910 KAR 3:020. Behavioral services for
individuals with brain injuries.
RELATES TO: KRS Chapter 13B, Chapter 45A,
189A.010(1)(a)- (d), 211.470(3)
STATUTORY AUTHORITY: KRS 189A.050(3)(d)2,
194A.050(1)
NECESSITY, FUNCTION, AND CONFORMITY: KRS
189A.050(3)(d)2 requires the cabinet to promulgate an administrative regulation
to provide direct services to individuals with brain injuries including
long-term supportive services and training and consultation to professionals
working with individuals with brain injuries. KRS 194A.050(1) requires the
Secretary of the Cabinet for Health and Family Services to promulgate
administrative regulations necessary under applicable state laws to protect,
develop, and maintain the health, personal dignity, integrity, and sufficiency
of the individual citizens of the commonwealth. This administrative regulation
establishes procedures for the provision of behavioral services to individuals
with brain injuries.
Section 1. Definitions. (1)
"Behavioral services" means:
(a) Services that effectively manage
severe behavioral issues which occur as the result of a brain injury; and
(b) Rehabilitative services for the brain
injury.
(2) "Behavioral specialist"
means a professional who has the skills and qualifications, as specified in
Section 5(3)(b) of this administrative regulation, to:
(a) Manage severe behavioral issues which
occur as the result of a brain injury; and
(b) Provide rehabilitative services for
the brain injury.
(3) "Brain injury" is defined
by KRS 211.470(3).
(4) "Case manager" means a
professional described in Section 5(3) of this administrative regulation who
manages the overall development and monitoring of a recipient’s plan of care.
(5) "Crisis intervention" means
a short-term intensive service of a least restrictive nature to aid an
individual to regain a sense of control over an immediate situation.
(6) "Crisis stabilization unit"
means a unit operated to provide short-term intensive treatment.
(7) "Department" means the
Department for Aging and Independent Living.
(8) "Discharge plan" means a
plan that is developed to aid a recipient in exiting from one (1) provider to
another or into the community.
(9) "Emergency" means a
situation in which an applicant is living in conditions that present a
substantial risk of death or eminent and serious physical harm to the applicant
or others.
(10) "Provider" means an
individual, business agency, or facility providing brain injury services.
(11) "Recipient" means an
applicant approved for services.
(12) "Residential" means a
placement that assists an applicant or recipient who is unable to be managed or
treated through crisis stabilization in the community.
(13) "Review team" means a team
composed of three (3) program cabinet staff with professional or personal experience
with brain injury or other cognitive disabilities who reviews and approves or
denies an application for services.
(14) "Targeted case management"
means a set of activities which assist an applicant or recipient in accessing
needed medical, social, education, and other supportive services.
(15) "Transitional services"
means transitioning a recipient from one (1) setting to another such as for
receipt of:
(a) Crisis intervention services;
(b) Residential services;
(c) Community based provider services; or
(d) In-home environment services.
(16) "Wrap around" means a
service or item, specified in Section 5(7)(b) of this administrative
regulation, that enhances a recipient’s ability to live in the community.
Section 2. Eligibility. (1) An applicant
for services shall be eligible to receive a benefit under this program if:
(a) The applicant has a diagnosed brain
injury;
(b) The applicant is a legal resident of
Kentucky;
(c) This program is the payor of last
resort; and
(d) The applicant meets the requirements
for crisis intervention or residential services in accordance with subsections
(2) and (3) of this section.
(2) An applicant for crisis intervention
services shall:
(a) Meet the requirements of subsection
(1) of this subsection and be non-Medicaid eligible; or
(b) Be Medicaid eligible receiving
services under one (1) of the Medicaid ABI Waivers and in an emergency status.
(3) An applicant for residential services
shall:
(a) Meet the requirements of subsection
(1) of this subsection;
(b) Be non-Medicaid eligible;
(c) Have been charged with an offense
listed in KRS 439.3401(1); and
(d) Be in an emergency status.
(4) An applicant or applicant’s guardian
or legal representative shall:
(a) Document that the applicant has no
other funding source for services contained in this administrative regulation;
and
(b) Provide the department with medical
documentation of the applicant’s brain injury including a completed
DAIL-BI-020, Physician’s Recommendation form signed by the applicant’s physician
confirming diagnosis of brain injury.
