Personal Care Services

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_411/411_034.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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DEPARTMENT OF HUMAN SERVICES,

AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES




 

DIVISION 34
PERSONAL CARE SERVICES

411-034-0000
Purpose
The rules in OAR chapter 411, division
34 ensure State Plan personal care services support and augment independence, empowerment,
dignity, and human potential through the provision of flexible, efficient, and suitable
services to individuals eligible for State Plan personal care services. State Plan
personal care services are intended to supplement an individual's own personal abilities
and resources.
Stat. Auth.: ORS 409.050 & 410.070
Stats. Implemented: ORS 410.020,
410.070 & 410.710
Hist.: SSD 2-1996, f. 3-13-96,
cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f.
10-4-07, cert. ef. 10-5-07; SPD 15-2010(Temp), f. & cert. ef. 6-30-10 thru 12-27-10;
SPD 18-2010(Temp), f. & cert. ef. 7-29-10 thru 12-27-10; Administrative correction
1-25-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013,
f. 12-13-13, cert. ef. 12-15-13
411-034-0010
Definitions
Unless the context indicates otherwise,
the following definitions apply to the rules in OAR chapter 411, division 034:
(1) "AAA" means "Area Agency
on Aging" as defined in this rule.
(2) "Adult" means any person
at least 18 years of age.
(3) "Area Agency on Aging
(AAA)" means the Department designated agency charged with the responsibility to
provide a comprehensive and coordinated system of services to older adults and adults
with disabilities in a planning and service area. The terms AAA and Area Agency
on Aging are inclusive of both Type A and Type B Area Agencies on Aging as defined
in ORS 410.040 and described in ORS 410.210 to 410.300.
(4) "Assistance" means an
individual requires help from another person with the personal care or supportive
services described in OAR 411-034-0020. Assistance may include cueing, hands-on,
monitoring, reassurance, redirection, set-up, standby, or support as defined in
OAR 411-015-0005. Assistance may also require verbal reminding to complete one of
the tasks described in OAR 411-034-0020.
(5) "Assistive Devices" means
any category of durable medical equipment, mechanical apparatus, electrical appliance,
or instrument of technology used to assist and enhance an individual's independence
in performing any task described in OAR 411-034-0020.
(6) "Assistive Supports"
means the aid of service animals, general household items, or furniture used to
assist and enhance an individual’s independence in performing any task described
in OAR 411-034-0020.
(7) "Background Check" means
a criminal records check and abuse check as defined in OAR 407-007-0210.
(8) "Case Management" means
the functions performed by a case manager, services coordinator, personal agent,
or manager. Case management includes determining service eligibility, developing
a plan of authorized services, and monitoring the effectiveness of services.
(9) "Case Manager" means
a Department employee or an employee of the Department's designee, services coordinator,
or personal agent who assesses the service needs of individuals, determines eligibility,
and offers service choices to eligible individuals. A case manager authorizes and
implements an individual's plan for services and monitors the services delivered.
(10) "Central Office" means
the main office of the Department, Division, or Designee.
(11) "Child" means an individual
who is less than 18 years of age.
(12) "Community Developmental
Disability Program (CDDP)" means the Department's designee that is responsible for
plan authorization, delivery, and monitoring of services for individuals with intellectual
or developmental disabilities according to OAR chapter 411, division 320.
(13) "Contracted In-Home
Care Agency" means an incorporated entity or equivalent, licensed in accordance
with OAR chapter 333, division 536 that provides hourly contracted in-home services
to individuals receiving services through the Department or Area Agency on Aging.
(14) "Cost Effective" means
being responsible and accountable with Department resources. This is accomplished
by offering less costly alternatives when providing choices that adequately meet
an individual’s service needs. Those choices consist of all available service
options, the utilization of assistive devices or assistive supports, natural supports,
architectural modifications, and alternative service resources (defined in OAR 411-015-0005).
Less costly alternatives may include resources not paid for by the Department.
(15) "Delegated Nursing Task"
means a registered nurse (RN) authorizes an unlicensed person (defined in OAR 851-047-0010)
to provide a nursing task normally requiring the education and license of an RN.
In accordance with 851-047-0000, 851-047-0010, and 851-047-0030, the RN's written
authorization of a delegated nursing task includes assessing a specific eligible
individual, evaluating an unlicensed person's ability to perform a specific nursing
task, teaching the nursing task, and supervising and re-evaluating the individual
and the unlicensed person at regular intervals.
(16) "Department" means the
Department of Human Services.
(17) "Designee" means an
organization with which the Department contracts or has an interagency agreement.
(18) "Developmental Disability"
as defined in OAR 411-320-0020 and described in 411-320-0080.
(19) "Disability" means a
physical, cognitive, or emotional impairment which, for an individual, constitutes
or results in a functional limitation in one or more of the activities of daily
living defined in OAR 411-015-0006.
(20) "Division" means:
(a) Oregon Health Authority,
Addictions and Mental Health Division (AMHD);
(b) Department of Human Services,
Aging and People with Disabilities Division (APD);
(c) Area Agencies on Aging
(AAA);
(d) Department of Human Services,
Self-Sufficiency Programs (SSP);
(e) Department of Human Services,
Office of Developmental Disability Services (ODDS);
(f) Community Developmental
Disability Programs (CDDP); and
(g) Support Services Brokerages.
(21) "Fiscal Improprieties"
means a homecare or personal support worker committed financial misconduct involving
an individual's money, property, or benefits.
(a) Fiscal improprieties
include, but are not limited to, financial exploitation, borrowing money from an
individual, taking an individual's property or money, having an individual purchase
items for the homecare or personal support worker, forging an individual's signature,
falsifying payment records, claiming payment for hours not worked, or similar acts
intentionally committed for financial gain.
(b) Fiscal improprieties
do not include the exchange of money, gifts, or property between a homecare or personal
support worker whose employer is a relative unless an allegation of financial exploitation,
as defined in OAR 411-020-0002 or 407-045-0260, has been substantiated based on
an adult protective services investigation.
(22) "Guardian" means a parent
for an individual less than 18 years of age or a person or agency appointed and
authorized by the courts to make decisions about services for an individual.
(23) "Homecare Worker" means
a provider as described in OAR 411-031-0040, that is directly employed by an individual
to provide either hourly or live-in services to the individual.
(a) The term homecare worker
includes:
(A) A consumer-employed provider
in the Spousal Pay and Oregon Project Independence Programs;
(B) A consumer-employed provider
that provides State Plan personal care services; and
(C) A relative providing
Medicaid in-home services to an individual living in the relative's home.
(b) The term homecare worker
does not include an Independent Choices Program provider or a personal support worker
enrolled through Developmental Disability Services or the Addictions and Mental
Health Division.
(24) "Individual" means the
person applying for or determined eligible for State Plan personal care services.
(25) "Intellectual Disability"
as defined in OAR 411-320-0020 and described in 411-320-0080.
(26) "Lacks the Skills, Knowledge,
and Ability to Adequately or Safely Perform the Required Work" means a homecare
or personal support worker does not possess the skills to perform services needed
by individuals receiving services from the Department. The homecare or personal
support worker may not be physically, mentally, or emotionally capable of providing
services to individuals. The homecare or personal support worker's lack of skills
may put individuals at risk because the homecare or personal support worker fails
to perform, or learn to perform, the duties needed to adequately meet the needs
of the individuals.
(27) "Legal Representative"
means:
(a) For a child, the parent
or step-parent unless a court appoints another person or agency to act as the guardian;
and
(b) For an adult:
(A) A spouse;
(B) A family member who has
legal custody or legal guardianship according to ORS 125.005, 125.300, 125.315,
and 125.310;
(C) An attorney at law who
has been retained by or for an individual; or
(D) A person or agency authorized
by the courts to make decisions about services for an individual.
(28) "Long Term Care Community
Nursing" means the nursing services described in OAR chapter 411, division 048.
(29) “Medicaid OHP
Plus Benefit Package” means only the Medicaid benefit packages provided under
OAR 410-120-1210(4)(a) and (b). This excludes individuals receiving Title XXI benefits.
(30) "Natural Support" means
resources and supports (e.g. relatives, friends, significant others, neighbors,
roommates, or the community) who are willing to voluntarily provide services to
an individual without the expectation of compensation. Natural supports are identified
in collaboration with the individual and the potential "natural support". The natural
support is required to have the skills, knowledge, and ability to provide the needed
services and supports.
(31) "Older Adult" means
any person at least 65 years of age.
(32) "Ostomy" means assistance
that an individual needs with a colostomy, urostomy, or ileostomy tube or opening
used for elimination.
(33) "Personal Agent" means
a person who is a case manager for the provision of case management services, works
directly with individuals and the individuals' legal or designated representatives
and families to provide or arrange for support services as described in OAR chapter
411, division 340, meets the qualifications set forth in OAR 411-340-0150, and is
a trained employee of a support services brokerage or a person who has been engaged
under contract to the brokerage to allow the brokerage to meet responsibilities
in geographic areas where personal agent resources are severely limited.
(34) "Personal Care" means
the functional activities described in OAR 411-034-0020 that an individual requires
for continued well-being.
(35) "Personal Support Worker"
means:
(a) A provider:
(A) Who is hired by an individual
with an intellectual or developmental disability or the individual's representative;
(B) Who receives money from
the Department for the purpose of providing services to the individual in the individual's
home or community; and
(C) Whose compensation is
provided in whole or in part through the Department or community developmental disability
program.
(b) This definition of personal
support worker is intended to reflect the term as defined in ORS 410.600.
(36) "Provider" or "Qualified
Provider" means a homecare worker or personal support worker that meets the qualifications
in OAR 411-034-0050 that performs State Plan personal care services.
(37) "Provider Enrollment"
means a homecare worker's or personal support worker's authorization to work as
a provider employed by an eligible individual, representative, or legal representative
for the purpose of receiving payment for services authorized by the Department.
Provider enrollment includes the issuance of a Medicaid provider number.
(38) "Provider Number" means
an identifying number issued to each homecare or personal support worker who is
enrolled as a provider through the Department.
(39) "Relative" means a person,
excluding an individual's spouse, who is related to the individual by blood, marriage,
or adoption.
(40) "Representative" means:
(a) A person appointed by
an individual or legal representative to participate in service planning on the
individual’s behalf that is either the individual's guardian or natural support
with longstanding involvement in assuring the individual’s health, safety
and welfare; and
(b) For the purpose of obtaining
State Plan personal care services through a homecare or personal support worker,
the person selected by an individual or the individual's legal representative to
act on the individual's behalf to provide the employer responsibilities described
in OAR 411-034-0040.
(41) "Respite" means services
for the relief of a person normally providing supports to an individual unable to
care for him or herself.
(42) "Service Need" means
the assistance with personal care and supportive services needed by an individual
receiving Department services.
(43) "Service Plan" or "Service
Authorization" means an individual's written plan for services that identifies:
(a) The individual's qualified
provider who is to deliver the authorized services;
(b) The date when the provision
of services is to begin; and
(c) The maximum monthly hours
of personal care and supportive services authorized by the Department or the Department's
designee.
(44) "Services Coordinator"
means an employee of a community developmental disability program or other agency
that contracts with the county or Department, who is selected to plan, procure,
coordinate, and monitor an individual's plan for services, and to act as a proponent
for individuals with intellectual or developmental disabilities.
(45) "State Plan Personal
Care Services" means the assistance with personal care and supportive services described
in OAR 411-034-0020 provided to an individual by a homecare worker or personal support
worker. The assistance may include cueing, hands-on, monitoring, reassurance, redirection,
set-up, standby, or support as defined in 411-015-0005. The assistance may also
require verbal reminding to complete one of the personal care tasks described in
411-034-0020.
(46) "Sub-Acute Care Facility"
means a care center or facility that provides short-term rehabilitation and complex
medical services to an individual with a condition that does not require acute hospital
care but prevents the individual from being discharged to his or her home.
(47) "Support Services Brokerage"
means an entity, or distinct operating unit within an existing entity, that uses
the principles of self-determination to perform the functions associated with planning
and implementation of support services for individuals with intellectual or developmental
disabilities.
(48) "These Rules" mean the
rules in OAR chapter 411, division 34.
Stat. Auth.: ORS 410.070
Stats. Implemented: ORS 410.020,
410.070, 410.710 & 411.675
Hist.: SSD 2-1996, f. 3-13-96,
cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f.
10-4-07, cert. ef. 10-5-07; SPD 31-2010, f. 12-29-10, cert. ef. 1-1-11; SDP 19-2013(Temp),
f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13;
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14; APD 10-2014(Temp),
f. & cert. ef. 5-1-14 thru 10-18-14; APD 35-2014, f. & cert. ef. 10-1-14
411-034-0020
State Plan Personal Care Services
(1) State Plan personal care services
are essential services that enable an individual to move into or remain in his or
her own home. State Plan personal care services are provided in accordance with
an individual's authorized plan for services by a provider meeting the requirements
in OAR 411-034-0050.
(a) To receive State Plan
personal care services, an individual must demonstrate the need for assistance with
personal care and supportive services and meet the eligibility criteria described
in OAR 411-034-0030.
(b) State Plan personal care
services are provided directly to an eligible individual and are not meant to provide
respite or other services to an individual's natural support system. State Plan
personal care services may not be implemented for the purpose of benefiting an individual's
family members or the individual's household in general.
(c) State Plan personal care
services are limited to 20 hours per month per eligible individual.
(d) To meet an extraordinary
personal care need, an individual, representative or legal representative may request
an exception to the 20 hour per month limitation. An exception must be requested
through the Central Office of the Division serving the individual. The Division
has up to 45 days upon receipt of an exception request to determine whether an individual's
assessed personal care needs warrant exceeding the 20 hour per month limitation.
(2) Personal care services
include:
(a) Basic personal hygiene
— providing or assisting an individual with such needs as bathing (tub, bed
bath, shower), washing hair, grooming, shaving, nail care, foot care, dressing,
skin care, mouth care, and oral hygiene;
(b) Toileting, bowel, or
bladder care — assisting to and from bathroom, on and off toilet, commode,
bedpan, urinal, or other assistive device used for toileting, changing incontinence
supplies, following a toileting schedule, cleansing an individual or adjusting clothing
related to toileting, emptying a catheter drainage bag or assistive device, ostomy
care, and bowel care;
(c) Mobility, transfers,
or repositioning — assisting an individual with ambulation or transfers with
or without assistive devices, turning an individual or adjusting padding for physical
comfort or pressure relief, and encouraging or assisting with range-of-motion exercises;
(d) Nutrition — preparing
meals and special diets, assisting with adequate fluid intake or adequate nutrition,
assisting with food intake (feeding), monitoring to prevent choking or aspiration,
assisting with special utensils, cutting food, and placing food, dishes, and utensils
within reach for eating;
(e) Medication or oxygen
management — assisting with ordering, organizing, and administering oxygen
or prescribed medications (including pills, drops, ointments, creams, injections,
inhalers, and suppositories), monitoring for choking while taking medications, assisting
with the administration of oxygen, maintaining clean oxygen equipment, and monitoring
for adequate oxygen supply;
(f) Delegated nursing tasks
as defined in OAR 411-034-0010.
(3) When any of the services
listed in section (2) of this rule are essential to the health, safety, and welfare
of an individual and the individual is receiving personal care paid by the Department,
the following supportive services may also be provided:
(a) Housekeeping tasks necessary
to maintain the eligible individual in a healthy and safe environment, including
cleaning surfaces and floors, making the individual's bed, cleaning dishes, taking
out the garbage, dusting, and gathering and washing soiled clothing and linens.
Only the housekeeping activities related to the eligible individual’s needs
may be considered in housekeeping;
(b) Arranging for necessary
medical appointments including help scheduling appointments and arranging medical
transportation services (described in OAR chapter 410, division 136) and assistance
with mobility and transfers or cognition in getting to and from appointments or
to an office within a medical clinic or center;
(c) Observing the individual's
health status and reporting any significant changes to physicians, health care professionals,
or other appropriate persons;
(d) First aid and handling
of emergencies, including responding to medical incidents related to conditions
such as seizures, spasms, or uncontrollable movements where assistance is needed
by another person and responding to an individual’s call for help during an
emergent situation or for unscheduled needs requiring immediate response; and
(e) Cognitive assistance
or emotional support provided to an individual by another person due to confusion,
dementia, behavioral symptoms, or mental or emotional disorders. Cognitive assistance
or emotional support includes helping the individual cope with change and assisting
the individual with decision-making, reassurance, orientation, memory, or other
cognitive symptoms.
(4) Payment may not be made
for any of the following excluded services:
(a) Shopping;
(b) Community transportation;
(c) Money management;
(d) Mileage reimbursement;
(e) Social companionship;
(f) Day care, adult day services
(described in OAR chapter 411, division 066), respite, or baby-sitting services;
(g) Medicaid home delivered
meals (described in OAR chapter 411, division 040);
(h) Care, grooming, or feeding
of pets or other animals; or
(i) Yard work, gardening,
or home repair.
Stat. Auth.: ORS 409.050 & 410.070
Stats. Implemented: ORS 409.010,
410.020, 410.070 & 410.608
Hist.: SSD 2-1996, f. 3-13-96,
cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. &
cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SPD 31-2010, f. 12-29-10,
cert. ef. 1-1-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD
48-2013, f. 12-13-13, cert. ef. 12-15-13
411-034-0030
Eligibility for State Plan Personal Care
Services
(1) To be eligible for State Plan personal
care services, an individual must:
(a) Require assistance (defined
in OAR 411-034-0010) from a qualified provider with one or more of the personal
care tasks described in OAR 411-034-0020; and
(b) Be a current recipient
of a Medicaid OHP Plus benefit package.
(2) An individual is not
eligible to receive State Plan personal care services if:
(a) The individual is receiving
assistance with activities of daily living (as described in OAR 411-015-0006) from
a licensed 24-hour residential services program (such as an adult foster home, assisted
living facility, group home, or residential care facility);
(b) The individual is in
a prison, hospital, sub-acute care facility, nursing facility, or other medical
institution;
(c) The individual's service
needs are met through the individual's natural support system (defined in OAR 411-034-0010);
or
(d) The individual's assessed
service needs are being met under other Medicaid-funded home and community-based
service options of the individual’s choosing.
(3) Payment for State Plan
personal care services is not intended to replace the resources available to an
individual from the individual's natural support system (defined in OAR 411-034-0010).
(4) State Plan personal care
services are not intended to replace routine care commonly needed by an infant or
child typically provided by the infant's or child's parent.
(5) State Plan personal care
services may not be used to replace other non-Medicaid governmental services.
(6) The Department, Division,
or Designee has the authority to close the eligibility and authorization for State
Plan personal care services if an individual fails to:
(a) Employ a provider that
meets the requirements in OAR 411-034-0050; or
(b) Receive personal care
from a qualified provider paid by the Department for 30 continuous calendar days
or longer.
(7) State Plan personal care
services must not duplicate other Medicaid services.
Stat. Auth.: ORS 409.050 & 410.070
Stats. Implemented: ORS 409.010,
410.020, 410.070, 410.608 & 410.710
Hist.: SSD 2-1996, f. 3-13-96,
cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. &
cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp),
f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13;
APD 9-2014(Temp), f. 4-17-14, cert. ef. 4-21-14 thru 10-18-14; APD 35-2014, f. &
cert. ef. 10-1-14
411-034-0035
Applying for State Plan Personal Care Services
(1) Individuals eligible for state plan
personal care services as described in OAR 309-016-0690 must apply through the local
community mental health program or agency contracted with AMHD. An individual applying
for State Plan personal care services that is not eligible for or receiving services
through ODDS or APD is referred to the appropriate AMHD office.
(2) An individual with an
intellectual or developmental disability eligible for or receiving services through
the Department's Office of Developmental Disabilities Services (ODDS), a Community
Developmental Disability Program (CDDP), or Support Services Brokerage must apply
for State Plan personal care services through the local CDDP or the local support
services brokerage.
(3) An older adult or an
adult with a disability eligible for or receiving case management services from
the Department's Aging and People With Disabilities (APD) or Area Agency on Aging
(AAA) must apply for State Plan personal care services through the local APD or
AAA office.
(4) Individuals receiving
benefits through the Department's Self-Sufficiency Programs (SSP) must apply for
State Plan personal care services through the local APD or AAA office. APD/AAA is
responsible for service assessment and for any planning and payment authorization
for State Plan personal care services, if the applicant is determined eligible.
Stat. Auth.: ORS 409.050 & 410.070
Stats. Implemented: ORS 410.020,
410.070, 410.608, 410.710 & 411.116
Hist.: SPD 35-2004, f. 11-30-04,
cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SPD 31-2010, f. 12-29-10,
cert. ef. 1-1-11; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD
48-2013, f. 12-13-13, cert. ef. 12-15-13
411-034-0040
Employer-Employee Relationship
(1) EMPLOYER — EMPLOYEE RELATIONSHIP.
The relationship between a provider and an eligible individual or the individual's
representative is that of employee and employer.
(2) JOB DESCRIPTION. As an
employer, it is the responsibility of an individual or the individual’s representative
to create and maintain a job description for a potential provider that is in coordination
with the individual's plan for services.
(3) PROVIDER BENEFITS. The
only benefits available to homecare and personal support workers are those negotiated
in a collective bargaining agreement and as provided in statute. The collective
bargaining agreement does not include participation in the Public Employees Retirement
System or the Oregon Public Service Retirement Plan. Homecare and personal support
workers are not state or Division employees.
(4) EMPLOYER RESPONSIBILITIES.
For an individual to be eligible for State Plan personal care services, the individual
or the individual's representative must demonstrate the ability to:
(a) Locate, screen, and hire
a provider meeting the requirements in OAR 411-034-0050;
(b) Supervise and train a
provider;
(c) Schedule work, leave,
and coverage;
(d) Track the hours worked
and verify the authorized hours completed by a provider;
(e) Recognize, discuss, and
attempt to correct any performance deficiencies with the provider and provide appropriate,
progressive, disciplinary action as needed; and
(f) Discharge an unsatisfactory
provider.
(5) An eligible individual
exercises control as the employer and directs the provider in the provision of the
services.
(6) The Department makes
payment for State Plan personal care services to the provider on an individual's
behalf. Payment for services is not guaranteed until the Department, Division, or
Designee has verified that an individual's provider meets the qualifications in
OAR 411-034-0050.
(7) In order to receive State
Plan personal care services from a personal support worker or homecare worker, an
individual must be able to:
(a) Meet all of the employer
responsibilities described in section (4) of this rule; or
(b) Designate a representative
to meet the employer responsibilities described in section (4) of this rule.
(8) TERMINATION OF PROVIDER
EMPLOYMENT. Termination and the grounds for termination of employment are determined
by an individual or the individual's representative. An individual has the right
to terminate an employment relationship with a provider at any time and for any
reason. An individual or the individual's representative must establish an employment
agreement at the time of hire. The employment agreement may include grounds for
dismissal, notice of resignation, work scheduling, and absence reporting.
(9) After appropriate intervention,
an individual unable to meet the employer responsibilities in section (4) of this
rule may be determined ineligible for State Plan personal care services.
(a) Contracted in-home care
agency services are offered when an individual is ineligible for State Plan personal
care services. Other community-based or nursing facility services are offered to
an individual if the individual meets the eligibility criteria for community-based
or nursing facility services.
(b) An individual determined
ineligible for State Plan personal care services may request State Plan personal
care services at the individual's next annual re-assessment. Improvements in health
and cognitive functioning may be factors in demonstrating the individual's ability
to meet the employer responsibilities described in section (4) of this rule. The
waiting period may be shortened if an individual is able to demonstrate the ability
to meet the employer responsibilities sooner than the individual's next annual re-assessment.
(10) REPRESENTATIVE:
(a) An individual or an individual's
legal representative may designate a representative to act on the individual's behalf
to meet the employer responsibilities in section (4) of this rule. An individual's
legal representative may be designated as the individual's representative.
(b) The Department, Division,
or Designee may deny an individual’s request for a representative if the representative
has:
(A) A history of a substantiated
abuse of an adult as described in OAR chapter 411, division 20, OAR chapter 407,
division 45, or OAR chapter 943, division 45;
(B) A history of founded
abuse of a child as described in ORS 419B.005;
(C) Participated in billing
excessive or fraudulent charges; or
(D) Failed to meet the employer
responsibilities in section (4) of this rule, including previous termination as
a result of failing to meet the employer responsibilities in section (4) of this
rule.
(c) An individual is given
the option to select another representative if the Department, Division, or Designee
suspends, terminates, or denies an individual's request for a representative for
the reasons described in subsection (b) of this section.
(d) An individual with a
guardian must have a representative for service planning purposes. A guardian may
designate themselves the individual's representative.
Stat. Auth.: ORS 409.050 & 410.070
Stats. Implemented: ORS 410.020,
410.070, 410.608, 410.710 & 411.159
Hist.: SPD 35-2004, f. 11-30-04,
cert. ef. 12-1-04; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp),
f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
411-034-0050
Provider Qualifications for Enrollment
(1) A qualified provider is a person
who, in the judgment of the Department, Division, or Designee, demonstrates by background,
skills, and abilities the skills, knowledge, and ability to perform, or to learn
to perform, the required work.
(a) A qualified provider
must maintain a drug-free work place.
(b) A qualified provider
must complete the background check process described in OAR 407-007-0200 to 407-007-0370
with an outcome of approved or approved with restrictions. The Department, Division,
or the Designee may allow a provider to work on a preliminary basis in accordance
with 407-007-0315 if the provider meets the other qualifications described in this
rule.
(c) A qualified provider
paid by the Department may not be an individual's legal representative.
(d) A qualified provider
must be authorized to work in the United States in accordance with U.S. Department
of Homeland Security, Bureau of Citizenship and Immigration rules.
(e) A qualified provider
must be 18 years of age or older. A homecare worker enrolled in the Consumer-Employed
Provider Program who is at least 16 years of age may be approved for restricted
enrollment as a qualified provider as described in OAR 411-031-0040.
(f) A qualified provider
may be employed through a contracted in-home care agency or enrolled as a homecare
worker or personal support worker under a provider number. Rates for services are
established by the Department.
(g) Providers that provide
State Plan personal care services:
(A) Enrolled in the Consumer-Employed
Provider Program must meet all of the standards in OAR chapter 411, division 31.
(B) As personal support workers
must meet the provider enrollment and termination criteria described in OAR 411-031-0040.
(2) BACKGROUND RECHECKS:
(a) Background rechecks are
conducted at least every other year from the date a provider is enrolled. The Department,
Division, or Designee may conduct a recheck more frequently based on additional
information discovered about a provider, such as possible criminal activity or other
allegations.
(b) Prior background check
approval for another Department provider type is inadequate to meet background check
requirements for homecare or personal support workers.
(c) Provider enrollment may
be inactivated when a provider fails to comply with the background recheck process.
Once a provider's enrollment is inactivated, the provider must reapply and meet
the standards described in this rule to reactivate his or her provider enrollment.
Stat. Auth.: ORS 409.050 & 410.070
Stats. Implemented: ORS 409.010,
410.020, 410.070 & 410.608
Hist.: SSD 2-1996, f. 3-13-96,
cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f.
10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13;
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
411-034-0055
Provider Termination
(1) The Department, Division, or Designee
may deny or terminate a homecare worker's provider enrollment and provider number
as described in OAR 411-031-0050. The termination, administrative review, and hearings
rights for homecare workers is described in 411-031-0050.
(2) The Department, Division,
or Designee may deny or terminate a personal support worker’s provider enrollment
and provider number when the personal support worker:
(a) Has been appointed the
legal guardian of an individual;
(b) Has a background check
that results in a closed case pursuant to OAR 407-007-0325;
(c) Lacks the skills, knowledge,
or ability to perform, or learn to perform, the required work;
(d) Violates the protective
service and abuse rules in OAR chapter 411, division 20, OAR chapter 407, division
45, and OAR chapter 943, division 45;
(e) Commits fiscal improprieties;
(f) Fails to provide the
authorized services required by an eligible individual;
(g) Has been repeatedly late
in arriving to work or has absences from work not authorized in advance by an individual;
(h) Has been intoxicated
by alcohol or drugs while providing authorized services to an individual or while
in the individual's home;
(i) Has manufactured or distributed
drugs while providing authorized services to an individual or while in the individual's
home; or
(j) Has been excluded as
a provider by the U.S. Department of Health and Human Services, Office of Inspector
General, from participation in Medicaid, Medicare, or any other federal health care
programs.
(3) A personal support worker
may contest the Department's, Division’s, or Designee’s decision to
terminate the personal support worker's provider enrollment and provider number.
(a) A designated employee
from the Department, Division, or Designee reviews the termination and notifies
the personal support worker of his or her decision.
(b) A personal support worker
may file a request for a hearing with the Department's, Division's, or Designee's
local office if all levels of administrative review have been exhausted and the
provider continues to dispute the Department's, Division’s, or Designee's
decision. The local office files the request for a hearing with the Office of Administrative
Hearings as described in OAR chapter 137, division 3. The request for a hearing
must be filed within 30 calendar days of the date of the written notice from the
Department, Division, or Designee.
(c) When a contested case
under these rules is referred to the Office of Administrative Hearings, the referral
must indicate whether the Department is authorizing a proposed order, a proposed
and final order, or a final order.
(d) No additional hearing
rights have been granted to a personal support worker by this rule other than the
right to a hearing on the Department’s, Division's, or Designee's decision
to terminate provider enrollment.
Stat. Auth.: ORS 409.050 & 410.070
Stats. Implemented: ORS 409.010,
410.020, 410.070, & 411.675
Hist.: SPD 35-2004, f. 11-30-04,
cert. ef. 12-1-04; SPD 9-2005, f. & cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07,
cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD
48-2013, f. 12-13-13, cert. ef. 12-15-13
411-034-0070
State Plan Personal Care Service Assessment,
Authorization, and Monitoring
(1) CASE MANAGER RESPONSIBILITIES.
(a) ASSESSMENT AND REASSESSMENT.
(A) A case manager must meet
in person with an individual to assess the individual's ability to perform the personal
care tasks listed in OAR 411-034-0020.
(B) An individual’s
natural supports may participate in the assessment if requested by the individual.
(C) A case manager must assess
an individual’s service needs, identify the resources meeting any, some, or
all of the individual's needs, and determine if the individual is eligible for State
Plan personal care services or other services.
(D) A case manager must meet
with an individual in person at least once every 365 days to review the individual's
service needs.
(b) SERVICE PLANNING.
(A) A case manager must prepare
a service plan identifying the tasks for which an individual requires assistance
and the monthly number of authorized service hours. The case manager must document
an individual's natural supports that currently meet some or all of the individual's
assistance needs.
(B) The service plan must
describe the tasks to be performed by a qualified provider and must authorize the
maximum monthly hours that may be reimbursed for those services.
(C) When developing service
plans, a case manager must consider the cost effectiveness of services that adequately
meet the individual’s service needs.
(D) Payment for State Plan
personal care services must be prior authorized by a case manager and based on the
service needs of an individual as documented in the individual's written service
plan.
(c) ONGOING MONITORING AND
AUTHORIZATION.
(A) When there is an indication
that an individual's personal care needs have changed, a case manager must conduct
an in person re-assessment with the individual (and any of the individual's natural
supports if requested by the individual).
(B) Following annual re-assessments
and those conducted after a change in an individual's personal care needs, a case
manager must review service eligibility, the cost effectiveness of the individual's
service plan, and whether the services provided are meeting the identified service
needs of the individual. The case manager may adjust the hours or services in the
individual's service plan and must authorize a new service plan, if appropriate,
based on the individual's current service needs.
(d) ONGOING CASE MANAGEMENT.
A case manager must provide ongoing coordination of State Plan personal care services,
including authorizing changes in providers and service hours, addressing risks,
and monitoring and providing information and referral to an individual when indicated.
(2) LONG TERM CARE (LTC)
COMMUNITY NURSING SERVICES. A LTC community nurse is a licensed, registered nurse
(RN) who has been approved under a contract or provider agreement with the Department,
Division, or Designee to provide nursing assessment for indicators identified in
subsection (a) of this section and may provide on-going nursing services as identified
in subsection (b) of this section to certain individuals served by the Department,
Division, or Designee. Individuals receiving LTC community nursing services are
primarily older adults and adults with disabilities.
