910 KAR 3:020. Behavioral services for individuals with brain injuries

Link to law: http://www.lrc.ky.gov/kar/910/003/020.htm
Published: 2015

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      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.)