CABINET FOR HEALTH AND
FAMILY SERVICES
Department for Medicaid
Services
Division of Community
Alternatives
(New Administrative
Regulation)
907 KAR 7:010. Home and community
based waiver services version 2.
RELATES TO: KRS 205.520(3), 205.5605,
205.5606, 205.5607, 205.635, 42 C.F.R. 440.180
STATUTORY AUTHORITY: KRS 194A.030(2),
194A.050(1), 205.520(3), 205.5606, 42 C.F.R. 440.180, 42 U.S.C. 1396a, 1396b,
1396d, 1396n
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 to comply with any requirement that may be imposed, or opportunity
presented, by federal law to qualify for federal Medicaid funds. This
administrative regulation establishes the coverage provisions and requirements for
home and community based waiver services version 2.
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) "Abuse"
regarding:
(a) An adult is
defined by KRS 209.020(8); or
(b) A child means
abuse pursuant to KRS Chapter 600 or 620.
(3) "ADHC" means
adult day health care.
(4) "ADHC center" means an
adult day health care center licensed in accordance with 902 KAR 20:066.
(5) "ADHC services" means
health-related services provided on a regularly-scheduled basis that ensure
optimal functioning of a participant who:
(a) Does not require twenty-four (24)
hour care in an institutional setting; and
(b) May need twenty-four (24) hour
respite services when experiencing a short-term crisis due to the temporary or
permanent loss of the primary caregiver.
(6) "Advanced practice registered
nurse" or "APRN" is defined by KRS 314.011(7).
(7) "Area agency on aging and
independent living" means:
(a) An area agency on living as defined
by 42 U.S.C. 3002(6); and
(b) A local agency designated by the
Department for Aging and Independent Living to administer funds received under
Title III for a given planning and service area.
(8) "Assessment" means an
evaluation completed using the Kentucky Home Assessment Tool.
(9) "Blended services" means a
non-duplicative combination of HCB waiver services that are not
participant-directed services as well as participant-directed services.
(10) "Budget allowance" is defined
by KRS 205.5605(1).
(11) "Center for independent living"
is defined by 42 U.S.C. 796a(1).
(12) "Certified nutritionist"
is defined by KRS 310.005(12).
(13) "Certified social worker"
means an individual who meets the requirements established in KRS 335.080.
(14) "Chemical restraint" means
a drug or medication:
(a) Used to
restrict an individual’s:
1. Behavior; or
2. Freedom of
movement; and
(b)1. That is not a
standard treatment for the individual’s condition; or
2. Dosage that is
not an appropriate dosage for the individual’s condition.
(15) "Communicable disease"
means a disease that is transmitted:
(a) Through direct contact with an infected
individual;
(b) Indirectly through an organism that
carries disease-causing microorganisms from one (1) host to another or a
bacteriophage, a plasmid, or another agent that transfers genetic material from
one (1) location to another; or
(c) Indirectly by a bacteriophage, a
plasmid, or another agent that transfers genetic material from one (1) location
to another.
(16) "DAIL" means the
Department for Aging and Independent Living.
(17) "DCBS" means the
Department for Community Based Services.
(18) "Department" means the
Department for Medicaid Services or its designee.
(19) "Electronic signature" is
defined by KRS 369.102(8).
(20) "Exploitation" regarding:
(a) An adult is defined by KRS
209.020(9); or
(b) A child means exploitation pursuant to
KRS Chapter 600 or 620.
(21) "Home and community based
waiver services" or "HCB waiver services" means home and
community based waiver services:
(a) Covered pursuant to this
administrative regulation; and
(b) For individuals who meet the
requirements of Section 4 of this administrative regulation.
(22) "Home and community support
services" means nonresidential and nonmedical home and community based
services and supports that:
(a) Meet the participant’s needs; and
(b) Constitute a cost-effective use of
funds.
(23) "Home delivered meal provider"
means a food service establishment as defined by KRS 217.015(21).
(24) "Home health agency" means
an agency that is:
(a) Licensed in accordance with 902 KAR
20:081; and
(b) Medicare and Medicaid certified.
(25) "Illicit drug" means:
(a) A drug,
prescription or not prescription, used illegally or in excess of therapeutic levels;
or
(b) A prohibited
drug.
(26) "Licensed clinical social
worker" means an individual who meets the requirements established by KRS
335.100.
(27) "Licensed dietitian" is
defined by KRS 310.005(11).
(28) "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.
(29) "Licensed practical nurse"
or "LPN" means a person who:
(a) Meets the definition established by
KRS 314.011(9); and
(b) Works under the supervision of a registered
nurse.
(30) "MWMA
portal" means the Kentucky Medicaid Waiver Management Application internet
portal located at http://chfs.ky.gov/dms/mwma.htm.
(31) "Natural supports" means a
non-paid person, persons, or community resource who can provide or has
historically provided assistance to the participant or due to the familial
relationship would be expected to provide assistance.
(32) "Neglect" regarding:
(a) An adult is defined by KRS
209.020(016); or
(b) A child means neglect pursuant to KRS
Chapter 600 or 620.
(33) "NF" means nursing
facility.
(34) "NF level of care" means a
high intensity or low intensity patient status determination made by the
department in accordance with 907 KAR 1:022.
(35) "Normal baby-sitting"
means general care provided to a child that includes custody, control, and supervision.
(36) "Participant" means a
recipient who:
(a) Meets the NF level of care criteria
established in 907 KAR 1:022; and
(b) Meets the eligibility criteria for
HCB waiver services established in Section 4 of this administrative regulation.
(37) "Participant corrective action
plan" means a written plan that is developed by the case manager or
service advisor in conjunction with the participant or representative to
identify, eliminate, and prevent future violations from occurring by:
(a) Providing the
participant or representative with the specific administrative regulation that
has been violated;
(b) Identifying
factual information regarding the violation; and
(c)
Reaching an agreement between the case manager and the participant or representative
to the resolution and being in compliance within the timeframe established in
the participant corrective action plan being issued.
(38) "Patient liability" means the
financial amount an individual is required to contribute toward cost of care in
order to maintain Medicaid eligibility.
(39) "PDS" means
participant-directed services.
(40) "Person-centered service plan"
means a written individualized plan of services for a participant that meets
the requirements established in Section 7 of this administrative regulation.
(41) "Physical restraint" means
any manual method or physical or mechanical device, material, or
equipment that:
(a) Immobilizes or
reduces the ability of a person to move his or her arms, legs,
body, or head freely; and
(b) Does not include
orthopedically prescribed devices or other devices, surgical dressings or
bandages, protective helmets, or other methods that involve the physical
holding of a person for the purpose of:
1. Conducting
routine physical examinations or tests;
2. Protecting the
person from falling out of bed; or
3. Permitting the
person to participate in activities without the risk of physical harm.
(42) "Physician assistant" or
"PA" is defined by KRS 311.840(3).
(43) "Plan of treatment" means
a care plan developed and used by an ADHC center based on the participant’s
individualized ADHC service needs, goals, interventions, and outcomes.
(44) "Prohibited drug" means a
drug or substance that is illegal under KRS Chapter 218A or statutes or
administrative regulations of the Commonwealth of Kentucky.
(45) "Public health department"
means an agency recognized by the Department for Public Health pursuant to 902
KAR Chapter 8.
(46) "Recipient" is defined by
KRS 205.8451(9).
(47) "Registered nurse" or
"RN" means a person who:
(a) Meets the definition established by
KRS 314.011(5); and
(b) Has one (1) year or more experience
as a professional nurse.
(48) "Representative" is
defined by KRS 205.5605(6).
(49) "Service advisor" is
defined by KRS 205.5605(7).
(50) "Sex crime" is defined by
KRS 17.165(1).
(51) "Support
spending plan" means a component of the person-centered service plan that
identifies the:
(a) Services
requested;
(b) PDS employee or
service provider name;
(c) Hourly wage or
unit rate;
(d) Hours per
month;
(e) Monthly pay or
reimbursement; and
(f) PDS employer
taxes.
(52) "Violent crime" is defined
by KRS 17.165(3).
(53) "Violent offender" is
defined by KRS 17.165(2).
Section 2. Provider Participation
Requirements Excluding Participant-Directed Services. (1) In order to provide
HCB waiver services, excluding participant-directed services, an HCB waiver
provider shall:
(a) Be:
1. Approved by the department, licensed,
or certified; and
2.a. An adult day health care center;
b. A home health agency;
c. A center for independent living;
d. A public health department;
e. A home delivered meal provider; or
f. An area agency on aging and
independent living; and
(b) Meet the service requirements
specified in Section 5 for any service provided by the provider.
(2) An out-of-state HCB waiver provider
shall comply with the requirements of this administrative regulation.
(3) An HCB waiver provider:
(a) Shall comply with:
1. 907 KAR 1:671;
2. 907 KAR 1:672;
3. 907 KAR 1:673;
4. 907 KAR 7:005 if the provider is a
certified waiver provider; and
5. This administrative regulation;
(b) Shall not enroll a participant for
whom the provider cannot provide HCB waiver services;
(c) Shall be permitted to accept or not
accept a participant;
(d)1. Shall implement a procedure to
ensure that critical incident reporting is done in accordance with Section 9 of
this administrative regulation;
2. Shall implement a process for
communicating the critical incident, the critical incident outcome, and the critical
incident prevention plan to the participant, a family member of the
participant, or participant’s guardian or legal representative; and
3. Shall maintain documentation of any
communication provided in accordance with subparagraph 2 of this paragraph by:
a. Entering a record of the communication
in the:
(i) MWMA portal; and
(ii) Participant’s case record; and
b. Having the documentation signed and
dated by the staff member making the entry;
(e) Shall inform a participant or any
interested party in writing of the provider's:
1. Hours of operation; and
2. Policies and procedures;
(f) Shall not permit a staff member who
has contracted a communicable disease to provide a service to a participant until
the condition is determined to no longer be contagious;
(g) Shall ensure that a staff supervisor
is available at all times to provide oversight and technical assistance;
(h) Shall ensure that each staff person:
1. Prior to independently providing a
direct service is trained regarding:
a. Abuse, neglect, fraud, and
exploitation;
b. The reporting of abuse, neglect,
fraud, and exploitation;
c. Person-centered planning principles;
d. Documentation requirements; and
e. HCB services definitions and
requirements;
2. Receives DAIL attendant care
certification training initially and then annually thereafter;
3. Receives cardio pulmonary
resuscitation certification and first aid certification provided by a
nationally accredited entity within six (6) months of employment;
4. Maintains current CPR certification
and first aid certification for the duration of the staff person’s employment;
5.a. Completes a
tuberculosis (TB) risk assessment performed by a licensed medical professional within
the past twelve (12) months and annually thereafter; and
b.(i) If a TB risk
assessment resulted in a TB skin test being performed, have a
negative result within
the past twelve (12) months as documented on test results
received by the provider
within thirty (30) days of the date of hire; and
(ii) If it is
determined that signs or symptoms of active disease are present, in order for
the person to be allowed to work, he or she shall be administered follow-up testing
by his or her physician with the testing indicating the person does not have
active TB disease; and
6. Prior to the
beginning of employment, has successfully passed a drug test with no indication
of prohibited or illicit drug use;
(i) Shall maintain
documentation:
1.a. Of an annual
TB risk assessment or negative TB test for each staff who provides services or
supervision; or
b. Annually for
each staff with a positive TB test that ensures no active disease symptoms are
present; and
2. Of the results
of a drug test for each staff;
(j)1. Shall:
a. Prior to hiring an individual obtain:
(i) The results of a criminal record
check from the Kentucky Administrative Office
of the Courts and
equivalent out-of-state agency if the individual resided or worked outside of
