CABINET FOR HEALTH AND
FAMILY SERVICES
Department for Medicaid
Services
Division of Community
Alternatives
(Amended After Comments)
907 KAR 3:090. Acquired brain injury
waiver services.
RELATES TO: KRS 205.5605, 205.5606,
205.5607, 205.8451, 205.8477, 42 C.F.R. 441.300 - 310, 42 C.F.R. 455.100 - 106,
42 U.S.C. 1396a, b, d, n
STATUTORY AUTHORITY: KRS 194A.010(1),
194A.030(2), 194A.050(1), 205.520(3)
NECESSITY, FUNCTION, AND CONFORMITY: The
Cabinet for Health and Family Services, Department for Medicaid Services, has
responsibility to administer the Medicaid Program. KRS 205.520(3) authorizes
the cabinet, by administrative regulation, to comply with any requirement that
may be imposed, or opportunity presented, by federal law to qualify for federal
Medicaid funds[the provision of medical assistance to Kentucky’s
indigent citizenry]. KRS 205.5606(1) requires the cabinet to promulgate
administrative regulations to establish a participant[consumer]-directed
services program to provide an option for the home and community-based services
waivers. This administrative regulation establishes the coverage provisions
relating to home- and community-based waiver services provided to an individual
with an acquired brain injury as an alternative to nursing facility services
and including a participant[consumer]-directed services program
pursuant to KRS 205.5606.
Section 1. Definitions. (1) "1915(c)
home and community based services waiver program" means a Kentucky
Medicaid program established pursuant to and in accordance with 42 U.S.C.
1396n(c).
(2) "ABI" means an
acquired brain injury.
(3)[(2)] "ABI
provider" means an entity that meets the criteria established in Section 2
of this administrative regulation.
[(3) "ABI recipient" means
an individual who meets the criteria established in Section 3 of this
administrative regulation.]
(4) "Acquired Brain Injury
Branch" or "ABIB" means the Acquired Brain Injury Branch of the
Department for Medicaid Services, Division of Community Alternatives.
(5) "Acquired brain injury waiver
service" or "ABI waiver service" means a home and community
based waiver service provided to a Medicaid eligible individual who has acquired
a brain injury.
(6) "Advanced practice registered
nurse" is defined by KRS 314.l011(7).
(7) "Assessment" or
"reassessment" means a comprehensive evaluation of abilities, needs,
and services that[is]:
(a) Serves as the basis[Completed
on a MAP-351;
(b) Submitted to the department:
1.] for a level of care
determination;
(b) Is completed on a MAP 351, Medicaid
Waiver Assessment that is uploaded into the MWMA[portal];
and
(c) Occurs at least once[2. No
less than] every twelve (12) months thereafter.
(8) "Behavior intervention
committee" or "BIC" means a group of individuals established to
evaluate the technical adequacy of a proposed behavior intervention for an ABI
recipient.
(9) "Blended services" means a
nonduplicative combination of ABI waiver services identified in Section 4 of
this administrative regulation and participant directed[CDO]
services identified in Section 10[8] of this administrative
regulation provided pursuant to a recipient's approved person-centered
service plan[of care].
(10) "Board certified behavior
analyst" means an independent practitioner who is certified by the
Behavior Analyst Certification Board, Inc.
(11) "Budget allowance" is
defined by KRS 205.5605(1).
(12) "Case manager" means an
individual who manages the overall development and monitoring of a recipient’s person-centered
service plan[of care].
(13)["Consumer" is defined
by KRS 205.5605(2).
(14) "Consumer directed
option" or "CDO" means an option established by KRS 205.5606
within the home and community based services waiver that allows recipients to:
(a) Assist with the design of their programs;
(b) Choose their providers of
services; and
(c) Direct the delivery of
services to meet their needs.
(15)] "Covered services and supports" is defined by KRS
205.5605(3).
(14)[(16)] "Crisis
prevention and response plan" means a plan developed by the person
centered team[an interdisciplinary team] to identify any potential
risk to a recipient and to detail a strategy to minimize the risk.
(15)[(17)] "DCBS" means the Department
for Community Based Services.
(16)[(18)] "Department" means the
Department for Medicaid Services or its designee.
(17)[(19)] "Good cause"
means a circumstance beyond the control of an individual that affects the
individual's ability to access funding or services, including:
(a) Illness or hospitalization of the
individual which is expected to last sixty (60) days or less;
(b) Death or incapacitation of the
primary caregiver;
(c) Required paperwork and documentation
for processing in accordance with Section 3 of this administrative regulation
that has not been completed but is expected to be completed in two (2) weeks or
less; or
(d) The individual or his or her legal
representative has made diligent contact with a potential provider to secure
placement or access services but has not been accepted within the sixty (60)
day time period.
(18)[(20)] "Human rights committee" or
"HRC" means a group of individuals established to protect the rights
and welfare of an ABI recipient.
(19)[(21)
"Interdisciplinary team" means a group of individuals that assist in
the development and implementation of an ABI recipient’s plan of care consisting
of:
(a) The ABI recipient and legal
representative if appointed;
(b) A chosen ABI service provider;
(c) A case manager; and
(d) Others as designated by the ABI
recipient.
(22)] "Level of care
certification" means verification, by the department, of ABI program
eligibility for:
(a) An individual; and
(b) A specific period of time.
(20)[(23)] "Licensed
marriage and family therapist" or "LMFT" is defined by KRS
335.300(2).
(21) "Licensed medical professional" means:
(a) A physician;
(b) An advanced practice
registered nurse;
(c) A physician assistant;
(d) A registered nurse;
(e) A licensed practical
nurse; or
(f) A pharmacist.
(22)[(24)] "Licensed
professional clinical counselor" is defined by KRS 335.500(3).
(23)[(25)] "Medically
necessary" or "medical necessity" means that a covered benefit
is determined to be needed in accordance with 907 KAR 3:130.
(24) "MWMA[portal]"
means the Kentucky Medicaid Waiver Management Application internet portal
located at http://chfs.ky.gov/dms/mwma.htm.
(25)[(26)]
"Occupational therapist" is defined by KRS 319A.010(3).
(26)[(27)]
"Occupational therapy assistant" is defined by KRS 319A.010(4).
(27) "Participant directed services" or "PDS" means an option established by KRS 205.5606 within the 1915(c)
home and community based service waiver programs that allows recipients to
receive non-medical services in which the individual:
(a) Assists with the design of the program;
(b) Chooses the providers of services; and
(c) Directs the delivery of services to meet their needs.
(28) "Patient liability" means
the financial amount, determined by the department, that an individual is
required to contribute towards cost of care in order to maintain Medicaid eligibility.
(29) "Person-centered service
plan" means a written individualized plan of services for a participant
that meets the requirements established in Section 4 of this administrative
regulation.
(30) "Person centered team"
means a participant, the participant’s guardian or representative, and other
individuals who are natural or paid supports and who:
(a) Recognize that evidenced based
decisions are determined within the basic frame-work of what is important for
the participant and within the context of what is important to the participant
based on informed choice;
(b) Work together to identify what
roles they will assume to assist the participant in becoming as independent as
possible in meeting the participant’s needs; and
(c) Include providers who receive
payment for services who shall:
1. Be active contributing members of
the person centered team meetings;
2. Base their input upon
evidence-based information; and
3. Not request reimbursement for
person-centered team meetings.
(31)[(29)] "Personal
services agency" is defined by KRS 216.710(8).
(32)[(30)]
"Psychologist" is defined by KRS 319.010(9).
(33)[(31)]
"Psychologist with autonomous functioning" means an individual who is
licensed in accordance with KRS 319.056.
(34)[(32)] "Qualified
mental health professional" is defined by KRS 202A.011(12).
(35)[(33)]
"Representative" is defined by KRS 205.5605(6).
(36)[(34)]
"Speech-language pathologist" is defined by KRS 334A.020(3).
(37)[(35)] "Support
broker" means an individual designated by the department to:
(a) Provide training, technical
assistance, and support to a participant[consumer]; and
(b) Assist a participant[consumer]
in any other aspects of PDS[CDO].
(38)[(36)] "Support
spending plan" means a plan for a participant[consumer] that
identifies the:
(a) PDS[CDO services]
requested;
(b) Employee name;
(c) Hourly wage;
(d) Hours per month;
(e) Monthly
pay;
(f) Taxes; and
(g) Budget allowance.
(39)[(37)] "Transition
plan" means a plan that is developed by the person centered[an
interdisciplinary] team to aid an ABI recipient in exiting from the ABI
program into the community.
Section 2. Non-PDS[CDO]
Provider Participation Requirements. (1) In order to provide an ABI
waiver service in accordance with Section 4 of this administrative regulation,
excluding a participant-directed[consumer-directed option]
service, an ABI provider shall:
(a) Be enrolled as a Medicaid provider in
accordance with 907 KAR 1:671;
(b) Be certified by the department prior
to the initiation of the service;
(c) Be recertified at least annually by
the department;
(d) Have an office within the Commonwealth
of Kentucky; and
(e) Complete and submit a MAP-4100a to
the department.
(2) An ABI provider shall comply with:
(a) 907 KAR 1:671;
(b) 907 KAR 1:672;
(c)[(b)] 907 KAR 1:673;
(d) 907 KAR 7:005;
(e) The Health Insurance Portability
and Accountability Act, 42 U.S.C. 1320d-2, and 45 C.F.R. Parts 160, 162, and
164; and
(f) 42 U.S.C. 1320d to 1320d-8[and
(c) 902 KAR 20:078].
(3) An ABI provider shall have a
governing body that shall be:
(a) A legally-constituted entity within
the Commonwealth of Kentucky; and
(b) Responsible for the overall operation
of the organization including establishing policy that complies with this
administrative regulation concerning the operation of the agency and the
health, safety and welfare of an ABI recipient served by the agency.
(4) An ABI provider shall:
(a) Unless providing PDS[participating
in the CDO program], ensure that an ABI waiver service is not provided to a
participant[an ABI recipient] by a staff member of the ABI provider
who has one (1) of the following blood relationships to the participant[ABI
recipient]:
1. Child;
2. Parent;
3. Sibling; or
4. Spouse;
(b) Not enroll a participant[an
ABI recipient]for whom the ABI provider cannot meet the service needs; and
(c) Have and follow written criteria that
complies with this administrative regulation for determining the eligibility of
an individual for admission to services.
(5)[An ABI provider shall comply with
the requirements of the Health Insurance Portability and Accountability Act
(HIPAA) of 1996, 42 U.S.C. 1320d to 1320d-8.
(6)] An ABI provider shall meet
the following requirements if responsible for the management of a participant’s[an
ABI recipient’s] funds:
(a) Separate accounting shall be
maintained for each participant[ABI recipient] or for his or her
interest in a common trust or special account;
(b) Account balance and records of
transactions shall be provided to the participant[ABI recipient] or
legal representative on a quarterly basis; and
(c) The participant[ABI
recipient] or legal representative shall be notified when a large balance
is accrued that may affect Medicaid eligibility.
(6)[(7)] An ABI provider
shall have a written statement of its mission and values.
(7)[(8)] An ABI provider
shall have written policy and procedures for communication and interaction with
a family and legal representative of a participant,[an ABI recipient’s]
which shall:
(a) Require a timely response to an inquiry;
(b) Require the opportunity for
interaction with direct care staff;
(c) Require prompt notification of any unusual
incident;
(d) Permit visitation with the participant[ABI
recipient] at a reasonable time and with due regard for the participant’s[ABI
recipient’s] right of privacy;
(e) Require involvement of the legal
representative in decision-making regarding the selection and direction of the
service provided; and
(f) Consider the cultural, educational,
language, and socioeconomic characteristics of the participant[ABI
recipient].
(8)(a)[(9)] An ABI provider
shall have written policies and procedures for all settings that assure the participant
has:
1. Rights of privacy, dignity,
respect, and freedom from coercion and restraint;
2. Freedom of choice:
a. As defined by the experience of
independence, individual initiative, or autonomy in making life choices, both
in small everyday matters (what to eat or what to wear), and in large,
life-defining matters (where and with whom to live and work); and
b. Including the freedom to choose:
(i) Services;
(ii) Providers;
(iii) Settings from among setting
options including non-disability specific settings; and
(iv) Where to live with as much
independence as possible and in the most community-integrated environment.
(b) The setting options and choices
shall be:
1. Identified and documented in the person-centered
service plan; and
2. Based on the participant’s needs
and preferences.
(c) For a residential setting, the resources
available for room and board shall be documented in the person-centered service
plan.
(9) An ABI provider shall have written
policies and procedures for residential settings that assure the participant
has:
(a) Privacy in the sleeping unit and
living unit in a residential setting;
(b) An option for a private unit in a
residential setting;
(c) A unit with lockable entrance
doors and with only the participant and appropriate staff having keys to those
doors;
(d) A choice of roommate or housemate;
(e) The freedom to furnish or decorate
their sleeping or living units within the lease or other agreement;
(f) Visitors of the participant’s
choosing at any time and access to a private area for visitors;
(g) Physical accessibility, defined as
being easy to approach, enter, operate, or participate in a safe manner and
with dignity by a person with or without a disability.
1. Settings considered to be
physically accessible shall also meet the Americans with Disabilities Act
standards of accessibility for all participants served in the setting.
2. All communal areas shall be
accessible to all participants as well as have a means to enter the building
(i.e. keys, security codes, etc.).
3. Bedrooms shall be accessible to the
appropriate persons.
4.a. Any modification of an additional
residential condition except for the setting being physically accessible
requirement shall be supported by a specific assessed need and justified in the
participant’s person-centered service plan.
b. Regarding a modification, the following
shall be documented in a participant’s person-centered service plan:
(i) That the modification is the
result of an identified specific and individualized assessed need;
(ii) Any positive intervention or
support used prior to the modification;
(iii) Any less intrusive method of
meeting the participant’s need that was tried but failed;
(iv) A clear description of the
condition that is directly proportionate to the specific assessed need;
(v) Regular collection and review of
data used to measure the ongoing effectiveness of the modification;
(vi) Time limits established for
periodic reviews to determine if the modification remains necessary or should
be terminated;
(vii) Informed consent by the
participant or participant’s representative for the modification; and
(viii) An assurance that interventions
and supports will cause no harm to the participant.
(10)[ensure the rights of an
ABI recipient by:
(a) Making available a description of
the rights and the means by which the rights may be exercised, including:
1. The right to time, space, and
opportunity for personal privacy;
2. The right to retain and use
personal possessions; and
3. For a supervised residential care,
personal care, companion or respite provider, the right to communicate, associate
and meet privately with a person of the ABI recipient’s choice, including:
a. The right to send and receive
unopened mail; and
b. The right to private, accessible
use of the telephone;
(b) Maintaining a grievance and
appeals system;
(c) Complying with the Americans with
Disabilities Act (28 C.F.R. Part 35); and
(d) Prohibiting the use of:
1. Prone or supine restraint;
2. Corporal punishment;
3. Seclusion;
4. Verbal abuse; or
5. Any procedure which denies private
communication, requisite sleep, shelter, bedding, food, drink, or use of a
bathroom facility.
(10) An ABI provider shall maintain
fiscal and service records and incident reports for a minimum of six (6) years
from the date that a covered service is provided and all the records and reports
shall be made available to the:
(a) Department;
(b) ABI recipient’s selected case
manager;
(c) Cabinet for Health and Family
Services, Office of Inspector General or its designee;
(d) General Accounting Office or its designee;
(e) Office of the Auditor of Public
Accounts or its designee;
(f) Office of the Attorney General or
its designee; or
(g) Centers for Medicare and Medicaid
Services.
(11)] An ABI provider shall
cooperate with monitoring visits from monitoring agents.
(11)[(12)] An ABI provider
shall maintain a record for each participant[ABI recipient]
served that shall:
(a) Be recorded in permanent ink;
(b) Be free from correction fluid;
(c) Have a strike through each error
which is initialed and dated; and
(d) Contain no blank lines between each
entry.
(12)[(13)] A record of each
participant[ABI recipient] who is served shall:
(a) Be cumulative;
(b) Be readily available;
(c) Contain a legend that identifies any
symbol or abbreviation used in making a record entry; and
(d) Contain the following specific information:
1. The participant’s[ABI
recipient’s] name and Medical Assistance Identification Number (MAID);
2. An assessment summary relevant to the
service area;
3. The person-centered service plan[MAP-109];
4. The crisis prevention and response
plan that shall include:
a. A list containing emergency contact telephone
numbers; and
b. The participant’s[ABI
recipient’s] history of any allergies with appropriate allergy alerts for
severe allergies;
5. The transition plan that shall
include:
a. Skills to be obtained from the ABI waiver
program;
b. A listing of the on-going formal and
informal community services available to be accessed;[and]
c. A listing of additional resources
needed; and
d. Expected date of transition from
the ABI waiver program;
6. The training objective for any service
that[which] provides skills training to the participant[ABI
recipient];
7. The participant’s[ABI
recipient’s] medication record, including a copy of the prescription or the
signed physician’s order and the medication log if medication is administered
at the service site;
8. Legally-adequate consent for the
provision of services or other treatment including a consent for emergency
attention, which shall be located at each service site;
9. The MAP-350, Long Term Care
Facilities and Home and Community Based Program Certification form[,
MAP-350,] updated at recertification; and
10. Current level of care certification;
(e) Be maintained by the provider in a
manner to ensure the confidentiality of the participant’s[ABI
recipient's] record and other personal information and to allow the participant[ABI
recipient] or legal representative to determine when to share the
information as provided by law;
(f) Be secured against loss, destruction,
or use by an unauthorized person ensured by the provider; and
(g) Be available to the participant[ABI
recipient] or legal representative[guardian] according to the
provider's written policy and procedures, which shall address the availability
of the record.
(13)[(14)] An ABI provider[shall]:
(a) Shall:
1. Ensure that each new staff person or
volunteer performing direct care or a supervisory function has had a
tuberculosis (TB) risk assessment performed by a licensed medical professional
and, if indicated, a TB skin test with a negative result within the past twelve
(12) months as documented on test results received by the provider;
2. Maintain, for existing staff,
documentation of each staff person’s or, if a volunteer performs direct care or
a supervisory function, the volunteer’s annual TB risk assessment or negative
tuberculosis test required by subparagraph 1 of this paragraph;
3. Ensure that an employee or volunteer
who tests positive for TB or has a history of a positive TB skin test shall be
assessed annually by a licensed medical professional for signs or symptoms of
active disease;
4. Before allowing a staff person or volunteer
determined to have signs or symptoms of active disease to work, ensure that follow-up
testing is administered by a physician with the test results indicating the
person does not have active TB disease; and
5. Maintain annual documentation for an
employee or volunteer with a positive TB test to ensure no active disease
symptoms are present;
(b)1. Shall for each potential employee
or volunteer expected to perform direct care or a supervisory function, obtain:
a. Prior to the date of hire or
date of service as a volunteer, the results of:
(i)[a.] A criminal record
check from the Administrative Office of the Courts or equivalent out-of-state
agency if the individual resided, worked, or volunteered outside Kentucky during
the year prior to employment or volunteer service; [and]
(ii)[b.] A Nurse Aide Abuse
Registry check as described in 906 KAR 1:100; and
(iii) A Caregiver Misconduct Registry
check as described in 922 KAR 5:120; and
b.[2. Obtain,] Within
thirty (30) days of the date of hire or date of service as a volunteer, the
results of a Central Registry check as described in 922 KAR 1:470; or
2. May use Kentucky’s national
background check program established by 906 KAR 1:190 to satisfy the background
check requirements of subparagraph 1 of this paragraph;
(c) Shall[and
3.] annually, for twenty-five (25)
percent of employees randomly selected, obtain the results of a criminal record
check from the Kentucky Administrative Office of the Courts or equivalent
out-of-state agency if the individual resided or worked outside of Kentucky
during the year prior to employment;
(d) Shall[and
(c)] not employ or permit an
individual to serve as a volunteer performing direct care or a supervisory
function if the individual has a prior conviction of an offense delineated in
KRS 17.165(1) through (3) or prior felony conviction;
(e) Shall[(d)] not permit
an employee or volunteer to transport an ABI recipient if the employee or
volunteer:
1. Does not possess a valid operator's
license issued pursuant to KRS 186.410; or
2. Has a conviction of Driving Under the
Influence (DUI) during the past year;
(f) Shall[(e)] not employ
or permit an individual to serve as a volunteer performing direct care or a
supervisory function if the individual has a conviction of trafficking, manufacturing,
or possession of an illegal drug during the past five (5) years;
(g) Shall[(f)] not employ
or permit an individual to serve as a volunteer performing direct care or a
supervisory function if the individual has a conviction of abuse, neglect or
exploitation;
(h) Shall[(g)] not employ
or permit an individual to serve as a volunteer performing direct care or a
supervisory function if the individual has a Cabinet for Health and Family
Services finding of:
1. Child abuse or neglect pursuant
to the Central Registry; or
2. Adult abuse, neglect, or
exploitation pursuant to the Caregiver Misconduct Registry;
(i) Shall[(h)] not employ
or permit an individual to serve as a volunteer performing direct care or a
supervisory function if the individual is listed on the:
1. Nurse Aide Abuse Registry
pursuant to 906 KAR 1:100; or
2. Caregiver Misconduct Registry
pursuant to 922 KAR 5:120;
(j) Shall[(i)] evaluate and
document the performance of each employee upon completion of the agency’s
designated probationary period and at a minimum of annually thereafter; and
(k) Shall[(j)] 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, appropriate services are provided to the participant[ABI
recipient].
(14)[(15)] An ABI provider
shall:
(a) Have an executive director who:
1. Is qualified with a bachelor’s degree
from an accredited institution in administration or a human services field; and
2. Has a minimum of one (1) year of
administrative responsibility in an organization which served an individual
with a disability; and
(b) Have adequate direct-contact staff
who:
1. Is eighteen (18) years of age or
older;
2. Has a high school diploma or GED; and
3.a. Has a minimum of two (2) years
experience in providing a service to an individual with a disability; or
b. Has successfully completed a
formalized training program such as nursing facility nurse aide training.
(15)[(16)] An ABI provider
shall establish written guidelines that address the health, safety and welfare
of a participant[an ABI recipient], which shall include:
(a) Ensuring the health, safety and
welfare of the participant[ABI recipient];
(b) Maintenance of sanitary conditions;
(c) Ensuring each site operated by the
provider is equipped with:
1. Operational smoke detectors placed in
strategic locations; and
2. A minimum of two (2) correctly-charged
fire extinguishers placed in strategic locations, one (1) of which shall be
capable of extinguishing a grease fire and have a rating of 1A10BC;
(d) For a supervised residential care or
adult day training provider, ensuring the availability of an ample supply of
hot and cold running water with the water temperature at a tap used by the participant[ABI
recipient] not exceeding 120 degrees Fahrenheit;
(e) Ensuring that the nutritional needs
of the participant[ABI recipient] are met in accordance with the
current recommended dietary allowance of the Food and Nutrition Board of the
National Research Council or as specified by a physician;
(f) Ensuring that staff who supervise
medication administration:
1. Unless the employee is a licensed or
registered nurse, have specific training provided by a licensed medical
professional[(a nurse, pharmacist, or medical doctor)] and documented
competency on cause and effect and proper administration and storage of medication;
and
2. Document all medication administered,
including self-administered, over-the-counter drugs, on a medication log, with
the date, time, and initials of the person who administered the medication and
ensure that the medication shall:
a. Be kept in a locked container;
b. If a controlled substance, be kept
under double lock;
c. Be carried in a proper container
labeled with medication, dosage, time of administration, and the recipient’s
name if administered to the participant[ABI recipient] or
self-administered at a program site other than his or her residence; and
d. Be documented on a medication
administration form and properly disposed of if discontinued; and
(g) Establish policies and procedures for
on-going monitoring of medication administration as approved by the department.
(16)[(17)] An ABI provider
shall establish and follow written guidelines for handling an emergency or a
disaster which shall:
(a) Be readily accessible on site;
(b) Include an evacuation drill:
1. To be conducted and documented at
least quarterly; and
2. For a residential setting, scheduled
to include a time overnight when a participant[an ABI recipient]
is typically asleep;
(c) Mandate that:
1. The result of an evacuation drill be
evaluated and modified as needed; and
2. Results of the prior year’s evacuation
drill be maintained on site.
(17)[(18)] An ABI provider
shall:
(a) Provide orientation for each new
employee which shall include the mission, goals, organization and policy of the
agency;
(b) Require documentation of all training
which shall include:
1. The type of training provided;
2. The name and title of the trainer;
3. The length of the training;
4. The date of completion; and
5. The signature of the trainee verifying
completion;
(c) Ensure that each employee complete
ABI training consistent with the curriculum that has been approved by the
department prior to working independently with a participant,[an ABI
recipient] which shall include:
1. Required orientation in brain injury;
2. Identifying and reporting abuse,
neglect and exploitation;
3. Unless the employee is a licensed or
registered nurse, first aid, which shall be provided by an individual certified
as a trainer by the American Red Cross or other nationally-accredited
organization; and
4. Coronary pulmonary resuscitation,
which shall be provided by an individual certified as a trainer by the American
Red Cross or other nationally-accredited organization;
(d) Ensure that each employee completes
at least six (6) hours of continuing education in brain injury annually;
(e) Not be required to receive the
training specified in paragraph (c)1 of this subsection if the provider is a
professional who has, within the prior five (5) years, 2,000 hours of experience
in serving a person with a primary diagnosis of a brain injury including:
1. An occupational therapist or
occupational therapy assistant providing occupational therapy;
2. A psychologist or psychologist with
autonomous functioning providing psychological services;
3. A speech-language pathologist
providing speech-language pathology services[therapy]; or
4. A board certified behavior analyst;
and
(f) Ensure that prior to the date of
service as a volunteer, an individual receives training which shall include:
1. Required orientation in brain injury
as specified in paragraph (c)1, 2, 3, and 4 of this subsection;
2. Orientation to the agency;
3. A confidentiality statement; and
4. Individualized instruction on the
needs of the participant[ABI recipient] to whom the volunteer
will provide services.
(18)[(19)] An ABI provider
shall provide information to a case manager necessary for completion of a
Mayo-Portland Adaptability Inventory-4 for each participant[ABI recipient]
served by the provider.
(19)[(20)] A
case management provider shall meet the requirements established in Section 5
of this administrative regulation[:
(a) Establish a human
rights
committee which shall:
1. Include an:
a. Individual with a brain injury or a
family member of an individual with a brain injury;
b. Individual not affiliated with the
ABI provider; and
c. Individual who has knowledge and experience
in human rights issues;
2. Review and approve each plan of
care with human rights restrictions at a minimum of every six (6) months;
3. Review and approve, in conjunction
with the ABI recipient’s team, behavior intervention plans that contain human
rights restrictions; and
4. Review the use of a psychotropic
medication by an ABI recipient without an Axis I diagnosis; and
(b) Establish a behavior intervention
committee which shall:
1. Include one (1) individual who has
expertise in behavior intervention and is not the behavior specialist who wrote
the behavior intervention plan;
2. Be separate from the human rights
committee; and
3. Review and approve, prior to
implementation and at a minimum of every six (6) months in conjunction with the
ABI recipient's team, an intervention plan that includes highly restrictive
procedures or contain human rights restrictions; and
(c) Complete and submit a Mayo-Portland Adaptability Inventory-4 to the department
for each ABI recipient:
1. Within thirty (30) days
of the recipient's admission into the ABI program;
2. Annually thereafter;
and
3. Upon discharge from the
ABI waiver program].
Section 3. Participant[ABI
Recipient] Eligibility, Enrollment and Termination. (1) To be eligible to
receive a service in the ABI program:
(a) An individual shall:
1. Be at least eighteen (18) years of
age;
2. Have acquired a brain injury of the following
nature, to the central nervous system:
a. An injury from physical trauma;
b. Damage from anoxia or from a hypoxic
episode; or
c. Damage from an allergic condition,
toxic substance, or another acute medical incident;[and]
3. Apply to be placed on the ABI waiting
list in accordance with Section 9[7] of this administrative
regulation; and
4. Be screened by the department for
the purpose of making a preliminary determination of whether the individual
might qualify for ABI waiver services;
(b) An individual or the individual’s
representative shall:
1. Apply for 1915(c) home and
community based waiver services via the MWMA[portal];
and
2. Complete and upload to the MWMA[portal]
a MAP - 115 Application Intake - Participant Authorization;
(c) A case manager or support
broker, on behalf of an applicant, shall enter into the MWMA[portal][submit]
a certification packet[to the department] containing the following:
1. A copy of the allocation letter;
2. A MAP 351, Medicaid Waiver
Assessment[, MAP-351];
3. A statement for the need for ABI
waiver services which shall be signed and dated by a physician on a MAP-10,
Waiver Services – Physician’s Recommendation;
4. A MAP 350, Long Term Care
Facilities and Home and Community Based Program Certification form[, MAP-350];
and
5. A person-centered service plan[MAP-109;
and
6. The MAP 24C, Admittance, Discharge
or Transfer of an Individual in the ABI/SCL Program];
(d)[(c)] An
individual shall receive notification of potential funding allocated for ABI services
for the individual;
(e)[(d)] An
individual shall meet the patient status criteria for nursing facility services
established in 907 KAR 1:022 including nursing facility services for a brain
injury;
(f)[(e)] An
individual shall meet the following conditions:
1. Have a primary diagnosis that
indicates an ABI with structural, nondegenerative brain injury;
2. Be medically stable;
3. Meet Medicaid eligibility requirements
established in 907 KAR 20:010;
4. Exhibit cognitive, behavioral, motor
or sensory damage with an indication for rehabilitation and retraining
potential; and
5. Have a rating of at least four (4) on
the Family Guide to the Rancho Levels of Cognitive Functioning; and
(g)[(f)] An
individual shall receive notification of approval from the department.