(5) The following conditions shall not be
included to receive services under this administrative regulation:
(a) Strokes treatable in nursing
facilities providing routine rehabilitation services;
(b) Spinal cord injuries in which there
are no known or obvious injuries to the intracranial central nervous system;
(c) Progressive dementia;
(d) Depression and psychiatric disorders;
and
(e) Mental retardation or birth defect
related disorders.
Section 3. Application Process. (1) A
referral for services may be made by, or on behalf of, an eligible person by
contacting the department by:
(a) Telephone; or
(b) In writing such as by:
1. Facsimile;
2. Email; or
3. U.S. mail.
(2) Upon an applicant’s request for services,
the department shall provide the applicant with an application packet
containing the following forms:
(a) DAIL-BI-010, Application for
Behavioral Services; and
(b) DAIL-BI-020, Physician’s
Recommendation.
(3) The applicant or applicant’s guardian
or legal representative shall provide the department with:
(a) The completed forms specified in
subsection (2) of this section;
(b) Documentation specified in Section
2(4)(a) of this administrative regulation; and
(c) Other medical documentation for
processing the request for services as specified in Section 2(4)(b) of this
administrative regulation.
(4) The department shall:
(a) Submit the completed forms and
documentation to the review team who shall determine the applicant’s
eligibility for services; and
(b) Notify the applicant in writing of
approval or denial for services.
(5) An applicant who wishes to appeal the
denial of services may make a request in accordance with Section 10 of this
administrative regulation.
Section 4. Review Team. (1) At least two
(2) members of the review team shall not be supervised by the department’s Long
Term Care Branch.
(2) A review team shall:
(a) Assess the applicant’s eligibility
for services;
(b) Identify the applicant’s need for
crisis intervention or residential services;
(c) Identify potential resources to meet
the applicant’s need for services;
(d) Determine that this program is the
payor of last resort; and
(e) Meet monthly at a minimum, or more
often as needed for an emergency.
(3) The review team may approve the
following behavioral services for a recipient:
(a) Crisis intervention services that
shall:
1. Include:
a. Training and consultation;
b. Wrap around services;
c. Targeted case management;
d. Crisis stabilization unit; or
e. Environmental modification; and
2. Be approved for no more than three (3)
months, unless an exception to this timeframe is approved by the department
based on individualized stabilization as documented by a provider's service
plan, progress notes, or additional supporting documentation; or
(b) Residential services that shall
include:
1. Wrap around services;
2. Targeted case management, if
applicable; or
3. Transitional services in which a
recipient:
a. Returns to the recipient’s previous
setting, upon stabilization; and
b. May be provided additional wrap around
services to assist with transitioning back to the previous setting, if funding
is available.
(4)(a) Except for an emergency as
specified in Section 8(10) of this administrative regulation, an application
shall be considered in the order in which it is received by the department.
(b) To be considered at the monthly
review team meeting, an application shall be received by the department no
later than three (3) business days prior to the review team meeting.
(5) The review team may make a
recommendation to the applicant and the department about other available
resources or means to meet the applicant’s needs for services and supports.
(6) A final determination from the review
team shall be submitted to the department in writing not to exceed three (3)
business days from the date of determination and shall contain:
(a) An approval or denial for services;
and
(b) An explanation of the review team’s
decision and recommendations for other resources to meet the applicant’s needs,
if services were denied.
(7) If an applicant is determined
ineligible for services, the applicant may submit to the department additional
medical records or medical documentation to support the diagnosis of the
injury.
(8) The department shall submit, at the
next review team meeting, the additional medical information for
reconsideration of the eligibility determination.
Section 5. Covered Services. (1) Covered
services shall be prior-authorized by the review team and provided in
accordance with a plan of care.
(2) A crisis stabilization unit setting
shall include the following crisis intervention services:
(a) Reestablishing problem-solving
abilities;
(b) Staff as specified in subsection
(5)(b) of this section;
(c) Identifying current priority needs;
(d) Assessing functioning and coping
skills; and
(e) Providing stabilization, wrap around,
and transitional services.
