907 KAR 3:090. Acquired brain injury waiver services

Link to law: http://www.lrc.ky.gov/kar/907/003/090reg.htm
Published: 2015

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
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: