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Oregon Bulletin

November 1, 2012

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

Rule Caption: Homecare Workers Enrolled in the Client-Employed Provider Program - Collective Bargaining Agreement.

Adm. Order No.: SPD 13-2012(Temp)

Filed with Sec. of State: 9-26-2012

Certified to be Effective: 9-26-12 thru 3-25-13

Notice Publication Date:

Rules Amended: 411-030-0080, 411-031-0020, 411-031-0040

Subject: The Department of Human Services (Department) is temporarily updating the in-home services rules in OAR chapter 411, division 030 and the rules for homecare workers enrolled in the Client-Employed Provider Program in OAR chapter 411, division 031 to immediately implement the 2011-2013 Collective Bargaining Agreement between the Home Care Commission and the Service Employee’s International Union (SEIU), Local 503, Oregon Public Employees’ Union (OPEU).

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

411-030-0080

Spousal Pay Program

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

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

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

(a) The individual has met all program requirements of the In-Home Support Services Program;

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

(c) The individual would otherwise require nursing facility services without home and community-based waivered in-home services;

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

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

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

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

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

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

(4) PAYMENTS.

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

(b) The hours authorized in the service plan must consist of one-half of the assessed hours for 24 hour availability, one-half of the assessed hours for self-management tasks, plus all of the hours for specific ADLs based on the service needs of the individual.

(c) Spousal pay providers are paid at live-in homecare worker rates for ADL, self-management tasks, and 24 hour availability, except as described otherwise in section (4)(d) of this rule as bargained in the Collective Bargaining Agreement between the Home Care Commission and Service Employees International Union, Local 503, OPEU as defined in OAR 411-031-0020.

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

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

(5) Spousal pay providers are subject to the provisions in OAR chapter 411, division 31 governing homecare workers enrolled in the Client-Employed Provider Program.

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

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

411-031-0020

Definitions

(1) “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.

(2) “Adult Protective Services” mean the services described in OAR chapter 411, division 020 provided in response to the need for protection from harm or neglect to an aged, disabled, or blind person 18 years of age or older regardless of income.

(3) “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 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.

(4) “Bargaining Agreement” means the 2011-2013 Collective Bargaining Agreement between the Home Care Commission and the Service Employee’s International Union, Local 503, Oregon Public Employees’ Union.

(5) “Burden of Proof” means that the existence or nonexistence of a fact must be established by a preponderance of the evidence.

(6) “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.

(7) “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.

(8) “Client-Employed Provider Program (CEP)” refers to the program wherein the provider is directly employed by the consumer and provides 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.

(9) “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.

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

(11) “Department” means the Department of Human Services (DHS). “Division” is synonymous with Department.

(12) “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.

(13) “Fiscal Improprieties” means the homecare worker committed financial misconduct involving the consumer’s money, property, or benefits. 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.

(14) “Homecare Worker (HCW)” means a provider, as described in OAR 411-031-0040, that is directly employed by a consumer and provides 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. It also includes consumer-employed providers that provide state plan personal care services to seniors and people with physical disabilities.

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

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

(16) “Imminent Danger” means there is reasonable cause to believe a person’s life or physical, emotional, or financial well-being is in danger if no intervention is immediately initiated.

(17) “In-Home Services” mean those activities of daily living and self-management tasks that assist an individual to stay in his or her own home.

(18) “Lack of Ability or Willingness to Maintain Consumer-Employer Confidentiality” means the homecare worker is unable or unwilling to keep personal information about their consumer-employer private.

(19) “Lack of Skills, Knowledge, and Ability to Adequately or Safely Perform the Required Work” means the 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 seniors and persons with disabilities. Their lack of skills may put consumers at risk because they fail to perform, or learn to perform, their duties adequately to meet the needs of the consumer.

(20) “Live-In Services” mean those Client-Employed Provider Program services provided when a consumer requires activities of daily living, self-management tasks, and 24 hour availability. Time spent by any live-in homecare worker doing self-management and 24 hour availability are exempt from federal and state minimum wage and overtime requirements.

(21) “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.

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

(23) “Preponderance of the Evidence” means that one party’s evidence is more convincing than the other party’s.

(24) “Provider” means the person who actually renders the service.

(25) “Provider Enrollment” means a homecare worker’s authorization to work as a provider employed by the 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.

(26) “Provider Number” means an identifying number issued to each homecare worker who is enrolled as a provider through the Department.

(27) “Restricted Homecare Worker” means the Department or Area Agency on Aging has placed restrictions on an individual homecare workers’ provider enrollment as described in OAR 411-031-0040.

(28) “Self-Management Tasks” or “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 self-management tasks are identified in OAR 411-015-0007.

(29) “Services are Not Provided as Required” means the homecare worker does not provide the services to the consumer as described in the service plan authorized by the Department.

(30) “These Rules” mean the rules in OAR chapter 411, division 031.

(31) “Twenty-Four (24) Hour Availability” means the availability and responsibility of a homecare worker to meet activities of daily living and self-management needs of a client as required by that client 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.

(32) “Unacceptable Conduct at Work” means the homecare worker has repeatedly engaged in one or more of the following behaviors:

(a) Delay in their arrival to work or absences from work not prior-scheduled with the consumer, that are either unsatisfactory to the consumer or that neglect the consumer’s service needs; or

(b) Inviting unwelcome guests or pets into the consumer’s home, resulting in the consumer’s dissatisfaction or inattention to the consumer’s required service needs.

(33) “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 Client-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 have been conducted resulting in a “denied” status, as defined in OAR 407-007-0210.

(34) “Violation of a Drug-Free Workplace” means there was a substantiated complaint against the 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 the 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 the consumer or while in the consumer’s home.

(35) “Violations of Protective Service and Abuse Rules” means the homecare worker violated the protective service and abuse rules in OAR chapter 411, division 020.

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

411-031-0040

Client-Employed Provider Program

The Client-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 and self-management tasks and 24 hour availability. To ensure continuity of service for the consumer, live-in service plans must include at least one homecare worker providing 24 hour availability for a minimum of five days in a calendar week. The hourly structure assumes the provider is required for activities of daily living and self-management tasks 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 the provider and the consumer is that of employee and employer.

(2) CONSUMER-EMPLOYER JOB DESCRIPTIONS. Each consumer-employer is responsible for creating and maintaining a job description for the potential employee 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 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 the home due to an illness or medical treatment and is expected to return to the home within a 30 day period, the live-in provider may be retained to ensure the live-in provider’s presence upon the consumer-employer’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. The 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 person who successfully meets the provider enrollment standards described in section (8) of this rule. The Department/AAA office shall determine whether the employee meets minimum qualifications to provide the authorized services paid by the Department.

(6) EMPLOYMENT AGREEMENT. The consumer-employer retains the full right to establish the employer-employee relationship at any time after Bureau of Citizenship and Immigration Services papers have been completed and identification photocopied. The Department may not guarantee payment for those services until all acceptable enrollment standards have been verified and both the employer and homecare worker have been formally notified in writing that payment by the Department is authorized.

(7) TERMS OF EMPLOYMENT. The terms of the employment relationship are the responsibility of the consumer-employer to establish at the time of hire. These terms of employment may include dismissal or resignation notice, work scheduling and absence reporting, as well as any sleeping arrangements or meals provided for live-in or hourly employees.

(8) PROVIDER ENROLLMENT.

(a) ENROLLMENT STANDARDS. A homecare worker must meet all of the following standards to be enrolled with the Department’s Client-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.

(b) The Department/AAA may deny an application for provider enrollment in the Client-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; or

(G) The Department/AAA has information that enrolling the applicant as a homecare worker may put vulnerable consumers at risk.

(c) BACKGROUND RECHECKS. Background rechecks shall be conducted at least every other year from the date the homecare worker is enrolled. The Department/AAA may conduct a recheck more frequently based on additional information discovered about the homecare worker, such as possible criminal activity or other allegations.

(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 the homecare worker, a new fitness determination is conducted resulting in a change in approval status; or

(ii) The approval has ended because the Department has inactivated or terminated the 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) 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 specific individuals.

(i) Unless disqualified under OAR 407-007-0275, the Department/AAA may approve a homecare worker with prior criminal records under a restricted enrollment to provide services only to specific individuals who are family members, neighbors, or friends after conducting a weighing test as described in OAR 407-007-0200 to 407-007-0370.

(ii) Based on the applicant’s lack of skills, knowledge, or abilities, the Department/AAA may approve an applicant as a restricted homecare worker to provide services only to specific individuals who are family members, neighbors, or friends.

(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 applicant 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 becoming enrolled in the Client-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, their provider number shall be inactivated and any authorization for payment of services shall be discontinued.

(f) 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 they will no longer be providing homecare worker services in Oregon;

(D) The provider fails to participate in a homecare worker orientation arranged through a Department/AAA office within 90 days of provider enrollment; or

(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.

(9) PAID LEAVE.

(a) LIVE-IN HOMECARE WORKERS. Irrespective of the number of consumers served, the Department shall authorize one 24-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 shall receive a proportional share of that 24-hour period of leave authorization. A prorated share of the 24-hours shall be 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 provider may not accumulate more than 144 hours of accrued leave. The employer, homecare worker, and case manager must coordinate the timely use of these hours. Live-in homecare workers must take vacation leave in 24-hour increments or in hourly increments of at least one but not more than 12 hours. Accrued leave must be taken while employed as a live-in.

(B) THE RIGHT TO RETAIN LIVE-IN PAID LEAVE. The 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. Live-in homecare workers who convert to hourly or separate from live-in service and return as an hourly homecare worker within one year from the last day of live-in services shall be credited with their unused hours of leave up to a maximum of 32 hours.

(D) CASH OUT OF PAID LEAVE.

(i) The Department shall pay 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. 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) shall be credited with one 16 hour block of paid leave to use during the current fiscal biennium (July 1 through June 30) in which it was accrued. On February 1st of each year, active employees who worked 80 authorized and paid hours in any one of the three months that immediately precede February (November, December, January) shall be credited with 16 hours of paid time off. One 16 hour block of paid leave shall be credited to each eligible homecare worker, irrespective of the number of consumers they serve. Such leave may not be cumulative from biennium to biennium.

(A) UTILIZATION OF HOURLY PAID LEAVE.

(i) Time off must be utilized in one eight hour block subject to authorization. If the homecare worker’s normal workday is less than eight hours, such time off may be utilized in blocks equivalent to the normal workday. Any remaining hours that are less than the normally scheduled workday may be taken as a single block.

(ii) Hourly homecare workers may take unused paid leave when their employer is temporarily unavailable for the homecare worker to provide services. In all other situations, homecare workers who are not working during a month shall not be eligible to use paid time off in that month.

(B) 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)(D) of this section.

(C) TRANSFERABILITY OF HOURLY PAID LEAVE. An hourly homecare worker who transfers to work as a live-in homecare worker (within the biennium that their hourly leave is earned) shall maintain their balance of hourly paid leave and begin accruing live-in paid leave.

(D) CASH OUT OF PAID LEAVE.

(i) The Department shall pay 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 shall make payment to the provider on behalf of the consumer for all in-home services. This payment shall be considered full payment for the services rendered under Title XIX. Under no circumstances is the homecare worker to demand or receive additional payment for these Title XIX-covered services from the consumer or any other source. Additional payment to homecare workers for the same services covered by Oregon’s Title XIX Home and Community Based Services Waiver 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 the consumer-employer, the Department shall apply any applicable FICA regulations and shall:

(i) Withhold the homecare worker-employee contribution from payments; and

(ii) Submit 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 their beneficiaries and that 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 shall:

(i) Deduct the homecare worker-employees’ share of the Benefit Fund assessment rate for each hour or partial hour worked by each paid homecare worker;

(ii) Collect the consumer-employer’s share of the Benefit Fund assessment for each hour or partial hour of paid services received; and

(iii) Submit the consumer and homecare worker’s contributions to the Workers’ Benefit Fund.

(C) The Department shall pay the 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 has, as one of its purposes, representing employees in their employment relations.

(A) The Department shall deduct from the homecare worker’s monthly salary or wages the specified amount for payment to a labor organization.

(B) In order to receive this payment, the labor organization must enter into a written agreement with the Department to pay the actual administrative costs of the deductions.

(C) The Department shall pay the deducted amount monthly to the designated labor organization.

(e) STATE AND FEDERAL INCOME TAX WITHHOLDING.

(A) The Department shall withhold state and federal income taxes on all payments to homecare workers, as indicated in the bargaining agreement.

(B) Homecare workers must complete and return a current Internal Revenue Service W-4 form to the local office. The Department shall apply standard income tax withholding practices in accordance with the Code of Federal Regulations, Title 26, Part 31 (26 CFR 31).

(11) HOMECARE WORKER EXPENSES SECONDARY TO PERFORMANCE OF DUTIES.

(a) Providers may be reimbursed at $0.485 cents per mile when they use their own car for service plan related transportation, if prior authorized by the case manager. If unscheduled transportation needs arise during non-office hours, an explanation as to the need for the transportation must be provided and approved 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 shall be considered a prior resource.

(c) The Department is not responsible for vehicle damage or personal injury sustained while using a personal motor vehicle for DMAP or service plan-related transportation, except as may be covered by workers’ compensation.

(12) BENEFITS. Workers’ compensation as defined in Oregon Revised Statute and health insurance are available to eligible homecare workers as defined in the bargaining agreement. In order to receive homecare worker services, the consumer-employer must provide written authorization and consent to the Department for the provision of workers’ compensation insurance for their employee.

(13) OVERPAYMENTS. An overpayment is any payment made to a homecare worker by the Department that is more than the person is authorized to receive.

(a) Overpayments are categorized as follows:

(A) Administrative error overpayment. Occurs when the Department failed to authorize, compute, or process the correct amount of in-home service hours or wage rate.

(B) Provider error overpayment. Occurs when 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 provider was not entitled to and any act that constitutes fraud under applicable federal or state law (including 42 CFR 455.2). The Department shall determine, based on a preponderance of the evidence, when fraud has resulted in an overpayment. The Department of Justice, Medicaid Fraud Unit shall determine when a Medicaid fraud allegation shall be pursued for prosecution.

(b) Overpayments are recovered as follows:

(A) Overpayments shall be collected prior to garnishments, such as child support, Internal Revenue Service back taxes, and educational loans.

(B) Administrative or provider error overpayments shall be collected at no more than 5 percent of the homecare worker’s gross wages.

(C) The Department shall determine when a fraud overpayment has occurred and the manner and amount to be recovered.

(D) Providers no longer employed as homecare workers shall have any remaining overpayment deducted from their final check. The provider is responsible for repaying the amount in full when the 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


 

Rule Caption: Lay Representation at Contested Case Hearings.

Adm. Order No.: SPD 14-2012(Temp)

Filed with Sec. of State: 10-5-2012

Certified to be Effective: 10-5-12 thru 4-3-13

Notice Publication Date:

Rules Adopted: 411-001-0500

Subject: The Department of Human Services (Department) is temporarily adopting OAR 411-001-0500 concerning the Department’s use of an officer or employee of the Department as a lay representative that may appear on behalf of the Department during contested case hearings, pursuant to ORS 183.452.

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

411-001-0500

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) Divisions, 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) Client overpayments related to waivered service benefits or medical benefits;

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

(e) Client-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) 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) A Department representative appearing under section (1) must read and be familiar with 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.

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

(7) The Department may not provide the telephone number and addresses of a witness if the Department has reasonable concern that the release of information may affect the safety of the witness.

(8) The Department’s contested case hearings governed by the rules in OAR chapter 411, division 001 are not open to the public and are closed to nonparticipants, except nonparticipants may attend subject to the party’s consent unless confidential information of another person may be presented during the hearing and that person has not consented to the disclosure of confidential information.

Stat. Auth: ORS 409.050
Stats. Implemented: ORS 183.452
Hist.: SPD 14-2012(Temp), f. & cert. ef. 10-5-12 thru 4-3-13

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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