Kentucky during the twelve (12) months prior to employment;
(ii) The results of
a Nurse Aide Abuse Registry check as described in 906 KAR 1:100 and an
equivalent out-of-state agency if the individual resided or worked outside of
Kentucky during the twelve (12) months prior to employment; and
(iii) The results
of a Caregiver Misconduct Registry check as described in 922 KAR 5:120 and
equivalent out-of-state agency if the individual resided or worked outside of Kentucky
during the twelve (12) months prior to employment; and
b. Within thirty
(30) days of the date of hire, obtain the results of a Central Registry check
as described in 922 KAR 1:470 and an equivalent out-of-state agency if the individual
resided or worked outside of Kentucky during the twelve (12) months prior to
employment; 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;
and
(k) Shall not allow
a staff person to provide HCB waiver services if the individual:
1. Has a prior
conviction of or pled guilty to a:
a. Sex crime; or
b. Violent crime;
2. Is a violent
offender;
3. Has a prior
felony conviction;
4. Has a drug
related conviction, felony plea bargain, or amended plea bargain conviction
within the past five (5) years;
5. Has a positive
drug test for an illicit or a prohibited drug;
6. Has a conviction
of abuse, neglect, or exploitation;
7. Has a Cabinet
for Health and Family Services finding of:
a. Child abuse or
neglect pursuant to the Central Registry as described in 922 KAR 1:470; or
b. Adult abuse,
neglect, or exploitation pursuant to the Caregiver Misconduct
Registry as described in
922 KAR 5:120;
8. Is listed on the
Nurse Aide Abuse Registry pursuant to 906 KAR 1:100;
9. Within twelve
(12) months prior to employment is listed on or has a finding indicated on another
state’s equivalent of the:
a. Nurse Aide Abuse
Registry as described in 906 KAR 1:100 if the other state has an equivalent;
b. Caregiver Misconduct
Registry as described in 922 KAR 5:120 if the other state has an equivalent; or
c. Central Registry
as described in 922 KAR 1:470 if the other state has an equivalent; or
10. Has been convicted of Medicaid or
Medicare fraud.
(4) A home delivered meal provider shall:
(a) Comply with KRS Chapter 217 and 902
KAR 45:005 requirements regarding food and food service establishments; and
(b) Be subject to:
1. Monitoring; and
2. Annual certification by DAIL in
accordance with 907 KAR 7:005.
Section 3. Maintenance of Records. (1)(a)
Regarding each participant, an HCB waiver provider shall maintain:
1. A case record; and
2. Fiscal reports, service records, and
incident reports regarding services provided.
(b) A case record shall:
1. Be maintained in the MWMA portal; and
2. Contain:
a. A comprehensive assessment approved by
the department;
b. A completed person-centered service
plan;
c. A copy of the MAP-350, Long Term Care
Facilities and Home and Community Based Program Certification Form signed by the
participant or participant’s legal representative at the time of application or
reapplication and each recertification thereafter;
d. The name of the case manager, service
advisor, and independent assessor;
e. Documentation of all level of care
determinations;
f. Documentation related to prior
authorizations including requests, approvals, and denials;
g. Documentation of each contact with, or
on behalf of, the participant;
h. Documentation that the participant, if
receiving ADHC services, was provided a copy of the ADHC center’s posted hours
of operation;
i. Documentation that the participant or participant’s
legal representative was informed of the procedure for reporting complaints and
incidents; and
j. Documentation of each service provided,
which shall include:
(i) The date the service was provided;
(ii) The duration of the service;
(iii) The arrival and departure time of
the provider, excluding travel time, if the service was provided at the participant’s
home;
(iv) Itemization of each service delivered;
(v) The participant’s arrival and
departure time, excluding travel time, if the service was provided at the ADHC
center;
(vi) A monthly progress note each month,
which shall include documentation of changes, responses, and services utilized
to evaluate the participant’s health, safety, and welfare needs; and
(vii) The signature of the service
provider.
