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Oregon Bulletin

December 1, 2013

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

Rule Caption: Renewal Application - Adult Foster Homes for Adults who are Older or Adults with Physical Disabilities

Adm. Order No.: SPD 42-2013(Temp)

Filed with Sec. of State: 10-16-2013

Certified to be Effective: 10-16-13 thru 4-13-14

Notice Publication Date:

Rules Amended: 411-050-0640

Subject: The Department of Human Services (Department) is immediately amending the renewal application process for adult foster homes for adults who are older or adults with physical disabilities in OAR 411-050-0640 to address provider and advocate concerns over privacy issues. OAR 411-050-0640 is being immediately amended to not require bank statements with each license renewal and credit reports every three years.

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

411-050-0640

Renewal Application and Fees

(1) At least 60 calendar days prior to the expiration of a license, the local licensing authority must send a reminder notice and renewal application to the licensed provider. The local licensing authority must investigate any information in the renewal application and conduct an unannounced inspection of the adult foster home prior to the license renewal.

(2) A separate application is required for each location where an adult foster home is to be operated.

(3) RENEWAL APPLICATION REQUIREMENTS. To renew an adult foster home license, the licensee must complete the Department’s Renewal Application form (SDS 448C) and submit the form to the local licensing authority with the non-refundable fee prior to the expiration date of the current license. Timely submission of the renewal application and non-refundable fee shall keep the license in effect until the local licensing authority or the Department takes action.

(a) The renewal application is not complete until all of the required application information is submitted to the local licensing authority.

(b) A renewal application remaining incomplete at the time of license expiration or failure to provide accurate information on the renewal application shall result in the denial of the application.

(4) The license renewal application must include:

(a) Complete contact information for the licensee including:

(A) A mailing address if different from the adult foster home; and

(B) A business address for electronic mail, if applicable.

(b) The maximum resident capacity;

(c) Identification of:

(A) Any relatives needing care;

(B) The maximum number of any room and board tenants;

(C) The maximum number of day care individuals; and

(D) The names of any other occupants in the home.

(d) A Health History and Physician or Nurse Practitioners’ Statement (form SDS 0903). The Health History and Physician or Nurse Practitioners’ Statement must be updated every third year or sooner if there is reasonable cause for health concerns;

(e) FINANCIAL INFORMATION.

(A) A current completed Financial Information Worksheet (form SDS 0448A) demonstrating the financial ability to maintain sufficient liquid resources to pay the operating costs for each home currently operated by the licensee for at least two months without solely relying on resident income;

(B) Documentation of all unsatisfied judgments, liens, and pending lawsuits in which a claim for money or property is made against the applicant;

(C) Documentation of all bankruptcy filings;

(D) Documentation of all unpaid taxes due from the applicant including but not limited to property taxes, employment taxes, and state and federal income taxes;

(E) Proof of possessing the amount of resources necessary to pay the claims described above in subsection (D) of this section;

(f) If the home is leased or rented, a copy of the current signed and dated lease or rental agreement. The agreement must be a standard lease or rental agreement for residential use and include the following:

(A) The owner and landlord’s name;

(B) Verification that the rent is a flat rate; and

(C) Signatures and date signed by the landlord and applicant, as applicable;

(g) Documentation of a current approved background check for each subject individual as defined in OAR 411-050-0602;

(h) Identification of any structural changes to the home that have occurred since the last approved application was submitted to the local licensing authority. If there has been a structural change to the home, the licensee must submit copies of all required permits and a current and accurate floor plan that indicates:

(A) The size of rooms;

(B) Which bedrooms are to be used by residents, the licensee, caregivers, for day care, and room and board tenants, as applicable;

(C) The location of all the exits on each level of the home, including emergency exits such as windows;

(D) The location of any wheelchair ramps;

(E) The location of all fire extinguishers, smoke alarms, and carbon monoxide alarms;

(F) The planned evacuation routes, initial point of safety, and final point of safety; and

(G) Any designated smoking areas in or on the adult foster home’s premises.

(i) A $20 per bed non-refundable fee for each non-relative resident;

(j) If the licensee intends to use a resident manager or shift caregivers, the Department’s supplemental application (form SDS 448B) completed by the resident manager applicant or shift caregiver applicants as applicable;

(k) Written information describing the operational plan for the adult foster home including:

(A) The use of substitute caregivers and other staff;

(B) A plan of coverage for the absence of the resident manager or the shift caregivers, if applicable; and

(C) The name of a qualified back-up licensee or approved resident manager who does not live in the home but has been oriented to the home. The licensee must submit a signed agreement with the listed back-up provider or approved resident manager annually and maintain a copy in the facility records.

(l) Proof of required continuing education credits as specified in OAR 411-050-0625.

(5) LATE RENEWAL REQUIREMENTS (UNLICENSED ADULT FOSTER HOME). The home shall be treated as an unlicensed facility, subject to civil penalties, if the required renewal information and fee are not submitted to the local licensing authority prior to the expiration date and residents remain in the home. (See OAR 411-050-0685)

(6) The local licensing authority shall provide the licensee a copy of the Department’s inspection report, (form SDS 517A and, if applicable, form SDS 517B) citing any violations and specifying a time frame for correction. The time frame for correction of violations may not exceed 30 calendar days from the date of inspection.

(7) The Department shall deny a renewal application if cited violations are not corrected within the time frame specified by the local licensing authority.

(8) The local licensing authority shall not renew a license unless the following requirements are met:

(a) The applicant and the adult foster home are in compliance with ORS 443.705 to 443.825 and these rules, including any applicable conditions and other final orders of the Department;

(b) The local licensing authority has completed an inspection of the adult foster home;

(c) The Department has completed a background check in accordance with OAR 411-050-0620;

(d) The local licensing authority has reviewed the record of sanctions available from the local licensing authority’s files;

(e) The local licensing authority has determined that the nursing assistant registry maintained under 42 CFR 483.156 contains no finding that the licensee or any nursing assistant employed by the licensee has been responsible for abuse; and

(f) The local licensing authority has determined the licensee is not listed on the Office of Inspector General’s and General Services Administration’s Exclusion Lists.

(9) In seeking the renewal of a license when an adult foster home has been licensed for less than 24 months, the burden of proof to establish compliance with ORS 443.705 to 443.825 and these rules is upon the licensee.

(10) In seeking the renewal of a license when an adult foster home has been licensed for 24 or more continuous months, the burden of proof to establish noncompliance with ORS 443.705 to 443.825 and these rules is upon the Department.

Stat. Auth.: ORS 410.070, 443.001, 443.004, 443.725, 443.730, 443.735, 443.738, 443.742, 443.760, 443.767, 443.775, & 443.790

Stats. Implemented: ORS 443..001 to 443.004, 443.705 to 443.825, 443.875, & 443.991

Hist.: SSD 14-1985, f. 12-31-85, ef. 1-1-86; SSD 11-1988, f. 10-18-88, cert. ef. 11-1-88; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1992, f. 5-26-92, cert. ef. 6-1-92; SSD 3-1996, f. 3-29-96, cert. ef. 4-1-96; SDSD 4-2001, f. & cert. ef. 3-1-01; SPD 31-2006, f. 12-27-06, cert. ef. 1-1-07; SPD 9-2007, f. 6-27-07, cert. ef. 7-1-07; SPD 22-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 9-2010, f. 6-30-10, cert. ef. 7-1-10; Renumbered from 411-050-0420, SPD 33-2013, f. 8-30-13, cert. ef. 9-1-13; SPD 42-2013(Temp), f. & cert. ef. 10-16-13 thru 4-13-14


Rule Caption: In-Home Services

Adm. Order No.: SPD 43-2013

Filed with Sec. of State: 10-31-2013

Certified to be Effective: 11-1-13

Notice Publication Date: 10-1-2013

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

Rules Repealed: 411-030-0002(T), 411-030-0020(T), 411-030-0033(T), 411-030-0040(T), 411-030-0050(T), 411-030-0055(T), 411-030-0080(T), 411-030-0090(T)

Subject: The Department of Human Services (Department) is permanently amending the in-home services rules in OAR chapter 411, division 030 to make permanent the changes adopted by temporary rule that became effective on May 23, 2013 and July 1, 2013.