(2) An individual shall not remain in the
ABI waiver program for an indefinite period of time.
(3) The basis of an eligibility
determination for participation in the ABI waiver program shall be:
(a) The presenting problem;
(b) The person-centered service plan[of
care] goal;
(c) The expected benefit of the
admission;
(d) The expected outcome;
(e) The service required; and
(f) The cost effectiveness of service
delivery as an alternative to nursing facility and nursing facility brain
injury services.
(4) An ABI waiver service shall not be furnished
to an individual if the individual is:
(a) An inpatient of a hospital, nursing
facility or an intermediate care facility for individuals with an
intellectual[mental retardation or a developmental] disability; or
(b) Receiving a service in another 1915(c)
home and community based services waiver program.
(5) The department shall make:
(a) An initial evaluation to determine if
an individual meets the nursing facility patient status criteria established in
907 KAR 1:022; and
(b) A determination of whether to admit
an individual into the ABI waiver program.
(6) To maintain eligibility as a
participant[an ABI recipient]:
(a) An individual shall maintain Medicaid
eligibility requirements established in 907 KAR 20:010; and
(b) A reevaluation shall be conducted at
least once every twelve (12) months to determine if the individual continues to
meet the patient status criteria for nursing facility services established in
907 KAR 1:022.
(7)[An ABI case management provider
shall notify the local DCBS office, ABIB, and the department via a MAP 24C,
Admittance, Discharge or Transfer of an Individual in the ABI/SCL Program, if
the ABI recipient is:
(a) Admitted to the ABI waiver
program;
(b) Discharged from the ABI waiver program;
(c) Temporarily discharged from the
ABI waiver program;
(d) Readmitted from a temporary discharge;
(e) Admitted to a nursing facility;
(f) Changing the primary provider; or
(g) Changing the case management agency.
(8)] The department may exclude an
individual from receiving ABI waiver services if the projected cost of ABI
waiver services for the individual is reasonably expected to exceed the cost of
nursing facility services for the individual.
(8)[(9)] Involuntary
termination or[and] loss of an ABI waiver program placement shall
be in accordance with 907 KAR 1:563 and shall be initiated if:
(a) An individual fails to initiate an
ABI waiver service within sixty (60) days of notification of potential funding
without good cause shown. The individual or legal representative shall have the
burden of providing documentation of good cause, including:
1. A statement signed by the participant[recipient]
or legal representative;
2. Copies of letters to providers; and
3. Copies of letters from providers;
(b) A participant[An ABI
recipient] or legal representative fails to access the required service as
outlined in the person-centered service plan[of care] for a
period greater than sixty (60) consecutive days without good cause shown.
1. The participant[recipient]
or legal representative shall have the burden of providing documentation of
good cause including:
a. A statement signed by the participant[recipient]
or legal representative;
b. Copies of letters to providers; and
c. Copies of letters from providers; and
2. Upon receipt of documentation of good
cause, the department shall grant one (1) extension in writing which shall be:
a. Sixty (60) days for an individual who
does not reside in a facility; and
b. For an individual who resides in a
facility, the length of the transition plan and contingent upon continued
active participation in the transition plan;
(c) A participant[An ABI
recipient] changes residence outside the Commonwealth of Kentucky;
(d) A participant[An ABI
recipient] does not meet the patient status criteria for nursing facility
services established in 907 KAR 1:022;
(e) A participant[An ABI
recipient] is no longer able to be safely served in the community;
(f) The participant[ABI
recipient] has reached maximum rehabilitation potential; or
(g) The participant[ABI
recipient] is no longer actively participating in services within the
approved person-centered service plan[of care] as determined by
the person-centered team[interdisciplinary team].
(9)[(10)] Involuntary
termination of a service to a participant[an ABI recipient] by an
ABI provider shall require:
(a) Simultaneous notice to the
department, the participant[ABI recipient] or legal representative
and the case manager at least thirty (30) 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 participant’s[ABI
recipient’s] right to appeal the intended action through the provider’s
appeal or grievance process; and
(b) The case manager in conjunction with
the provider to:
1. Provide the participant[ABI
recipient] with the name, address and telephone number of each current ABI
provider in the state;
2. Provide assistance to the participant[ABI
recipient] in making contact with another ABI provider;
3. Arrange transportation for a requested
visit to an ABI provider site;
4. Provide a copy of pertinent
information to the participant[ABI recipient] or legal representative;
5. Ensure the health, safety and welfare
of the participant[ABI recipient] until an appropriate placement
is secured;
6. Continue to provide supports until
alternative services or another placement is secured; and
7. Provide assistance to ensure a safe
and effective service transition.
(10)[(11)] Voluntary
termination and loss of an ABI waiver program placement shall be initiated if a
participant[an ABI recipient] or legal representative submits a
written notice of intent to discontinue services to the service provider and to
the department.
(a) An action to terminate services shall
not be initiated until thirty (30) calendar days from the date of the notice;
and
(b) The participant[ABI
recipient] or legal representative may reconsider and revoke the notice in
writing during the thirty (30) calendar day period.
Section 4. Person-centered Service
Plan Requirements. (1) A person-centered service
plan shall be established:
(a) For each
participant; and
(b) By the
participant’s person-centered service plan team.
(2) A
participant’s person-centered service plan shall:
(a) Be developed
by:
1. The
participant, the participant’s guardian, or the participant’s representative;
2. The
participant‘s case manager;
3. The
participant’s person-centered team; and
4. Any other
individual chosen by the participant if the participant chooses any other individual
to participate in developing the person-centered service plan;
(b) Use a
process that:
1. Provides the
necessary information and support to empower the participant, the participant’s
guardian, or participant’s legal representative to direct the planning process
in a way that empowers the participant to have the freedom and support to
control the recipient’s schedules and activities without coercion or restraint;
2. Is timely and
occurs at times and locations convenient for the participant;
3. Reflects
cultural considerations of the participant;
4. Provides
information:
a. Using plain
language in accordance with 42 C.F.R. 435.905(b); and
b. In a way that
is accessible to an individual with a disability or who has limited English
proficiency;
5. Offers an
informed choice defined as a choice from options based on accurate and thorough
knowledge and understanding to the participant regarding the services and supports
to be received and from whom;
6. Includes a
method for the participant to request updates to the person-centered service
plan as needed;
7. Enables all
parties to understand how the participant:
a. Learns;
b. Makes
decisions; and
c. Chooses to
live and work in the participant’s community;
8. Discovers the
participant’s needs, likes, and dislikes;
9. Empowers the
participant’s person-centered team to create a person-centered service plan
that:
a. Is based on
the participant’s:
(i) Assessed
clinical and support needs;
(ii) Strengths;
(iii)
Preferences; and
(iv) Ideas;
b. Encourages
and supports the participant’s:
(i)
Rehabilitative needs;
(ii)
Habilitative needs; and
(iii) Long term
satisfaction;
c. Is based on
reasonable costs given the participant’s support needs;
d. Includes:
(i) The
participant’s goals;
(ii) The
participant’s desired outcomes; and
(iii) Matters important
to the participant;
e. Includes a
range of supports including funded, community, and natural supports that shall
assist the participant in achieving identified goals;
f. Includes:
(i) Information
necessary to support the participant during times of crisis; and
(ii) Risk
factors and measures in place to prevent crises from occurring;
g. Assists the
participant in making informed choices by facilitating knowledge of and access
to services and supports;
h. Records the
alternative home and community-based settings that were considered by the
participant;
i. Reflects that
the setting in which the participant resides was chosen by the recipient;
j. Is
understandable to the participant and to the individuals who are important in
supporting the participant;
k. Identifies
the individual or entity responsible for monitoring the person-centered service
plan;
l. Is finalized
and agreed to with the informed consent of the participant or recipient’s legal
representative in writing with signatures by each individual who will be
involved in implementing the person-centered service plan;
m. Shall be distributed
to the individual and other people involved in implementing the person-centered
service plan;
n. Includes
those services which the individual elects to self-direct; and
o. Prevents the
provision of unnecessary or inappropriate services and supports; and
(c) Includes in
all settings the ability for the participant to:
1. Have access
to make private phone calls, texts, or emails at the participant’s preference
or convenience; and
2.a. Choose when
and what to eat;
b. Have access
to food at any time;
c. Choose with
whom to eat or whether to eat alone; and
d. Choose
appropriating clothing according to the:
(i)
Participant’s preference;
(ii) Weather;
and
(iii) Activities
to be performed.
(3) If a
participant’s person-centered service plan includes ADHC services, the ADHC
services plan of treatment shall be addressed in the person-centered service
plan.
(4)(a) A
participant’s person-centered service plan shall be:
1. Entered into
the MWMA[portal]
by the participant’s case manager; and
2. Updated in
the MWMA[portal] by the participant’s case manager.
(b) A
participant or participant’s authorized representative shall complete and
upload into the MWMA[portal] a
MAP - 116 Service Plan – Participant Authorization prior to or at the time the
person-centered service plan is uploaded into the MWMA[portal].
Section 5. Case
Management Requirements. (1) A case manager
shall:
(a)1. Be a
registered nurse;
2. Be a licensed
practical nurse; or
3. Be an
individual with a bachelor’s degree 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;
d.
Rehabilitation counseling; or
e. Occupational
therapy;
(b)1. Be independent as defined
as not being employed by an agency that is providing ABI waiver services to the
participant; or
2. Be employed by or work
under contract with a free-standing case management agency; and
(c) Have completed case management
training that is consistent with the curriculum that has been approved by the
department prior to providing case management services.
(2) A case
manager shall:
(a) Communicate
in a way that ensures the best interest of the participant;
(b) Be able to
identify and meet the needs of the participant;
(c)1. Be
competent in the participant’s language either through personal knowledge of
the language or through interpretation; and
2. Demonstrate a
heightened awareness of the unique way in which the participant interacts with
the world around the participant;
(d) Ensure that:
1. The
participant is educated in a way that addresses the participant’s:
a. Need for
knowledge of the case management process;
b. Personal
rights; and
c. Risks and
responsibilities as well as awareness of available services; and
2. All
individuals involved in implementing the participant’s person-centered service
plan are informed of changes in the scope of work related to the
person-centered service plan as applicable;
(e) Have a code
of ethics to guide the case manager in providing case management, which shall
address:
1. Advocating
for standards that promote outcomes of quality;
2. Ensuring that
no harm is done;
3. Respecting
the rights of others to make their own decisions;
4. Treating
others fairly; and
5. Being
faithful and following through on promises and commitments;
(f)1. Lead the
person-centered service planning team;
2. Take charge
of coordinating services through team meetings with representatives of all
agencies involved in implementing a participant’s person-centered service plan;
(g)1. Include
the participant’s participation or legal representative’s participation in the
case management process; and
2. Make the
participant’s preferences and participation in decision making a priority;
(h) Document:
1. A
participant’s interactions and communications with other agencies involved in
implementing the participant’s person-centered service plan; and
2. Personal
observations;
(i) Advocate for
a participant with service providers to ensure that services are delivered as
established in the participant’s person-centered service plan;
(j) Be
accountable to:
1. A participant
to whom the case manager providers case management in ensuring that the
participant’s needs are met;
2. A
participant’s person-centered service plan team and provide leadership to the
team and follow through on commitments made; and
3. The case
manager’s employer by following the employer’s policies and procedures;
(k) Stay current
regarding the practice of case management and case management research;
(l) Assess the
quality of services, safety of services, and cost effectiveness of services
being provided to a participant in order to ensure that implementation of the
participant’s person-centered service plan is successful and done so in a way
that is efficient regarding the participant’s financial assets and benefits;
(m) Document services
provided to a participant by entering the following into the MWMA[portal]:
1. A monthly department-approved
person centered monitoring tool; and
2. A monthly entry, which shall
include:
a. The month and year for the time
period the note covers;
b. An analysis of progress toward the
participant’s outcome or outcomes;
c. Identification of barriers to
achievement of outcomes;
d. A projected plan to achieve the
next step in achievement of outcomes;
e. The signature and title of the case
manager completing the note; and
f. The date the note was generated;
(n) Document via
an entry into the MWMA[portal] if a
participant is:
1. Admitted to the ABI long term care
waiver program;
2. Terminated from the ABI long-term
care waiver program;
3. Temporarily discharged from the ABI
long term care waiver program;
4. Admitted to a hospital;
5. Admitted to a nursing facility;
6. Changing the primary ABI provider;
7. Changing the case management agency;
8. Transferred to another Medicaid
1915(c) home and community based waiver service program; or
9. Relocated to a different address;
and
(o) Provide information about
participant-directed services to the participant or the participant’s guardian:
1. At the time the initial
person-centered service plan is developed;
2. At least annually thereafter; and
3. Upon inquiry from the participant
or participant’s guardian.
(3) A case management provider shall:
(a) Establish a human rights committee which shall:
1. Include an:
a. Individual with a brain injury or a
family member of an individual with a brain injury;
b. Individual not affiliated with the
ABI provider; and
c. Individual who has knowledge and experience
in human rights issues;
2. Review and approve each
person-centered service plan with human rights restrictions at a minimum of
every six (6) months;
3. Review and approve, in conjunction
with the participant’s team, behavior intervention plans that contain human
rights restrictions; and
4. Review the use of a psychotropic
medication by a participant without an Axis I diagnosis;
(b) Establish a behavior intervention
committee which shall:
1. Include one (1) individual who has
expertise in behavior intervention and is not the behavior specialist who wrote
the behavior intervention plan;
2. Be separate from the human rights
committee; and
3. Review and approve, prior to
implementation and at a minimum of every six (6) months in conjunction with the
participant’s team, an intervention plan that includes highly restrictive
procedures or contain human rights restrictions; and
(c) Complete and submit a Mayo-Portland Adaptability Inventory-4 to the department
for each participant:
1. Within thirty (30) days
of the participant's admission into the ABI program;
2. Annually thereafter;
and
3. Upon discharge from the
ABI waiver program.
(4)(a)
Case management for any participant who begins receiving ABI waiver services
after the effective date of this administrative regulation shall be conflict
free.
(b)1.
Conflict free case management shall be a scenario in which a
provider including any subsidiary, partnership, not-for-profit, or for-profit
business entity that has a business interest in the provider who renders case
management to a participant shall not also provide another 1915(c) home and
community based waiver service to that same participant unless the provider is
the only willing and qualified ABI waiver services provider within thirty (30)
miles of the participant’s residence.
2. An exemption to the
conflict free case management requirement shall be granted if:
a. A participant requests the
exemption;
b. The participant’s case manager
provides documentation of evidence to the department that there is a lack of a
qualified case manager within thirty (30) miles of the participant’s residence;
c. The participant or participant’s
representative and case manager signs a completed MAP - 531 Conflict-Free Case
Management Exemption; and
d. The participant, participant’s
representative, or case manager uploads the completed MAP - 531 Conflict-Free
Case Management Exemption into the MWMA[portal].
3. If a case management
service is approved to be provided despite not being conflict free, the case
management provider shall document conflict of interest protections, separating
case management and service provision functions within the provider entity, and
demonstrate that the participant is provided with a clear and accessible alternative
dispute resolution process.
4. An exemption to the conflict free
case management requirement shall be requested upon reassessment or at least
annually.
(c) A
participant who receives ABI waiver services prior to the effective date of
this administrative regulation shall transition to conflict free case
management when the participant’s next level of care determination occurs.
(d)
During the transition to conflict free case management, any case manager providing
case management to a participant shall educate the participant and members of
the participant’s person-centered team of the conflict free case management
requirement in order to prepare the participant to decide, if necessary, to
change the participant’s:
1.
Case manager; or
2.
Provider of non-case management ABI waiver services.
(5)
Case management shall:
(a) Include initiation, coordination,
implementation, and monitoring of the assessment or reassessment, evaluation,
intake, and eligibility process;
(b) Assist a participant in the
identification, coordination, and facilitation of the person centered team and
person centered team meetings;
(c) Assist a participant and the
person-centered team to develop an individualized person-centered service plan
and update it as necessary based on changes in the participant’s medical
condition and supports;
(d) Include monitoring of the delivery
of services and the effectiveness of the person-centered service plan, which
shall:
1. Be initially developed with the
participant and legal representative if appointed prior to the level of care
determination;
2. Be updated within the first thirty
(30) days of service and as changes or recertification occurs; and
3. Include the person-centered service
plan being sent to the department or its designee prior to the implementation
of the effective date the change occurs with the participant;
(e) Include a transition plan that
shall be developed within the first thirty (30) days of service, updated as
changes or recertification occurs, and updated thirty (30) days prior to
discharge, and shall include:
1. The skills or service obtained from
the ABI waiver program upon transition into the community;
2. A listing of the community supports
available upon the transition; and
3. The expected date of transition
from the ABI waiver program;
(f) Assist a participant in obtaining
a needed service outside those available by the ABI waiver;
(g) Be provided by a case manager who:
1.a. Is a registered nurse;
b. Is a licensed practical nurse;
c. Is 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 psychology,
sociology, social work, rehabilitation counseling, or occupational therapy;
d. Is an independent case manager; or
e. Is employed by a free-standing case
management agency;
2. Has completed case management
training that is consistent with the curriculum that has been approved by the
department prior to providing case management services;
3. Shall provide a participant and
legal representative with a listing of each available ABI provider in the
service area;
4. Shall maintain documentation signed
by a participant or legal representative of informed choice of an ABI provider
and of any change to the selection of an ABI provider and the reason for the
change;
5. Shall provide a distribution of the
crisis prevention and response plan, transition plan, person-centered service
plan, and other documents within the first thirty (30) days of the service to
the chosen ABI service provider and as information is updated;
6. Shall provide twenty-four (24) hour
telephone access to a participant and chosen ABI provider;
7. Shall work in conjunction with an
ABI provider selected by a participant to develop a crisis prevention and
response plan, which shall be:
a. Individual-specific; and
b. Updated as a change occurs and at
each recertification;
8. Shall assist a participant in
planning resource use and assuring protection of resources;
9.a. Shall conduct two (2)
face-to-face meetings with a participant within a calendar month occurring at a
covered service site[no more than fourteen (14) days apart,]
with one (1) visit quarterly at the participant’s residence; and
b. For a participant receiving
supervised residential care, shall conduct at least one (1) of the two (2)
monthly visits at the participant’s supervised residential care provider site;
10. Shall ensure twenty-four (24) hour
availability of services; and
11. Shall ensure that the
participant’s health, welfare, and safety needs are met; and
(h) Be documented in the
MWMA by a detailed staff note, which shall include:
1. The participant’s health, safety,
and welfare;
2. Progress toward outcomes identified
in the approved person-centered service plan;
3. The date of the service;
4. The beginning and ending times;
5. The signature and title of the
individual providing the service; and
6. A quarterly summary, which shall include:
a. Documentation of monthly contact
with each chosen ABI provider; and
b. Evidence of monitoring of the
delivery of services approved in the participant’s person-centered service plan
and of the effectiveness of the person-centered service plan.
(6)
Case management shall involve:
(a) A constant
recognition of what is and is not working regarding a participant; and
(b) Changing
what is not working.
Section 6. Covered Services. (1)
An ABI waiver service shall:
(a) Not be covered unless it has been[Be:]
prior-authorized by the department; and
(b) Be provided pursuant to the participant’s
person-centered service plan[of care].
(2) The following services shall be provided
to a participant[an ABI recipient] by an ABI waiver provider:
(a) Case management services in
accordance with Section 4 of this administrative regulation[, which
shall:
1. Include initiation, coordination,
implementation, and monitoring of the assessment or reassessment, evaluation,
intake, and eligibility process;
2. Assist an ABI recipient in the
identification, coordination, and facilitation of the interdisciplinary team
and [interdisciplinary team meetings;
3. Assist an ABI recipient and the interdisciplinary
team to develop an individualized plan of care and update it as necessary based
on changes in the recipient's medical condition and supports;
4. Include monitoring of the delivery
of services and the effectiveness of the plan of care, which shall:
a. Be initially developed with the ABI
recipient and legal representative if appointed prior to the level of care
determination;
b. Be updated within the first thirty
(30) days of service and as changes or recertification occurs; and
c. Include the MAP-109 being sent to
the department or its designee prior to the implementation of the effective
date the change occurs with the ABI recipient;
5. Include a transition plan that
shall be developed within the first thirty (30) days of service, updated as
changes or recertification occurs, updated thirty (30) days prior to discharge,
and shall include:
a. The skills or service obtained from
the ABI waiver program upon transition into the community; and
b. A listing of the community supports
available upon the transition;
6. Assist an ABI recipient in
obtaining a needed service outside those available by the ABI waiver;
7. Be provided by a case manager who:
a.(i) Is a registered nurse;
(ii) Is a licensed practical nurse;
(iii) Is 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
psychology, sociology, social work, rehabilitation counseling, or occupational
therapy;
(iv) Is an independent case manager;
or
(v) Is employed by a free-standing
case management agency;
b. Has completed case management
training that is consistent with the curriculum that has been approved by the
department prior to providing case management services;
c. Shall provide an ABI recipient and
legal representative with a listing of each available ABI provider in the
service area;
d. Shall maintain documentation signed
by an ABI recipient or legal representative of informed choice of an ABI
provider and of any change to the selection of an ABI provider and the reason
for the change;
e. Shall provide a distribution of the
crisis prevention and response plan, transition plan, plan of care, and other
documents within the first thirty (30) days of the service to the chosen ABI
service provider and as information is updated;
f. Shall provide twenty-four (24) hour
telephone access to an ABI recipient and chosen ABI provider;
g. Shall work in conjunction with an
ABI provider selected by an ABI recipient to develop a crisis prevention and
response plan which shall be:
(i) Individual-specific; and
(ii) Updated as a change occurs and at
each recertification;
h. Shall assist an ABI recipient in
planning resource use and assuring protection of resources;
i.(i) Shall conduct two (2)
face-to-face meetings with an ABI recipient within a calendar month occurring
at a covered service site no more than fourteen (14) days apart, with one (1)
visit quarterly at the ABI recipient’s residence; and
(ii) For an ABI recipient receiving
supervised residential care, shall conduct at least one (1) of the two (2)
monthly visits at the ABI recipient’s supervised residential care provider
site;
j. Shall ensure twenty-four (24) hour
availability of services; and
k. Shall ensure that the ABI
recipient’s health, welfare, and safety needs are met; and
8. Be documented by a detailed staff
note which shall include:
a. The ABI recipient’s health, safety
and welfare;
b. Progress toward outcomes identified
in the approved plan of care;
c. The date of the service;
d. Beginning and ending time;
e. The signature and title of the
individual providing the service; and
f. A quarterly summary which shall
include:
(i) Documentation of monthly contact
with each chosen ABI provider; and
(ii) Evidence of monitoring of the
delivery of services approved in the recipient’s plan of care and of the
effectiveness of the plan of care];
(b) Behavior programming services,
which shall:
1. Be the systematic application of
techniques and methods to influence or change a behavior in a desired way;
2. Include a functional analysis of the participant’s[ABI
recipient's] behavior which shall include:
a. An evaluation of the impact of an ABI
on cognition and behavior;
b. An analysis of potential communicative
intent of the behavior;
c. The history of reinforcement for the behavior;
d. Critical variables that precede the behavior;
e. Effects of different situations on the
behavior; and
f. A hypothesis regarding the motivation,
purpose and factors which maintain the behavior;
3. Include the development of a
behavioral support plan which shall:
a. Be developed by the behavioral specialist;
b. Not be implemented by the behavior
specialist who wrote the plan;
c. Be revised as necessary;
d. Define the techniques and procedures
used;
e. Include the hierarchy of behavior
interventions ranging from the least to the most restrictive;
f. Reflect the use of positive approaches;
and
g. Prohibit the use of prone or supine
restraint, corporal punishment, seclusion, verbal abuse, and any procedure
which denies private communication, requisite sleep, shelter, bedding, food,
drink, or use of a bathroom facility;
4. Include the provision of training to
other ABI providers concerning implementation of the behavioral intervention
plan;
5. Include the monitoring of a
participant’s[an ABI recipient's] progress which shall be
accomplished through:
a. The analysis of data concerning the
frequency, intensity, and duration of a behavior;
b. Reports involved in implementing the
behavioral service plan; and
c. A monthly summary, which
assesses the participant’s status related to the plan of care;
6. Be provided by a behavior specialist
who shall:
a.(i) Be a psychologist;
(ii) Be a psychologist with autonomous
functioning;
(iii) Be a licensed psychological
associate;
(iv) Be a psychiatrist;
(v) Be a licensed clinical social worker;
(vi) Be a clinical nurse specialist with
a master’s degree in psychiatric nursing or rehabilitation nursing;
(vii) Be an advanced practice registered
nurse[(APRN)];
(viii) Be a board certified behavior
analyst; or
(ix) Be a licensed professional clinical
counselor; and
b. Have at least one (1) year of behavior
specialist experience or provide documentation of completed coursework
regarding learning and behavior principles and techniques; and
7. Be documented in the MWMA by
a detailed staff note which shall include:
a. The date of the service;
b. The beginning and ending time; and
c. The signature and title of the
behavioral specialist;
(c) Companion services, which
shall:
1. Include a nonmedical service,
supervision or socialization as indicated in the recipient's plan of care;
2. Include assisting with but not
performing meal preparation, laundry and shopping;
3. Include light housekeeping tasks which
are incidental to the care and supervision of a participant[an ABI
waiver service recipient];
4. Include services provided according to
the approved plan of care which are therapeutic and not diversional in nature;
5. Include accompanying and assisting a
participant[an ABI recipient] while utilizing transportation
services;
6. Include documentation in the
MWMA by a detailed staff note which shall include:
a. Progress toward goal and objectives
identified in the approved plan of care;
b. The date of the service;
c. Beginning and ending time; and
d. The signature and title of the
individual providing the service;
7. Not be provided to a participant[an
ABI recipient] who receives supervised residential care; and
8. Be provided by:
a. A home health agency licensed and
operating in accordance with 902 KAR 20:081;
b. A community mental health center
licensed and operating in accordance with 902 KAR 20:091 and certified at least
annually by the department;
c. A community habilitation program
certified by the department; or
d. A supervised residential care
provider;
(d) Supervised residential care level I
services, which:
1. Shall be provided by:
a. A community mental health center
licensed and operating in accordance with 902 KAR 20:091 and certified at least
annually by the department; or
b. An ABI provider;
2. Shall not be provided to a
participant[an ABI recipient] unless the participant[recipient]
has been authorized to receive residential care by the department’s residential
review committee, which shall:
a. Consider applications for residential
care in the order in which the applications are received;
b. Base residential care decisions on the
following factors:
(i) Whether the applicant resides with a
caregiver or not;
(ii) Whether the applicant resides with a
caregiver but demonstrates maladaptive behavior which places the applicant at
significant risk of injury or jeopardy if the caregiver is unable to
effectively manage the applicant’s behavior or the risk it poses, resulting in
the need for removal from the home to a more structured setting; or
(iii) Whether the applicant demonstrates
behavior which may result in potential legal problems if not ameliorated;
c. Be comprised of three (3) Cabinet for
Health and Family Services employees:
(i) With professional or personal
experience with brain injury or other cognitive disabilities; and
(ii) None of whom shall be supervised by the
manager of the acquired brain injury branch; and
d. Only consider applications at a
monthly committee meeting if the applications were received at least three (3)
business days before the committee convenes;
3. Shall not have more than three (3) participants[ABI
recipients] simultaneously in a residence rented or owned by the ABI provider;
4. Shall provide twenty-four (24) hours
of supervision daily unless the provider implements, pursuant to subparagraph 5
of this paragraph, an individualized plan allowing for up to five (5) unsupervised
hours per day;
5. May include the provision of up to
five (5) unsupervised hours per day per participant[recipient] if
the provider develops an individualized plan for the participant[recipient]
to promote increased independence. The plan shall:
a. Contain provisions necessary to ensure
the participant’s[recipient’s] health, safety, and welfare;
b. Be approved by the participant’s[recipient’s]
treatment team, with the approval documented by the provider; and
c. Contain periodic reviews and updates
based on changes, if any, in the participant’s[recipient’s] status;
6. Shall include assistance and training
with daily living skills including:
a. Ambulating;
b. Dressing;
c. Grooming;
d. Eating;
e. Toileting;
f. Bathing;
g. Meal planning;
h. Grocery shopping;
i. Meal preparation;
j. Laundry;
k. Budgeting and financial matters;
l. Home care and cleaning;
m. Leisure skill instruction; or
n. Self-medication instruction;
7. Shall include social skills training
including the reduction or elimination of maladaptive behaviors in accordance
with the participant’s person-centered service[individual’s] plan[of
care];
8. Shall include provision or arrangement
of transportation to services, activities, or medical appointments as needed;
9. Shall include accompanying or
assisting a participant[an ABI recipient] while the participant[recipient]
utilizes transportation services as specified in the participant’s person-centered
service[recipient’s] plan[of care];
10. Shall include participation in
medical appointments or follow-up care as directed by the medical staff;
11. Shall be documented in the MWMA
by a detailed staff note which shall document:
a. Progress toward goals and objectives
identified in the approved person-centered service plan[of care];
b. The date of the service;
c. The beginning and ending time of the
service; and
d. The signature and title of the
individual providing the service;
12. Shall not include the cost of room
and board;
13. Shall be provided to a participant[an
ABI recipient] who:
a. Does not reside with a caregiver;
b. Is residing with a caregiver but
demonstrates maladaptive behavior that places him or her at significant risk of
injury or jeopardy if the caregiver is unable to effectively manage the
behavior or the risk it presents, resulting in the need for removal from the
home to a more structured setting; or
c. Demonstrates behavior that may result
in potential legal problems if not ameliorated;
14. May utilize a modular home only if
the:
a. Wheels are removed;
b. Home is anchored to a permanent
foundation; and
c. Windows are of adequate size for an
adult to use as an exit in an emergency;
15. Shall not utilize a motor home;
16. Shall provide a sleeping room which
ensures that a participant[an ABI recipient]:
a. Does not share a room with an
individual of the opposite gender who is not the participant’s[ABI
recipient's] spouse;
b. Does not share a room with an
individual who presents a potential threat; and
c. Has a separate bed equipped with
substantial springs, a clean and comfortable mattress, and clean bed linens as
required for the participant’s[ABI recipient's] health and
comfort; and
17. Shall provide service and training to
obtain the outcomes for the participant[ABI recipient] as
identified in the approved person-centered service plan[of care];
(e) Supervised residential care level II
services, which[:
1.] shall:
1. Meet the requirements established
in paragraph (d) of this subsection, except for the requirements established in
paragraph (d)4 and 5;
2.[be provided by:
a. A community mental health center
licensed and operating in accordance with 902 KAR 20:091 and certified at least
annually by the department; or
b. An ABI provider;
2.Shall not be provided to an ABI
recipient unless the recipient has been authorized to receive residential care
by the department’s residential review committee which shall:
a. Consider applications for
residential care in the order in which the applications are received;
b. Base residential care decisions on
the following factors:
(i) Whether the applicant resides with
a caregiver or not;
(ii) Whether the applicant resides
with a caregiver but demonstrates maladaptive behavior which places the
applicant at significant risk of injury or jeopardy if the caregiver is unable
to effectively manage the applicant’s behavior or the risk it poses, resulting
in the need for removal from the home to a more structured setting; or
(iii) Whether the applicant
demonstrates behavior which may result in potential legal problems if not
ameliorated;
c. Be comprised of three (3) Cabinet
for Health and Family Services employees:
(i) With professional or personal
experience with brain injury or other cognitive disabilities; and
(ii) None of whom shall be supervised
by the manager of the acquired brain injury branch; and
d. Only consider applications at a
monthly committee meeting if the applications were received at least three (3)
business days before the committee convenes;
3. Shall not have more than three (3)
ABI recipients simultaneously in a residence rented or owned by the ABI
provider;
4. Shall] Provide twelve (12) to
eighteen (18) hours of daily supervision, the amount of which shall:
a. Be based on the participant’s[recipient’s]
needs;
b. Be approved by the participant’s[recipient’s]
treatment team; and
c. Be documented in the participant’s
person-centered service[recipient’s] plan,[of care]
which shall also contain periodic reviews and updates based on changes, if any,
in the participant’s[recipient’s] status; and
3.[5. Shall include assistance
and training with daily living skills including:
a. Ambulating;
b. Dressing;
c. Grooming;
d. Eating;
e. Toileting;
f. Bathing;
g. Meal planning;
h. Grocery shopping;
i. Meal preparation;
j. Laundry;
k. Budgeting and financial matters;
l. Home care and cleaning;
m. Leisure skill instruction; or
n. Self-medication instruction;
6. Shall include social skills
training including the reduction or elimination of maladaptive behaviors in
accordance with the individual’s plan of care;
7. Shall include provision or
arrangement of transportation to services, activities, or medical appointments
as needed;
8. Shall include accompanying or
assisting an ABI recipient while the recipient utilizes transportation services
as specified in the recipient’s plan of care;
9. Shall include participation in
medical appointments or follow-up care as directed by the medical staff;
10. Shall] Include provision of
twenty-four (24) hour on-call support;
[11. Shall be documented by a detailed
staff note which shall document:
a. Progress toward goals and
objectives identified in the approved plan of care;
b. The date of the service;
c. The beginning and ending time of
the service; and
d. The signature and title of the
individual providing the service;
12. Shall not include the cost of room
and board;
13. Shall be provided to an ABI
recipient who:
a. Does not reside with a caregiver;
b. Is residing with a caregiver but
demonstrates maladaptive behavior that places him or her at significant risk of
injury or jeopardy if the caregiver is unable to effectively manage the
behavior or the risk it presents, resulting in the need for removal from the
home to a more structured setting; or
c. Demonstrates behavior that may
result in potential legal problems if not ameliorated;
14. May utilize a modular home only if
the:
a. Wheels are removed;
b. Home is anchored to a permanent
foundation; and
c. Windows are of adequate size for an
adult to use as an exit in an emergency;
15. Shall not utilize a motor home;
16. Shall provide a sleeping room
which ensures that an ABI recipient:
a. Does not share a room with an
individual of the opposite gender who is not the ABI recipient's spouse;
b. Does not share a room with an
individual who presents a potential threat; and
c. Has a separate bed equipped with
substantial springs, a clean and comfortable mattress, and clean bed linens as
required for the ABI recipient's health and comfort; and
17. Shall provide service and training
to obtain the outcomes for the ABI recipient as identified in the approved plan
of care;]
(f) Supervised residential care level III
services, which[:
1.] shall:
1. Meet the requirements established
in paragraph (d) of this subsection except for the requirements established in
paragraph (d)4 and 5;
2.[be provided by:
a. A community mental health center
licensed and operating in accordance with 902 KAR 20:091 and certified at least
annually by the department; or
b. An ABI provider;
2. Shall not be provided to an ABI
recipient unless the recipient has been authorized to receive residential care
by the department’s residential review committee which shall:
a. Consider applications for
residential care in the order in which the applications are received;
b. Base residential care decisions on
the following factors:
(i) Whether the applicant resides with
a caregiver or not;
(ii) Whether the applicant resides
with a caregiver but demonstrates maladaptive behavior which places the
applicant at significant risk of injury or jeopardy if the caregiver is unable
to effectively manage the applicant’s behavior or the risk it poses, resulting
in the need for removal from the home to a more structured setting; or
(iii) Whether the applicant
demonstrates behavior which may result in potential legal problems if not
ameliorated;
c. Be comprised of three (3) Cabinet
for Health and Family Services employees:
(i) With professional or personal
experience with brain injury or other cognitive disabilities; and
(ii) None of whom shall be supervised
by the manager of the acquired brain injury branch; and
d. Only consider applications at a
monthly committee meeting if the applications were received at least three (3)
business days before the committee convenes;
3. Shall] Be provided in a single
family home, duplex, or apartment building to a participant[an
ABI recipient] who lives alone or with an unrelated roommate;
3.[4. Shall] Not be
provided to more than two (2) participants [ABI recipients] simultaneously
in one (1) apartment or home;
4.[5. Shall] Not be
provided in more than two (2) apartments in one (1) building;
5.[6. Shall,] If provided
in an apartment building, have staff:
a. Available twenty-four (24) hours per
day and seven (7) days per week; and
b. Who do not reside in a dwelling occupied
by a participant [an ABI recipient]; and
6.[7. Shall] Provide less
than twelve (12) hours of supervision or support in the residence based on an
individualized plan developed by the provider to promote increased independence
which shall:
a. Contain provisions necessary to ensure
the recipient’s health, safety, and welfare;
b. Be approved by the participant’s[recipient’s]
treatment team, with the approval documented by the provider; and
c. Contain periodic reviews and updates
based on changes, if any, in the participant’s[recipient’s]
status;
[8. Shall include assistance and
training with daily living skills including:
a. Ambulating;
b. Dressing;
c. Grooming;
d. Eating;
e. Toileting;
f. Bathing;
g. Meal planning;
h. Grocery shopping;
i. Meal preparation;
j. Laundry;
k. Budgeting and financial matters;
l. Home care and cleaning;
m. Leisure skill instruction; or
n. Self-medication instruction;
9. Shall include social skills
training including the reduction or elimination of maladaptive behaviors in
accordance with the individual’s plan of care;
10. Shall include provision or
arrangement of transportation to services, activities, or medical appointments
as needed;
11. Shall include accompanying or assisting
an ABI recipient while the recipient utilizes transportation services as
specified in the recipient’s plan of care;
12. Shall include participation in
medical appointments or follow-up care as directed by the medical staff;
13. Shall be documented by a detailed
staff note which shall document:
a. Progress toward goals and
objectives identified in the approved plan of care;
b. The date of the service;
c. The beginning and ending time of
the service;
d. The signature and title of the
individual providing the service; and
e. Evidence of at least one (1) daily
face-to-face contact with the ABI recipient;
14. Shall not include the cost of room
and board;
15. Shall be provided to an ABI
recipient who:
a. Does not reside with a caregiver;
b. Is residing with a caregiver but
demonstrates maladaptive behavior that places him or her at significant risk of
injury or jeopardy if the caregiver is unable to effectively manage the
behavior or the risk it presents, resulting in the need for removal from the
home to a more structured setting; or
c. Demonstrates behavior that may
result in potential legal problems if not ameliorated;
16. May utilize a modular home only if
the:
a. Wheels are removed;
b. Home is anchored to a permanent
foundation; and
c. Windows are of adequate size for an
adult to use as an exit in an emergency;
17. Shall not utilize a motor home;
18. Shall provide a sleeping room
which ensures that an ABI recipient:
a. Does not share a room with an
individual of the opposite gender who is not the ABI recipient's spouse;
b. Does not share a room with an
individual who presents a potential threat; and
c. Has a separate bed equipped with
substantial springs, a clean and comfortable mattress, and clean bed linens as
required for the ABI recipient's health and comfort; and
19. Shall provide service and training
to obtain the outcomes for the ABI recipient as identified in the approved plan
of care;]
(g) Counseling services, which:
1. Shall be designed to help a
participant[an ABI waiver service recipient] resolve personal issues
or interpersonal problems resulting from his or her ABI;
2. Shall assist a family member in implementing
an[ABI waiver service recipient’s] approved person-centered service
plan[of care];
3. In a severe case, shall be provided as
an adjunct to behavioral programming;
4. Shall include substance abuse or chemical
dependency treatment, if needed;
5. Shall include building and maintaining
healthy relationships;
6. Shall develop social skills or the
skills to cope with and adjust to the brain injury;
7. Shall increase knowledge and awareness
of the effects of an ABI;
8. May include a group therapy service if
the service is:
a. Provided to a minimum of two (2) and a
maximum of eight (8) participants[ABI recipients]; and
b. Included in the participant’s[recipient’s]
approved person-centered service plan[of care] for:
(i) Substance abuse or chemical dependency
treatment, if needed;
(ii) Building and maintaining healthy relationships;
(iii) Developing social skills;
(iv) Developing skills to cope with and
adjust to a brain injury, including the use of cognitive remediation strategies
consisting of the development of compensatory memory and problem solving
strategies, and the management of impulsivity; and
(v) Increasing knowledge and awareness of
the effects of the acquired brain injury upon the participant’s[ABI
recipient’s] functioning and social interactions;
9. Shall be provided by:
a. A psychiatrist;
b. A psychologist;
c. A psychologist with autonomous functioning;
d. A licensed psychological associate;
e. A licensed clinical social worker;
f. A clinical nurse specialist with a
master’s degree in psychiatric nursing;
g. An advanced practice registered nurse[(APRN)];
or
h. A certified alcohol and drug
counselor;
i. A licensed marriage and family therapist;[or]
j. A licensed professional clinical counselor;
k. A licensed clinical alcohol and
drug counselor associate effective and contingent upon approval by the Centers
for Medicare and Medicaid Services; or
l. A licensed clinical alcohol and
drug counselor effective and contingent upon approval by the Centers for
Medicare and Medicaid Services; and
10. Shall be documented in the MWMA
by a detailed staff note, which shall include:
a. Progress toward the goals and
objectives established in the person-centered service plan[of care];
b. The date of the service;
c. The beginning and ending time; and
d. The signature and title of the
individual providing the service;
(h) Occupational therapy which shall be:
1. A physician-ordered evaluation of a
participant’s[an ABI recipient’s] level of functioning by applying
diagnostic and prognostic tests;
2. Physician-ordered services in a
specified amount and duration to guide a participant[an ABI recipient]
in the use of therapeutic, creative, and self-care activities to assist the participant[ABI
recipient] in obtaining the highest possible level of functioning;
3. Exclusive of maintenance or the prevention
of regression;
4. Provided by an occupational therapist
or an occupational therapy assistant if supervised by an occupational[occupation]
therapist in accordance with 201 KAR 28:130; and
5. Documented in the MWMA by
a detailed staff note, which shall include:
a. Progress toward goal and objectives
identified in the approved person-centered service plan[of care];
b. The date of the service;
c. The beginning and ending times[time];
and
d. The signature and title of the
individual providing the service;
(i) Personal care services, which
shall:
1. Include the retraining of a
participant[an ABI waiver service recipient] in the performance of
an activity of daily living by using repetitive, consistent and ongoing instruction
and guidance;
2. Be provided by:
a. An adult day health care center
licensed and operating in accordance with 902 KAR 20:066;
b. A home health agency licensed and
operating in accordance with 902 KAR 20:081;
c. A personal services agency; or
d. Another ABI provider;
3. Include the following activities of
daily living:
a. Eating, bathing, dressing or personal
hygiene;
b. Meal preparation; and
c. Housekeeping chores including
bed-making, dusting and vacuuming;
4. Be documented in the MWMA
by a detailed staff note which shall include:
a. Progress toward goal and objectives
identified in the approved person-centered service plan[of care];
b. The date of the service;
c. Beginning and ending time; and
d. The signature and title of the
individual providing the service; and
5. Not be provided to a participant[an
ABI recipient] who receives supervised residential care
(j) A respite service, which
shall:
1. Be provided only to a participant[an
ABI recipient] unable to administer self-care;
2. Be provided by a:
a. Nursing facility;
b. Community mental health center;
c. Home health agency;
d. Supervised residential care provider;
or
e. Community habilitation program;
3. Be provided on a short-term basis due
to absence or need for relief of a non-paid primary caregiver[an
individual providing care to an ABI recipient];
4. Be limited to 336 hours per one (1)
year authorized person-centered service plan[in a twelve (12) month]
period unless an individual's non-paid[normal] caregiver is
unable to provide care due to a:
a. Death in the family;
b. Serious illness; or
c. Hospitalization;
5. Not be provided to a participant[an
ABI recipient] who receives supervised residential care;
6. Not include the cost of room and board
if provided in a nursing facility; and
7. Be documented in the MWMA
by a detailed staff note, which shall include:
a. Progress toward goals and objectives
identified in the approved person-centered service plan[of care];
b. The date of the service;
c. The beginning and ending time; and
d. The signature and title of the
individual providing the service;
(k) Speech-[, hearing and]
language pathology services, which shall be:
1. A physician-ordered evaluation of a
participant[an ABI recipient] with a speech, hearing, or language
disorder;
2. A physician-ordered habilitative
service in a specified amount and duration to assist a participant[an
ABI recipient] with a speech and language disability in obtaining the highest
possible level of functioning;
3. Exclusive of maintenance or the prevention
of regression;
4. Provided by a speech language
pathologist; and
5. Documented in the MWMA by
a detailed staff note, which shall include:
a. Progress toward goals and objectives
identified in the approved person-centered service plan[of care];
b. The date of the service;
c. The beginning and ending time; and
d. The signature and title of the
individual providing the service;
(l) Adult day training services,
which shall:
1. Be provided by:
a. An adult day health care center that[which]
is certified by the department and licensed and operating in accordance with 902
KAR 20:066;
b. An outpatient rehabilitation facility that[which]
is certified by the department and licensed and operating in accordance with
902 KAR 20:190;
c. A community mental health center
licensed and operating in accordance with 902 KAR 20:091;
d. A community habilitation program;
e. A sheltered employment program; or
f. A therapeutic rehabilitation program;
2. Rehabilitate, retrain and reintegrate a
participant[an individual] into the community;
3. Not exceed a staffing ratio of five
(5) participants[ABI recipients] per one (1) staff person, unless
a participant[an ABI recipient] requires individualized special
service;
4. Include the following services:
a. Social skills training related to
problematic behaviors identified in the participant’s person-centered
service[recipient’s] plan [of care];
b. Sensory or motor development;
c. Reduction or elimination of a maladaptive
behavior;
d. Prevocational; or
e. Teaching concepts and skills to
promote independence including:
(i) Following instructions;
(ii) Attendance and punctuality;
(iii) Task completion;
(iv) Budgeting and money management;
(v) Problem solving; or
(vi) Safety;
5. Be provided in a nonresidential
setting;
6. Be developed in accordance with a
participant’s[an ABI waiver service recipient’s] overall approved person-centered
service plan[of care];
7. Reflect the recommendations of a
participant’s[an ABI waiver service recipient’s] interdisciplinary
team;
8. Be appropriate:
a. Given a participant’s[an ABI
waiver service recipient’s] age, level of cognitive and behavioral function
and interest;
b. Given a participant’s[an ABI
waiver service recipient’s] ability prior to and since his or her injury;
and
c. According to the approved person-centered
service plan[of care] and be therapeutic in nature and not diversional;
9. Be coordinated with occupational,
speech, or other rehabilitation therapy included in a participant’s person-centered
service[an ABI waiver service recipient’s] plan[of care];
10. Provide a participant[an
ABI waiver service recipient] with an organized framework within which to
function in his or her daily activities;
11. Entail frequent assessments of a
participant’s[an ABI waiver service recipient’s] progress and be
appropriately revised as necessary; and
12. Be documented in the MWMA
by a detailed staff note, which shall include:
a. Progress toward goal and objectives
identified in the approved person-centered service plan[of care];
b. The date of the service;
c. The beginning and ending time;
d. The signature and title of the
individual providing the service; and
e. A monthly summary that assesses the
participant’s status related to the approved person-centered service plan[of
care];
(m) Supported employment services,
which shall be:
1. Intensive, ongoing services for a
participant[an ABI recipient] to maintain paid employment in an
environment in which an individual without a disability is employed;
2. Provided by a:
a. Supported employment provider;
b. Sheltered employment provider; or
c. Structured day program provider;
3. Provided one-on-one;
4. Unavailable under a program funded by
either the Rehabilitation Act of 1973 (29 U.S.C. Chapter 16) or Pub.L. 99-457
(34 C.F.R. Parts 300 to 399), proof of which shall be documented in the participant’s[ABI
recipient's] file;
5. Limited to forty (40) hours per week
alone or in combination with structured day services;
6. An activity needed to sustain paid
work by a participant[an ABI recipient] receiving waiver services
including supervision and training;
7. Exclusive of work performed directly
for the supported employment provider; and
8. Documented in the MWMA by
a time and attendance record, which shall include:
a. Progress towards the goals and
objectives identified in the person-centered service plan[of care];
b. The date of service;
c. The beginning and ending time; and
d. The signature and title of the
individual providing the service;
(n) Specialized medical equipment and
supplies, which shall:
1. Include durable and nondurable medical
equipment, devices, controls, appliances, or ancillary supplies;
2. Enable a participant[an ABI
recipient] to increase his or her ability to perform daily living
activities or to perceive, control, or communicate with the environment;
3. Be ordered by a physician,
documented in a participant’s person-centered service plan, and entered into
the MWMA[portal] by the participant’s case manager
or support broker, and[submitted on a Request for Equipment form,
MAP-95, and] include three (3) estimates if the equipment is needed for
vision and hearing;
4. Include equipment necessary to the
proper functioning of specialized items;
5. Not be available through the
department’s durable medical equipment, vision or hearing programs;
6. Not be necessary for life support;
7. Meet applicable standards of
manufacture, design and installation; and
8. Exclude those items which are not of
direct medical or remedial benefit to a participant[an ABI recipient];
(o) Environmental modifications,
which shall:
1. Be provided in accordance with applicable
state and local building codes;
2. Be provided to a participant[an
ABI recipient] if:
a. Ordered by a physician;
b. Prior-authorized by the department;
c. Specified in the participant’s
approved person-centered service plan and entered into the MWMA[portal][Submitted
on a Request for Equipment form, MAP-95,] by the participant’s[a]
case manager or support broker;
d.[Specified in an ABI recipient’s
approved plan of care; e.] Necessary to enable a participant[an
ABI recipient] to function with greater independence within his or her
home; and
e.[f.] Without the
modification, the participant[ABI recipient] would require
institutionalization;
3. Not include a vehicle modification;
4. Be limited to no more than $2,000 for a
participant[an ABI recipient] in a twelve (12) month period; and
5. If entailing:
a. Electrical work, be provided by a licensed
electrician; or
b. Plumbing work, be provided by a licensed
plumber;
(p) An assessment, which shall:
1. Be a comprehensive assessment which
shall identify:
a. A participant’s[An ABI
waiver recipient’s] needs; and
b. Services that a participant’s[an
ABI recipient’s] family cannot manage or arrange for the participant[recipient];
2. Evaluate a participant’s[an
ABI waiver recipient’s] physical health, mental health, social supports,
and environment;
3. Be requested by:
a. An individual requesting ABI waiver services;
b. A family member of the individual requesting
ABI services; or
c. A legal representative of the individual
requesting ABI services;
4. Be conducted:
a. By an ABI case manager or support
broker; and
b. Within seven (7) calendar days of receipt
of the request for an assessment;
5. Include at least one (1) face-to-face
contact in the participant’s[ABI waiver recipient’s] home between
the assessor, the participant[ABI waiver recipient], and, if appropriate,
the participant’s[recipient’s] family; and
6. Not be reimbursable if the individual
no longer meets ABI program eligibility requirements; or
(q) A reassessment, which shall:
1. Be performed at least once every
twelve (12) months;
2. Be conducted:
a. Using the same procedures as for an
assessment; and
b. By an ABI case manager or support
broker;
3. Be timely conducted to enable the
results to be submitted to the department within three (3) weeks prior to the
expiration of the current level of care certification to ensure that
certification is consecutive;
4. Not be reimbursable if the individual
no longer meets ABI program eligibility requirements; and
5. Not be retroactive.
Section 7.[5.] Exclusions
of the Acquired Brain Injury Waiver Program. A condition included in the
following list shall not be considered an acquired brain injury requiring specialized
rehabilitation:
(1) A stroke treatable in a nursing
facility providing routine rehabilitation services;
(2) A spinal cord injury for which there
is no known or obvious injury to the intracranial central nervous system;
(3) Progressive dementia or another condition
related to mental impairment that is of a chronic degenerative nature,
including senile dementia, organic brain disorder, Alzheimer’s Disease,
alcoholism or another addiction;
(4) A depression or a psychiatric
disorder in which there is no known or obvious central nervous system damage;
(5) A birth defect;
(6) An intellectual disability[Mental
retardation] without an etiology to an acquired brain injury;
(7) A condition which causes an
individual to pose a level of danger or an aggression which is unable to be
managed and treated in a community; or
(8) Determination that the participant[recipient]
has met his or her maximum rehabilitation potential.
Section 8.[6.] Incident
Reporting Process. (1)(a) There shall be
two (2) classes of incidents.
(b) The
following shall be the two (2) classes of incidents:
1. An incident;
or
2. A critical
incident.
(2) An
incident shall be any
occurrence that impacts the health, safety, welfare, or lifestyle choice of a
participant and includes:
(a) A minor injury;
(b) A medication error without a
serious outcome; or
(c) A behavior or situation which is
not a critical incident.
(3) A critical incident shall be an
alleged, suspected, or actual occurrence of an incident that:
(a) Can reasonably be expected to
result in harm to a participant; and
(b) Shall include:
1. Abuse, neglect, or exploitation;
2. A serious medication error;
3. Death;
4. A homicidal or suicidal ideation;
5. A missing person; or
6. Other action or event that the
provider determines may result in harm to the participant.
(4)(a) If an incident occurs, the ABI
provider shall:
1. Report the incident by making an
entry into the MWMA[portal] that includes details
regarding the incident; and
2. Be immediately assessed for
potential abuse, neglect, or exploitation.
(b) If an assessment of an incident
indicates that the potential for abuse, neglect, or exploitation exists:
1. The individual who discovered or
witnessed the incident shall immediately act to ensure the health, safety, or
welfare of the at-risk participant;
2. The incident shall immediately be
considered a critical incident;
3. The critical incident procedures
established in subsection (5) of this section shall be followed; and
4. The ABI provider shall report the
incident to the participant’s case manager and participant’s guardian, if the
participant has a guardian, within twenty-four (24) hours of discovery of the incident.
(5)(a) If a critical incident occurs,
the individual who witnessed the critical incident or discovered the critical
incident shall immediately act to ensure the health, safety, and welfare of the
at-risk participant.
(b) If the critical incident:
1. Requires reporting of abuse,
neglect, or exploitation, the critical incident shall be immediately reported
via the MWMA[portal] by the individual who
witnessed or discovered the critical incident; or
2. Does not require reporting of
abuse, neglect, or exploitation, the critical incident shall be reported via
the MWMA[portal] by the individual who
witnessed or discovered the critical incident within eight (8) hours of discovery.
(c) The ABI provider shall:
1. Conduct an immediate investigation
and involve the participant’s case manager in the investigation; and
2. Prepare a report of the
investigation, which shall be recorded in the MWMA[portal]
and shall include:
a. Identifying information of the
participant involved in the critical incident and the person reporting the
critical incident;
b. Details of the critical incident;
and
c. Relevant participant information
including:
(i) Axis I diagnosis or diagnoses;
(ii) Axis II diagnosis or diagnoses;
(iii) Axis III diagnosis or diagnoses;
(iv) A listing of recent medical
concerns;
(v) An analysis of
causal factors; and
(vi) Recommendations for preventing future
occurrences.
(6) If a critical
incident does not require reporting of abuse, neglect, or exploitation, the
critical incident shall be reported via the MWMA[portal]
within eight (8) hours of discovery.
(7)(a) Following
a death of a participant receiving ABI services from an ABI provider, the ABI
provider shall enter mortality data documentation into the MWMA[portal]
within
fourteen (14) days of the death.
(b) Mortality data documentation shall
include:
1. The participant’s person-centered
service plan at the time of death;
2. Any current assessment forms regarding
the participant;
3. The participant’s medication
administration records from all service sites for the past three (3) months
along with a copy of each prescription;
4. Progress notes regarding the
participant from all service elements for the past
thirty (30) days;
5. The results of the participant’s
most recent physical exam;
6. All incident reports, if any exist,
regarding the participant for the past six (6) months;
7. Any medication error report, if any
exists, related to the participant for the past six (6) months;
8. The most recent psychological evaluation
of the participant;
9. A full life history of the
participant including any update from the last version of the life history;
10. Names and contact information for
all staff members who provided direct care to the participant during the last
thirty (30) days of the participant’s life;
11. Emergency medical services notes regarding
the participant if available;
12. The police report if available;
13. A copy of:
a. The participant’s advance
directive, medical order for scope of treatment, living will, or health care
directive if applicable;
b. Any functional assessment of
behavior or positive behavior support plan regarding the participant that has
been in place over any part of the past twelve (12) months; and
c. The cardiopulmonary resuscitation
and first aid card for any ABI provider’s staff member who was present at the
time of the incident that resulted in the participant’s death;
14. A record of all medical
appointments or emergency room visits by the participant within the past twelve
(12) months; and
15. A record of any crisis training
for any staff member present at the time of the incident that resulted in the
participant’s death.
(8)(a) An ABI provider shall report a
medication error to the MWMA[portal].
(b) An ABI provider shall document all
medication error details on a medication error log retained on file at the ABI
provider site[documented on an Incident Report form.
(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 agency;
3. Be reported to the case
manager or support broker within twenty-four (24) hours;
4. Be reported to the
guardian as directed by the guardian; and
5. Be retained on file at
the provider and case management or support brokerage agency;
(b) A Class II incident
which shall:
1.a. Be serious in nature;
or
b. Include a medication
error;
2. Require an
investigation which shall be initiated by the provider agency within
twenty-four (24) hours of discovery and shall involve the case manager or
support broker; and
3. Be reported to the
following by the provider agency:
a. The case manager or
support broker within twenty-four (24) hours of discovery;
b. The guardian within
twenty-four (24) hours of discovery; and
c. BISB within twenty-four
(24) hours of discovery followed by a complete written report of the incident
investigation and follow-up within ten (10) calendar days of discovery; 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 hospitalization;
d. Be an admission to an
acute or psychiatric hospital;
e. Involve the use of a
chemical or physical restraint; or
f. Be a death;
2. Be Immediately
investigated by the provider agency, and the investigation shall involve the
case manager or support broker; and
3. Be reported by the
provider agency to:
a. The case manager or
support broker within eight (8) hours of discovery;
b. DCBS, immediately upon
discovery, if involving suspected abuse, neglect, or exploitation in accordance
with KRS Chapter 209;
c. The guardian within
eight (8) hours of discovery; and
d. BISB, within
eight (8) hours of discovery, followed by a complete written report of the
incident investigation and follow-up within seven (7) calendar days of discovery.
If an incident occurs after 5 p.m. EST on a weekday or occurs on a
weekend or holiday, notification to BISB shall occur on the following business
day.
(3) The following documentation with a
complete written report shall be submitted for a death:
(a) The plan of care in effect at the
time of death;
(b) The list of prescribed
medications, including PRN medications, in effect at the time of death;
(c) The crisis plan in effect at the
time of death;
(d) Medication administration review
(MAR) forms for the current and previous month;
(e) Staff notes from the current and
previous month including details of physician and emergency room visits;
(f) Any additional information
requested by the department;
(g) A coroner's report; and
(h) If performed, an autopsy report].
Section 9.[7.] ABI Waiting
List. (1) An individual of age eighteen (18) years or older applying for an ABI
waiver service shall be placed on a statewide waiting list which shall be
maintained by the department.
(2) In order to be placed on the ABI
waiting list, an individual or individual’s representative shall:
(a) Apply for 1915(c) home and
community based waiver services via the MWMA[portal];
(b) Complete and upload into the MWMA[portal]
a MAP – 115 Application Intake – Participant Authorization; and
(c) Upload to the MWMA[portal][submit
to the department a completed MAP-26, Program Application Kentucky Medicaid
Program Acquired Brain Injury (ABI) Waiver Services Program, and] a
completed MAP-10, Waiver Services – Physician’s Recommendation that has been
signed by a physician.
(3) The order of placement on the ABI
waiting list shall be determined by the:
(a) Chronological date of complete
application information regarding the individual being entered into the MWMA[portal];[receipt
of the completed MAP-10, Waiver Services – Physician’s Recommendation,] and
(b)[by] Category of need.
(4) The ABI waiting list categories of
need shall be emergency or nonemergency.
(5) To be placed in the emergency
category of need, an individual shall be determined by the emergency review
committee to meet the emergency category criteria established in subsection (8)
of this section.
(6) The emergency review committee shall:
(a) Be comprised of three (3) individuals
from the department:
1. Who shall each have professional or
personal experience with brain injury or cognitive disabilities; and
2. None of whom shall be supervised by
the branch manager of the department’s acquired brain injury branch; and
(b) Meet during the fourth (4th) week of
each month to review and consider applications for the acquired brain injury
waiver program to determine if applicants meet the emergency category of need
criteria established in subsection (8) of this subsection.
(7) An individual’s application via
the MWMA[portal] shall be completed[A completed
MAP-26, Program Application Kentucky Medicaid Program Acquired Brain Injury
(ABI) Waiver Services Program, and a completed MAP-10, Waiver Services – Physician’s
Recommendation for an ABI waiting list applicant shall be submitted to the department]
no later than three (3) business days prior to the fourth (4th) week of each
month in order to be considered by the emergency review committee during that
month’s emergency review committee meeting.
(8) An applicant shall meet the emergency
category of need criteria if the applicant is currently demonstrating behavior
related to his or her acquired brain injury:
(a) That places the individual,
caregiver, or others at risk of significant harm; or
(b) Which has resulted in the applicant being
arrested.
(9) An applicant who does not meet the
emergency category of need criteria established in subsection (8) of this
subsection shall be considered to be in the nonemergency category of need.
(10) In determining chronological status
of an applicant, the original date of the individual’s complete application
information being entered into the MWMA[portal][receipt
of the MAP-26, Program Application Kentucky Medicaid Program Acquired Brain
Injury (ABI) Waiver Services Program, and the MAP-10, Waiver Services –
Physician’s Recommendation,] shall:
(a) Be maintained; and
(b) Not change if the[an]
individual is moved from one (1) category of need to another.
(11) A written statement by a physician
or other qualified mental health professional shall be required to support the
validation of risk of significant harm to a recipient or caregiver.
(12) Written documentation by law
enforcement or court personnel shall be required to support the validation of a
history of arrest.
(13)[If multiple applications are
received on the same date, a lottery shall be held to determine placement on
the waiting list within each category of need.
(14)] A written notification of
placement on the waiting list shall be mailed to the individual or his or her
legal representative and case management provider if identified.
(14)[(15)] Maintenance of
the ABI waiting list shall occur as follows:
(a) The department shall, at a minimum,
annually update the waiting list during the birth month of an individual;
(b) If an individual is removed from the
ABI waiting list, written notification shall be mailed by the department to the
individual and his or her legal representative and also the ABI case manager;
and
(c) The requested data shall be received
by the department within thirty (30) days from the date on the written notice
required by subsection (13)[(14)] of this section.
(15)[(16)] Reassignment of
an applicant’s category of need shall be completed based on the updated
information and validation process.
(16)[(17)] An individual or
legal representative may submit a request for consideration of movement from
one category of need to another at any time that an individual’s status
changes.
(17)[(18)] An individual
shall be removed from the ABI waiting list if:
(a) After a documented attempt, the department
is unable to locate the individual or his or her legal representative;
(b) The individual is deceased;
(c) The individual or individual’s legal
representative refuses the offer of ABI placement for services and does not
request to be maintained on the waiting list;[or]
(d) An ABI placement for services offer
is refused by the individual or legal representative; or
(e) The individual[and he or
she] does not access services[,] without demonstration of
good cause[, complete the Acquired Brain Injury Waiver Services Program
Application form, MAP-26,] within sixty (60) days of the placement allocation
date.
1. The individual or individual’s legal
representative shall have the burden of providing documentation of good cause
including:
a. A signed statement by the individual
or the legal representative;
b. Copies of letters to providers; and
c. Copies of letters from providers.
2. Upon receipt of documentation of good
cause, the department shall grant one (1) sixty (60) day extension in writing.
(18)[(19)] If an individual
is removed from the ABI waiting list, written notification shall be mailed by
the department to the individual or individual’s legal representative and the
ABI case manager.
(19)[(20)] The removal of
an individual from the ABI waiting list shall not prevent the submittal of a
new application at a later date.
(20)[(21)] Potential
funding allocated for services for an individual shall be based upon:
(a) The individual’s category of need;
and
(b) The individual’s chronological date
of placement on the waiting list.
Section 10. Participant-[8. Consumer]
Directed Services[Option]. (1) Covered services and supports
provided to a participant receiving PDS[an ABI recipient participating
in CDO] shall include:
(a) Home and community support services;
(b) Community day support services;
(c) Goods or services; or
(d) Financial management.
(2) A home and community support service shall:
(a) Be available only as a participant-[under
the consumer] directed service[option];
(b) Be provided in the participant’s[consumer’s]
home or in the community;
(c) Be based upon therapeutic goals;
(d) Not be diversional in nature;
(e) Not be provided to an individual if
the same or similar service is being provided to the individual via non-PDS[CDO]
ABI services; and
(f)1. Be respite for the primary
caregiver; or
2. Be supports and assistance related to
chosen outcomes to facilitate independence and promote integration into the
community for an individual residing in his or her own home or the home of a
family member and may include:
a. Routine household tasks and maintenance;
b. Activities of daily living;
c. Personal hygiene;
d. Shopping;
e. Money management;
f. Medication management;
g. Socialization;
h. Relationship building;
i. Meal planning;
j. Meal preparation;
k. Grocery shopping; or
l. Participation in community activities.
(3) A community day support service
shall:
(a) Be available only as a participant-directed
service[under the consumer-directed option];
(b) Be provided in a community setting;
(c) Be based upon therapeutic goals;
(d) Not be diversional in nature;
(e) Be tailored to the participant’s[consumer’s]
specific personal outcomes related to the acquisition, improvement, and
retention of skills and abilities to prepare and support the participant[consumer]
for:
1. Work;
2. Community activities;
3. Socialization;
4. Leisure; or
5. Retirement activities; and
(f) Not be provided to an individual if
the same or similar service is being provided to the individual via non-PDS[CDO]
ABI services.
(4) Goods or services shall:
(a) Be individualized;
(b) Be utilized to:
1. Reduce the need for personal care; or
2. Enhance independence within the participant’s[consumer’s]
home or community;
(c) Not include experimental goods or services;
and
(d) Not include chemical or physical restraints.
(5) To be covered, a PDS[CDO service]
shall be specified in a participant’s person-centered service[consumer’s]
plan[of care].
(6) Reimbursement for a PDS[CDO
service] shall not exceed the department’s allowed reimbursement for the
same or a similar service provided in a non-PDS[CDO] ABI setting.
(7) A participant[consumer],
including a married participant[consumer], shall choose providers
and the choice of PDS[CDO] provider shall be documented in his or
her person-centered service plan[of care].
(8)(a) A participant[consumer]
may designate a representative to act on the participant’s[consumer's]
behalf.
(b) The PDS[CDO]
representative shall:
1.[(a)] Be twenty-one (21)
years of age or older;
2.[(b)] Not be monetarily
compensated for acting as the PDS [CDO] representative or
providing a PDS[CDO service]; and
3.[(c)] Be appointed by the
participant[consumer] on a MAP-2000 form.
(9) A participant[consumer]
may voluntarily terminate PD[CDO] services by completing a
MAP-2000 and submitting it to the support broker.
(10) The department shall immediately
terminate a participant[consumer] from CDO services if:
(a) Imminent danger to the participant’s[consumer’s]
health, safety, or welfare exists;
(b) The recipient’s person-centered
service plan[of care] indicates he or she requires more hours of
service than the program can provide, thus jeopardizing the recipient’s safety
or welfare due to being left alone without a caregiver present; or
(c) The recipient, caregiver, family
member, or guardian threatens or intimidates a support broker or other PDS[CDO]
staff.
(11) The department may terminate a participant[consumer]
from PDS[CDO services] if it determines that the participant’s
PDS[consumer’s CDO] provider has not adhered to the person-centered
service plan[of care].
(12) Prior to a participant’s[consumer’s]
termination from PDS[CDO services], the support broker shall:
(a) Notify the assessment or reassessment
service provider of potential termination;
(b) Assist the participant[consumer]
in developing a resolution and prevention plan;
(c) Allow at least thirty (30), but no
more than ninety (90), days for the participant[consumer] to resolve
the issue, develop and implement a prevention plan, or designate a PDS[CDO]
representative;
(d) Complete and submit to the department
a MAP-2000 form terminating the participant[consumer] from PDS[CDO
services] if the participant[consumer] fails to meet the
requirements in paragraph (c) of this subsection; and
(e) Assist the participant[consumer]
in transitioning back to traditional ABI services.
(13) Upon an involuntary termination of PDS[CDO
services], the department shall:
(a) Notify a participant[consumer]
in writing of its decision to terminate the participant’s PDS[consumer’s
CDO] participation; and
(b) Inform the participant[consumer]
of the right to appeal the department’s decision in accordance with Section 10
of this administrative regulation.
(14) A PDS[CDO] provider:
(a) Shall be selected by the participant[consumer];
(b) Shall submit a completed Kentucky Participant-[Consumer]
Directed Services[Option] Employee Provider Contract to the support
broker;
(c) Shall be eighteen (18) years of age
or older;
(d) Shall be a citizen of the United
States with a valid Social Security number or possess a valid work permit if
not a U.S. citizen;
(e) Shall be able to communicate
effectively with the participant, participant’s[consumer, consumer]
representative, or family;
(f) Shall be able to understand and carry
out instructions;
(g) Shall be able to keep records as
required by the participant[consumer];
(h) Shall submit to a criminal background
check conducted by the Administrative Office of the Courts if the individual is
a Kentucky resident or equivalent out-of-state agency if the individual resided
or worked outside Kentucky during the year prior to selection as a provider of PDS[CDO
services];
(i) Shall submit to a check of the Central
Registry maintained in accordance with 922 KAR 1:470 and not be found on the
registry:
1. A participant[consumer] may
employ a provider prior to a Central Registry check result being obtained for
up to thirty (30) days; and
2. If a participant[consumer]
does not obtain a Central Registry check result within thirty (30) days of
employing a provider, the participant[consumer] shall cease employment
of the provider until a favorable result is obtained;
(j) Shall submit to a check of the:
1. Nurse Aide Abuse Registry
maintained in accordance with 906 KAR 1:100 and not be found on the registry; and
2. Caregiver Misconduct Registry maintained
in accordance with 922 KAR 5:120 and not be found on the registry;
(k) Shall not have pled guilty or been
convicted of committing a sex crime or violent crime as defined in KRS 17.165
(1) through (3);
(l) Shall complete training on the
reporting of abuse, neglect or exploitation in accordance with KRS 209.030 or
620.030 and on the needs of the participant[consumer];
(m) Shall be approved by the department;
(n) Shall maintain and submit timesheets
documenting hours worked; and
(o) Shall be a friend, spouse, parent,
family member, other relative, employee of a provider agency, or other person
hired by the participant[consumer].
(15) A PDS provider may use Kentucky’s
national background check program established by 906 KAR 1:190 to satisfy the
background check requirements of subsection (14) of this section.
(16) A parent, parents combined,
or a spouse shall not provide more than forty (40) hours of services in a
calendar week (Sunday through Saturday) regardless of the number of family
members who receive waiver services.
(17)[(16)](a)1. The
department shall establish a budget for a participant[consumer] based
on the individual’s historical costs minus five (5) percent to cover costs
associated with administering the participant- [consumer] directed
services[option].
2. If no historical cost exists
for the participant[consumer], the participant’s[consumer's]
budget shall equal the average per capita historical costs of ABI recipients minus
five (5) percent.
(b) Cost of services authorized by the
department for the individual's prior year person-centered service plan[of
care] but not utilized may be added to the budget if necessary to meet the
individual's needs.
(c) The department may adjust a participant’s[consumer's]
budget based on the participant’s[consumer's] needs and in
accordance with paragraphs (d) and (e) of this subsection.
(d) A participant’s[consumer's]
budget shall not be adjusted to a level higher than established in paragraph
(a) of this subsection unless:
1. The participant’s[consumer's]
support broker requests an adjustment to a level higher than established in
paragraph (a) of this subsection; and
2. The department approves the adjustment.
(e) The department shall consider the
following factors in determining whether to allow for a budget adjustment:
1. If the proposed services are necessary
to prevent imminent institutionalization;
2. The cost effectiveness of the proposed
services;
3. Protection of the participant’s[consumer’s]
health, safety, and welfare; and
4. If a significant change has occurred
in the recipient’s:
a. Physical condition resulting in
additional loss of function or limitations to activities of daily living and
instrumental activities of daily living;
b. Natural support system; or
c. Environmental living arrangement resulting
in the recipient’s relocation.
(f) A participant’s[consumer's]
budget shall not exceed the average per capita cost of services provided to
individuals with a brain injury in a nursing facility.
(18)[(17)] Unless approved
by the department pursuant to subsection (16)(b) through (e) of this section,
if a PDS[CDO service] is expanded to a point in which expansion necessitates
a budget allowance increase, the entire service shall only be covered via a
traditional (non-PDS[CDO]) waiver service provider.