(c) Fiscal reports, service records, and
incident reports regarding services provided shall be retained:
1. At least six (6) years from the date
that a covered service is provided unless the participant is a minor; or
2. If the participant is a minor, the
longer of:
a. Three (3) years after the participant
reaches the age of majority under state law; or
b. Six (6) years from the date that a
covered service is provided.
(2) Upon request, an HCB provider shall
make information regarding service and financial records available to the:
(a) Department;
(b) Cabinet for Health and Family
Services, Office of Inspector General or its designee;
(c) DAIL;
(d) The United States Department for
Health and Human Services or its designee;
(e) General Accounting Office or its
designee;
(f) Office of the Auditor of Public
Accounts or its designee; or
(g) Office of the Attorney General or its
designee.
Section 4. Participant Eligibility
Determinations and Redeterminations. (1)(a) To be eligible to receive HCB
waiver services, an individual:
1. Shall be determined by the department
to meet NF level of care requirements;
2. Without waiver services may be
admitted by a physician's order to an NF;
3. Shall be screened
by the department for the purpose of making a preliminary determination of
whether the individual might qualify for HCB waiver services; and
4. Shall meet the
Medicaid eligibility requirements established in 907 KAR 20:010.
(b) In addition to
the individual meeting the requirements established in paragraph (a) of this
subsection, the individual, a representative on behalf of the individual, or independent
assessor shall:
1. Apply for
1915(c) home and community based waiver services via the MWMA portal; and
2. Complete and
upload into the MWMA portal a:
a. MAP - 115
Application Intake - Participant Authorization; and
b. MAP-350, Long Term Care
Facilities and Home and Community Based Program Certification Form.
(c) A participant, participant’s
guardian, or participant’s legal representative shall annually sign a MAP-350,
Long Term Care Facilities and Home and Community Based Program Certification
Form at the time of each recertification to document that the participant was
informed of the choice to receive HCB waiver or institutional services.
(3) The department shall perform a level
of care determination for each participant at least:
(a) Once every twelve (12) months; or
(b) More often due to a change in
function or condition.
(4) An HCB waiver service shall not be
provided to a participant who:
(a) Does not require a service other
than:
1. An environmental or minor home
adaptation;
2. A home delivered meal;
3. Conflict free case management; or
4. Goods and services;
(b) Is an inpatient of:
1. A hospital;
2. An NF; or
3. An intermediate care facility for individuals
with an intellectual disability;
(c) Is a resident of a licensed personal
care home;
(d) Has a primary diagnosis that is not
related to age or a disability; or
(e) Is receiving services from another
Medicaid 1915(c) home and community based services waiver program.
(5) An eligible participant or the participant’s
legal representative shall select a participating HCB waiver provider from which
the participant wishes to receive HCB waiver services.
(6) The department may exclude from the
HCB waiver program an individual for whom the aggregate cost of HCB waiver
services would reasonably be expected to exceed the cost of NF services.
(7) An HCB waiver provider shall notify in
writing electronically or in print the local DCBS office and the department of a
participant’s:
(a) Termination from the HCB waiver program;
(b)1. Admission to an NF for less than
sixty (60) consecutive days; and
2. Return to the HCB waiver program from
an NF within sixty (60) consecutive days; or
(c) Failure to access services within the
parameters of the participant’s level of care determination for greater than
sixty (60) days.
Section 5. Covered Services and Related
Requirements. (1)(a) HCB waiver services shall include:
1. Conflict free case management;
2. Attendant care;
3. Specialized respite care services;
4. Environmental or minor home
adaptations;
5. ADHC services;
6. Goods and services; or
7. Home delivered meals.
(b)1. Participant-directed services shall
include:
a. Environmental or minor home
adaptations;
b. Goods and services;
c. Home and community supports;
d. Non-specialized respite care services;
or
e. PDS coordination services.
2. Participant-directed services provided
to a participant shall not replace the participant’s natural support system.
(2)(a) An HCB waiver service and a PDS,
except as established in subparagraph 3 of this paragraph, shall:
1. Be prior authorized by the department based
upon a request that provides all of the information needed to ensure that the
service or modification of the service meets the needs of the participant;
2. Be provided pursuant to the
participant’s person-centered service plan;
3. Except for PDS, not be provided by an
immediate family member, guardian, or legally responsible individual of the participant;
4. Be accessed within sixty (60) days of
the date of prior authorization;
5. Be a one (1) on one (1) encounter
except for:
a. An ADHC service in which case the ADHC
center providing the service shall comply with the ADHC personnel requirements
established in 902 KAR 20:066; or
b. A service for which a one (1) on one
(1) encounter is not appropriate due to the participant’s circumstances or
condition in which case the circumstances or condition shall be documented in
the:
(i) Assessment; and
(ii) Person-centered service plan;
6. Not occur at the same time as another
service, regardless of payer source, except for a:
a. Doctor visit; or
b. Physical therapy, occupational
therapy, or speech-language pathology service appointment; and
7. Be provided by an individual who:
a. Does not have a communicable disease
pursuant to Section 2(3)(f) of this administrative regulation; and
b. Provides services at a level that
appropriately and safely meets the needs of the participant.
(b) A 1915(c) home and community based
waiver service that is not part of a hospice service package may be covered in
conjunction with hospice services.
(3) To request prior authorization:
(a) For a non-PDS HCB waiver service, a case
manager shall submit a completed MAP-10, Waiver Services Physician’s
Recommendation, and a person-centered service plan to the department; or
(b) For a PDS, a service advisor shall
submit a completed MAP-10, Waiver Services Physician’s Recommendation, and a
person-centered service plan to the department.
(4) Services shall not begin and payment
shall not be made for services until:
(a) A level of care determination has
been approved by the department;
(b) A person-centered service plan has
been:
1. Developed by the person-centered team;
and
2. Approved by the department; and
(c)1. DCBS has determined that the
individual meets financial eligibility requirements and a valid MAP 552 is on
file for a new applicant for Medicaid; or
2. The first day of the month following
the level of care determination if the applicant is a recipient currently
enrolled with a managed care organization. The managed care organization shall
be responsible for ensuring the applicant’s health, safety, and welfare during
the period between the level of care determination and the first day of the
month following the level of care determination.
(5)(a) Case management requirements shall
be as established in Section 8 of this administrative regulation.
(b) Except for the requirement
established in Section 8(7)(b), the requirements established in Sections 6 and
8 of this administrative regulation shall apply to service advisors.
(6)(a) An attendant care service shall
provide care that consists of:
1. General
household activities including:
a. Cleaning;
b. Cooking; or
c. Chores;
2. Personal care
services including assistance with:
a. Bathing;
b. Grooming;
c. Dressing;
d. Eating;
e. Toileting;
f. Transferring; or
g. Assistance with
self-administration of medication; or
3. Transporting a
participant to a needed place as specified in the participant’s person-centered
service plan including:
a. A grocery;
b. A pharmacy; or
c. An appointment.
(b)1. An individual transporting a
participant shall have a valid driver’s license.
2. A minimum of current liability
insurance shall be required for a vehicle used to transport a participant.
(c)1. An attendant care provider shall
maintain a sign in and out log documenting the provision of services to participants.
2. Documentation shall include:
a. The date the service was provided;
b. The duration of the service;
c. The arrival and departure time of the provider;
d. A description of the service provided;
and
e. The name, title, and signature of the
staff who provided the service.
(7)(a) A specialized respite care service
shall:
1. Be short-term care based on the
absence or need for relief of the non-paid primary caregiver;
2. Be provided by staff who provides services
at a level that appropriately and safely meets the needs of the participant;
3. Be provided to a participant who has
care needs beyond normal baby-sitting or normal care sitting;
4. If the participant receiving the
service is assessed pursuant to 907 KAR 7:015 as qualifying the provider for
Level II reimbursement, have twenty-four (24) hour access to an RN for
emergency situations and consultations; and
5. If applicable, be provided in
accordance with 902 KAR 20:066.
(b)1. A provider of specialized respite
care shall maintain a sign in and out log documenting the provision of services
to participants.
2. Documentation shall include:
a. The date the service was provided;
b. The duration of the service;
c. The arrival and departure time of the
provider;
d. A description of the service provided;
and
e. The name, title, and signature of the
staff who provided the service.
(8)(a) An environmental or minor home
adaptation service shall:
1. Be a physical adaptation to a home owned
by the participant or family member of the participant that is necessary to
ensure the health, welfare, and safety of the participant;
2. Meet all applicable safety and local
building codes;
3. Relate strictly to the participant’s disability
and needs;
4. Exclude an adaptation or improvement
to a home that has no direct medical or remedial benefit to the participant;
5. Be provided by a licensed and insured
provider qualified to provide the modification;
6. Not add to the total square footage of
a home except if necessary to complete an adaptation;
7. Be submitted on the person-centered
service plan for prior authorization; and
8. Not be covered unless prior authorized.
(b) A person emergency response system
shall be considered to be a covered environmental or minor home adaptation if
it meets the requirements established in this subsection.
(9)(a) An ADHC service shall:
1. Be provided to a participant who is at
least twenty-one (21) years of age;
2. Include the following basic services
and necessities provided to participants during the posted hours of operation:
a. Skilled nursing services provided by
an RN or LPN, including ostomy care, urinary catheter care, decubitus care,
tube feeding, venipuncture, insulin injections, tracheotomy care, or medical
monitoring;
b. Meal service corresponding with hours
of operation with a minimum of one (1) meal per day and therapeutic diets as required;
c. Snacks;
d. The presence of an RN or LPN;
e. Age and diagnosis appropriate daily
activities; and
f. Routine services that meet the daily
personal and health care needs of a participant, including:
(i) Monitoring of vital signs;
(ii) Assistance with activities of daily
living; and
(iii) Monitoring and supervision of
self-administered medications, therapeutic programs, and incidental supplies
and equipment needed for use by a participant;
3. Include developing, implementing, and
maintaining nursing policies for nursing or medical procedures performed in the
ADHC center;
4. Include specialized respite care
services pursuant to subsection (7) of this section;
5. Be provided to a participant by the
health team in an ADHC center, which may include:
a. A physician;
b. A physician assistant;
c. An APRN;
d. An RN;
e. An LPN;
f. An activities director;
g. A certified social worker;
h. A licensed clinical social worker;
i. A certified nutritionist; or
j. A health aide; and
6. Be provided pursuant to a plan of
treatment that is included in the participant’s person-centered service plan.
(b) A plan of treatment shall:
1. Be developed and signed by each member
of the plan of treatment team, which shall include the participant,
participant’s guardian, or participant’s legal representative;
2. Include:
a. Pertinent diagnoses;
b. Mental status;
c. Services required;
d. Medication or food allergies and special
diet;
e. Contradictions for specific types of
activities and preventive health care measures;
f. Frequency of visits to the ADHC center;
g. Prognosis;
h. Rehabilitation potential;
i. Functional limitation;
j. Activities permitted;
k. Nutritional requirements;
l. Medication;
m. Treatment;
n. Safety measures to protect against
injury;
o. Instructions for timely discharge; and
p. Other pertinent information; and
3. Be developed annually from information
on the assessment and revised as needed.
(c)1. Modification of an ADHC unit of
service shall require:
a. Modification of the participant’s
person-centered service plan; and
b. Prior authorization.
2. Upon approval or denial of a prior
authorization request, the department shall provide written notification to the
case manager and to the participant.
3. A case manager shall:
a. Inform the ADHC center of approval or
denial; and
b. Document the approval or denial in the
case record.
(d)1. An ADHC center shall maintain a
sign in and out log documenting the provision of services to participants.
2. Documentation shall include:
a. The date the service was provided;
b. The duration of the service;
c. The arrival and departure time of the
participant;
d. A description of the service provided;
and
e. The title, name, and signature of the
staff who provided the service.