   The permanent rules:

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

   Clarify that natural supports are voluntary in nature, may not be assumed, and must have the skills and abilities to perform the services needed;

   Remove references to waivered services, as appropriate, to provide community-based services under Medicaid waivers or under the State Plan, as appropriate;

   Clarify when an individual must designate a representative in order to be eligible to receive in-home services provided by a homecare worker and the Department’s right to approve or deny the representative selected by the individual; and

   Reflect new Department terminology and correct formatting and punctuation.

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

411-030-0002

Purpose

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

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

Stat. Auth.: ORS 410.070

Stats. Implemented: ORS 410.070

Hist.: SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13

411-030-0020

Definitions

Unless the context indicates otherwise, the following definitions apply to the rules in OAR chapter 411, division 030:

(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 individuals in a planning and service area. 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 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 as described in OAR chapter 411, division 028.

(10) “Client Assessment and Planning System (CA/PS)”:

(a) Is a single entry data system used for --

(A) Completing a comprehensive and holistic assessment;

(B) Surveying an individual’s physical, mental, and social functioning; and

(C) Identifying risk factors, individual choices and preferences, and the status of service needs.

(b) The CA/PS documents the level of need and calculates an 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 Employees International Union, Local 503. 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 calling (503) 945-6398 or writing 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 an individual eligible for in-home services.

(13) “Consumer-Employed Provider Program” refers to the program described in OAR chapter 411, division 031 wherein a provider is directly employed by a consumer to provide either hourly or live-in in-home services.

(14) “Contingency Fund” means a monetary amount that continues month to month if approved by a case manager that is set aside in the Independent Choices Program service budget 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 receiving services through the Department or Area Agency on Aging.

(16) “Cost Effective” means being responsible and accountable with Department resources by offering less costly alternatives when providing choices that adequately meet an individual’s service needs. Less costly alternatives may 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).

(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 Medicaid home and community-based services. Discretionary funds are expended as described in OAR 411-030-0100.

(19) “Disenrollment” means either voluntary or involuntary termination of a 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 of employee and employer involving an employee provider and a participant.

(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 of an exception is based on the service needs of the individual and is contingent upon the individual’s service plan meeting the requirements in OAR 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:

(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 individuals; and

(C) A relative providing Medicaid in-home services to an individual 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.

(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 a participant is given a cash benefit to purchase goods and services identified in the participant’s service plan and prior approved by the Department or Area Agency on Aging.

(32) “Individual” means a person age 65 or older, or an adult with a physical disability, applying for or eligible for services.

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

(34) “In-Home Services” mean the 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 an individual with excess income contributes to the cost of service pursuant to OAR 461-160-0610 and OAR 461-160-0620.

(37) “Live-In Services” mean 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 resources and supports (e.g. relatives, friends, neighbors, significant others, roommates, or the community) who are willing to voluntarily provide services to an individual without the expectation of compensation. Natural supports are identified in collaboration with the individual and the potential “natural support”. The natural support is required to have the skills, knowledge, and ability to provide the needed services and supports.

(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 person who renders the services.

(42) “Rate Schedule” means the rate schedule maintained by the Department at http://www.dhs.state.or.us/spd/tools/program/osip/rateschedule.pdf. Printed copies may be obtained by calling (503) 945-6398 or writing 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, excluding an individual’s spouse, who is related to the individual by blood, marriage, or adoption.

(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 an Independent Choices Program (ICP) representative as described in OAR 411-030-0100. An ICP representative is not a paid employee provider regardless of relationship to a participant.

(45) “Service Budget” means a participant’s plan for the distribution of authorized funds that are under the control and direction of the participant within the Independent Choices Program. A service budget is a required component of the participant’s 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 OAR 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 needs of a consumer as required by the 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; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13

411-030-0033

In-Home Service Living Arrangements

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

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

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

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

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

(C) The number of tenants or occupants;

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

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

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

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

(i) The person responsible for maintenance;

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

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

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

(A) Houses, apartments, and condominiums;

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

(C) Trailers and mobile homes; or

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

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

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

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

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

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

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

Hist.: SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 18-2003(Temp), f. & cert. ef. 12-11-03 thru 6-7-04; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13

411-030-0040

Eligibility Criteria

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

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

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

(2) An individual receiving Medicaid in-home services or services through the Independent Choices Program must --

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

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

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

(d) Be 18 years of age or older.

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

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

(5) If, for any reason, the employment relationship between an individual and provider is discontinued, an enrolled homecare worker or contracted in-home care agency must be employed within 14 business days for the individual to remain eligible for in-home services. A participant of ICP must employ an employee provider within 14 business days to remain eligible for ICP services. The individual’s case manager has the authority to waive the 14 business day restriction if the individual is making progress towards employing a provider.

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

(7) EMPLOYER RESPONSIBILITIES.

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

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

(B) Supervise and train the homecare worker;

(C) Schedule the homecare worker’s work, leave, and coverage;

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

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

(F) Discharge an unsatisfactory homecare worker.

(b) Individuals who are unable to meet the responsibilities in subsection (a) of this section are ineligible for in-home services provided by a homecare worker. Except as set forth in subsection (f) of this section, individuals ineligible for in-home services provided by a homecare worker may designate a representative to manage the individual’s responsibilities as an employer on the individual’s behalf. A representative of an individual may not be a homecare worker providing homecare worker services to the individual. Individuals must also be offered other available community-based service options to meet the individual’s service needs, including contracted in-home care agency services, nursing facility services, or other community-based service options.

(c) An individual determined ineligible for in-home services provided by a homecare worker and who does not have a representative may request in-home services provided by a homecare worker at the individual’s next re-assessment, but no sooner than 12 months from the date the individual was determined ineligible. To reestablish eligibility for in-home services provided by a homecare worker, an individual must attend training and acquire or otherwise demonstrate the ability to meet the employer responsibilities in subsection (a) of this section. Improvements in health and cognitive functioning, for example, may be factors in demonstrating the individual’s ability to meet the employer responsibilities in subsection (a) of this section. If the Department determines that an individual may not meet the individual’s employer responsibilities, the Department may require that the individual appoint an acceptable representative.

(d) The Department retains the right to approve the representative selected by an individual. Approval may be based on, but is not limited to, the representative’s criminal history, protective services history, or credible allegations of fraud or collusion in fraudulent activities involving a public assistance program.

(e) If an individual’s designated representative is unable to meet the employer responsibilities of subsection (a) of this section or the Department does not approve the representative, the individual must designate a different representative or select other available services.

(f) An individual with a history of credible allegations of fraud or collusion in fraud with respect to in-home services is not eligible for in-home services provided by a homecare worker.

(8) REPRESENTATIVE.

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

Hist.: SSD 3-1985, f. & ef. 4-1-85; SSD 4-1993, f. 4-30-93, cert. ef. 6-12-93, Renumbered from 411-030-0001; SPD 2-2003(Temp), f. 1-31-03, cert. ef. 2-1-03 thru 7-30-03; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 18-2003(Temp), f. & cert. ef. 12-11-03 thru 6-7-04; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 1-2006(Temp), f. & cert. ef. 1-13-06 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13

411-030-0050

Case Management

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

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

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

(2) PERSON-CENTERED SERVICE PLANNING.

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

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

(B) The case manager is responsible for:

(i) Determining eligibility for specific services;

(ii) Presenting service options, resources, and alternatives to the individual to assist the individual in making informed choices and decisions;

(iii) Identifying risks;

(iv) Assisting the individual with developing backup plans;

(v) Identifying the individual’s goals and preferences;

(vi) Assessing the cost effectiveness of the individual’s service plan; and

(vii) Developing a person-centered service plan.

(C) The case manager must monitor the service plan and make adjustments as needed.

(b) The Department takes necessary safeguards to protect an individual’s health, safety, and welfare in implementing an individual’s service plan in accordance with 42 CFR 441.302 and 42 CFR 441.570. When an individual with the ability to make an informed decision selects a service choice that jeopardizes health and safety, the Department or AAA staff shall offer or recommend options to the individual in order to minimize those risks. For the purpose of this rule, an “informed decision” means the individual understands the benefits, risks, and consequences of the service choice selected. Options that minimize risks may include offering or recommending:

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

(B) An emergency response system;

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

(D) Resources for emergency disaster planning;

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

(F) Resources for provider and consumer training;

(G) Assistive devices; or

(H) Architectural modifications.

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

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

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

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

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

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

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

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

(3) PAYMENT.

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

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

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

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

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

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

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

Hist.: SSD 5-1983, f. 6-7-83, ef. 7-1-83; SSD 3-1985, f. & ef. 4-1-85; SSD 12-1985(Temp), f. & ef. 9-19-85; SSD 16-1985, f. 12-31-85, ef. 1-1-86; SSD 4-1987(Temp), f. & ef. 7-1-87; SSD 1-1988, f. & cert. ef. 3-1-88; SSD 6-1988, f. & cert. ef. 7-1-88; SSD 9-1989, f. 6-30-89, cert. ef. 7-1-89; SSD 11-1989(Temp), f. & cert. ef. 9-1-89; SSD 18-1989, f. 12-29-89, cert. ef. 1-1-90; SSD 7-1990(Temp), f. & cert. ef. 3-1-90; SSD 16-1990, f. & cert. ef. 8-20-90; SSD 1-1992, f. & cert. ef. 2-21-92; SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93, Renumbered from 411-030-0022; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13

411-030-0055

Service-Related Transportation

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

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

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

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

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

(6) Community transportation must be prior authorized by an individual’s case manager and documented in the individual’s service plan. The Department does not pay any provider under any circumstances for more than the total number of hours, miles, or rides prior authorized by the Department or AAA and documented in the individual’s service plan.

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

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

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

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

Hist.: SPD 18-2005(Temp), f. 12-20-05, cert. ef. 12-21-05 thru 6-1-06; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13

411-030-0080

Spousal Pay Program

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

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

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

(a) The individual has met all eligibility requirements for in-home services as described in OAR 411-030-0040;

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

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

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

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

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

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

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

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

(4) PAYMENTS.

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

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

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

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

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

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

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020, 410.070, 411.802 & 411.803

Hist.: SSD 4-1984, f. 4-27-84, ef. 5-1-84; SSD 3-1985, f. & ef. 4-1-85; SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93, Renumbered from 411-030-0027; SDSD 2-2000, f. 3-27-00, cert. ef. 4-1-00; SPD 2-2003(Temp), f. 1-31-03, cert. ef. 2-1-03 thru 7-30-03; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 15-2003 f. & cert. ef. 9-30-03; SPD 15-2004, f. 5-28-04, cert. ef. 6-7-04; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 3-2007(Temp), f. 4-11-07, cert. ef. 5-1-07 thru 10-28-07; SPD 17-2007, f. 10-26-07, cert. ef. 10-28-07; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 13-2012(Temp), f. & cert. ef. 9-26-12 thru 3-25-13; SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13

411-030-0090

Contracted In-Home Care Agency Services

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

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

Stat. Auth.: ORS 409.050, 410.070 & 410.090

Stats. Implemented: ORS 410.010, 410.020 & 410.070

Hist.: SSD 4-1993, f. 4-30-93, cert. ef. 6-1-93; SPD 14-2003, f. & cert. ef. 7-31-03; SPD 20-2006, f. 5-26-06, cert. ef. 6-1-06; SPD 2-2007(Temp), f. & cert. ef. 3-30-07 thru 9-25-07; SPD 13-2007, f. 8-31-07, cert. ef. 9-4-07; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 10-2013(Temp), f. & cert. ef. 5-23-13 thru 11-19-13; SPD 43-2013, f. 10-31-13, cert. ef. 11-1-13

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

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

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