(19)(a)[(18)] A
support broker shall:
1.[(a)] Provide
needed assistance to a participant[consumer] with any aspect of PDS[CDO]
or blended services;
2.[(b)] Be available
to a participant[consumer] by phone or in person:
a.[1.] Twenty-four
(24) hours per day, seven (7) days per week; and
b.[2.] To assist the
participant[consumer] in obtaining community resources as needed;
3.[(c)] Comply with
applicable federal and state laws and requirements;
4.[(d)] Continually
monitor a participant’s[consumer’s]health, safety, and welfare;
and
5.[(e)] Complete or
revise a person-centered service plan in accordance with Section 4 of
this administrative regulation[of care using the Person Centered
Planning: Guiding Principles].
(b)[(20)][(19)]
For a PDS[CDO] participant, a support broker may conduct an assessment
or reassessment.
(c) Services provided by a
supporter broker shall meet the conflict free requirements established for case
management in Section 5(4) of this administrative regulation.
(20)[(21)][(20)]
Financial management shall:
(a) Include managing, directing, or
dispersing a participant’s[consumer’s] funds identified in the participant’s[consumer’s]
approved PDS[CDO] budget;
(b) Include payroll processing associated
with the individual hired by a participant[consumer] or the participant’s[consumer’s]
representative;
(c) Include:
1. Withholding local, state, and federal
taxes; and
2. Making payments to appropriate tax
authorities on behalf of a participant[consumer];
(d) Be performed by an entity that:
1. Is enrolled as a Medicaid provider in
accordance with 907 KAR 1:672;
2. Is currently compliant with 907 KAR
1:671;
3. Has at least two (2) years of
experience working with individuals with an acquired brain injury; and
(e) Include preparation of fiscal
accounting and expenditure reports for:
1. A participant[consumer]
or participant’s[consumer’s] representative; and
2. The department.
Section 11.[9.] Electronic
Signature Usage.[(1)] The creation, transmission, storage, or other use
of electronic signatures and documents shall comply with the requirements
established in KRS 369.101 to 369.120.[(2) An ABI
provider which chooses to use electronic signatures shall:
(a) Develop and implement
a written security policy which shall:
1. Be adhered to by each
of the provider's employees, officers, agents, and contractors;
2. Identify each
electronic signature for which an individual has access; and
3. Ensure that each
electronic signature is created, transmitted, and stored in a secure fashion;
(b) Develop a consent form
which shall:
1. Be completed and
executed by each individual using an electronic signature;
2. Attest to the
signature's authenticity; and
3. Include a statement
indicating that the individual has been notified of his or her responsibility
in allowing the use of the electronic signature; and
(c) Provide the
department, immediately upon request, with:
1. A copy of the
provider's electronic signature policy;
2. The signed consent
form; and
3. The original filed signature.]
Section 12.[10.] Appeal
Rights. (1) An appeal of a department decision regarding a participant[recipient]
or applicant based upon an application of this administrative regulation shall
be in accordance with 907 KAR 1:563.
(2) An appeal of a department decision
regarding Medicaid eligibility of an individual based upon an application of
this administrative regulation shall be in accordance with 907 KAR 1:560.
(3) An appeal of a department decision
regarding a provider based upon an application of this administrative
regulation shall be in accordance with 907 KAR 1:671.
Section 13.[11.]
Incorporation by Reference. (1) The following material is incorporated by
reference:
(a)["MAP-109, Prior Authorization
for Waiver Services", July 2008 edition;
(b) "MAP 24C, Admittance,
Discharge or Transfer of an Individual in the ABI/SCL Program", August
2010 edition;
(c) "MAP-26, Program Application
Kentucky Medicaid Program Acquired Brain Injury (ABI) Waiver Services Program",
July 2008 edition;
(d) "MAP-95, Request for
Equipment Form", May 2010 edition;
(e)] "MAP-10, Waiver Services
– Physician’s Recommendation", June 2015[August 2010 edition];
(b) "MAP – 115 Application Intake
– Participant Authorization", May 2015;
(c) "MAP – 116 Service Plan –
Participant Authorization", May 2015;
(d) "MAP – 531 Conflict-Free Case
Management Exemption", October[May]
2015;
(e)[(f) "Incident
Report", July 2008 edition;
(g)] "MAP-2000,
Initiation/Termination of Participant-[Consumer] Directed Services[Option]
(CDO)", June 2015[July 2008 edition];
(f)[(h)] "MAP-350, Long Term Care Facilities and Home and
Community Based Program Certification Form", June 2015[July 2008
edition];
(g)[(i)]
"Family Guide to the Rancho Levels of Cognitive Functioning", August
2006[edition];
(h)[(j)]
"MAP-351, Medicaid Waiver Assessment", July 2015[2008
edition];
(i)[(k)]
"Mayo-Portland Adaptability Inventory-4", March 2003[edition];
(j)[(l)
"Person Centered Planning: Guiding Principles", March 2005
edition;(m)] "MAP-4100a", September 2010 [edition]; and
(k)[(n)]
"Kentucky Participant-[Consumer] Directed Services [Option]
Employee Provider Contract", June 2015[May 4, 2007 edition].
(2) This material may be inspected,
copied, or obtained, subject to applicable copyright law:
(a)[,] At the Department
for Medicaid Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday
through Friday, 8 a.m. to 4:30 p.m.; or
(b) Online at the department’s Web
site at http://www.chfs.ky.gov/dms/incorporated.htm.
LISA LEE, Commissioner
AUDREY TAYSE HAYNES,
Secretary
APPROVED BY AGENCY:
November 12, 2015
FILED WITH LRC:
November 13, 2015 at noon
CONTACT PERSON: Tricia
Orme, Office of Legal Services, 275 East Main Street 5 W-B, Frankfort, Kentucky
40621, phone (502) 564-7905, fax (502) 564-7573, email tricia.orme@ky.gov.
REGULATORY
IMPACT ANALYSIS And Tiering Statement
Contact Person: Stuart
Owen (502) 564-4321
(1) Provide a brief
summary of:
(a) What this
administrative regulation does: This administrative regulation establishes the
Medicaid program coverage provisions and requirements regarding acquired brain
injury (ABI) waiver services. The ABI program enables individuals who have suffered
a brain injury to live, and receive services, in a community setting rather
than in an institution.
(b) The necessity
of this administrative regulation: The administrative regulation is necessary
to establish coverage policies for the Medicaid ABI waiver program.
(c) How this
administrative regulation conforms to the content of the authorizing statutes:
The administrative regulation conforms to the content of the authorizing
statutes by establishing Medicaid ABI coverage provisions and requirements for
a program that enables individuals who have suffered a brain injury to live,
and receive services, in a community setting rather than in an institution.
(d) How this
administrative regulation currently assists or will assist in the effective
administration of the statutes: The administrative regulation will assist in
the effective administration of the authorizing statutes by establishing
Medicaid coverage provisions and requirements for a program that enables
individuals who have suffered a brain injury to live, and receive services, in
a community setting rather than in an institution.
(2) If this is an
amendment to an existing administrative regulation, provide a brief summary of:
(a) How the
amendment will change this existing administrative regulation. The amendments
include establishing new federally-mandated case management requirements (that
case management be free from conflict of interest); establishing
federally-mandated requirements regarding the plan - the new term is
person-centered service plan and the prior term was plan of care - that is used
to identify the amount, duration, and types of services that a participant in
the program receives (the plan is now called a person-centered service plan);
requiring, as federally mandated, that an online portal (Medicaid Waiver Management
Application or MWMA) be used to apply for admission to the program and to
complete forms and documents associated with the program; adding new rights
that must be guaranteed for individuals receiving services; requiring providers
to check the Caregiver Misconduct Registry before hiring an individual and
prohibits the hiring of anyone listed on the registry; narrowing the types of
incidents to be reported from three (3) classes to two (2) and revising the
incident reporting process by requiring incidents to be documented online in
the new MWMA; and revising the application process by requiring it to be done
via the new MWMA. The
amendment after comments deletes an error regarding case management
face-to-fact contact requirements; clarifies that documentation of various
services must be entered into the MWMA; clarifies that services provided by a
support broker must be conflict free; and revises the MAP 531, Conflict Free
Case Management Exemption by inserting a statement requiring documentation of
denials of qualified providers within thirty (30) miles from the participant’s
residence.
(b) The necessity
of the amendment to this administrative regulation: The primary amendments
(revising the case management requirements, establishing person-centered
service plan requirements, and requiring a new online portal (MWMA) to be used)
are mandated by the Centers for Medicare and Medicaid Services (CMS) via a CMS
rule published January 2015. Requiring providers to check the Caregiver Misconduct
Registry regarding potential staff and to not hire anyone listed on the
registry is a safeguard to enhance participant safety and welfare. Reducing the
classes of incidents is an effort to synchronize incident reporting
requirements among DMS’s 1915(c) home and community based waiver services
programs. Clarifying
that documentation regarding services must be entered into the MWMA is
necessary for clarity. Clarifying that support broker services must be conflict
free is necessary to comply with a federal mandate. Revising the MAP 531,
Conflict Free Case Management Exemption is necessary to document that no
qualified provider is available.
(c) How the
amendment conforms to the content of the authorizing statutes: The amendments
conform to the content of the authorizing statutes by complying with federal
mandates to ensure the receipt of federal funding for the ABI waiver program
and by enhancing participant safety and welfare.
(d) How the
amendment will assist in the effective administration of the statutes: The
amendments will assist in the effective administration of the authorizing
statutes by complying with federal mandates to ensure the receipt of federal
funding for the ABI waiver program and by enhancing participant safety and
welfare.
(3) List the type
and number of individuals, businesses, organizations, or state and local
government affected by this administrative regulation: The administrative regulation
affects individuals receiving ABI waiver program services (participants) as
well as providers of these services. Currently, there are 179 individuals receiving
services, 263 on the waiting list to receive services, and twenty-eight (28)
providers enrolled in the program.
(4) Provide an
analysis of how the entities identified in question (3) will be impacted by
either the implementation of this administrative regulation, if new, or by the
change, if it is an amendment, including:
(a) List the
actions that each of the regulated entities identified in question (3) will
have to take to comply with this administrative regulation or amendment:
Providers will need to ensure they comply with the conflict free case management
requirements.
(b) In complying
with this administrative regulation or amendment, how much will it cost each of
the entities identified in question (3): No cost is imposed.
(c) As a result of
compliance, what benefits will accrue to the entities identified in question
(3): Individuals receiving services will benefit from greater involvement and direction
in the types of services they receive as well as when and where they receive
the services which will enhance their independence as well as assimilation in
their local community.
(5) Provide an
estimate of how much it will cost to implement this administrative regulation:
(a) Initially: The
Department for Medicaid Services (DMS) anticipates that the amendments to this
administrative regulation will be budget neutral initially.
(b) On a continuing
basis: DMS anticipates that the amendments to this administrative regulation
will be budget neutral on a continuing basis.
(6) What is the source of the funding to
be used for the implementation and enforcement of this administrative
regulation: The sources of revenue to be used for implementation and
enforcement of this administrative regulation are federal funds authorized
under the Social Security Act, Title XIX and matching funds of general fund
appropriations.
(7) Provide an
assessment of whether an increase in fees or funding will be necessary to
implement this administrative regulation, if new, or by the change if it is an
amendment. Neither an increase in fees nor funding is necessary to implement the
amendment.
(8) State whether
or not this administrative regulation establishes any fees or directly or
indirectly increases any fees: The amendment neither establishes nor increases
any fees.
(9) Tiering: Is
tiering applied? Tiering was not appropriate in this administrative regulation
because the administrative regulation applies equally to all those individuals
or entities regulated by it.
FEDERAL
MANDATE ANALYSIS COMPARISON
1. Federal statute
or regulation constituting the federal mandate. 42 C.F.R. 441.730(b) and 42
C.F.R. 441.725.
2. State compliance
standards. KRS 205.520(3) states, "Further, it is the policy of the
Commonwealth to take advantage of all federal funds that may be available for
medical assistance. To qualify for federal funds the secretary for health and
family services may by regulation comply with any requirement that may be
imposed or opportunity that may be presented by federal law. Nothing in KRS
205.510 to 205.630 is intended to limit the secretary's power in this respect."
3. Minimum or
uniform standards contained in the federal mandate. Among the mandates in 42
C.F.R. 441.730(b) are that services to waiver participants are free from conflict
of interest. In the context of the ABI program that means that the individual
who provides case management to a given waiver participant provide actual ABI
waiver services or work for an entity that provides actual ABI waiver services
or entity that has a business interest in a provider of actual ABI waiver
services. 42 C.F.R. 447.425 establishes the person-centered service plan
requirements which are many but the underlying requirement is that the plan be
customized to the individual’s needs (based on input from the individual or
representatives of the individual among other parties) and promote/enhance the
individual’s independence and choice in their services and activities as well
as integration their community.
4. Will this
administrative regulation impose stricter requirements, or additional or different
responsibilities or requirements, than those required by the federal mandate?
The amendment does not impose stricter, additional or different requirements
than those required by the federal mandate.
5. Justification
for the imposition of the stricter standard, or additional or different responsibilities
or requirements. Stricter requirements are not imposed.
FISCAL
NOTE ON STATE OR LOCAL GOVERNMENT
1. What units,
parts or divisions of state or local government (including cities, counties,
fire departments, or school districts) will be impacted by this administrative
regulation? This amendment will affect the Department for Medicaid Services and
the Department for Behavioral Health, Intellectual and Developmental
Disabilities.
2. Identify each state or federal statute
or federal regulation that requires or authorizes the action taken by the
administrative regulation. KRS 194A.030(2), 194A.050(1), 205.520(3), 42
C.F.R. 441.730(b), and 42 C.F.R. 441.725.
3. Estimate the
effect of this administrative regulation on the expenditures and revenues of a
state or local government agency (including cities, counties, fire departments,
or school districts) for the first full year the administrative regulation is
to be in effect.
(a) How much
revenue will this administrative regulation generate for the state or local
government (including cities, counties, fire departments, or school districts)
for the first year? This amendment will not generate any additional revenue for
state or local governments during the first year of implementation.
(b) How much
revenue will this administrative regulation generate for the state or local
government (including cities, counties, fire departments, or school districts)
for subsequent years? This amendment will not generate any additional revenue
for state or local governments during subsequent years of implementation.
(c) How much will
it cost to administer this program for the first year? The Department for
Medicaid Services (DMS) anticipates that the amendments to this administrative
regulation will not increase costs in the first year.
(d) How much will
it cost to administer this program for subsequent years? DMS anticipates that
the amendments to this administrative regulation will not increase costs in subsequent
years.
Note: If specific
dollar estimates cannot be determined, provide a brief narrative to explain the
fiscal impact of the administrative regulation.
Revenues (+/-):
Expenditures (+/-):
Other Explanation:
