance abuse, aging, disabilities, prevention, health, cultural competencies, housing); or

(C) An associate’s degree in behavioral science, social science, or a closely related field and two years of human services related experience (i.e. 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, housing); or

(D) Three years of human services related experience (i.e., 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, housing).

(d) ELIGIBILITY SPECIALIST. An eligibility specialist must have knowledge of the public service system for developmental disability services in Oregon and at least:

(A) A bachelor’s degree in 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; or

(C) An associate’s degree in behavioral science, social science, or a closely related field and two years of human services related experience; or

(D) Three years of human services related experience.

(e) ABUSE INVESTIGATOR SPECIALIST. An abuse investigator specialist must have at least:

(A) A bachelor’s degree in human, social, behavioral, or criminal science and two years of human services, law enforcement, or investigative experience; or

(B) An associate’s degree in human, social, behavioral, or criminal science and four years of human services, law enforcement, or investigative experience.

(5) EMPLOYMENT. An application for employment at the CDDP must inquire whether an applicant has had any founded reports of child abuse or substantiated abuse.

(6) BACKGROUND CHECKS.

(a) Any employee, volunteer, advisor of the CDDP, or any subject individual defined by OAR 407-007-0210 including staff who are not identified in this rule but use public funds intended for the operation of the CDDP, and who has or will have contact with an eligible individual of the CDDP, must have an approved background check in accordance with OAR 407-007-0200 to 407-007-0370 and under ORS 181.534.

(A) Effective July 28, 2009, the CDDP may not use public funds to support, in whole or in part, any employee, volunteer, advisor of the CDDP, or any subject individual defined by OAR 407-007-0210 who will have contact with a recipient of CDDP services and who has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(B) Effective July 28, 2009, a person does not meet the qualifications described in this rule if the person has been convicted of any of the disqualifying crimes listed in OAR 407-007-0275.

(C) Any employee, volunteer, advisor of the CDDP, or any subject individual defined by OAR 407-007-0210 must self-report any potentially disqualifying condition as described in OAR 407-007-0280 and OAR 407-007-0290. The person must notify the Department or the Department’s designee within 24 hours.

(b) Subsections (A) and (B) of section (a) do not apply to employees who were hired prior to July 28, 2009 and remain in the current position for which the employee was hired.

(7) VARIANCE. The CDDP must submit a written variance request to the Department prior to employment of a person not meeting the minimum qualifications in section (4) of this rule. A variance request may not be requested for sections (5) and (6) of this rule. The written variance request must include:

(a) An acceptable rationale for the need to employ a person who does not meet the minimum qualifications in section (4) of this rule; and

(b) A proposed alternative plan for education and training to correct the deficiencies.

(A) The proposal must specify activities, timelines, and responsibility for costs incurred in completing the alternative plan.

(B) 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.

(8) STAFF DUTIES.

(a) SERVICES COORDINATOR DUTIES. The duties of the services coordinator must be specified in the employee’s job description and at a minimum include:

(A) The delivery of case management services to individuals as described in OAR 411-320-0090;

(B) Assisting the CDDP manager in monitoring the quality of services delivered within the county; and

(C) Assisting the CDDP manager in the identification of existing and insufficient service delivery resources or options.

(b) ELIGIBILITY SPECIALIST DUTIES. The duties of the eligibility specialist must be specified in the employee’s job description and at a minimum include:

(A) Completing intake and eligibility determination for individuals applying for developmental disability services;

(B) Completing eligibility redetermination for individuals requesting continuing developmental disability services; and

(C) Assisting the CDDP manager in the identification of existing and insufficient service delivery resources or options.

(c) ABUSE INVESTIGATOR SPECIALIST DUTIES. The duties of the abuse investigator specialist must be specified in the employee’s job description and at a minimum include:

(A) Conducting abuse investigation and protective services for adult individuals with intellectual or developmental disabilities enrolled in, or previously eligible and voluntarily terminated from, developmental disability services;

(B) Assisting the CDDP manager in monitoring the quality of services delivered within the county; and

(C) Assisting the CDDP manager in the identification of existing and insufficient service delivery resources or options.

(9) STAFF TRAINING. Qualified staff of the CDDP must maintain and enhance their knowledge and skills through participation in education and training. The Department provides training materials and the provision of training may be conducted by the Department or CDDP staff, depending on available resources.

(a) CDDP MANAGER TRAINING. The CDDP manager must participate in a basic training sequence and be knowledgeable of the duties of the staff they supervise and the developmental disability services they manage. The basic training sequence is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new CDDP manager.

(A) The orientation provided by the CDDP to a new CDDP manager must include:

(i) An overview of developmental disability services and related human services within the county;

(ii) An overview of the Department’s rules governing the CDDP;

(iii) An overview of the Department’s licensing and certification rules for service providers;

(iv) An overview of the enrollment process and required documents needed for enrollment into the Department’s payment and reporting systems;

(v) A review and orientation of Medicaid, Supplemental Security Income (SSI), Social Security Administration (SS), home and community-based waivered and state plan services, the Oregon Health Plan (OHP), and the individual support planning processes; and

(vi) A review (prior to having contact with individuals) of the CDDP manager’s responsibility as a mandatory reporter of abuse, including abuse of individuals with intellectual or developmental disabilities, individuals with mental illness, older adults, and children.

(B) The CDDP manager must attend the following trainings endorsed or sponsored by the Department within the first year of entering into the position:

(i) Case management basics; and

(ii) ISP training.

(C) The CDDP manager must continue to enhance his or her knowledge, as well as maintain a basic understanding of developmental disability services and the skills, knowledge, and responsibilities of the staff they supervise.

(i) Each CDDP manager must participate in a minimum of 20 hours per year of additional Department-sponsored training or other training in the areas of intellectual or developmental disabilities.

(ii) Each CDDP manager must attend trainings to maintain a working knowledge of system changes in the area the CDDP manager is managing or supervising.

(b) CDDP SUPERVISOR TRAINING. The CDDP supervisor (when designated) must participate in a basic training sequence and be knowledgeable of the duties of the staff they supervise and of the developmental disability services they manage. The basic training sequence is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new CDDP supervisor.

(A) The orientation provided by the CDDP to a new CDDP supervisor must include:

(i) An overview of developmental disability services and related human services within the county;

(ii) An overview of the Department’s rules governing the CDDP;

(iii) An overview of the Department’s licensing and certification rules for service providers;

(iv) An overview of the enrollment process and required documents needed for enrollment into the Department’s payment and reporting systems;

(v) A review and orientation of Medicaid, SSI, SS, home and community-based waivered and state plan services, OHP, and the individual support planning processes; and

(vi) A review (prior to having contact with individuals) of the CDDP supervisor’s responsibility as a mandatory reporter of abuse, including abuse of individuals with intellectual or developmental disabilities, individuals with mental illness, older adults, and children.

(B) The CDDP supervisor must attend the following trainings endorsed or sponsored by the Department within the first year of entering into the position:

(i) Case management basics; and

(ii) ISP training.

(C) The CDDP supervisor must continue to enhance his or her knowledge, as well as maintain a basic understanding of developmental disability services and the skills, knowledge, and responsibilities of the staff they supervise.

(i) Each CDDP supervisor must participate in a minimum of 20 hours per year of additional Department-sponsored training or other training in the areas of intellectual or developmental disabilities.

(ii) Each CDDP supervisor must attend trainings to maintain a working knowledge of system changes in the area the CDDP supervisor is managing or supervising.

(c) SERVICES COORDINATOR TRAINING. The services coordinator must participate in a basic training sequence. The basic training sequence is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new services coordinator.

(A) The orientation provided by the CDDP to a new services coordinator must include:

(i) An overview of the role and responsibilities of a services coordinator;

(ii) An overview of developmental disability services and related human services within the county;

(iii) An overview of the Department’s rules governing the CDDP;

(iv) An overview of the Department’s licensing and certification rules for service providers;

(v) An overview of the enrollment process and required documents needed for enrollment into the Department’s payment and reporting systems;

(vi) A review and orientation of Medicaid, SSI, SS, home and community-based waivered and state plan services, OHP, and the individual support planning processes for the services they coordinate; and

(vii) A review (prior to having contact with individuals) of the services coordinator’s responsibility as a mandatory reporter of abuse, including abuse of individuals with intellectual or developmental disabilities, individuals with mental illness, seniors, and children.

(B) The services coordinator must attend the following trainings endorsed or sponsored by the Department within the first year of entering into the position:

(i) Case management basics; and

(ii) ISP training (for services coordinators providing services to individuals in comprehensive services).

(C) The services coordinator must continue to enhance his or her knowledge, as well as maintain a basic understanding of developmental disability services and the skills, knowledge, and responsibilities necessary to perform the position. Each services coordinator must participate in a minimum of 20 hours per year of Department-sponsored training or other training in the areas of intellectual or developmental disabilities.

(d) ELIGIBILITY SPECIALIST TRAINING. The eligibility specialist must participate in a basic training sequence. The basic training sequence is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new eligibility specialist.

(A) The orientation provided by the CDDP to a new eligibility specialist must include:

(i) An overview of eligibility criteria and the intake process;

(ii) An overview of developmental disability services and related human services within the county;

(iii) An overview of the Department’s rules governing the CDDP;

(iv) An overview of the Department’s licensing and certification rules for service providers;

(v) An overview of the enrollment process and required documents needed for enrollment into the Department’s payment and reporting systems;

(vi) A review and orientation of Medicaid, SSI, SS, home and community-based waivered or state plan services, and OHP; and

(vii) A review (prior to having contact with individuals) of the eligibility specialist’s responsibility as a mandatory reporter of abuse, including abuse of individuals with intellectual or developmental disabilities, individuals with mental illness, seniors, and children.

(B) The eligibility specialist must attend and complete eligibility core competency training within the first year of entering into the position and demonstrate competency after completion of core competency training. Until completion of eligibility core competency training, or if competency is not demonstrated, the eligibility specialist must consult with another trained eligibility specialist or consult with a Department diagnosis and evaluation coordinator when making eligibility determinations.

(C) The eligibility specialist must continue to enhance his or her knowledge, as well as maintain a basic understanding of the skills, knowledge, and responsibilities necessary to perform the position.

(i) Each eligibility specialist must participate in Department-sponsored trainings for eligibility on an annual basis.

(ii) Each eligibility specialist must participate in a minimum of 20 hours per year of Department-sponsored training or other training in the areas of intellectual or developmental disabilities.

(e) ABUSE INVESTIGATOR SPECIALIST TRAINING. The abuse investigator specialist must participate in core competency training. Training materials are provided by the OAPPI. The core competency training is not a substitute for the normal procedural orientation that must be provided by the CDDP to the new abuse investigator specialist.

(A) The orientation provided by the CDDP to a new abuse investigator specialist must include:

(i) An overview of developmental disability services and related human services within the county;

(ii) An overview of the Department’s rules governing the CDDP;

(iii) An overview of the Department’s licensing and certification rules for service providers;

(iv) A review and orientation of Medicaid, SSI, SS, home and community-based waivered and state plan services, OHP, and the individual support planning processes; and

(v) A review (prior to having contact with individuals) of the abuse investigator specialist’s responsibility as a mandatory reporter of abuse, including abuse of individuals with intellectual or developmental disabilities, individuals with mental illness, seniors, and children.

(B) The abuse investigator specialist must attend and pass core competency training within the first year of entering into the position and demonstrate competency after completion of core competency training. Until completion of core competency training, or if competency is not demonstrated, the abuse investigator specialist must consult with OAPPI prior to completing the abuse investigation and protective services report.

(C) The abuse investigator specialist must continue to enhance his or her knowledge, as well as maintain a basic understanding of the skills, knowledge, and responsibilities necessary to perform the position. Each abuse investigator specialist must participate in quarterly meetings held by OAPPI. At a minimum, one meeting per year must be attended in person.

(f) ATTENDANCE. The CDDP manager must assure the attendance of the CDDP supervisor, services coordinator, eligibility specialist, or abuse investigator specialist at Department-mandated training.

(g) DOCUMENTATION. The CDDP must keep documentation of required training in the personnel files of the individual employees including the CDDP manager, CDDP supervisor, services coordinator, eligibility specialist, abuse investigator specialist, and other employees providing services to individuals.

(10) ADVISORY COMMITTEE. Each CDDP must have an advisory committee.

(a) The advisory committee must meet at least quarterly.

(b) The membership of the advisory committee must be broadly representative of the community, with a balance of age, sex, ethnic, socioeconomic, geographic, professional, and consumer interests represented. Membership must include advocates for individuals as well as individuals and their families.

(c) The advisory committee must advise the LMHA, the CDDP director, and the CDDP manager on community needs and priorities for services, and assist in planning, reviewing, and evaluating services, functions, duties, and quality assurance activities described in the CDDP’s management plan.

(d) When the Department or a private corporation is operating the CDDP, the advisory committee must advise the LMHA, the CDDP director, and the CDDP manager on community needs and priorities for services, and assist in planning, reviewing, and evaluating services, functions, duties, and quality assurance activities described in the CDDP’s management plan.

(e) The advisory committee may function as the disability issues advisory committee as described in ORS 430.625 if so designated by the LMHA.

(11) NEEDS ASSESSMENT, PLANNING, AND COORDINATION. Upon the Department’s request, the CDDP must assess local needs for services to individuals and must submit planning and assessment information to the Department.

(12) CONTRACTS.

(a) If the CDDP, or any of the CDDPs services as described in the Department’s contract with the LMHA, is not operated by the LMHA, there must be a contract between the LMHA and the organization operating the CDDP or the services, or a contract between the Department and the operating CDDP. The contract must specify the authorities and responsibilities of each party and conform to the requirements of the Department’s rules pertaining to contracts or any contract requirement with regard to operation and delivery of services.

(b) The CDDP may purchase certain services for an individual from a qualified service provider without first providing an opportunity for competition among other service providers if the service provider is selected by the individual, the individual’s family, or the individual’s guardian or legal representative.

(A) The service provider selected must also meet Department certification or licensing requirements to provide the type of service to be contracted.

(B) There must be a contract between the service provider and the CDDP that specifies the authorities and responsibilities of each party and conforms to the requirements of the Department’s rules pertaining to contracts or any contract requirement with regard to operation and delivery of services.

(c) When a CDDP contracts with a public agency or private corporation for delivery of developmental disability services, the CDDP must include in the contract only terms that are substantially similar to model contract terms established by the Department. The CDDP may not add contractual requirements, including qualifications for contractor selection that are nonessential to the services being provided under the contract. The CDDP must specify in contracts with service providers that disputes arising from these limitations must be resolved according to the complaint procedures contained in OAR 411-320-0170. For purposes of this rule, the following definitions apply:

(A) “Model contract terms established by the Department” means all applicable material terms and conditions of the omnibus contract, as modified to appropriately reflect a contractual relationship between the service provider and CDDP and any other requirements approved by the Department as local options under procedures established in these rules.

(B) “Substantially similar to model contract terms” means that the terms developed by the CDDP and the model contract terms require the service provider to engage in approximately the same type activity and expend approximately the same resources to achieve compliance.

(C) “Nonessential to the services being provided” means requirements that are not substantially similar to model contract terms developed by the Department.

(d) The CDDP may, as a local option, impose on a public agency or private corporation delivering developmental disability services under a contract with the CDDP, a requirement that is in addition to or different from requirements specified in the omnibus contract if all of the following conditions are met:

(A) The CDDP has provided the affected contractors with the text of the proposed local option as it would appear in the contract. The proposed local option must include:

(i) The date upon which the local option would become effective and a complete written description of how the local option would improve individual independence, productivity, or integration; or

(ii) How the local option would improve the protection of individual health, safety, or rights;

(B) The CDDP has sought input from the affected contractors concerning ways the proposed local option impacts individual services;

(C) The CDDP, with assistance from the affected contractors, has assessed the impact on the operations and financial status of the contractors if the local option is imposed;

(D) The CDDP has sent a written request for approval of the proposed local option to the Department’s Director that includes:

(i) A copy of the information provided to the affected contractors;

(ii) A copy of any written comments and a complete summary of oral comments received from the affected contractors concerning the impact of the proposed local option; and

(iii) The text of the proposed local option as it would appear in contracts with service providers, including the proposed date upon which the requirement would become effective.

(E) The Department has notified the CDDP that the new requirement is approved as a local option for that program; and

(F) The CDDP has advised the affected contractors of their right and afforded them an opportunity to request mediation as provided in these rules before the local option is imposed.

(e) The CDDP may add contract requirements that the CDDP considers necessary to ensure the siting and maintenance of residential facilities in which individual services are provided. These requirements must be consistent with all applicable state and federal laws and regulations related to housing.

(f) The CDDP must adopt a dispute resolution policy that pertains to disputes arising from contracts with service providers funded by the Department and contracted through the CDDP. Procedures implementing the dispute resolution policy must be included in the contract with any such service provider.

(13) FINANCIAL MANAGEMENT.

(a) There must be up-to-date accounting records for each developmental disability service accurately reflecting all revenue by source, all expenses by object of expense, and all assets, liabilities, and equities. The accounting records must be consistent with generally accepted accounting principles and conform to the requirements of OAR 309-013-0120 to 309-013-0220.

(b) There must be written statements of policy and procedure as are necessary and useful to assure compliance with any Department administrative rules pertaining to fraud and embezzlement and financial abuse or exploitation of individuals.

(c) Billing for Title XIX funds must in no case exceed customary charges to private pay individuals for any like item or service.

(14) POLICIES AND PROCEDURES. There must be such other written and implemented statements of policy and procedure as necessary and useful to enable the CDDP to accomplish its service objectives and to meet the requirements of the contract with the Department, these rules, and other applicable standards and rules.

Stat. Auth.: ORS 409.050, 410.070, & 430

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 25-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 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 27-2010Temp), f. & cert. ef. 12-1-10 thru 5-30-11; SPD 11-2011, f. & cert. ef. 6-2-11; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-320-0040

Community Developmental Disability Program Responsibilities

The CDDP must ensure the provision of the following services and system supports.

(1) ACCESS TO SERVICES.

(a) In accordance with the Civil Rights Act of 1964 (codified as 42 USC 2000d et seq.), any person may not be denied community developmental disability services on the basis of race, color, creed, sex, national origin, or duration of residence. CDDP contractors must comply with Section 504 of the Rehabilitation Act of 1973 (codified as 29 USC 794 and as implemented by 45 CFR Section 84.4) that states in part, “No qualified person must, on the basis of handicap, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity that receives or benefits from federal financial assistance”.

(b) Any individual determined eligible for developmental disability services by a CDDP must also be eligible for other community developmental disability services unless admission to the service is subject to diagnostic or developmental disability category or age restrictions based on predetermined criteria or contract limitations.

(2) COORDINATION OF COMMUNITY SERVICES. Planning and implementation of services for individuals served by the CDDP must be coordinated between components of the CDDP, other local and state human service agencies, and any other service providers as appropriate for the needs of the individual.

(3) CHOICE COUNSELING. Effective July 1, 2013, choice counseling regarding the provision of case management and other services must be provided to individuals who are eligible for and desire developmental disability services. Choice counseling is provided by a choice advisor who impartially describes service delivery options available through a support services brokerage or CDDP. Choice counseling is provided on an annual basis.

(4) CASE MANAGEMENT SERVICES.

(a) The CDDP may provide case management to individuals who are waiting for a determination of eligibility and reside in the county at the time they apply.

(b) Case management may be provided directly by the CDDP or under a contract between the CDDP and a service provider of case management services.

(c) If an individual is receiving services in more than one county, the county of origin must be responsible for case management services unless otherwise negotiated and documented in writing with the mutually agreed upon conditions.

(d) Case management services require an impartial point of view to fulfill the necessary functions of planning, procuring, monitoring, and investigating. Except as allowed under section (4)(e) of this rule, the case management program must be provided under an organizational structure that separates case management from other direct services for individuals. This separation may take one of the following forms:

(A) The CDDP may provide case management and subcontract for delivery of other direct services through one or more different organizations; or

(B) The CDDP may subcontract for delivery of case management through an unrelated organization and directly provide the other services, or further subcontract these other direct services through organizations that are not already under contract to provide case management services.

(e) A CDDP or other organization that provides case management services may also provide other direct services under the following circumstances:

(A) The CDDP coordinates the delivery of family support services for children under 18 years of age living at home with their family or comprehensive in-home supports for adults.

(B) The CDDP determines that an organization providing direct services is no longer able to continue providing services, or the organization providing direct service is no longer willing or able and no other organization is able or willing to continue operations on 30 days notice.

(C) In order to develop new or expanded direct services for geographic service areas or populations because other local organizations are unwilling or unable to provide appropriate services.

(f) A variance must be prior authorized by the Department if a CDDP intends to perform a direct service other than family support services or comprehensive in-home support.

(A) It is assumed that the CDDP provides family support services or comprehensive in-home supports described in subsection (e)(A) of this section. If the CDDP does not provide one or both of these services, the CDDP must submit a written variance request to the Department for prior approval that describes how the services are provided.

(B) If the circumstance described in subsection (e)(B) of this rule exist, the CDDP must propose a plan to the Department for review including action to assume responsibility for case management services and the mechanism for addressing potential conflict of interest.

(C) If a CDDP providing case management services delivers other services as allowed under subsection (e)(C) of this section, the organization must submit a written variance request to the Department for prior approval that includes the action to assume responsibility for case management services and the mechanism for addressing potential conflict of interest.

(g) If an organization providing case management services delivers other services as allowed under subsections (e)(B) and (e)(C) of this rule, the organization must solicit other organizations to assume responsibility for delivery of these other services through a request for proposal (RFP) at least once every two years. When an RFP is issued, a copy must be sent to the Department. The Department must be notified of the results of the solicitation, including the month and year of the next solicitation if there are no successful applicants.

(h) If the CDDP wishes to continue providing case management and other direct services without conducting a solicitation as described in subsection (g) of this section, the CDDP must submit a written variance request to the Department for prior approval that describes how conflict of roles are managed within the CDDP.

(i) If the CDDP also operates a support services brokerage, the CDDP must submit a written variance request to the Department for prior approval that includes the mechanism for addressing potential conflict of interest.

(5) FAMILY SUPPORT. The CDDP must ensure the availability of a program for family support services in accordance with OAR chapter 411, division 305.

(6) ABUSE AND PROTECTIVE SERVICES. The CDDP must assure that abuse investigations for adults with intellectual or developmental disabilities are appropriately reported and conducted by trained staff according to statute and administrative rules. When there is reason to believe a crime has been committed, the CDDP must report to law enforcement. The CDDP must report any suspected or observed abuse of children directly to the Department or local law enforcement, when appropriate.

(7) FOSTER HOMES. The CDDP must recruit foster home applicants and maintain forms and procedures necessary to license or certify foster homes. The CDDP must maintain copies of the following records:

(a) Initial and renewal applications for a foster home;

(b) All inspection reports completed by the CDDP (including required annual renewal inspection and any other inspections);

(c) General information about the home;

(d) Documentation of references, classification information, credit check (if necessary), background check, and training for service providers and substitute caregivers;

(e) Documentation of foster care exams for adult foster home providers;

(f) Correspondence;

(g) Any meeting notes;

(h) Financial records;

(i) Annual agreement or contract;

(j) Legal notices and final orders for rule violations, conditions, denials, or revocations (if any); and

(k) Copies of the foster home’s annual license or certificate.

(8) CONTRACT MONITORING. The CDDP must monitor all community developmental disability subcontractors to assure that:

(a) Services are provided as specified in the CDDP’s contract with the Department; and

(b) Services are in compliance with these rules and other applicable Department rules.

(9) INFORMATION AND REFERRAL. The CDDP must provide information and referral services to individuals, individuals’ families, and interested others.

(10) AGENCY COORDINATION. The CDDP must assure coordination with other agencies to develop and manage resources within the county or region to meet the needs of individuals.

(11) MAINTENANCE OF CENTRALIZED WAIT LIST. The CDDP must maintain a current unduplicated central wait list as described in OAR 411-320-0090 of eligible individuals 18 years and older living within the geographic service area of the CDDP who are enrolled in case management services and who are not receiving comprehensive services for adults.

(12) SERVICE DELIVERY COMPLAINTS. The CDDP must implement procedures to address individual or family complaints regarding service delivery that have not been resolved using the CDDP subcontractor’s complaint procedures (informal or formal). Such procedures must be consistent with the requirements in OAR 411-320-0170.

(13) COMPREHENSIVE IN-HOME SUPPORTS. The CDDP must ensure the availability of comprehensive in-home supports for those individuals for whom the Department has funded such services. Comprehensive in-home support services must be in compliance with OAR chapter 411, division 330.

(14) EMERGENCY PLANNING. The CDDP must ensure the availability of a written emergency procedure and disaster plan for meeting all civil or weather emergencies and disasters. The emergency procedure and disaster plan must be immediately available to the CDDP manager and employees. The emergency procedure and disaster plan must:

(a) Be integrated with the county emergency preparedness plan where appropriate;

(b) Include provisions on coordination with all developmental disability service provider agencies in the county and any offices, as appropriate;

(c) Include provisions for identifying individuals most vulnerable; and

(d) Include any plans for health and safety checks, emergency assistance, and any other plans that are specific to the type of emergency.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-320-0060

Rights of the Individual Receiving Developmental Disability Services

(1) CIVIL RIGHTS. The rights described in this rule are in addition to and do not limit any other statutory and constitutional rights that are afforded all citizens including but not limited to the right to vote, marry, have or not have children, own and dispose of property, and enter into contracts and execute documents unless specifically prohibited by law in the case of children under 18 years of age.

(2) RIGHTS OF INDIVIDUALS RECEIVING SERVICES. The CDDP must have written policies and procedures to provide for and assure individuals the following rights while receiving developmental disability services:

(a) The right to a humane service environment that affords reasonable protection from harm, affords reasonable privacy, and ensures that individuals:

(A) Are not abused or neglected, nor is abuse or neglect tolerated by any employee, staff, or volunteer of the program;

(B) Are free to report any incident of abuse without being subject to retaliation;

(C) Have the freedom to choose whether or not to participate in religious activity and for children, according to parent or guardian preference;

(D) Have contact and visits with legal and medical professionals unless prohibited by court order, family members, friends, and advocates;

(E) Have access to and communicate privately with any public or private rights protection program advocate, services coordinator, or CDDP representative;

(F) Be free from unauthorized mechanical restraint or protective physical intervention; and

(G) Are not subject to any chemical restraint and assured that medication is administered only for the individual’s clinical needs as prescribed by a health care provider.

(b) Effective July 1, 2013, the right at any time, to choose from available services, available service settings, and available service providers consistent with the individual’s service needs identified through a functional needs assessment. Services must promote independence, dignity, and self-esteem and reflect the age and preferences of the individual. The services must be provided in a setting and under conditions that are least restrictive to the individual’s liberty, that are least intrusive to the individual, and that provide for decision-making and control of personal affairs appropriate to the individual’s age.

(c) The right to a written Individual Support Plan, services delivered according to the ISP, and periodic review and reassessment of the individual’s support needs.

(d) The right to an ongoing opportunity to participate in planning of services in a manner appropriate to the individual’s capabilities, including the right to participate in the development and periodic revision of the ISP described in subsection (c) of this section, and the right to be provided with a reasonable explanation of all service considerations.

(e) The right to informed voluntary written consent prior to receiving services except in a medical emergency or as otherwise permitted by law.

(f) The right to informed voluntary written consent prior to participating in any experimental programs.

(g) The right to prior notice of any action that would terminate, suspend, reduce, or deny a service and notification of other available sources for necessary continued services.

(h) The right to a hearing as defined in OAR 411-320-0020 following an action that would terminate, suspend, reduce, or deny a service.

(i) The right to reasonable and lawful compensation for performance of labor, except personal housekeeping duties.

(j) The right to exercise all rights set forth in ORS 426.385 and 427.031 if the individual is committed to the Department.

(k) The right to be informed at the start of services and periodically thereafter of the rights guaranteed by this rule and the procedures for reporting abuse.

(l) The right to have these rights and procedures prominently posted in a location readily accessible to the individual and made available to the individual’s guardian and any representative designated by the individual.

(m) The right to be informed of and have the opportunity to assert complaints with respect to infringement of the rights described in this rule, including the right to have such complaints considered in a fair, timely, and impartial procedure.

(n) The right to have the freedom to exercise all rights described in this rule without any form of reprisal or punishment.

(o) The right to have the individual or the individual’s guardian and any representative designated by the individual be informed that a family member has contacted the Department to determine the location of the individual and to be informed of the name and contact information, if known, of the family member.

(p) The right to courteous, fair, and dignified treatment by Department personnel and to file a complaint with the Department about staff conduct or customer service to the extent provided in OAR 407-005-0100 to 407-005-0120.

(q) The right to file a complaint with the Department about discrimination or unfair treatment as provided in OAR 407-005-0030.

(3) ASSERT RIGHTS. The rights described in this rule may be asserted and exercised by the individual, the individual’s guardian, and any legal representative designated by the individual.

(4) CHILDREN. Nothing in this rule alters any legal rights and responsibilities between a parent and a child.

(5) ADULTS WITH GUARDIANS. Guardians are appointed for an adult only as is necessary to promote and protect the well being of the individual. A guardianship for an adult must be designed to encourage the development of maximum self-reliance and independence of the individual and may be ordered only to the extent necessitated by the individual’s actual mental and physical limitations. An adult for whom a guardian has been appointed is not presumed to be incompetent. An individual with a guardian retains all legal and civil rights provided by law except those that have been expressly limited by court order or specifically granted to the guardian by the court. Rights retained by the individual include but are not limited to the right to contact and retain counsel and to have access to personal records as described in ORS 125.300.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-320-0070

Records of Service

(1) CONFIDENTIALITY. Records of services to individuals must be kept confidential in accordance with ORS 179.505, ORS 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 rules or policies pertaining to individual service records.

(2) INFORMATION SHARING. Pertinent clinical, financial eligibility, and legal status information concerning an individual supported by the CDDP must be made available to other CDDP’s responsible for the individual’s services, consistent with state statutes and federal laws, and regulations concerning confidentiality and privacy.

(3) RECORD REQUIREMENT. In order to meet Department and federal record documentation requirements, the CDDP, through its employees, must maintain a record for each individual who receives services from the CDDP.

(a) Information contained in the record for all individuals receiving services from a services coordinator must include:

(A) Effective July 1, 2013, documentation of initial and annual choice counseling provided by a choice advisor as described in OAR 411-320-0100;

(B) Documentation of any initial referral to the CDDP for services;

(C) An application for developmental disability services. The application for developmental disability services must be completed prior to an eligibility determination and must be on the application form required by the Department or transferred onto CDDP letterhead;

(D) Sufficient documentation to conform to Department eligibility requirements including notices of eligibility determination;

(E) Documentation of an initial intake interview or home assessment, as well as any subsequent social service summaries;

(F) Effective July 1, 2013, documentation of a functional needs assessment defining support needs for activities of daily living and instrumental activities of daily living;

(G) Documentation of an individual’s request for support services and the individual’s selection of an available support services brokerage within the CDDP’s geographic service area;

(H) Referral information or documentation of referral materials sent to a service provider or another CDDP;

(I) Progress notes written by a services coordinator;

(J) Medical information, as appropriate;

(K) Admission and exit meeting documentation into any comprehensive service including any transition plans, crisis diversion plans, or other plans developed as a result of the meeting;

(L) The ISP including documentation that the ISP is authorized by a services coordinator;

(M) Copies of any incident reports initiated by a CDDP representative for any incident that occurred at the CDDP or in the presence of the CDDP representative;

(N) Documentation of a review of unusual incidents received from service providers. Documentation of a review of unusual incidents must be made in progress notes and a copy of the incident report must be placed in the individual’s file. If applicable, information must be electronically entered into the SERT system and referenced in progress notes;

(O) Documentation of Medicaid eligibility, if applicable;

(P) Initial and annual level of care assessment review on a form prescribed by the Department.;

(i) For individuals receiving children’s intensive in-home services or children’s 24-hour residential services, the CDDP must maintain a current copy of the annual level of care assessment review or reflect documentation of attempts to obtain a current copy.

(ii) Once the individual is enrolled in a support services brokerage, the CDDP must maintain a copy of the initial level of care assessment form completed by the CDDP and any annual reviews completed by the CDDP; and

(Q) Legal records, such as guardianship papers, civil commitment records, court orders, and probation and parole information, as appropriate.

(b) An information sheet or reasonable alternative must be kept current and reviewed at least annually for each individual receiving case management services from the CDDP enrolled in comprehensive services, family support services, or living with family or independently. Information must include:

(A) The individual’s name, current address, date of entry into the program, date of birth, sex, marital status (for individuals 18 or older), religious preference, preferred hospital, medical prime number and private insurance number (where applicable), and guardianship status; and

(B) The names, addresses, and telephone numbers of:

(i) The individual’s guardian or other legal representative, family, advocate or other significant person, and for children, the child’s parent or guardian, and education surrogate, if applicable;

(ii) The individual’s physician and clinic;

(iii) The individual’s dentist;

(iv) The individual’s school, day program, or employer, if applicable;

(v) Other agency representatives providing services to the individual; and

(vi) Any court ordered or legal representative authorized contacts or limitations from contact for individuals living in a foster home, supported living program, or 24-hour residential program.

(c) A current information sheet or reasonable alternative must be maintained for each individual enrolled in a support services brokerage. The current information must include the information listed in subsection (b) of this section.

(4) PROGRESS NOTES. Progress notes must include documentation of the delivery of service by a services coordinator to support provided case management services. Progress notes must be recorded chronologically and documented consistent with CDDP 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 service;

(c) The name of the CDDP, the person providing the service (i.e., the services coordinator’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 county where the CDDP or agency providing case management services 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.

(5) RETENTION OF RECORDS. The CDDP must have a record retention plan for all records relating to the CDDP’s provision of and contracts for services that is consistent with this rule and OAR 166-150-0055. The record retention plan must be made available to the public or the Department upon request.

(a) Financial records, supporting documents, and statistical records must be retained for a minimum of three years after the close of the contract period, or until the conclusion of the financial settlement process with the Department, whichever is longer.

(b) Individual service records must be kept for seven years after the date of the individual’s death, if known. If the case is closed, inactive, or death date is unknown, the individual service record must be kept for 70 years.

(c) Copies of annual ISPs must be kept for 10 years.

(6) TRANSFER OF RECORDS. In the event an individual moves from one county to another county in Oregon, the complete individual record as described in section (3) of this rule must be transferred to the receiving CDDP within 30 days of transfer. The sending CDDP must ensure that the records required by this rule are maintained in permanent record and transferred to the CDDP having jurisdiction for services. The sending CDDP must retain information necessary to document that services were provided to the individual while enrolled in CDDP services. This includes:

(a) Documentation of eligibility for developmental disability services received while enrolled in services through the CDDP including waiver or state plan eligibility;

(b) Service enrollment and termination forms, including comprehensive services wait list enrollment date if applicable;

(c) CDDP progress notes;

(d) Documentation of services provided to the individual by the CDDP; and

(e) Any required documentation necessary to complete the financial settlement with the state.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-320-0090

Developmental Disabilities Case Management Program Responsibilities

(1) AVAILABILITY. As required by these rules, the CDDP must assure the availability of a services coordinator to meet the service needs of an individual and any emergencies or crisis. The assignment of the services coordinator must be appropriately documented in an individual’s service records and the CDDP must accurately report enrollment in the Department’s payment and reporting systems.

(2) POLICIES AND PROCEDURES. The CDDP must adopt written procedures to assure that the delivery of services meet the standards in section (4) of this rule.

(a) The CDDP must have procedures for ongoing involvement of individuals and family members in the planning and review of consumer satisfaction with the delivery of case management or direct services provided by the CDDP.

(b) Copies of the procedures for planning and review of case management services, consumer satisfaction, and complaints must be maintained on file at the CDDP offices. The procedures must be available to:

(A) CDDP employees who work with individuals;

(B) Individuals who are receiving services from the CDDP and the individuals’ families;

(C) Individuals’ legal representatives, advocates, and service providers; and

(D) The Department.

(3) NOTICE OF SERVICES. The CDDP must inform the individuals, family members, legal representatives, and advocates of the minimum case management services that are set out in section (4) of this rule.

(4) MINIMUM STANDARDS FOR CASE MANAGEMENT SERVICES.

(a) The CDDP must ensure that eligibility for services is determined by an eligibility specialist trained in accordance with OAR 411-320-0030.

(b) An ISP for an individual receiving case management services through a CDDP must be developed and reviewed in accordance with OAR 411-320-0120.

(A) The services coordinator must assure that there is an ISP. The services coordinator must attend the annual ISP meeting and facilitate the development of the ISP for individuals enrolled in comprehensive services. The services coordinator is responsible for the development of the ISP for children receiving family support services in coordination with the child and the child’s family.

(B) An Annual Plan must be completed for each individual that is not enrolled in any Department-funded service other than case management.

(c) Program services must be authorized in accordance with OAR 411-320-0120.

(d) Services coordinators must monitor services and supports for all individuals enrolled in case management services through a CDDP in accordance with the standards described in OAR 411-320-0130.

(e) If an individual loses OSIP-M eligibility and the individual is receiving case management services through the CDDP, the services coordinator must assist the individual in identifying why OSIP-M eligibility was lost. Whenever possible, the services coordinator must assist the individual in becoming eligible for OSIP-M again. The services coordinator must document efforts taken to assist the individual in becoming OSIP-M eligible in the individual’s service record.

(f) Entry, exit, and transfers from comprehensive program services must be in accordance with OAR 411-320-0110.

g) Crisis diversion services for individuals receiving case management services through a CDDP must be assessed, identified, planned, monitored, and evaluated by the services coordinator in accordance with OAR 411-320-0160.

(h) Abuse investigations and provision of protective services for adults must be provided as described in OAR 407-045-0250 to 407-045-0360 and include investigating complaints of abuse, writing investigation reports, and monitoring for implementation of report recommendations.

(i) Civil commitment services must be provided in accordance with ORS 427.215 to 427.306.

(j) Individuals determined eligible for developmental disability services or moving into a county with an existing eligibility determination must be referred to a choice advisor within 10 days. A choice advisor describes case management and other service delivery options within the CDDP’s geographic services area provided by a CDDP or support services brokerage.

(A) For individuals 18 years and older, choice counseling must specifically include information necessary to inform the individual of support services.

(B) For individuals 18 years and older, choice counseling must be provided initially and at minimum annually thereafter if the individual declines support services. Annual information and referral must include informing the individual of the individual’s right to, at any time, request access to support services. Documentation of the initial referral and subsequent annual discussion must be documented in the individual’s service record.

(C) For individuals who are not eligible for Community First Choice State Plan or waivered services, initial and annual choice counseling must also include information to inform the individual of their right to access the comprehensive services waitlist at anytime.

(k) For individuals who are not eligible for Community First Choice State Plan or waivered services, the services coordinator must enroll individuals in the comprehensive services wait list who meet the following criteria:

(A) The individual is age 18 or older;

(B) The individual is enrolled in case management services;

(C) The individual has requested to be enrolled in the comprehensive services wait list; and

(D) The individual is not enrolled in comprehensive services as an adult.

(l) An individual who moves between CDDP’s and whose case management or support services do not lapse for more than a period of 12 months retains the wait list enrollment date assigned or continued by the CDDP in which case management services were previously received. If an individual did not receive case management services in any county in Oregon for a period exceeding 12 calendar months, a new wait list enrollment date is assigned. The new wait list enrollment date must be the date the individual first meets all the criteria described in OAR subsection (k) of this section.

(m) When funding and resources are available, the CDDP must facilitate selection of individuals from the comprehensive services wait list using the date of enrollment on the comprehensive services wait list. An individual not eligible for Community First Choice State Plan or waivered services, but is in crisis according to OAR 411-320-0160 and in need of service must be given first consideration for comprehensive services regardless of the date of enrollment on the comprehensive services wait list.

(n) The services coordinator may remove an individual from the comprehensive services wait list for the following reasons:

(A) The individual requests to be removed;

(B) The individual is placed in comprehensive services; or

(C) Upon the individual’s exit or termination from case management services or a support services brokerage.

(o) The CDDP must inform the individual of the CDDP’s intent to remove the individual from the comprehensive services wait list.

(p) Services coordinators must coordinate services with the child welfare (CW) caseworker assigned to a child to ensure the provision of required supports from the Department, CDDP, and CW.

(q) Services coordinators may attend IEP planning meetings or other transition planning meetings for children when the services coordinator is invited by the family or guardian to participate.

(A) The services coordinator may, to the extent resources are available, assist the family in accessing those critical non-educational services that the child or family may need.

(B) Upon request and to the extent possible, the services coordinator may act as a proponent for the child or family at IEP meetings.

(C) The services coordinator must participate in transition planning by attending IEP meetings or other transition planning meetings for students 16 years of age or older, or until the student is enrolled in the support services brokerage, to discuss the individual’s transition to adult living and work situations unless such attendance is refused by the child’s parent or legal guardian, or the individual if the individual is 18 years or older.

(r) The CDDP must ensure individuals eligible for and receiving developmental disability services are enrolled in the Department’s payment and reporting systems. The county of origin must enroll the individual into the Department payment and reporting systems for all developmental disability service providers except in the following circumstances:

(A) The Department completes the enrollment or termination form for children entering or leaving a licensed 24-hour residential program that is directly contracted with the Department.

(B) The Department completes the Department payment and reporting systems enrollment, termination, and billing forms for children entering or leaving the children’s intensive in-home services (CIIS) program.

(C) The Department completes the enrollment, termination, and billing forms as part of an interagency agreement for purposes of billing for crisis diversion services by a region.

(s) Services coordinators must facilitate referrals to nursing facilities when appropriate as described in OAR 411-070-0043.

(t) The services coordinator must coordinate and monitor the specialized services provided to an eligible individual living in a nursing facility in accordance with OAR 411-320-0150.

(u) The services coordinator must ensure that all serious events related to an individual are reported to the Department using the SERT system. The CDDP must ensure that there is monitoring and follow-up on both individual events and system trends.

(v) When the services coordinator completes the level of care assessment, the services coordinator must ensure that Medicaid eligible individuals are offered the choice of home and community-based waivered or state plan services, provided a notice of hearing rights, and have a completed level of care assessment that is reviewed annually or at anytime there is a significant change. For individuals who are expected to enter support services, the services coordinator must complete the initial level of care assessment after the individual’s 18th birth date and no more than 30 days prior to entry into the support services brokerage. The support services brokerage staff must assess the individual’s level of care annually thereafter for continued Medicaid waiver and state plan eligibility or at anytime there are significant changes.

(w) The services coordinator must participate in the appointment of a health care representative as described in OAR chapter 411, division 365.

(x) The services coordinator must coordinate with other state, public, and private agencies regarding services to individuals.

(y) The CDDP must ensure that a services coordinator is available to provide or arrange for comprehensive in-home supports for adults, long term supports for children, or family supports, as required, to meet the support needs of eligible individuals. This includes:

(A) Providing assistance in determining needs and planning supports;

(B) Providing assistance in finding and arranging resources and supports;

(C) Providing education and technical assistance to make informed decisions about support need and direct support service providers;

(D) Arranging fiscal intermediary services;

(E) Arranging employer-related supports; and

(F) Providing assistance with monitoring and improving the quality of supports.

(5) SERVICE PRIORITIES. If it becomes necessary for the CDDP to prioritize the availability of case management services, the CDDP must request and have approval of a variance prior to implementation of any alternative plan. If the reason for the need for the variance could not have been reasonably anticipated by the CDDP, the CDDP has 15 working days to submit the variance request to the Department. The variance request must:

(a) Document the reason the service prioritization is necessary (including any alternatives considered);

(b) Detail the specific service priorities being proposed; and

(c) Provide assurances that the basic health and safety of individuals must continue to be addressed and monitored.

(6) FAMILY RECONNECTION. The CDDP and the services coordinator must provide assistance to the Department when a family member is attempting to reconnect with an individual who was previously discharged from Fairview Training Center or Eastern Oregon Training Center or the individual is currently receiving developmental disability services.

(a) If a family member contacts a CDDP for assistance in locating a family member they must be referred to the Department. A family member may contact the Department directly.

(b) The Department sends the family member a Department form requesting further information to be used in providing notification to the individual. The form includes the following information:

(A) Name of requestor;

(B) Address of requestor and other contact information;

(C) Relationship to individual;

(D) Reason for wanting to reconnect; and

(E) Last time the family had contact.

(c) The Department determines if the individual was previously a resident of Fairview Training Center or Eastern Oregon Training Center and also determines:

(A) If the individual is deceased or living;

(B) Whether the individual is currently or previously enrolled in Department services; and

(C) The county in which services are being provided, if applicable.

(d) Within 10 working days of receipt of the request, the Department notifies the family member if the individual is enrolled or no longer enrolled in Department services.

(e) If the individual is enrolled in Department services, the Department sends the completed family information form to the individual or the individual’s guardian and the individual’s services coordinator.

(f) If the individual is deceased, the Department follows the process for identifying the individual’s personal representative as provided for in ORS 192.526.

(A) If the personal representative and the requesting family member are the same, the family member must be informed that the person is deceased.

(B) If the personal representative is different from the requesting family member, the personal representative must be contacted for permission before sharing the information to the requesting family member. The Department must make a good faith effort at finding the personal representative and obtaining a decision concerning the sharing of information as soon as practicable.

(g) When an individual is located, a meeting with the individual or the individual’s guardian to discuss and determine if the individual wishes to have contact with the family member is facilitated by the individual’s services coordinator or personal agent, as applicable.

(A) The services coordinator or the CDDP in conjunction with the personal agent must assist the individual or the individual’s guardian in evaluating the information to make a decision regarding initiating contact including providing the information from the form and any relevant history with the family member that might support contact or present a risk to the individual.

(B) If the individual does not have a guardian or is unable to express his or her wishes, the individual’s ISP team must be convened to review factors and choose the best response for the individual after evaluating the situation.

(h) If the individual or the individual’s guardian wishes to have contact, the individual or ISP team designee may directly contact the family member to make arrangements for the contact.

(i) If the individual or the individual’s guardian does not wish to have contact, the services coordinator or personal agent, as applicable, must notify the Department. The Department shall inform the family member in writing that no contact is requested.

(j) The notification to the family member regarding the decision of the individual or the individual’s guardian must be within 60 business days of the receipt of the information form from the family member.

(k) The decision by the individual or the individual’s guardian is not appealable.

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 18-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-320-0100

Assignment of Services Coordinator

(1) CHOICE COUNSELING AND DESIGNATION OF A SERVICES COORDINATOR OR PERSONAL AGENT.

(a) For individuals determined eligible for developmental disability services or moving into a county with an existing eligibility determination, a referral to a choice advisor must be made within 10 days.

(b) Within 15 days from the date of referral, the choice advisor must meet with the individual or legal representative to determine whether the individual chooses case management services through a services coordinator or a personal agent.

(A) When the individual chooses case management services through a personal agent, the CDDP must send referral information to the appropriate support services brokerage within 5 days following the individual’s decision.

(B) When the individual chooses case management services through a services coordinator, the CDDP must designate a services coordinator within 5 days following the individual’s decision.

(C) When an individual is enrolled in a support services brokerage and moves from one CDDP geographic service area to another CDDP geographic service area, the new CDDP must enroll the individual in the Department’s payment and reporting systems.

(2) CHANGE OF SERVICES COORDINATOR. The CDDP must keep the change of services coordinators to a minimum.

(a) If the CDDP changes services coordinator assignments, the CDDP must notify the individual, the individual’s legal representative, and all current service providers within 10 working days of the change. The notification must be in writing and include the name, telephone number, and address of the new services coordinator.

(b) Effective July 1, 2013, the individual receiving services or the individual’s legal representative may request a new services coordinator within the same CDDP or request case management services from a support services brokerage. The CDDP must develop standards and procedures for acting upon requests for change of services coordinators or when referring case management services to a brokerage. If another services coordinator is assigned by the CDDP, as the result of a request by the individual or the individual’s legal representative, the CDDP must notify the individual, the individual’s legal representative, and all current service providers within 10 working days of the change. The notification must be in writing and include the name, telephone number, and address of the new services coordinator.

(c) Effective July 1, 2013, if an individual or an individual’s legal representative requests case management services through a support services brokerage, the CDDP must refer the individual or the individual’s legal representative to the brokerage within 10 working days of the request.

(3) TERMINATION OF CASE MANAGEMENT SERVICES.

(a) A services coordinator retains responsibility for providing case management services to the individual until the responsibility is terminated in accordance with this rule, until another services coordinator is designated, or until the individual is enrolled in support services. The CDDP must terminate case management services when any of the following occur:

(A) The individual or the individual’s legal representative delivers a signed written request that case management services be terminated or such a request by telephone is documented in the individual’s file. An individual or an individual’s legal representative may refuse contact by a services coordinator, as well as the involvement of a services coordinator at the ISP meeting, except if the services are mandatory as described in section (5) of this rule.

(B) The individual dies.

(C) The individual is determined to be ineligible for developmental disability services in accordance with OAR 411-320-0080.

(D) The individual moves out of state or to another county in Oregon. If an individual moves to another county, case management services must be referred and transferred to the new county, unless an individual requests otherwise and both the referring CDDP and the CDDP in the new county mutually agree. In the case of a child moving into a foster home or 24-hour residential home, the county of parental residency or court jurisdiction must retain case management responsibility.

(E) An individual cannot be located after repeated attempts by letter and telephone.

(b) If an individual is determined ineligible or cannot be located, the CDDP must issue a written notification of intent to terminate services in 30 days as well as notification of the individual’s right to a hearing.

(4) TERMINATION FROM DEPARTMENT PAYMENT AND REPORTING SYSTEMS.

(a) The CDDP must terminate individuals in the Department payment and reporting systems when:

(A) The individual or the individual’s legal representative delivers a signed written request to the support services brokerage requesting brokerage services be terminated. Individuals who decline support services but wish to continue receiving developmental disability services through the CDDP are terminated from the support services brokerage but are not terminated from developmental disability services;

(B) The individual dies;

(C) The individual is determined to be ineligible for developmental disability services in accordance with OAR 411-320-0080;

(D) The individual moves out of state or to another county in Oregon. If an individual moves to another county, developmental disability services must be referred and transferred to the new county, unless an individual requests otherwise and both the referring CDDP and the CDDP in the new county mutually agree; or

(E) Notification from the support services brokerage that an individual cannot be located after repeated attempts by letter and telephone.

(b) A CDDP retains responsibility for maintaining enrollment in the Department’s payment and reporting systems for individuals enrolled in support services until the responsibility is terminated as described in this section of this rule.

(5) MANDATORY SERVICES. An individual in developmental disability services must accept the following services:

(a) Case management or support services;

(b) Abuse investigations;

(c) Services coordinator presence, when applicable, at Department-funded program entry, exit, or transfer meetings, or transition planning meetings required for entry or exit to adult services, including support services and in-home comprehensive supports for adults;

(d) Monitoring of service provider programs, when applicable; and

(e) Services coordinator access to individual files.

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-320-0110

Entry and Exit Requirements

(1) ADMISSION TO A DEPARTMENT-FUNDED DEVELOPMENTAL DISABILITY PROGRAM.

(a) Department staff must authorize entry into children’s residential services, children’s proctor care, children’s intensive in-home supports, and state operated community programs. The services coordinator must make referrals for admission and participate in all entry meetings for these programs.

(b) Admissions to all other Department-funded programs for individuals must be coordinated and authorized by the services coordinator in accordance with these rules.

(2) WRITTEN INFORMATION REQUIRED. The services coordinator, or the services coordinator’s designee, must provide available and sufficient written information to service providers including information that is current and necessary to meet the individual’s support needs in comprehensive services prior to admission.

(a) This written information must be provided in a timely manner and include:

(A) A copy of the individual’s eligibility determination decision;

(B) A statement indicating the individual’s safety skills including the ability to evacuate from a building when warned by a signal device and the ability to adjust 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:

(i) The results of a physical exam (if any) made within 90 days prior to the entry;

(ii) Results of any dental evaluation;

(iii) A record of immunizations;

(iv) A record of known communicable diseases and allergies; and

(v) A record of major illnesses and hospitalizations.

(E) A written record of any current or recommended medications, treatments, diets, and aids to physical functioning;

(F) A copy of the most current functional needs assessment. If the individual’s needs have changed over time, the previous functional needs assessments must also be provided.

(G) If applicable, copies of protocols, the risk tracking record, and any support documentation;

(H) Copies of documents relating to guardianship, conservatorship, health care representative, power of attorney, court orders, probation and parole information, or any other legal restrictions on the rights of the individual, when applicable;

(I) Written documentation why preferences or choices of the individual cannot be honored at that time;

(J) Written documentation that the individual is participating in out-of-residence activities including school enrollment for individuals under the age of 21; and

(K) A copy of the most recent functional needs behavior assessment, Behavior Support Plan, ISP, and IEP, if applicable.

(b) If the individual is being admitted from the individual’s family home and entry information is not available due to a crisis, the services coordinator must ensure that the service provider assesses the individual upon entry for issues of immediate health or safety and the services coordinator must document a plan to secure the information listed in subsection (a) of this section no later than 30 days after admission. The documentation must include a written description as to why the information is not available. A copy of the information and plan must be given to the service provider at the time of entry.

(c) If the individual is being admitted from comprehensive services, the information listed in subsection (a) of this section must be made available prior to the admission.

(3) ENTRY MEETING. Prior to an individual’s date of entry into a Department-funded comprehensive service, the ISP team must meet to review referral material in order to determine appropriateness of placement. The ISP team participants are determined according to OAR 411-320-0120. The findings of the entry meeting must be recorded in the individual’s file and distributed to the ISP team members. The documentation of the entry meeting must include at a minimum:

(a) The name of the individual proposed for services;

(b) The date of the entry meeting and the date determined to be the date of entry;

(c) The names and roles of the participants at the entry meeting;

(d) Documentation of the pre-entry information required by section (2)(a) of this rule;

(e) Documentation of the decision to serve or not serve the individual requesting service including the reason for the determination to not serve the individual; and

(f) If the decision was made to serve the individual, a written transition plan for no longer than 60 days that includes all medical, behavior, and safety supports needed by the individual;

(4) CRISIS DIVERSION SERVICES. For a period not to exceed 30 days, section (2)(a) of this rule does not apply if an individual is temporarily admitted to a program for crisis diversion services.

(5) EXIT AND TRANSFERS FROM DEPARTMENT-FUNDED PROGRAMS.

(a) All transfers or exits from Department-funded developmental disability services must be authorized by the CDDP.

(b) All transfers or exits from Department direct-contracted service for children’s 24-hour residential and state-operated community programs must be authorized by Department staff.

(c) Prior to an individual’s exit or transfer date, the ISP team must meet to review the exit or transfer and to plan and coordinate any services necessary during or following the exit or transfer. The ISP team participants are determined according to OAR 411-320-0120.

(6) EXIT STAFFING. The exit plan must be distributed to all ISP team members. The exit plan must include:

(a) The name of the individual considered for exit;

(b) The date of the exit meeting;

(c) Documentation of the participants included in the exit meeting;

(d) Documentation of the circumstances leading to the proposed exit;

(e) Documentation of the discussion of the strategies to prevent the individual’s exit from service, unless the individual or the individual’s legal representative is requesting the exit;

(f) Documentation of the decision regarding the individual’s exit including verification of the voluntary decision to exit or a copy of the notice of involuntary transfer or exit; and

(g) The written plan for services for the individual after exit.

(7) TRANSFER MEETING. A transfer meeting of the ISP team must precede any decision to transfer an individual. Findings of such a transfer meeting must be recorded in the individual’s file and include, at a minimum:

(a) The name of the individual considered for transfer;

(b) The date of the transfer meeting;

(c) Documentation of the participants included in the transfer meeting;

(d) Documentation of the circumstances leading to the proposed transfer;

(e) Documentation of the alternatives considered instead of transfer;

(f) Documentation of the reasons any preferences of the individual or the individual’s legal representative or family members may not be honored;

(g) Documentation of the decision regarding transfer including verification of the voluntary decision to transfer or exit, or a copy of the notice of involuntary transfer or exit; and

(h) The written plan for services for the individual after transfer.

(8) ENTRY TO SUPPORT SERVICES.

(a) Referrals of eligible individuals to a support services brokerage must be made in accordance with OAR 411-340-0110. Referrals must be made using the Department mandated application and referral form in accordance with Department guidelines.

(b) The CDDP of an individual’s county of origin may find the individual eligible for services from a support services brokerage when:

(A) The individual is an Oregon resident who has been determined eligible for developmental disability services by the CDDP; AND

(B) The individual is an adult living in the individual’s own home or family home; AND

(C) At the time of initial entry to the brokerage, the individual is not enrolled in comprehensive services; AND

(D) At the time of initial entry to the support services brokerage, the individual is not receiving crisis diversion services from the Department because the individual does not meet one or more of the crisis risk factors listed in OAR 411-320-0160; AND

(E) The individual, or the individual’s legal representative, has chosen to use a support service brokerage for assistance with design and management of personal supports;

(c) The individual must be referred within 90 days of:

(A) Being determined eligible for developmental disability services;

(B) Being determined eligible for entry to the Support Services Waiver;

(C) The individual’s 18th birth date:

(D) Requesting support services; and

(E) Selecting an available support services brokerage within the CDDP’s geographic service area.

(d) The individual must complete entry within 90 days of referral to the support services brokerage.

(e) The services coordinator must communicate with the support services brokerage staff and provide all relevant information upon request and as needed to assist support services brokerage staff in developing an ISP that best meets the individual’s support needs including:

(A) A current application or referral on the Department mandated application or referral form;

(B) A completed level of care assessment form;

(C) A copy of the eligibility statement for developmental disability services;

(D) Copies of financial eligibility information;

(E) Copies of any legal documents such as guardianship papers, conservatorship, civil commitment status, probation and parole, etc;

(F) Copies of relevant progress notes; and

(G) A copy of any current plans.

[ED. NOTE: Forms referenced are available from the agency.]

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 18-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 27-2011, f. & cert. ef. 12-28-11; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-320-0120

Service Planning

(1) PRINCIPLES FOR PLANNING. These rules prescribe standards for the development and implementation of plans for individuals. As such, plans for individuals must be developed using a person centered process and in a manner that address issues of independence, integration and productivity, enhance the quality of life of the individual with intellectual or developmental disabilities, and consistent with the following principles:

(a) Personal Control and Family Participation. While the service system reflects the value of family member participation in the planning process, adult individuals have the right to make informed choices about the level of participation by family members. It is the intent of this rule to fully support the provision of education about personal control and decision-making to individuals who are receiving services.

(b) Choice and Preferences. The planning process is critical in determining the individual’s and the family’s preferences for services and supports. The preferences of the individual and family must serve to guide the ISP team. The individual’s active participation and input must be facilitated throughout the planning process.

(c) Barriers. The planning process is designed to identify the types of services and supports necessary to achieve the individual’s and family’s preferences, identify the barriers to providing those preferred services, and develop strategies for reducing the barriers.

(d) Health and Safety. The planning process must also identify strategies to assist the individual in the exercise of the individual’s rights. This may create tensions between the freedom of choice and interventions necessary to protect the individual from harm. The ISP team must carefully nurture the individual’s exercise of rights while being equally sensitive to protecting the individual’s health and safety.

(e) Children in Alternate Living Situations. When planning for children in 24-hour residential or foster care services, maintaining family connections is an important consideration. The following must apply:

(A) Unless contraindicated there must be a goal for family reunification;

(B) The number of moves or transfers must be kept to a minimum; and

(C) If the placement is distant from the family, the services coordinator must continue to seek a placement that would bring the child closer to the family.

(2) RESPONSIBILITY FOR THE FUNCTIONAL NEEDS ASSESSMENT. Effective July 1, 2013, the services coordinator must complete a functional needs assessment at least annually. The FNAT must be completed:

(a) Within 30 days following the assignment of a services coordinator,

(b) Within 30 days prior to the authorization of a plan renewal; and

(c) Not more than 45 days from the date an FNAT is requested by the individual or individual’s legal representative.

(3) RESPONSIBILITY FOR ANNUAL ISP OR ANNUAL PLAN. Individuals enrolled in waivered or state plan services must have an annual ISP or Annual Plan.

(a) The services coordinator must develop with the individual, the individual’s legal representative, and other invited ISP team members, an ISP within 90 days of the individual’s entry into comprehensive services and at least annually thereafter.

(b) Upon request of a new functional needs assessment, the services coordinator must authorize a new ISP within 30 days of the FNAT, developed with the individual, the individual’s legal representative, and other invited ISP team members.

(c) The CDDP must provide a written copy of the most current ISP to the individual, the individual’s legal representative, and others as identified by the individual. For an initial or annual ISP that is authorized after July 1, 2013, the ISP must address all the support needs identified on the FNAT. The ISP or attached documents must include:

(A) The individual’s name;

(B) A description of the supports required, including the reason the support is necessary. For an initial or annual ISP that is authorized after July 1, 2013 the description must be consistent with the FNAT;

(C) 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 they shall be applied to provide the required supports. Sources of support may include waivered or state plan services, state general funds, or natural supports.

(d) Plans must be developed, implemented, and authorized as follows:

(A) FOSTER CARE, 24-HOUR RESIDENTIAL SERVICES, EMPLOYMENT OR ALTERNATIVES TO EMPLOYMENT SERVICES.

(i) For individuals in foster care, 24-hour residential services, and related employment or alternatives to employment services, a services coordinator, or the services coordinator’s qualified designee, must attend and assure that an annual ISP meeting is held. The services coordinator, or the services coordinator’s qualified designee, must participate in the development of the ISP for individuals enrolled in foster care, 24-hour residential services, and related employment or alternatives to employment services.

(ii) ISP’s for children in Department direct contracted children’s 24 hour residential services must be coordinated by Department staff.

(iii) The services coordinator must ensure that the ISP for individuals in foster care or 24-hour residential services is developed and updated in accordance with state guidelines. The services coordinator must track the plan timelines and coordinate the resolution of complaints and conflicts arising from ISP discussions.

(iv) At a minimum, the ISP team must include the individual, the individual’s legal representative, the services coordinator, and representatives from the 24-hour residential program, a representative from the employment or alternatives to employment program (if any) , and any treatment professional requested by the individual or the ISP team on behalf of the individual.

(B) SUPPORTED LIVING SERVICES. The services coordinator for an adult in supported living services and any associated employment or alternative to employment program must ensure the development of an annual ISP. The services coordinator must facilitate and develop an ISP with the individual and others invited by the individual in conformance with the ISP content described in sections (3) and (4) of this rule.

(C) FAMILY SUPPORT. The services coordinator must coordinate with the individual’s family or the individual’s legal representative in the development of the Annual Plan for a child receiving family support services. The Annual Plan must be in accordance with OAR 411-305-0080.

(D) COMPREHENSIVE IN-HOME SUPPORTS. The services coordinator must coordinate with the individual, the individual’s family, or the individual’s legal representative, in the development of the annual In-Home Support Plan for the individual enrolled in comprehensive in-home supports in accordance with OAR 411-330-0050.

(E) LONG-TERM SUPPORTS FOR CHILDREN. The services coordinator must coordinate with the individual, the individual’s family, or the individual’s legal representative, in the development of the child’s Annual Support Plan in accordance with OAR chapter 411, division 308.

(F) ANNUAL PLAN. For individuals not enrolled or not yet enrolled in any other Department-funded developmental disability service, the services coordinator must ensure the completion of an Annual Plan. The Annual Plan must be completed within 60 days of enrollment into case management services, and annually thereafter if not enrolled in any other Department-funded developmental disability service.

(i) For an adult, a written Annual Plan must be documented in the individual’s service record as an Annual Plan or as a comprehensive progress note and consist of:

(I) A review of the individual’s current living situation;

(II) A review of any personal health, safety, or behavioral concerns;

(III) A summary of support needs of the individual; and

(IV) Actions to be taken by the services coordinator and others.

(ii) For a child, the services coordinator must ensure the completion of a child’s Annual Plan in accordance with OAR 411-305-0080.

(4) PLAN CONTENT. The services coordinator must ensure that individual plans conform to the requirements of this rule.

(a) The services coordinator must ensure that a plan for an individual in Department-funded comprehensive services is developed and documents a person centered process that identifies what is important to and for an individual, and also identifies the supports necessary to address issues of health, behavior, safety, and financial supports. There must be documentation of an action plan or discussion record resulting from the ISP team’s discussion addressing issues of conflict between personal preferences and issues of health and safety.

(b) The services coordinator must ensure that a plan developed for a child receiving Department-funded family support services conforms to the requirements of OAR chapter 411, division 305.

(c) The services coordinator must ensure that an In-Home Support Plan for adults conforms to the requirements described in OAR 411-330-0050.

(d) The services coordinator must ensure that a child’s Annual Support Plan for long-term support conforms to the requirements in OAR 411-308-0080.

(5) PLAN FORMATS. The ISP, Annual Plan, or In-Home Support Plan developed at the annual or update meeting must be conducted in a manner specified by and on forms required by the Department. In the absence of a Department-mandated form, the CDDP with the affected service providers may develop an ISP format that conforms to the licensing or certification service provider rule and provides for an integrated plan across the funded developmental disability service settings.

(6) PLAN UPDATES. Plans for individuals must be kept current. The services coordinator or the Department’s Residential Services Coordinator for children in Department- directed contracted 24-hour residential services must ensure that a current plan for individuals enrolled in comprehensive services, long-term supports for children, or in family support services is authorized and maintained.

(a) The plan must be kept in the individual’s service record.

(b) Plan updates must occur as required by this rule and any rules governing the operation of the service.

(c) When there is a significant change the plan must be updated.

(7) TEAM PROCESS IN SERVICE AND SUPPORT PLANNING. Except in in-home supports or long-term supports for children, the following applies to ISPs developed for individuals in comprehensive services:

(a) ISPs must be developed by the ISP team that includes the services coordinator, the individual and the individual’s legal representative, and others invited or agreed upon by the individual. The ISP team assigns responsibility for obtaining or providing services to meet the individual’s identified needs.

(A) Membership on ISP teams must at a minimum conform to this rule and any relevant service provider rules.

(B) Unless refused by the adult individual, family participation must be encouraged.

(C) The individual may also suggest additional participants, friends, or significant others.

(D) The individual may raise an objection to a particular person. When an individual raises objections to a person, the ISP team must respect the individual’s request. In order to assure adequate planning, provider representatives are necessary participants on the team.

(b) Plans developed by an ISP team must respect and honor individual choice in the development of a meaningful plan. Consensus amongst team members is prioritized.

(A) No one member of the ISP team has the authority to make decisions for the team unless so authorized by the team process.

(B) In circumstances where an individual is unable to express their opinion or choice using words, behaviors, or other means of communication, and does not have a legal or designated representative, the ISP team is empowered to make a decision.

(C) When consensus cannot be reached, majority agreement is used. For purposes of reaching a majority agreement, service providers, families, community developmental disability programs, advocacy agencies, or individuals and the individual’s representative are considered as one member of the ISP team.

(D) Any ISP team member’s objections to ISP decisions must be documented in the ISP.

(E) Using a person centered planning process, and with agreement by the individual and the individual’s legal representative, the plan is authorized by the services coordinator.

(F) The individual or the individual’s legal representative retains the right to consent to treatment and training or to note any specific areas of the plan that they object to and wish to file a complaint.

(G) The ISP team members must keep the team informed whenever there are significant needs or changes, or there is a crisis or potential for a crisis. The services coordinator must be notified in all such instances.

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-320-0130

Site Visits and Monitoring of Services

(1) SITE VISITS TO DEPARTMENT LICENSED OR CERTIFIED SERVICE PROVIDER SITES. The CDDP must ensure that site visits are conducted at each child or adult foster home, each 24-hour residential program site, and each employment provider licensed or certified by the Department to serve individuals with intellectual or developmental disabilities.

(a) The CDDP must establish a quarterly schedule for site visits to each child or adult foster home and each 24-hour residential program.

(b) The CDDP must establish an annual schedule for visits with individuals receiving supported living services. If an individual opposes a visit to their home, a mutually agreed upon location for the visit must be arranged.

(c) The CDDP must establish an annual schedule for visits to employment or alternatives to employment sites. If a visit to an integrated employment site disrupts the work occurring, a mutually agreed upon location for the visit must be arranged.

(d) Site visits may be increased for the following reasons including but not limited to:

(A) Increased certified and licensed capacity;

(B) New individuals being served;

(C) Newly licensed or certified provider;

(D) An abuse investigation;

(E) A serious event occurring;

(F) A change in the management or staff of the certified or licensed provider;

(G) An ISP team request;

(H) Individuals who are also receiving crisis services; or

(I) Significant change in an individual’s functioning who receives services at the site.

(e) The CDDP must develop a procedure for the conduct of the visits to these sites.

(f) The CDDP must document site visits and provide information concerning such visits to the Department upon request.

(g) If there are no Department-funded individuals at the site, a visit by the CDDP is not required.

(h) When the service provider is a Department-contracted and licensed 24-hour residential program for children or is a proctor agency and the Department’s Children’s Residential Services Coordinator is assigned to monitor services, the Department’s Children’s Residential Services Coordinator and the CDDP must coordinate who visits the home. If the visit is made by Department staff, Department staff must provide the results of the monitoring visit to the local services coordinator.

(i) The Department may conduct monitoring visits on a more frequent basis than described in this section based on program needs.

(2) MONITORING OF SERVICES: The services coordinator must conduct monitoring activities using the framework described in this section.

(a) For individuals residing in 24-hour residential programs, supported living, foster care, or employment or alternatives to employment services, ongoing reviews of the individual’s ISP determine whether the actions identified by the ISP team are being implemented by service providers and others. The review of an ISP must include an assessment of the following:

(A) Are services being provided as described in the plan document and do they result in the achievement of the identified action plans;

(B) Are the personal, civil, and legal rights of the individual protected in accordance with this rule;

(C) Are the personal desires of the individual, the individual’s legal representative, or family addressed;

(D) Do the services provided for in the plan continue to meet what is important to and for the individual; and

(E) Do identified goals remain relevant and are the goals supported and being met?

(b) For individuals residing in 24-hour residential programs, supported living, foster care, or receiving employment or alternatives to employment, the monitoring of services may be combined with the site visits described in section (1) of this rule. In addition:

(A) During a one year period, the services coordinator must review, at least once, services specific to health, safety, and behavior, using questions established by the Department.

(B) A semi-annual review of the process by which an individual accesses and utilizes funds, and determines whether financial records, bank statements, and personal spending funds are accurate must occur, using questions established by the Department.

(i) For individuals receiving 24-hour residential services, the financial review standards are described in OAR 411-325-0380.

(ii) For individuals receiving adult foster care services, the financial review standards are described in OAR 411-360-0170.

(iii) Any misuse of funds must be reported to the CDDP and the Department. The Department determines whether a referral to the Medicaid Fraud Control Unit is warranted.

(C) The services coordinator must monitor reports of serious and unusual incidents.

(c) For individuals receiving employment or alternatives to employment services, the services coordinator must assess the individual’s progress toward a path to employment.

(d) The frequency of service monitoring must be determined by the needs of the individual. Events identified in section (1)(d) of this rule provide indicators that may potentially increase the need for service monitoring.

(e) For individuals receiving only case management services and who are not enrolled in any other funded developmental disability service, the services coordinator must make contact with the individual at least once annually.

(A) Whenever possible, annual contact must be made in person. If annual contact is not made in person, the progress note must document how contact was achieved.

(B) The services coordinator must document annual contact in an Annual Plan as described in OAR 411-320-0120.

(C) If the individual has any identified high-risk medical issue including but not limited to risk of death due to aspiration, seizures, constipation, dehydration, diabetes, or significant behavioral issues, the services coordinator must maintain contact in accordance with planned actions as described in the individual’s Annual Plan.

(D) Any follow-up activities must be documented in the progress notes.

(3) MONITORING FOLLOW-UP. The services coordinator and the CDDP are responsible for ensuring the appropriate follow-up to monitoring of services, except in the instance of children in a Department direct contract 24-hour residential service when the Department may conduct the follow-up.

(a) If the services coordinator determines that comprehensive services are not being delivered as agreed in the ISP, or that an individual’s service needs have changed since the last review, the services coordinator must initiate action to update the ISP.

(b) If there are concerns regarding the service provider’s ability to provide services, the CDDP, in consultation with the services coordinator, must determine the need for technical assistance or other follow-up activities. This may include coordination or provision of technical assistance, referral to the CDDP manager for consultation or corrective action, requesting assistance from the Department for licensing or other administrative support, or meeting with the service provider executive director or board of directors. In addition to conducting abuse or other investigations as necessary, the CDDP must notify the Department when:

(A) A service provider demonstrates substantial failure to comply with any applicable licensing, certification, or endorsement rules for Department-funded programs;

(B) The CDDP finds a serious and current threat endangering the health, safety, or welfare of individuals in a program for which an immediate action by the Department is required; or

(C) Any individual receiving Department-funded developmental disability services dies. Notification must be made to the Director or his or her designee within one working day of the death. Entry must be made into the Serious Event Review System according to Department guidelines.

Stat. Auth.: ORS 409.050, 410.070, 430.640

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.695

Hist.: SPD 24-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 28-2004, f. & cert. ef. 8-3-04; SPD 16-2005(Temp), f. & cert. ef. 11-23-05 thru 5-22-06; SPD 5-2006, f. 1-25-06, cert. ef. 2-1-06; SPD 9-2009, f. & cert. ef. 7-13-09; SPD 27-2010(Temp), f. & cert. ef. 12-1-10 thru 5-30-11; SPD 11-2011, f. & cert. ef. 6-2-11; SPD 22-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13


Rule Caption: 24-Hour Residential Services for Children and Adults with Intellectual or Developmental Disabilities

Adm. Order No.: SPD 23-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

Rules Amended: 411-325-0020, 411-325-0390, 411-325-0400, 411-325-0440

Subject: The Department of Human Services (Department) is immediately amending the 24-hour residential services rules for children and adults with intellectual or developmental disabilities in OAR chapter 411, division 325 to:

   Specify the eligibility requirements for home and community-based waivered services to reflect changes made as a result of the Department’s Community First Choice State Plan; and

   Clarify the notice requirements and hearing rights for involuntary transfers and exits to comply with the Code of Federal Regulations and implement corrective actions required as a result of the Centers for Medicare and Medicaid Services’ (CMS) review of the Department’s Home and Community-Based Services Waiver.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-325-0020

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 325:

(1) “24-Hour Residential Program” means a comprehensive residential home licensed by the Department under ORS 443.410 to provide residential care and training to individuals with intellectual or developmental disabilities.

(2) “Abuse” means:

(a) For a child with or without an intellectual or developmental disability, abuse as defined in ORS 419B.005.(b) For a child with an intellectual or developmental disability receiving 24-hour residential services and for an adult with an intellectual or developmental disability, abuse as defined in OAR 407-045-0260.

(3) “Abuse Investigation and Protective Services” means reporting and investigation activities as required by OAR 407-045-0300 and any subsequent services or supports necessary to prevent further abuse as required in OAR 407-045-0310.

(4) “Administration of Medication” means the act of placing a medication in or on an individual’s body by a staff member who is responsible for the individual’s care.

(5) “Adult” means an individual 18 years or older with an intellectual or developmental disability.

(6) “Advocate” means a person other than paid staff who has been selected by an individual or by the individual’s legal representative to help the individual understand and make choices in matters relating to identification of needs and choices of services, especially when rights are at risk or have been violated.

(7) “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.

(8) “Appeal” means the process under ORS chapter 183 that a service provider may use to petition conditions or the suspension, denial, or revocation of an application, certificate, endorsement, or license.

(9) “Applicant” means a person, agency, corporation, or governmental unit, who applies for a license to operate a residential home providing 24-hour comprehensive residential services.

(10) “Assessment” means the evaluation of an individual’s needs.

(11) “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 an Individual Support Plan (ISP) is to be assessed. A baseline level of behavior is reviewed and reestablished at minimum yearly, at the time of an ISP team meeting.

(12) “Behavior Data Collection System” means the methodology specified within a 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.

(13) “Behavior Data Summary” means the document composed by a service provider to summarize episodes of physical intervention. The behavior data summary serves as a substitution for the requirement of an incident report for each episode of physical intervention.

(14) “Board of Directors” means the group of persons formed to set policy and give directions to a service provider that provides 24-hour residential services. A board of directors includes local advisory boards used by multi-state organizations.

(15) “Case Management” means an organized service to assist individuals to select, obtain, and utilize resources and services.

(16) “CDDP” means “Community Developmental Disability Program” as defined in this rule.

(17) “Certificate” means the document issued by the Department to a service provider that certifies the service provider is eligible under the rules in OAR chapter 411, division 323 to receive state funds for the provision of endorsed 24-hour residential services.

(18) “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.

(19) “Child” means an individual who is less than 18 years of age that has a provisional determination of an intellectual or developmental disability.

(20) “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, service providers, 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.

(21) “Community Developmental Disability Program (CDDP)” means the entity that is responsible for the planning and delivery of services for individuals with intellectual or 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.

(22) “Community First Choice State Plan” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(23) “Competency Based Training Plan” means the written description of a service provider’s process for providing training to newly hired staff. At a minimum, the Competency Based Training Plan:

(a) Addresses health, safety, rights, values and personal regard, and the service provider’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 a service provider to accommodate a staff member’s specific circumstances.

(24) “Complaint Investigation” means the investigation of any complaint that has been made to a proper authority that is not covered by an abuse investigation.

(25) “Condition” means a provision attached to a new or existing certificate, endorsement, or license that limits or restricts the scope of the certificate, endorsement, or license or imposes additional requirements on the service provider.

(26) “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.

(27) “Denial” means the refusal of the Department to issue a certificate, endorsement, or license to operate a 24-hour residential home for individuals with intellectual or developmental disabilities because the Department has determined that the service provider or the home is not in compliance with these rules or the rules in OAR chapter 411, division 323.

(28) “Department” means the Department of Human Services (DHS). The term “Department” is synonymous with “Seniors and People with Disabilities Division (SPD)”.

(29) “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.

(30) “Direct Nursing Service” means the provision of individual-specific advice, plans, or interventions by a nurse at a home based on the nursing process as outlined by the Oregon State Board of Nursing. 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.

(31) “Director” means the Director of the Department’s Office of Developmental Disability Services, or the Director’s designee.

(32) “Domestic Animals” mean the animals domesticated so as to live and breed in a tame condition. Examples of domestic animals include but are not limited to dogs, cats, and domesticated farm stock.

(33) “Educational Surrogate” means the 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 the parent or adult student.

(34) “Endorsement” means the authorization to provide 24-hour residential services issued by the Department to a certified service provider that has met the qualification criteria outlined in these rules and the rules in OAR chapter 411, division 323.

(35) “Entry” means admission to a Department-funded developmental disability service in a licensed 24-hour residential home.

(36) “Executive Director” means the person designated by a board of directors or corporate owner that is responsible for the administration of 24-hour residential services.

(37) “Exit” means termination or discontinuance of:

(a) Services from a service provider; or

(b) Department-funded developmental disability services..

(38) “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 a person alleged to have engaged in the conduct.

(39) “Functional Needs Assessment (FNAT)” means an assessment that documents the level of need, accommodates an individual’s participation in service planning, and includes:

(a) Completing a comprehensive and holistic assessment;

(b) Surveying physical, mental, and social functioning; and

(c) Identifying risk factors, choices and preferences, and service needs.

(40) “Guardian” means a parent for an individual less than 18 years of age or a person or agency appointed and authorized by the courts to make decisions about services for an individual.

(41) “Health Care Provider” means the 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.

(42) “Health Care Representative” means:

(a) A health care representative as defined in ORS 127.505; or

(b) A person who has authority to make health care decisions for an individual under the provisions of OAR chapter 411, division 365.

(43) “Home and Community-Based Waivered 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.

(44) “Incident Report” means the written report of any injury, accident, acts of physical aggression, or unusual incident involving an individual.

(45) “Independence” means the extent to which individuals exert control and choice over their own lives.

(46) “Individual” means an adult or a child with an intellectual or developmental disability applying for or determined eligible for developmental disability services.

(47) “Individualized Education Plan (IEP)” means the written plan of instructional goals and objectives developed in conference with an individual and the individual’s legal representative, teacher, and a representative of the school district.

(48) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required for an individual to achieve personal outcomes. 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 developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. The ISP includes an individual’s Plan of Care for Medicaid purposes and reflects whether services are purchased through a waiver, state plan, or provided through an individual’s natural supports.

(49) “Individual Support Plan (ISP) Team” means a team composed of an individual receiving services and the individual’s legal representative, services coordinator or personal agent, and others chosen by the individual. Others chosen by the individual may include service providers, family members, or other persons requested by the individual.

(50) “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 persons;

(b) Participation by individuals with intellectual or developmental disabilities in the same community activities in which persons without an intellectual or developmental disability participate, together with regular contact with persons 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 persons in the community.

(51) “Intellectual Disability” has the meaning set forth in OAR 411-320-0020 and described in OAR 411-320-0080.

(52) “Involuntary Transfer” means a service provider has made the decision to transfer an individual and the individual or the individual’s legal representative has not given prior approval.

(53) “ISP” means “Individual Support Plan” as defined in this rule.

(54) “Legal Representative” means:

(a) For a child, the parent unless a court appoints another person or agency to act as guardian; and

(b) For an adult, 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.

(55) “Level of Care” means an assessment completed by a services coordinator has determined an individual meets institutional level of care. An individual meets institutional level of care for an intermediate care facility for individuals with intellectual or developmental disabilities if:

(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.

(56) “Licensee” means the person or organization to whom a certificate, endorsement, and license is granted.

(57) “Majority Agreement” means that no one member of the Individual Support Plan team has the authority to make decisions for the team unless so authorized by the team process. A service provider, community developmental disability program, advocate, individual, and the individual’s family are considered as one member of the ISP team for the purpose of reaching majority agreement.

(58) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who:

(a) Is a staff or volunteer working with a child 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.

(b) Is a staff or volunteer working with an adult 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.

(59) “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.

(60) “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.

(61) “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.

(62) “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.

(63) “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.

(64) “Natural Supports” or “Natural Support System” means the resources available to an individual from the individual’s relatives, friends, significant others, neighbors, roommates, and the community. Services provided by natural supports are resources that are not paid for by the Department.

(65) “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.

(66) “Nursing Care Plan” means the plan of care developed by a registered 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 the service provider and staff.

(67) “OIS” means “Oregon Intervention System” as defined in this rule.

(68) “Oregon Core Competencies” means:

(a) The list of skills and knowledge required for newly hired staff in the areas of health, safety, rights, values and personal regard, and the service provider’s mission; and

(b) The associated timelines in which newly hired staff must demonstrate the competencies.

(69) “Oregon Intervention System (OIS)” 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. OIS uses principles of pro-active support and describes approved protective physical intervention techniques that are used to maintain health and safety.

(70) “OSIP-M” means Oregon Supplemental Income Program-Medical as defined in OAR 461-101-0010. OSIP-M is Oregon Medicaid insurance coverage for an individual who meets eligibility criteria as described in OAR chapter 461.

(71) “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.

(72) “Prescription Medication” means any medication that requires a physician’s prescription before the medication may be obtained from a pharmacist.

(73) “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.

(74) “Protection” and “Protective Services” means 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.

(75) “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”.

(76) “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.

(77) “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, a person normally providing supports to an individual unable to care for him or herself.

(78) “Revocation” means the action taken by the Department to rescind a certificate, endorsement, or 24-hour home license after the Department has determined that the service provider is not in compliance with these rules or the rules in OAR chapter 411, division 323.

(79) “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.

(80) “Service Provider” 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. The use of the terms “agency”, “provider”, “program”, “applicant”, or “licensee” are synonymous with “service provider.”

(81) “Services” mean supportive services, including but not limited to supervision, protection, and assistance in bathing, dressing, grooming, eating, money management, transportation, or recreation. Services also include being aware of an 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”.

(82) “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 Individual Support Plan services, and to act as a proponent for individuals.

(83) “Significant Other” means a person selected by an individual to be the individual’s friend.

(84) “Specialized Diet” means that the amount, type of ingredients, or selection of food or drink items is limited, restricted, or otherwise regulated under a physician’s 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.

(85) “Staff” means paid employees responsible for providing services to individuals whose wages are paid in part or in full with funds sub-contracted with the community developmental disability program or contracted directly through the Department.

(86) “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.

(87) “Support” means the assistance that an individual requires, solely because of the affects of an 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.

(88) “Suspension” means an immediate temporary withdrawal of the approval to operate 24-hour residential services after the Department determines a service provider or 24-hour home is not in compliance with one or more of these rules or the rules in OAR chapter 411, division 323.

(89) “These Rules” mean the rules in OAR chapter 411, division 325.

(90) “Transfer” means movement of an individual from one home to another home administered or operated by the same service provider.

(91) “Transition Plan” means the written plan of services and supports for the period of time between an individual’s entry into a particular service and the development of the individual’s Individual Support Plan (ISP) . The Transition Plan is approved by the individual’s services coordinator and includes a summary of the services necessary to facilitate adjustment to the services offered, the supports necessary to ensure health and safety, and the assessments and consultations necessary for ISP development.

(92) “Unusual Incident” means any incident involving an individual that includes serious illness or accidents, death, injury or illness requiring inpatient or emergency hospitalization, suicide attempts, a fire requiring the services of a fire department, or any incident requiring an abuse investigation.

(93) “Variance” means the temporary exception from a regulation or provision of these rules that may be granted by the Department upon written application by a service provider.

(94) “Volunteer” means any person assisting a service provider without pay to support the services and supports provided to an individual.

Stat. Auth.: ORS 409.050, 410.070, 443.450, & 443.455

Stats. Implemented: ORS 443.400 - 443.455

Hist.: SPD 25-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 25-2004, f. 7-30-04, cert. ef. 8-1-04; 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; SPD 23-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-325-0390

Entry, Exit and Transfer: General

(1) NON-DISCRIMINATION. An individual considered for Department-funded services may not be discriminated against because of race, color, creed, age, disability, national origin, duration of Oregon residence, method of payment, or other forms of discrimination under applicable state or federal law.

(2) QUALIFICATIONS FOR DEPARTMENT-FUNDED SERVICES PRIOR TO JULY 1, 2013. An individual considered for Department-funded services prior to July 1, 2013 must:

(a) Be referred by the Community Developmental Disability Program; and

(b) Be determined to have an intellectual or developmental disability by the Department or the Department’s designee.

(3) QUALIFICATIONS FOR DEPARTMENT-FUNDED SERVICES ON OR AFTER JULY 1, 2013. An individual who enters 24-hour residential services on or after July 1, 2013, is subject to eligibility as described in this section.

(a) To be eligible for home and community-based waivered services or Community First Choice state plan services, an individual must:

(A) Be an Oregon resident;

(B) Be eligible for OSIP-M;

(C) Be determined eligible for developmental disability services by the CDDP of the individual’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 411-325-0020.

(b) To be eligible for 24-hour residential services, an individual must:

(A) Be an Oregon resident;

(B) Be determined eligible for developmental disability services by the CDDP of the individual’s county of residence as described in OAR 411-320-0080;

(C) Be an individual who is not receiving other Department-funded in-home or community living support; and

(D) Be eligible for home and community-based waivered services or Community First Choice state plan services as described in subsection (a) of this section; OR

(E) Be determined to meet crisis eligibility as defined in OAR 411-320-0160.

(4) AUTHORIZATION OF ENTRY.

(a) The Department authorizes entry into children’s residential services and state operated community programs.

(b) The CDDP services coordinator, except in the cases of children’s residential services and state operated community programs, authorizes entry into 24-hour residential programs.

(5) DOCUMENTATION UPON ENTRY.

(a) A service provider must acquire the following information prior to or upon an 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 individual’s ability to evacuate from a building when warned by a signal device and adjust water temperature for bathing and washing;

(C) A brief written history of the individual’s behavioral challenges, if any, including supervision and support needs;

(D) The individual’s medical history and information on health care supports that include, where available:

(i) The results of a physical exam made within 90 days prior to entry;

(ii) Results of any dental evaluation;

(iii) A record of immunizations;

(iv) A record of known communicable diseases and allergies; and

(v) A record of major illnesses and hospitalizations.

(E) A written record of the individual’s current or recommended medications, treatments, diets, and aids to physical functioning;

(F) Copies of documents relating to the individual’s guardianship or conservatorship, health care representation, 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 for individuals under the age of 21; and

(H) A copy of the individual’s most recent Functional Behavioral Assessment, Behavior Support Plan, Individual Support Plan, and Individual Education Plan if applicable.

(b) If an individual is being admitted from the individual’s family home and the information required in OAR 411-325-0390(5)(a)(A)-(H) of this section is not available, the service provider must assess the individual upon entry for issues of immediate health or safety and document a plan to secure the remaining information no later than 30 days after entry. Documentation of the assessment must include a written justification as to why the information is not available.

(6) ENTRY MEETING. An entry ISP team meeting must be conducted prior to the onset of services to an 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 individual’s date of entry;

(c) The name and role of each participant at the meeting;

(d) Documentation of the pre-entry information required by OAR 411-325-0390(5)(a)(A)–(H) of this rule;

(e) Documentation of the decision to serve or not serve the individual requesting service including the reason for the determination to not serve the individual; and

(f) If the decision was made to serve the individual, a written transition plan for no longer than 60 days that includes all medical, behavior, and safety supports needed by the individual.

(7) VOLUNTARY TRANSFERS AND EXITS.

(a) If an individual or the individual’s legal representative gives notice of the individual’s intent to exit, or the individual abruptly exits, the service provider must promptly notify the individual’s services coordinator.

(b) A service provider must notify an individual’s ISP team prior to an individual’s voluntary transfer or exit from services.

(c) Notification and authorization of an individual’s voluntary transfer or exit must be documented in the individual’s record.

(d) A service provider is responsible for the provision of services until an individual exits the home.

(8) INVOLUNTARY TRANSFERS AND EXITS.

(a) A service provider may only transfer or exit an individual involuntarily for one or more of the following reasons:

(A) To protect the health, safety, and welfare of the individual or others in the home;

(B) The individual’s service needs exceed the ability of the service provider;

(C) The individual fails to pay for services; or

(D) The service provider’s developmental disability certification or endorsement as described in OAR chapter 411, division 323 is suspended, revoked, not renewed, or voluntarily surrendered.

(b) NOTICE OF INVOLUNTARY TRANSFER OR EXIT. A service provider may not transfer or exit an individual involuntarily without 30 days advance written notice to the individual and the individual’s legal representative and services coordinator except in the case of a medical emergency or when an individual is engaging in behavior that poses an imminent danger to self or others in the home as described in subsection (c) of this section.

(A) The written notice must be provided on a form approved by the Department (form SDS 0719) and include:

(i) The reason for the transfer or exit; and

(ii) The individual’s right to a hearing as described in subsection (e) of this section.

(B) A notice is not required when an individual or the individual’s legal representative requests a transfer or exit.

(c) A service provider may give less than 30 days advanced written notice only in a medical emergency or when an individual is engaging in behavior that poses an imminent danger to self or others in the home. The notice must be provided to the individual and the individual’s legal representative and CDDP services coordinator immediately upon determination of the need for a transfer or exit.

(d) A service provider is responsible for the provision of services until an individual exits the home.

(e) HEARING RIGHTS. An individual must be given the opportunity for a contested case hearing under ORS 183 to dispute an involuntary transfer or exit. If an individual or the individual’s representative requests a hearing, the individual must receive the same services until the hearing is resolved. When an individual has been given less than 30 days advanced written notice of an exit or transfer as described in subsection (c) of this section and the individual or the individual’s representative has requested a hearing, the service provider must reserve the individual’s room until receipt of the Final Order.

(9) EXIT MEETING.

(a) An individual’s ISP team must meet 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 proposed exit;

(E) Documentation of the discussion of strategies to prevent the individual’s exit from service (unless the individual or the individual’s legal representative is requesting the exit);

(F) Documentation of the decision regarding the individual’s exit including verification of the voluntary decision to exit or a copy of the Notice of Involuntary Transfer or Exit; and

(G) Documentation of the proposed plan for services for the individual after the exit.

(b) 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 or the individual’s 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 for an individual less than 18 years of age.(10) TRANSFER MEETING. A meeting of the ISP Team to discuss any proposed transfer of an individual must precede the decision to transfer. 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;

(c) Documentation of the participants included in the meeting or telephone call;

(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 or the individual’s guardian, legal representative, parent, or family members cannot be honored;

(g) Documentation of the decision regarding the individual’s transfer including verification of the voluntary decision to transfer or a copy of the Notice of Involuntary Transfer or Exit; and

(h) The individual’s written plan for services after transfer.

Stat. Auth.: ORS 410.070 & 409.050

Stats. Implemented: ORS 443.400 - 443.455

Hist.: SPD 25-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 25-2004, f. 7-30-04, cert. ef. 8-1-04; SPD 23-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-325-0400

Grievance of Entry, Exit and Transfer

(1) In cases where the individual or the individual’s legal representative objects to, or the ISP team cannot reach majority agreement regarding an entry refusal, a grievance may be filed by any member of the ISP team. In the case of a refusal to serve, the program vacancy may not be permanently filled until the grievance is resolved.

(2) All grievances must be made in writing to the CDDP Director or the CDDP Director’s designee in accordance with the CDDP’s dispute resolution policy. The CDDP must provide a written response to the individual or the individual’s legal representative within the timelines specified in the CDDP’s dispute resolution policy.

(3) In cases where the CDDP’s decision is in dispute, a written grievance must be made to the Department within ten days of receipt of the CDDP’s decision.

(4) Unresolved grievances are reviewed by the Director or the Director’s Designee and a written response is provided within 45 days of receipt of the written request for the Department’s review. The decision of the Director or the Director’s designee is final.

(5) Documentation of each grievance and resolution must be filed or noted in the individual’s record.

Stat. Auth.: ORS 410.070 & 409.050

Stats. Implemented: ORS 443.400 - 443.455

Hist.: SPD 25-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 25-2004, f. 7-30-04, cert. ef. 8-1-04; SPD 23-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-325-0440

Children’s Direct Contracted Services

Any documentation or information required for children’s direct contracted developmental disability services must be submitted to the CDDP Services Coordinator and the Department’s Residential Services Coordinator assigned to the home or facility.

Stat. Auth.: ORS 410.070 & 409.050

Stats. Implemented: ORS 443.400 - 443.455

Hist.: SPD 25-2003, f. 12-29-03, cert. ef. 1-1-04; SPD 25-2004, f. 7-30-04, cert. ef. 8-1-04; SPD 23-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13


Rule Caption: Supported Living Services for Adults with Intellectual or Developmental Disabilities

Adm. Order No.: SPD 24-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

Rules Amended: 411-328-0560, 411-328-0790, 411-328-0800

Subject: The Department of Human Services (Department) is immediately amending the supported living services rules for adults with intellectual or developmental disabilities in OAR chapter 411, division 328 to:

   Specify the eligibility requirements for home and community-based waivered services to reflect changes made as a result of the Department’s Community First Choice State Plan; and

   Clarify the notice requirements and hearing rights for involuntary transfers and exits to comply with the Code of Federal Regulations and implement corrective actions required as a result of the Centers for Medicare and Medicaid Services’ (CMS) review of the Department’s Home and Community-Based Services Waiver.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-328-0560

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 328:

(1) “Abuse” means abuse of an adult as defined in OAR 407-045-0260.

(2) “Abuse Investigation and Protective Services” means reporting and investigation activities as required by OAR 407-045-0300 and any subsequent services or supports necessary to prevent further abuse as required 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 staff member who is responsible for the individual’s care.

(4) “Adult” means an individual 18 years or older with an intellectual or developmental disability.

(5) “Advocate” means a person other than paid staff who has been selected by an individual or by the individual’s legal representative to help the individual understand and make choices in matters relating to identification of needs and choices of services, especially when rights are at risk or have been violated.

(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) “Annual Individual Support Plan (ISP) Meeting” means an annual meeting, facilitated by an individual’s services coordinator and attended by an individual’s ISP team. The purpose of the meeting is to determine an individual’s needs, coordinate services and training, and develop the individual’s ISP.

(8) “Board of Directors” mean the group of persons formed to set policy and give directions to a service provider that provides supported living services. A board of directors includes local advisory boards used by multi-state organizations.

(9) “Case Management” means an organized service to assist individuals to select, obtain, and utilize resources and services.

(10) “CDDP” means “Community Developmental Disability Program” as defined in this rule.

(11) “Certificate” means the document issued by the Department to a service provider that certifies the service provider is eligible under the rules in OAR chapter 411, division 323 to receive state funds for the provision of endorsed supported living services.

(12) “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, service providers, 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.

(13) “Community Developmental Disability Program (CDDP)” means the entity that is responsible for the planning and delivery of services for individuals with intellectual or 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.

(14) “Community First Choice State Plan” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(15) “Complaint Investigation” means the investigation of any complaint that has been made to a proper authority that is not covered by an abuse investigation.

(16) “Controlled Substance” means any drug classified as Schedules 1 through 5 under the Federal Controlled Substance Act.

(17) “Department” means the Department of Human Services (DHS). The term “Department” is synonymous with “Seniors and People with Disability Division (Division)(SPD)”.

(18) “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.

(19) “Director” means the Director of the Department’s Office of Developmental Disability Services or the Director’s designee. The term “Director” is synonymous with “Assistant Director”.

(20) “Endorsement” means the authorization to provide supported living services issued by the Department to a certified service provider that has met the qualification criteria outlined in these rules and the rules in OAR chapter 411, division 323.

(21) “Entry” means admission to a Department-funded developmental disability service.

(22) “Executive Director” means the person designated by a board of directors or corporate owner that is responsible for the administration of supported living services.

(23) “Exit” means termination or discontinuance of:

(a) Services from a service provider; or

(b) Department-funded developmental disability services.

(24) “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 a person alleged to have engaged in the conduct.

(25) “Functional Needs Assessment (FNAT)” means an assessment that documents the level of need, accommodates an individual’s participation in service planning, and includes:

(a) Completing a comprehensive and holistic assessment;

(b) Surveying physical, mental, and social functioning; and

(c) Identifying risk factors, choices and preferences, and service needs.

(26) “Health Care Provider” means the 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.

(27) “Home and Community-Based Waivered Services” mean the services approved by the Centers for Medicare and Medicaid Services in accordance with Sections 1915(c) and 1115 of the Social Security Act.

(28) “Incident Report” means the written report of any injury, accident, acts of physical aggression, or unusual incident involving an individual.

(29) “Independence” means the extent to which individuals exert control and choice over their own lives.

(30) “Individual” means an adult with an intellectual or developmental disability applying for or determined eligible for developmental disability services.

(31) “Individual Profile” means the written profile that describes an individual entering into supported living services. The profile may consist of materials or assessments generated by a service provider or other related agencies, consultants, family members, or advocates.

(32) “Individual Support Plan (ISP)” means the written details of the supports, activities, and resources required for an individual to achieve personal outcomes. 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 developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. The ISP includes an individual’s Plan of Care for Medicaid purposes and reflects whether services are purchased through a waiver, state plan, or provided through an individual’s natural supports.

(33) “Individual Support Plan (ISP) Team” means a team composed of an individual receiving services and the individual’s legal representative, services coordinator or personal agent, and others chosen by the individual. Others chosen by the individual may include service providers, family members, or other persons requested by the individual.

(34) “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 persons;

(b) Participation by individuals with intellectual or developmental disabilities in the same community activities in which persons without an intellectual or developmental disability participate, together with regular contact with persons 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 persons in the community.

(35) “Intellectual Disability” has the meaning set forth in OAR 411-320-0020 and described in 411-320-0080.

(36) “Involuntary Transfer” means a service provider has made the decision to transfer an individual and the individual or the individual’s legal representative has not given prior approval.

(37) “ISP” means “Individual Support Plan” as defined in this rule.

(38) “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.

(39) “Level of Care” means an assessment completed by a services coordinator has determined an individual meets institutional level of care. An individual meets institutional level of care for an intermediate care facility for individuals with intellectual or developmental disabilities if:

(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.

(40) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who, is a staff or volunteer working with an adult with an intellectual or developmental disability 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.

(41) “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.

(42) “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.

(43) “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.

(44) “Natural Supports” or “Natural Support System” means the resources available to an individual from the individual’s relatives, friends, significant others, neighbors, roommates, and the community. Services provided by natural supports are resources that are not paid for by the Department.

(45) “Needs Meeting” means a process in which an Individual Support Plan team defines the services and supports an individual needs to live in his or her own home, and makes a determination as to the feasibility of creating such services. The information generated in a needs meeting or discussion is used by a service provider to develop an individual’s Transition Plan.

(46) “OSIP-M” means Oregon Supplemental Income Program-Medical as defined in OAR 461-101-0010. OSIP-M is Oregon Medicaid insurance coverage for an individual who meets eligibility criteria as described in OAR chapter 461.

(47) “Personal Futures Planning” means an optional planning process for determining activities, supports, and resources that best create a desirable future for an individual . The planning process generally occurs around major life transitions (e.g. moving into a new home, graduation from high school, marriage, etc.).

(48) “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.

(49) “Prescription Medication” means any medication that requires a physician’s prescription before the medication may be obtained from a pharmacist.

(50) “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.

(51) “Protection” and “Protective Services” means 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.

(52) “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”.

(53) “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.

(54) “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.

(55) “Service Provider” 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. The use of the terms “agency”, “provider”, or “program” are synonymous with “service provider.”

(56) “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 Individual Support Plan services, and to act as a proponent for individuals.

(57) “Significant Other” means a person selected by an individual to be the individual’s friend.

(58) “Staff” means paid employees responsible for providing services to individuals whose wages are paid in part or in full with funds sub-contracted with the community developmental disability program or contracted directly through the Department.

(59) “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.

(60) “Support” means the assistance that an individual requires, solely because of the affects of an 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.

(61) “Supported Living” means the endorsed service that provides the opportunity for individuals to live in a residence of their own choice within the community. Supported living is not grounded in the concept of “readiness” or in a “continuum of services model” but rather provides the opportunity for individuals to live where they want, with whom they want, for as long as they desire, with a recognition that needs and desires may change over time.

(62) “These Rules” mean the rules in OAR chapter 411, division 328.

(63) “Transfer” means movement of an individual from one type of service to another type of service administered or operated by the same service provider.

(64) “Transition Plan” means the written plan of services and supports for the period of time between an individual’s entry into a particular service and the development of the individual’s Individual Support Plan(ISP). The Transition Plan is approved by the individual’s services coordinator and includes a summary of the services necessary to facilitate adjustment to the services offered, the supports necessary to ensure health and safety, and the assessments and consultations necessary for ISP development.

(65) “Unusual Incident” means any incident involving an individual that includes serious illness or accidents, death, injury or illness requiring inpatient or emergency hospitalization, suicide attempts, a fire requiring the services of a fire department, or any incident requiring an abuse investigation.

(66) “Variance” means the temporary exception from a regulation or provision of these rules that may be granted by the Department upon written application by a service provider.

(67) “Volunteer” means any person assisting a service provider without pay to support the services provided to an individual.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 5-1992, f. 8-21-92, cert. ef. 8-24-92; MHD 3-1997, f. & cert. ef. 2-7-97; Renumbered from 309-041-0560 by SPD 17-2009, f. & cert. ef. 12-9-09; 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 19-2011(Temp), f. & cert. ef. 7-1-11 thru 12-28-11; SPD 1-2012, f. & cert. ef. 1-6-12; SPD 24-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-328-0790

Entry, Exit and Transfer: General

(1) NON-DISCRIMINATION. An individual considered for Department-funded services may not be discriminated against because of race, color, creed, age, disability, national origin, gender, religion, duration of Oregon residence, method of payment, or other forms of discrimination under applicable state or Federal law.

(2) QUALIFICATIONS FOR DEPARTMENT-FUNDED SERVICES PRIOR TO JULY 1, 2013. An individual considered for Department-funded services prior to July 1, 2013 must:

(a) Be referred by the Community Developmental Disability Program; and

(b) Be determined to have an intellectual or developmental disability by the Department or the Department’s designee.

(3) QUALIFICATIONS FOR DEPARTMENT-FUNDED SERVICES ON OR AFTER JULY 1, 2013. An individual who enters supported living services on or after July 1, 2013, is subject to eligibility as described in this section.

(a) To be eligible for home and community-based waivered services or Community First Choice State Plan services, an individual must:

(A) Be an Oregon resident; and

(B) Be eligible for OSIP-M; and

(C) Be determined eligible for developmental disability services by the CDDP of the individual’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 411-328-0560.

(b) To be eligible for supported living services, an individual must:

(A) Be an Oregon resident;

(B) Be determined eligible for developmental disability services by the CDDP of the individual’s county of residence as described in OAR 411-320-0080;

(C) Be an individual who is not receiving other Department-funded in-home or community living support;

(D) Have access to the financial resources to pay for food, utilities, and housing expenses; and

(E) Be eligible for home and community-based waivered services or Community First Choice State Plan services as described in subsection (a) of this section; OR

(F) Be determined to meet crisis eligibility as defined in OAR 411-320-0160.

(4) DOCUMENTATION UPON ENTRY. A service provider must acquire the following information prior to or upon an individual’s 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 individual’s ability to evacuate from a building when warned by a signal device and adjust water temperature for bathing and washing;

(c) A brief written history of the individual’s medical conditions or behavioral challenges, if any, including supervision and support needs;

(d) Information related to the individual’s lifestyle, activities, and other choices and preferences;

(e) Documentation of the individual’s financial resources;

(f) Documentation from a physician of the individual’s current physical condition, including a written record of any current or recommended medications, treatments, diets, and aids to physical functioning;

(g) Documentation of any guardianship or conservatorship, health care representation, or any other legal restriction on the rights of the individual, if applicable; and

(h) A copy of the individual’s most recent ISP, if applicable.

(5) ENTRY MEETING. An entry ISP team meeting must be conducted prior to the onset of services to an individual. The findings of the entry 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;

(c) The date determined to be the individual’s date of entry;

(d) Documentation of the participants at the meeting;

(e) Documentation of the pre-entry information required by section (4)(a-h) of this rule;

(f) Documentation of the decision to serve or not serve the individual requesting services, including the reason for the determination to not serve the individual; and

(g) If the decision was made to serve the individual, a written transition plan for the services to be provided.

(6) VOLUNTARY TRANSFERS AND EXITS.

(a) If an individual or the individual’s legal representative gives notice of the individual’s intent to exit, or the individual abruptly exits services, the service provider must promptly notify the individual’s CDDP services coordinator.

(b) A service provider must notify an individual’s ISP team prior to an individual’s voluntary transfer or exit from services.

(c) Notification and authorization of an individual’s voluntary transfer or exit must be documented in the individual’s record.

(7) INVOLUNTARY TRANSFERS AND EXITS.

(a) A service provider may only transfer or exit an individual involuntarily for one or more of the following reasons:

(A) To protect the health, safety, and welfare of the individual or others;

(B) The individual’s service needs exceed the ability of the service provider;

(C) The individual fails to pay for services; or

(D) The service provider’s developmental disability certification or endorsement as described in OAR chapter 411, division 323 is suspended, revoked, not renewed, or voluntarily surrendered.

(b) NOTICE OF INVOLUNTARY TRANSFER OR EXIT. A service provider may not transfer or exit an individual involuntarily without 30 days advance written notice to the individual and the individual’s legal representative and CDDP services coordinator except in the case of a medical emergency or when an individual is engaging in behavior that poses an imminent danger to self or others as described in subsection (c) of this section.

(A) The written notice must be provided on a form approved by the Department (form SDS 0719) and include:

(i) The reason for the transfer or exit; and

(ii) The individual’s right to a hearing as described in subsection (d) of this section.

(B) A notice is not required when an individual or the individual’s legal representative requests a transfer or exit.

(c) A service provider may give less than 30 days advanced written notice only in a medical emergency or when an individual is engaging in behavior that poses an imminent danger to self or others. The notice must be provided to the individual and the individual’s legal representative and CDDP services coordinator immediately upon determination of the need for a transfer or exit.

(d) HEARING RIGHTS. An individual must be given the opportunity for a contested case hearing under ORS 183 to dispute an involuntary transfer or exit. If an individual or the individual’s representative requests a hearing, the individual must receive the same services until the hearing is resolved. When an individual has been given less than 30 days advanced written notice of an exit or transfer as described in subsection (c) of this section and the individual or the individual’s representative has requested a hearing, the service provider must reserve service availability for the individual until receipt of the Final Order.

(8) EXIT MEETING.

(a) An individual’s ISP team must meet 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 proposed exit;

(E) Documentation of the discussion of the strategies to prevent the individual’s exit from services (unless the individual or the individual’s legal representative is requesting the exit);

(F) Documentation of the decision regarding the individual’s exit including verification of the voluntary decision to transfer or exit or a copy of the Notice of Involuntary Transfer or Exit; and

(G) Documentation of the proposed plan for services for the individual after the exit.

(b) WAIVER OF EXIT MEETING. Requirements for an exit meeting may be waived if an individual is immediately removed from services under the following conditions:

(A) The individual or the individual’s legal representative requests an immediate removal; or

(B) The individual is removed by legal authority acting pursuant to civil or criminal proceedings.

(9) TRANSFER MEETING. A meeting of the ISP Team to discuss any proposed transfer of an individual must precede the decision to transfer. 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;

(c) Documentation of the participants included in the meeting or telephone call;

(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 or the individual’s legal representative or family members cannot be honored;

(g) Documentation of a majority agreement of the participants regarding the decision; and

(h) The individual’s written plan for services after transfer.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 5-1992, f. 8-21-92, cert. ef. 8-24-92; MHD 3-1997, f. & cert. ef. 2-7-97; Renumbered from 309-041-0790 by SPD 17-2009, f. & cert. ef. 12-9-09; SPD 24-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-328-0800

Rights: Entry, Exit and Transfer: Appeal Process

(1) In cases where the individual and the individual’s parent, guardian, advocate, or the provider objects to, or the ISP team cannot reach majority agreement regarding an admission refusal, an appeal may be filed by any member of the ISP team. In the case of a refusal to serve, the slot must be held vacant but the payment for the slot must continue.

(2) All appeals must be made in writing to the CDDP Director or the CDDP Director’s designee for decision using the county’s appeal process. The CDDP Director or the CDDP Director’s designee must make a decision within 30 working days of receipt of the appeal and notify the appellant of the decision in writing.

(3) The decision of the CDDP may be appealed by the individual, the individual’s parent, guardian, advocate, or the provider by notifying the Office of Developmental Disability Services in writing within ten working days of receipt of the county’s decision.

(a) A committee is appointed by the Director or the Director’s designee in the Office of Developmental Disability Services every two years and is composed of a Department representative, a residential service representative, and a services coordinator;

(b) In case of a conflict of interest, as determined by the Director or the Director’s designee, alternative representatives may be temporarily appointed by the Director or the Director’s designee to the committee;

(c) The committee reviews the appealed decision and makes a written recommendation to the Director or the Director’s designee within 45 working days of receipt of the notice of appeal;

(d) The Director or the Director’s designee makes a decision on the appeal within ten working days after receipt of the recommendation from the committee; and

(e) If the decision is for admission or continued placement and the provider refuses admission or continued placement, the funding for the slot may be withdrawn by the contractor.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 430.610, 430.630 & 430.670

Hist.: MHD 5-1992, f. 8-21-92, cert. ef. 8-24-92; MHD 3-1997, f. & cert. ef. 2-7-97; Renumbered from 309-041-0800 by SPD 17-2009, f. & cert. ef. 12-9-09; SPD 24-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13


Rule Caption: Comprehensive In-Home Support for Adults with Intellectual or Developmental Disabilities

Adm. Order No.: SPD 25-2013(Temp)

Filed with Sec. of State: 7-1-2013

Certified to be Effective: 7-1-13 thru 12-28-13

Notice Publication Date:

Rules Amended: 411-330-0020, 411-330-0030, 411-330-0040, 411-330-0050, 411-330-0060, 411-330-0070, 411-330-0080, 411-330-0090, 411-330-0110

Subject: The Department of Human Services (Department) is immediately amending the comprehensive in-home support rules for adults with intellectual or developmental disabilities in OAR chapter 411, division 330 to:

   Reflect new definitions applicable to Community First Choice State Plan services;

   Specify the eligibility requirements to reflect changes made as a result of the Community First Choice State Plan;

   Describe and coincide with the services available in the Community First Choice State Plan and Home and Community-Based Waiver amendments;

   Require a functional needs assessment as part of an individual’s service planning process; and

   Clarify the responsibilities of a services coordinator when developing an Individual Service Plan.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-330-0020

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 330:

(1) “Abuse” means abuse of an adult as defined in OAR 407-045-0260.

(2) “Abuse Investigation and Protective Services” means reporting and investigation activities as required by OAR 407-045-0300 and any subsequent services or supports necessary to prevent further abuse as required by OAR 407-045-0310.

(3) “Activities of Daily Living (ADL)” mean those personal, functional activities required by an individual for continued well-being that are essential for health and safety.

(4) “Adult” means an individual 18 years or older with an intellectual or developmental disability.

(5) “Advocate” means a person, other than paid staff, who has been selected by an individual, or by the individual’s legal representative, to help the individual understand and make choices in matters relating to identification of needs and choices of services, especially when rights are at risk or have been violated.

(6) “Alternatives to Employment - Habilitation” means assistance with acquisition, retention, or improvement in self-help, socialization, and adaptive skills that takes place in a non-residential setting, separate from the home in which an individual with an intellectual or developmental disability resides.

(7) “Background Check” means a criminal records check and abuse check as defined in OAR 407-007-0210 (Criminal Records and Abuse Check for Providers).

(8) “Behavior Support Plan (BSP)” means a 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 described in OAR 411-330-0110 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, and health related tasks.

(10) “Case Management” means an organized service to assist individuals to select, obtain, and utilize resources and services.

(11) “CDDP” means “Community Developmental Disability Program” as defined in this rule.

(12) “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, service providers, 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.

(13) “Chore Services” mean the services described in OAR 411-330-0110 needed to maintain a clean, sanitary, and safe environment in an individual’s home. Chore services include heavy household chores such as washing floors, windows, and walls, tacking down loose rugs and tiles, and moving heavy items of furniture for safe access and egress. 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.

(14) “Client Process Monitoring System (CPMS)” means the Department’s computerized system for enrolling and terminating services for individuals with developmental disabilities.

(15) “Collective Bargaining Agreement” means a contract based on negotiation between organized workers and their designated employer for purposes of collective bargaining to determine wages, hours, rules, and working conditions.

(16) “Community Developmental Disability Program (CDDP)” means the entity that is responsible for the 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.

(17) “Community First Choice” means Oregon’s state plan amendment authorized under section 1915(k) of the Social Security Act.

(18) “Community Nursing Services” mean the services described in OAR 411-330-0110 that include nurse delegation and care coordination for an individual living in his or her own home. Community nursing services do not include direct nursing care and are not covered by other Medicaid spending authorities

(19) “Comprehensive Services” mean developmental disability services and supports that include 24-hour residential services provided in a group 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 developmental disabilities enrolled in brokerages..

(20) “Department” means the Department of Human Services (DHS). The term “Department” is synonymous with “Seniors and People with Disabilities Division (Division)(SPD)”.

(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) “Director” means the Director of the Department’s Office of Developmental Disability Services or the Director’s designee. The term “Director” is synonymous with “Assistant Director”.

(23) “Employer-Related Supports” mean activities that assist an individual and, when applicable, the individual’s legal representative or family members, with directing and supervising provision of services described in the individual’s In-Home Support Plan. Supports to the employer include but are not limited to:

(a) Education about employer responsibilities;

(b) Orientation to basic wage and hour issues;

(c) Use of common employer-related tools such as job descriptions; and

(d) Fiscal intermediary services.

(24) “Entry” means admission to a Department-funded developmental disability service.

(25) “Environmental Accessibility Adaptations” mean the physical adaptations as described in OAR 411-330-0110 that are necessary to ensure the health, welfare, and safety of an individual in the home, or that enable the individual to function with greater independence in the home.

(26) “Exit” means termination or discontinuance of:

(a) Services from a service provider; or

(b) Department-funded developmental disability services.

(27) “Family”:

(a) Means a unit of two or more persons 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 (e.g. child-rearing, maintenance of the residence, basic living expenses); and

(iii) Joint responsibility for supporting the individual when the individual with an intellectual or developmental disability 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 in-home support as a resident in the family home;

(B) Identifying persons who may apply, plan, and arrange for individual supports; and

(C) Determining who may receive family training.

(28) “Family Training” means training and counseling services for the family of an individual that increase the family’s capacity to care for, support, and maintain the individual in the home as described in OAR 411-330-0110. Family training includes:

(a) Instruction about treatment regimens and use of equipment specified in an Individual Support Plan;

(b) Information, education, and training about the individual’s intellectual or developmental disability, medical, or behavioral conditions; and

(c) Counseling for the family to relieve the stress associated with caring for an individual with an intellectual or developmental disability.

(29) “Fiscal Intermediary” means a person or entity that receives and distributes in-home support funds on behalf of an individual according to the individual’s In-Home Support Plan. The fiscal intermediary acts as an agent for the individual or the individual’s legal representative and performs activities and maintains records related to payroll and payment of employer-related taxes and fees. In this capacity, the fiscal intermediary does not recruit, hire, supervise, evaluate, dismiss, or otherwise discipline employees.

(30) “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.

(31) “Functional Needs Assessment (FNAT)” means an assessment that documents the level of need, accommodates an individual’s participation in service planning, and includes:

(a) Completing a comprehensive and holistic assessment;

(b) Surveying physical, mental, and social functioning; and

(c) Identifying risk factors, choices and preferences, and service needs.

(32) “General Business Provider” means an organization or entity selected by an individual or the individual’s legal representative, and paid with in-home support funds that:

(a) Is primarily in business to provide the service chosen by the individual to the general public;

(b) Provides services for the individual through employees, contractors, or volunteers; and

(c) Receives compensation to recruit, supervise, and pay the persons who actually provide support for the individual.

(33) “Home” means an individual’s primary residence that is not under contract with the Department to provide services as a licensed, endorsed, or certified foster home, residential care facility, assisted living facility, nursing facility, or other residential support program site.

(34) “Home and Community Based Waivered Services” mean the services approved by the Centers for Medicare and Medicaid Services in accordance with Sections 1915(c) and 1115 of the Social Security Act.

(35) “IHS” means In-Home Support as defined in this rule.

(36) “Immediate Family” means for the purpose of determining whether in-home support funds may be used to pay a family member to provide services, the spouse of an adult with an intellectual or developmental disability.

(37) “Incident Report” means the written report of any injury, accident, acts of physical aggression, or unusual incident involving an individual.

(38) “Independence” means the extent to which individuals with intellectual or developmental disabilities exert control and choice over their own lives.

(39) “Independent Provider” means a person selected by an individual or the individual’s legal representative and paid with in-home support funds to personally provide services to the individual.

(40) “Individual” means an adult with an intellectual or developmental disability applying for or determined eligible for developmental disability services.

(41) “In-Home Support (IHS)” means support that is:

(a) Required for an individual with an intellectual or developmental disability to live in his or her home or the family home;

(b) Designed, selected, and managed by the individual or the individual’s legal representative; and

(c) Provided in accordance with an IHS Plan.

(42) “In-Home Support (IHS) Plan” means the written details of the supports, activities, and resources required for an individual to achieve personal outcomes and be supported by the family in the family home. An individual’s 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 IHS Plan. The IHS Plan is developed at minimum annually to reflect decisions and agreements made during a person-centered process of planning and information gathering. An individual’s IHS Plan is the only plan of care required by the Department for an individual receiving in-home supports.

(43) “Instrumental Activities of Daily Living (IADL)” mean those activities, other than activities of daily living, required to continue independent living.

(44) “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 persons;

(b) Participation by individuals with intellectual or developmental disabilities in the same community activities in which persons without an intellectual or developmental disability participate, together with regular contact with persons 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 persons in the community.

(45) “Intellectual Disability” has the meaning set forth in OAR 411-320-0020 and described in OAR 411-320-0080.

(46) “Intervention” means the action the Department or the Department’s designee requires when an individual or an individual’s representative fails to meet the employer responsibilities described in OAR 411-330-0065. Intervention includes but is not limited to:

(a) A documented review of the employer responsibilities described in OAR 411-330-0065;

(b) Training related to employer responsibilities;

(c) Corrective action taken as a result of an independent provider filing a complaint with the Department, the Department’s designee, or other agency who may receive labor related complaints;

(d) Identifying a representative if an individual is not able to meet the employer responsibilities described in OAR 411-330-0065; or

(e) Identifying another representative if an individual’s current representative is not able to meet the employer responsibilities described in OAR 411-330-0065.

(47) “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.

(48) “Level of Care” means an assessment completed by a services coordinator has determined an individual meets institutional level of care. An individual meets institutional level of care for an intermediate care facility for individuals with intellectual or developmental disabilities if:

(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 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.

(49) “Local Mental Health Authority (LMHA)” means:

(a) The county court or board of county commissioners of one or more counties that operate a community developmental disability program;

(b) The tribal council in the case of a Native American reservation;

(c) The Board of Directors of a public or private corporation if the county declines to operate a contract for all or part of a community developmental disability program; or

(d) The advisory committee for the community developmental disability program covering a geographic service area when managed by the Department.

(50) “Mandatory Reporter” means any public or private official as defined in OAR 407-045-0260 who, while acting in an official capacity, comes in contact with and has reasonable cause to believe an adult with 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 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 40.225 to 40.295.

(51) “Natural Supports” or “Natural Support System” means the resources available to an individual from the individual’s relatives, friends, significant others, neighbors, roommates, and the community. Services provided by natural supports are resources that are not paid for by the Department.

(52) “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.

(53) “Nursing Care Plan” means the plan of care developed by a registered 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, assigned, or delegated to a qualified provider or the individual’s family.

(54) “Occupational Therapy” means the services described in OAR 411-330-0110 provided by a professional licensed under ORS 675.240 that are defined under the approved State Medicaid Plan, except that the amount, duration, and scope specified in the State Medicaid Plan do not apply.

(55) “Oregon Intervention System (OIS)” 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. OIS uses principles of pro-active support and describes approved protective physical intervention techniques that are used to maintain health and safety.

(56) “OSIP-M” means Oregon Supplemental Income Program-Medical as defined in OAR 461-101-0010. OSIPM is Oregon Medicaid insurance coverage for individuals who meet eligibility criteria as described in OAR chapter 461.

(57) “Person-Centered Planning”:

(a) Means 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.

(58) “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.

(59) “Personal Support Worker”:

(a) Means a person:

(A) Who is hired by an individual with an intellectual or developmental disability or the individual’s legal representative;

(B) Who receives money from the Department for the purpose of providing personal care services to the individual in the individual’s home or community; and

(C) Whose compensation is provided in whole or in part through the Department or community developmental disability program.

(b) This definition of personal support worker is intended to reflect the term as defined in ORS 410.600.

(60) “Physical Therapy” means the services described in OAR 411-330-0110 provided by a professional licensed under ORS 688.020 that are defined under the State Medicaid Plan, except that the amount, duration, and scope specified in the State Medicaid Plan do not apply.

(61) “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.

(62) “Prevocational Services” are services that are not job-task oriented that are aimed at preparing an individual with an intellectual or developmental disability for paid or unpaid employment. Prevocational services include teaching such concepts as compliance, attendance, task completion, problem solving, and safety. Prevocational services are provided to individuals not expected to be able to join the general work force or participate in a transitional sheltered workshop within one year.

(63) “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.

(64) “Provider” means a person, organization, or business selected by an individual with an intellectual or developmental disability or the individual’s legal representative and paid with in-home support funds to provide support according to the individual’s In-Home Support Plan.

(65) “Provider Organization” means an entity selected by an individual or the individual’s legal representative, and paid with in-home support 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 persons who actually provide support for the individual.

(66) “Representative” means

(a) A person selected by an individual or the individual’s legal representative to act on the individual’s behalf to direct the individual’s in-home support plan; and

(b) For the purposes of obtaining in-home support through an independent provider, the person selected by an individual or the individual’s legal representative to act on the individual’s behalf to provide the employer responsibilities described in OAR 411-330-0065.

(67) “Respite” means intermittent services as described in OAR 411-330-0110 provided on a periodic basis, but 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 with an intellectual or developmental disability unable to care for him or herself.

(68) “Services Coordinator” means an employee of the community developmental disability program or other agency that contracts with the county or Department, who is selected to plan, procure, coordinate, monitor Individual Support Plan services, and to act as a proponent for individuals with intellectual or developmental disabilities.

(69) “Skills Training” means activities intended to increase an individual’s independence through training, coaching, and prompting the individual to accomplish activities of daily living, instrumental activities of daily living, and health-related skills.

(70) “Social Benefit” or “Social Service” 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 services coordinator and provided according to the description and financial limits written in an individual’s In-Home Support (IHS) Plan.

(a) Social benefits may not:

(A) Duplicate benefits and services otherwise available to persons regardless of intellectual or developmental disability;

(B) Provide financial assistance with food, clothing, shelter, and laundry needs common to people with or without disabilities; or

(C) Replace other governmental or community services available to an individual.

(b) Financial assistance provided as a social benefit may not exceed the actual cost of the support required by an individual to be supported in the individual’s home or in the family home and is either:

(A) Reimbursement for an expense previously authorized in an individual’s IHS Plan; or

(B) An advance payment in anticipation of an expense authorized in a previously authorized IHS Plan.

(71) “Specialized Equipment and Supplies” mean devices, aids, controls, supplies, or appliances as described in OAR 411-330-0110 that meet applicable standards of manufacture, design, and installation that enable an individual to increase their abilities to perform activities of daily living or to perceive, control, or communicate with the environment in which they live. Specialized equipment and supplies do not include items not of direct benefit to an individual.

(72) “Speech, Hearing, and Language Services” mean the services as described in OAR 411-330-0110 provided by a professional licensed under ORS 681.250 that are defined under the approved State Medicaid Plan, except that the amount, duration, and scope specified in the State Medicaid Plan do not apply.

(73) “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.

(74) “Support” means the assistance that an individual requires, solely because of the affects of an 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.

(75) “Supported Employment Services” provides supports for individuals for whom competitive employment is unlikely without ongoing support to perform in a work setting. Supported employment occurs in a variety of settings, particularly work sites in which people without disabilities are employed.

(76) “These Rules” mean the rules in OAR chapter 411, division 330.

(77) “Transition Costs” mean expenses 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 the intellectually disabled to a community-based home setting where the individual resides.

(78) “Transportation” means services as described in OAR 411-330-0110 that allow individuals to gain access to community services, activities, and resources that are not medical in nature.

(79) “Unusual Incident” means any incident involving an individual that includes serious illness or accidents, death, injury or illness requiring inpatient or emergency hospitalization, suicide attempts, a fire requiring the services of a fire department, an act of physical aggression, or any incident requiring an abuse investigation.

(80) “Variance” means the temporary exception from a regulation or provision of these rules that may be granted by the Department, upon written application by the community developmental disability program.

(81) “Volunteer” means any person assisting a provider without pay to support the services provided to an individual.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007 & 430.610 - 430.670

Hist.: SPD 21-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2007(Temp), f. 6-27-07, cert. ef. 7-1-07 thru 12-28-07; SPD 20-2007, f. 12-27-07, cert. ef. 12-28-07; 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 9-2012(Temp), f. & cert. ef. 7-10-12 thru 1-6-13; SPD 1-2013, f. & cert. ef. 1-4-13; SPD 25-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-330-0030

Eligibility for In-Home Support Services

(1) NON-DISCRIMINATION. An eligible individual may not be denied in-home support services or otherwise discriminated against on the basis of age or of diagnostic or disability category. Access to service may not be restricted due to race, color, creed, national origin, citizenship, age, income, or duration of Oregon residence.

(2) ELIGIBILITY PRIOR TO JULY 1, 2013. Prior to July 1, 2013, an individual is eligible for in-home support services when:

(a) The individual has been determined eligible for developmental disability services by the CDDP of the individual’s county of residence; and

(b) The individual is an adult living at home or in the family home whose in-home support services or combined in-home support services and employment and alternatives to employment services regulated by OAR chapter 411, division 345 cost more than $21,119 per year plus application of any subsequent legislatively-approved cost-of-living increments; and

(c) Part or all of the funds to support the individual have been designated by contract with the CDDP because:

(A) The Department has determined the individual is at imminent risk of civil commitment under ORS 427 and the Department is providing diversion services according to the provisions of OAR 411-320-0160; or

(B) Funds previously used to purchase the individual’s Department-regulated residential, work, or day habilitation services have been made available within the guidelines published by the Department to purchase in-home services that cost more than $21,119 per year plus application of any subsequent legislatively-approved cost-of-living increments; or

(C) The Department has found the individual eligible for Comprehensive 300 services as defined through the settlement agreement Staley v. Kitzhaber (USDC CV00-0078-ST) and has made funds available to purchase in-home services that cost more than $21,119 per year plus application of any subsequent legislatively-approved cost-of-living increments.

(3) ELIGIBILITY ON OR AFTER JULY 1, 2013. An individual who enters in-home support services on or after July 1, 2013, is subject to eligibility as described in this section.

(a) To be eligible for home and community-based waivered services or Community First Choice state plan services, an individual must:

(A) Be an Oregon resident;

(B) Be eligible for OSIP-M;

(C) Be determined eligible for developmental disability services by the CDDP of the individual’s county of residence as described in OAR 411-320-0080; and

(D) After completion of an assessment, meet the level of care defined in OAR 411-330-0020.

(b) To be eligible for in-home support services, an individual must:

(A) Be an Oregon resident;

(B) Be determined eligible for developmental disability services by the CDDP of the individual’s county of residence as described in OAR 411-320-0080;

(C) Be an adult who is living in his or her own home or the family home who is not receiving other Department-funded in-home or community living support;

(D) Choose to use a CDDP for assistance with design and management of in-home support services; and

(E) Be eligible for home and community-based waivered services or Community First Choice state plan services as described in subsection (a) of this section; or

(F) Be determined to meet crisis eligibility as defined in OAR 411-320-0160; or

(G) Up to an individual’s 18th birthday, be enrolled in the Children’s Intensive In-home Services (CIIS) Program as described in OAR chapter 411, division 300 or Long Term Supports as described in OAR chapter 411, division 308.

(4) CONCURRENT ELIGIBILITY. An individual may not be found eligible for in-home support services by more than one CDDP unless the concurrent eligibility is necessary to effect transition from one county to another with a change of residence and is part of a collaborative plan developed by both CDDPs in which services and expenditures authorized by one CDDP are not duplicated by the other CDDP.

Stat. Auth.: ORS 409.050 & 410.070

Stats. Implemented: ORS 427.005, 427.007, 430.610 - 430.670

Hist.: SPD 21-2003, f. 12-22-03, cert. ef. 12-28-03; SPD 8-2007(Temp), f. 6-27-07, cert. ef. 7-1-07 thru 12-28-07; SPD 20-2007, f. 12-27-07, cert. ef. 12-28-07; SPD 25-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13

411-330-0040

Service Entry and Exit

(1) The CDDP must make accurate, up-to-date written information about in-home support services available to eligible individuals and the individual’s representative that includes --

(a) Criteria for entry, conditions for exit, and how the limits of assistance with purchasing supports are determined;

(b) A description of processes involved in using in-home support services, including person-centered planning, evaluation, and how to raise and resolve concerns about in-home support services;

(c) Clarification of CDDP employee responsibilities as mandatory abuse reporters;

(d) A brief description of individual and legal representative responsibility for use of public funds; and

(e) An explanation of individual rights to select and direct providers of services authorized through the individual’s IHS Plan and purchased with IHS funds from among those qualified according to OAR 411-330-0070, 411-330-0080, or 411-330-0090.

(2) The CDDP must make information required in section (1) of this rule available using language, format, and presentation methods appropriate for effective communication according to individual needs and abilities.

(3) ENTRY. An individual enters in-home support services when funds are made available through a Department contract with the CDDP specifically to support the individual.

(4) DURATION. An eligible individual who has entered a CDDP’s in-home support service may continue to receive in-home support services as long as the Department continues to provide funds specifically for that individual through contract with the CDDP and the individual continues to require the services to remain at home or in the family home.

(5) EXIT. An individual must exit in-home support services:

(a) At the end of a service period agreed upon by all parties and specified in the individual’s IHS Plan;

(b) No less than 30 days after the CDDP has served an individual or the individual’s legal representative written notice of intent to terminate services when the individual has been determined to no longer meet eligibility for in-home support services as described in OAR 411-330-0030, except when the individual appeals notice of intent to terminate services and requests continuing services in accordance with ORS 183;

(c) At the written request of an individual or the individual’s legal representative to end the service relationship;

(d) When an individual moves from a CDDP’s service area, unless services are part of a time-limited plan for transition to a new county of residence;

(e) When funds to support an individual are no longer provided through the Department contract to the CDDP of the individual’s county of residence;

(f) When a CDDP has sufficient evidence to believe that an individual or the individualR