(3) Targeted case management shall
include the following:
(a) Ensuring twenty-four (24) hour
availability of services;
(b)1. Assessment;
2. Advocacy;
3. Reassessment and follow-up;
4. Establishment and maintenance of a
recipient’s record; and
5. Crisis assistance planning;
(c) Weekly contact with a provider and
recipient to ensure the recipient’s health, welfare, and safety needs are met;
(d)1. Initiation;
2. Coordination and implementation of
services;
3. Monitoring of the delivery of services
and the effectiveness of a plan of care; and
4. Monitoring a recipient's eligibility;
(e) Assistance with development of an
individualized plan of care and updates as necessary based on changes in the
recipient’s medical condition, transition, and supports;
(f) A plan for transitional services
which shall be developed within seven (7) calendar days of receiving services
and updated as changes occur; and
(g) A case manager who has one (1) or
more years experience working in the brain injury field and is one (1) of the
following:
1. A registered nurse;
2. A licensed practical nurse; or
3. An individual who has a bachelor’s or
master’s degree in a human services field who meets all applicable requirements
of his or her particular field including a degree in:
a. Psychology;
b. Sociology;
c. Social work; or
d. Rehabilitation counseling.
(4) Training and consultation services:
(a) Shall include:
1. Training that includes:
a. Resolving personal issues or
interpersonal problems resulting from the recipient's brain injury;
b. Substance abuse or chemical dependency
treatment;
c. Building and maintaining healthy
relationships;
d. Social skills or the skills to cope
with and adjust to the brain injury;
e. Knowledge and awareness of the effect
of a brain injury;
f. Interpretation or explanation of
medical examinations and procedures;
g. Treatment regimens;
h. Use of equipment; and
i. How to assist the recipient; and
2. Counseling and consultation services
to:
a. Professionals;
b. Families; or
c. Providers working with individuals
with a brain injury; and
(b) Shall be provided by a behavioral
specialist who:
1. Is:
a. A psychologist;
b. A psychologist with autonomous
functioning;
c. A licensed psychological associate;
d. A psychiatrist;
e. A licensed social worker;
f. A clinical nurse specialist with a
master’s degree in psychiatric nursing or rehabilitation nursing;
g. An advanced registered nurse
practitioner (ARNP);
h. A board certified behavior analyst;
i. A certified alcohol and drug
counselor;
j. A licensed marriage and family
therapist; or
k. A licensed professional clinical
counselor; and
2. Has at least one (1) year of behavior
specialist experience.
(5) Residential services shall:
(a) Include such services as:
1. Physical therapy;
2. Occupational therapy;
3. Speech therapy;
4. Cognitive and behavioral therapy; or
5. Neuropsychological consultation and
medical management; and
(b) Be provided by a licensed facility or
certified Medicaid provider who shall:
1. Have access to a:
a. Neuropsychologist;
b. Nurse and physician for medical
management; and
c. Direct care staff member who shall:
(i) Be twenty-one (21) years of age or
older;
(ii) Have a high school diploma or GED;
(iii) Have a valid driver’s license;
(iv) Have a minimum of one (1) year of
experience in providing a service to an individual with a disability; and
(v) Complete a brain injury training
program approved by the department prior to service provision that includes the
mission, goals, organization, and policy of the facility or provider; documentation
of all training including the type of training provided, name and title of the
trainer, length of the training, date of completion, and signature of the
trainee verifying completion; and six (6) hours annually of continuing
education in brain injury;
2. Prior to an employee’s date of hire,
obtain results of:
a. A criminal record check from the
Administrative Office of the Courts or the equivalent out-of-state agency, if
the individual resided or worked outside Kentucky during the year prior to
employment;
b. A nurse aide abuse registry check as
described in 906 KAR 1:100; and
c. Within thirty (30) days of the date of
hire, a central registry check as described in 922 KAR 1:470;
3. Annually, for twenty-five (25) percent
of employees randomly selected, obtain:
a. The results of a criminal record check
from the Kentucky Administrative Office of the Courts; or
b. The equivalent out-of-state agency, if
the individual resided or worked outside of Kentucky during the year;
4. Evaluate and document the performance
of each employee upon completion of the agency’s designated probationary
period, and at a minimum, annually thereafter;
5. Conduct and document periodic and
regularly scheduled supervisory visits of all professional and paraprofessional
direct service staff at the service site in order to ensure that high quality
services are provided to the recipient;
6. Not permit an employee to transport a
recipient, if the employee has a conviction of driving under the influence
(DUI) during the past year; and
7. Not employ an individual to perform
direct care or a supervisory function, if the individual:
a. Has a prior conviction of an offense
delineated in KRS 17.165(1) through (3) or prior felony conviction;
b. Has a conviction of abuse or sale of
illegal drugs during the past five (5) years;
c. Has a conviction of abuse, neglect, or
exploitation;
d. Has a Cabinet for Health and Family
Services finding of child abuse or neglect pursuant to the central registry; or
e. Is listed on the nurse aide abuse
registry.
(6) The individuals providing case
management services, behavior specialist services, and residential services
shall document a monthly detailed staff note which shall:
(a) Include:
1. Date of the service;
2. The beginning and ending time;
3. The signature, date of signature, and
title of the individual providing the service;
4. Information regarding the recipient’s
health, safety, and welfare;
5. Services provided and progress toward
outcomes identified in the approved plan of care; and
6. Daily notes; and
(b) Be provided to the department with a
report on the recipient’s progress:
1. By the tenth of each month following
admission; and
2. By the tenth of the month following
the month of discharge.
(7) Wrap around services shall:
(a) Be facilitated by targeted case
management; and
(b) Include:
1. A service such as:
a. Personal care;
b. Companion care;
c. Transportation; or
d. Environmental modification; or
2. Durable medical equipment.
(8) The following services shall not be
covered:
(a) Institutionalization;
(b) Hospitalization; and
(c) Medications not otherwise attainable
through other resources.
Section 6. Provider Participation. A
participating provider shall: (1) Have a contractual agreement with the
Commonwealth of Kentucky;
(2) Have policy and procedures including
prohibition of physical and chemical resources reviewed and approved by the
department;
(3) Be responsible for incident reporting
requirements established in Section 7 of this administrative regulation;
(4) Be responsible for the involuntary
termination requirements of Section 9(4) of this administrative regulation; and
(5) Submit an invoice for payment to the
department due by the 15th of the month following the month of service.
Section 7. Incident Reporting Process.
(1) An incident report:
(a) Shall be documented on a DAIL-BI-030,
Incident Report; and
(b) Shall be submitted by the provider to
the individuals or departments indicated and by the timeframes specified in
subsection (2) of this section.
(2) There shall be three (3) classes of
incidents as follows:
(a) A Class I incident which
shall:
1. Be minor in nature and not
create a serious consequence;
2. Not require an
investigation by the provider;
3. Be reported to a case
manager within twenty-four (24) hours;
4. Be reported to the
recipient’s guardian or legal representative as directed by the guardian or
legal representative; and
5. Be retained on file at the
provider and case management agency;
(b) A Class II incident which
shall:
1.a. Be serious in nature;
b. Include a medication
error; or
c. Involve the use of a
physical or chemical restraint;
2. Require an investigation
which shall be initiated by the provider within four (4) hours of discovery and
shall involve the case manager;
3. Require a complete written
report of the incident investigation submitted to the department within forty
eight (48) hours of discovery; and
4. Be reported within four
(4) hours of discovery to:
a. The recipient’s guardian
or legal representative; and
b. The department:
(i) Via email, facsimile
transmission, or the department’s business phone if the incident occurs Monday
through Friday by 1:30 p.m.; or
(ii) Via email, or cellular
number provided by the department if the incident occurs Monday through Friday
after 1:30 p.m. or on a holiday or weekend; and
(c) A Class III incident
which shall:
1.a. Be grave in nature;
b. Involve suspected abuse,
neglect, or exploitation;
c. Involve a medication error
which requires a medical intervention; or
d. Be a death;
2. Be immediately
investigated by the provider, and the investigation shall involve the case
manager;
3. Require a complete written
report of the incident investigation submitted to the department within forty
eight (48) hours of discovery; and
4. Be reported to the:
a. Department for Community
Based Services, immediately upon discovery, if involving suspected abuse,
neglect, or exploitation in accordance with KRS Chapter 209;
b. Recipient’s guardian or
legal representative within four (4) hours of discovery; and
c. Department within
four (4) hours of discovery:
(i) Via email, facsimile
transmission, or the department’s business phone if the incident occurs Monday
through Friday by 1:30 p.m.; or
(ii) Via email, or cellular
number provided by the department if the incident occurs Monday through Friday
after 1:30 p.m. or on a holiday or weekend.
(3) In addition to the report specified
in subsection (2)(c)3 of this section, the following documentation that was in
existence at the time of a death shall be submitted to the department:
(a) A current plan of care;
(b) A current list of prescribed
medications including PRN medications;
(c) A current crisis plan;
(d) The provider’s medication
administration review for the current and previous month;
(e) Staff notes from the current and
previous month including details of physician and emergency room visits;
(f) Documentation of Class I or II
incidents;
(g) A coroner's report; and
(h) If performed, an autopsy report.