(a) A case manager may refer
a LTC community nurse where available, for nursing assessment and monitoring when
it appears an individual needs assistance to manage health support needs and may
need delegated nursing tasks, nurse assessment and consultation, teaching, or services
requiring RN monitoring. Indicators of the need for LTC community nurse assessment
and monitoring include:
(A) Complex health problem
or multiple diagnoses resulting in the need for assistance with health care coordination;
(B) Medical instability,
as demonstrated by frequent emergency care, physician visits, or hospitalizations;
(C) Behavioral symptoms or
changes in behavior or cognition;
(D) Nutrition, weight, or
dehydration issues;
(E) Skin breakdown or risk
for skin breakdown;
(F) Pain issues;
(G) Medication safety issues
or concerns;
(H) A history of recent,
frequent falls; or
(I) A provider may benefit
from teaching or training about the health support needs of an eligible individual.
(b) Following the completion
of an initial nursing assessment in an individual’s home by a LTC community
nurse, the provision of ongoing LTC community nursing services must be prior-authorized
by a case manager and may include:
(A) Ongoing health monitoring
and teaching for an eligible individual specific to the individual's identified
needs;
(B) Medication education
for an eligible individual and the individual's provider;
(C) Instructing or training
a provider or natural support to address an individual’s health needs;
(D) Consultation with other
health care professionals serving an individual and advocating for the individual’s
medical and restorative needs in a non-facility setting; or
(E) Delegation of nursing
tasks defined in OAR 411-034-0010 to a non-family provider.
(c) LTC Community nursing
services must be provided as described in OAR chapter 411, division 048.
(3) UNAUTHORIZED SERVICE
SETTINGS AND PROVIDERS.
(a) The Department, Division,
or Designee may not authorize services within an eligible individual’s home
when:
(A) The individual's home
has dangerous conditions that jeopardize the health or safety of the individual
and necessary safeguards cannot be taken to improve the setting;
(B) The services cannot be
provided safely or adequately by a provider;
(C) The individual's home
has dangerous conditions that jeopardize the health or safety of the provider and
necessary safeguards cannot be taken to minimize the dangers; or
(D) The eligible individual
does not have the ability to make an informed decision, does not have a designated
representative to make decisions on his or her behalf, and necessary safeguards
cannot be provided to protect the safety, health, and welfare of the individual.
(b) A case manager must present
an individual or the individual’s representative with information on service
alternatives and provide assistance to assess other choices when a provider or service
setting selected by the individual or the individual’s representative is not
authorized.
Stat. Auth.: ORS 409.050 & 410.070
Stats. Implemented: ORS 409.010,
410.020, 410.070, 410.608 & 410.710
Hist.: SSD 2-1996, f. 3-13-96,
cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 9-2005, f. &
cert. ef. 7-1-05; SPD 16-2007, f. 10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp),
f. & cert. ef. 7-1-13 thru 12-28-13; SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13
411-034-0090
Payment Limitations
(1) The number of State Plan personal
care service hours authorized for an individual per calendar month is based on projected
amounts of time to perform specific personal care and supportive services to the
eligible individual. The total of these hours are limited to 20 hours per individual
per month. Individuals whose assessed service needs exceed the 20 hour limit may
receive approval for additional hours through the exception process described in
OAR 411-034-0020. State Plan personal care service hours are authorized in accordance
with an individual's service plan and may be scheduled throughout the month to meet
the service needs of the individual.
(2) Authorized LTC community
nurse assessment and monitoring services are not included in the monthly maximum
hours for State Plan personal care services described in section (1) of this rule.
(3) The Department does not
guarantee payment for State Plan personal care services until all acceptable provider
enrollment standards have been verified and both the employer and provider have
been formally notified in writing that payment by the Department is authorized.
(4) In accordance with OAR
410-120-1300, all provider claims for payment must be submitted within 12 months
of the date of service.
(5) Payment may not be claimed
by a provider until the hours authorized for the payment period have been completed,
as directed by an eligible individual or the individual's representative.
Stat. Auth.: ORS 409.050 & 410.070
Stats. Implemented: ORS 410.020,
410.070, 410.710, 411.159 & 411.675
Hist.: SSD 2-1996, f. 3-13-96,
cert. ef. 3-15-96; SPD 35-2004, f. 11-30-04, cert. ef. 12-1-04; SPD 16-2007, f.
10-4-07, cert. ef. 10-5-07; SDP 19-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13;
SPD 48-2013, f. 12-13-13, cert. ef. 12-15-13

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