Section 8. Waiting List for Residential
Services. The department shall establish and maintain a waiting list for
residential services. The waiting list shall be implemented as follows:
(1) In order to be placed on the waiting
list, the individual shall submit to the department the documentation specified
in Sections 2(4) and 3(2) of this administrative regulation.
(2) The order of placement on the waiting
list shall be determined chronologically by date of receipt of the completed
application packet specified in Section 3(2) of this administrative regulation.
(3) In determining chronological status,
the original date of receipt of the completed application packet shall:
(a) Be Maintained; and
(b) Not be changed.
(4) A written notification of the date
and placement on the waiting list shall be mailed to the applicant or the
applicant’s guardian or legal representative.
(5) Maintenance of the waiting list shall
occur as follows:
(a) The department shall update the
waiting list monthly; and
(b) If an individual is removed from the
waiting list, written notification shall be mailed by the department to the
individual or the individual’s guardian or legal representative.
(6) An individual shall be removed from
the waiting list if:
(a) The department is unable to locate
the individual or the individual’s guardian or legal representative;
(b) The individual is deceased; or
(c) The individual or individual’s
guardian or legal representative refuses the offer of placement for services.
(7) The removal of an individual from the
waiting list shall not prevent the submittal of a new application at a later
date.
(8) Available funding shall be allocated
to an individual having emergency status prior to allocating funding to
individuals having nonemergency status.
Section 9. Termination of Services. (1) A
recipient may have services terminated if:
(a) The recipient no longer actively
participates in the services within a plan of care;
(b) Services can no longer be safely
provided to the recipient; or
(c) The recipient no longer meets the
eligibility requirements of Section 2 of this administrative regulation.
(2) If a recipient has services
terminated, the provider shall implement a discharge plan in accordance with
the requirements of subsection (4) of this section.
(3) Voluntary termination and loss of
behavioral services shall be initiated if a recipient or the recipient’s
guardian or legal representative submits a written notice of intent to
discontinue services to the provider and to the department.
(4) Involuntary termination of a
recipient by a provider shall require:
(a) Simultaneous notice to the
department, the recipient, the recipient’s guardian or legal representative,
and the case manager at least sixty (60) days prior to the effective date of
the action, which shall include:
1. A statement of the intended action;
2. The basis for the intended action;
3. The authority by which the action is
taken; and
4. The recipient’s right to appeal the
intended action through the provider’s appeal or grievance process;
(b) The targeted case manager in
conjunction with the recipient and provider to:
1. Provide assistance to ensure a safe
and effective service transition; and
2. Ensure the health, safety, and welfare
of the recipient until an appropriate placement is secured; and
(c) The targeted case manager to gather
necessary documentation for transition.
Section 10. Appeal Procedures for Denial
of a Request for Services. (1) An applicant who wishes to appeal a denial of
services shall notify the department in writing, within thirty (30) days of receipt
of notification of the denial.
(2) The department shall:
(a) Acknowledge receipt of a written
appeal, in writing, within five (5) working days after receipt of the appeal;
(b) Direct the appeal request to the
Division of Administrative Hearings Branch, Office of Communications Review to
conduct a hearing pursuant to KRS Chapter 13B; and
(c)1. Render a final decision in
accordance with KRS 13B.120 by the Secretary of the Cabinet for Health and
Family Services; and
2. The final order shall make clear
reference to the availability of judicial review pursuant to KRS 13B.140 and
13B.150.
Section 11. Incorporation by Reference.
(1) The following material is incorporated by reference:
(a) "DAIL-BI-010, Application for
Behavioral Services", edition 3/09;
(b) "DAIL-BI-020, Physician’s Recommendation",
edition 3/09;
(c) "DAIL-BI-030, Incident
Report", edition 3/09; and
(d) "DAIL-BI-040, Plan of
Care", edition 3/09.
(2) This material may be inspected,
copied, or obtained, subject to applicable copyright law, at the Department for
Aging and Independent Living, 275 East Main Street, Frankfort, Kentucky 40621,
Monday through Friday, 8 a.m. to 4:30 p.m.910 KAR 3:020. (35 Ky.R. 1988; 2120;
2298; eff. 5-1-2009; Tam eff. 5-14-2009.)