(11) Goods and services shall:
(a) Be individualized;
(b) Meet identified needs required by the
participant’s person-centered service plan that are necessary to ensure the health,
welfare, and safety of the participant;
(c) Be items that are utilized to reduce
the need for personal care or to enhance independence within the participant’s
home or community;
(d) Not include experimental goods or services;
(e) Not include chemical or physical restraints;
and
(f) Not be covered unless prior
authorized by the department.
(12) A home delivered
meal shall:
(a) Meet at least
one-third (1/3) of the recommended daily allowance per meal and meet the
requirements of the dietary guidelines for Americans;
(b) Be provided to
a participant who is unable to prepare his or her own meals and for whom there
are no other persons available to do so including natural supports;
(c) Be furnished in
accordance with menus that are approved in writing by a licensed dietitian;
(d) Take into
consideration the participant’s medical restrictions; religious, cultural, and
ethnic background; and dietary preferences;
(e) Be individually
packaged heated meals;
(f)1. Be provided
for inclement weather, holidays, or emergencies if prior approval is provided
by the department and if the meals:
1. Are individually
packaged if not heated;
2. Are shelf stable;
or
3. Have components
separately packaged if the components are clearly marked as components of a single
meal; and
(g) Not:
1. Supplement or
replace meal preparation activities that occur during the provision of
attendant care services or any other similar service;
2. Supplement or
replace the purchase of food or groceries;
3. Include bulk
ingredients, liquids, and other food used to prepare meals independently or
with assistance;
4. Be provided
while the participant is hospitalized, residing in an institutional setting, or
while in attendance at an ADHC center; or
5. Duplicate a service
provided through other programs operated by any governmental agency.
(13)(a) Home and community support
services shall consist of:
1. General household
activities including;
a. Cleaning;
b. Cooking; or
c. Chores;
2. Personal care
services including assistance with:
a. Bathing;
b. Grooming;
c. Dressing;
d. Eating;
e. Toileting;
f. Transferring; or
g. Assistance with
self-administration of medication; or
3. Transporting a
participant to a needed place as specified in the participant’s person-centered
service plan including:
a. A grocery;
b. A pharmacy; or
c. An appointment.
(b)1. An individual transporting a
participant shall have a valid driver’s license.
2. A minimum of current liability
insurance shall be required for a vehicle used to transport a participant.
(14) Non-specialized respite care shall
be provided:
(a) To a participant who has care needs
beyond normal baby-sitting or normal care sitting; and
(b) In relief of a non-paid primary
caregiver.
(15)(a) PDS coordination services shall
include service advisory and management of funds.
(b) The financial management service
provider shall:
1. Perform the employer responsibilities
on behalf of the participant of payroll processing, which shall include:
a. Issuing paychecks;
b. Withholding federal, state, and local
tax and making tax payments to the appropriate tax authorities; and
c. Issuing W-2 forms;
2. Be responsible for performing all
fiscal accounting procedures at least every thirty (30) days including issuing
expenditure reports to:
a. The participant, the participant’s
guardian, or the participant’s legal representative;
b. The participant’s case manager; and
c. Upon request, to the department;
3. Maintain a separate account for each
participant while continually tracking and reporting funds, disbursements, and
the balance of the participant’s prior authorizations; and
4. Process and pay invoices for:
a. PDS goods and services approved in the
person-centered service plan; and
b. Environmental or minor home
adaptations in the person-centered service plan.
Section 6. Miscellaneous Participant-Directed
Services Requirements. (1) A PDS provider shall:
(a) Be selected by the participant;
(b) Be at least eighteen (18) years of
age;
(c) 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;
(d) Be able to communicate effectively
with the participant, representative, participant’s guardian, or family of the
participant;
(e) Be able to understand and carry out instructions;
(f) Be able to keep records as required
by the participant;
(g) Comply with the requirements for
background and related checks established in Section 2(3)(j) of this administrative
regulation;
(h) Not be a PDS provider if the
individual:
1. Has a prior
conviction of or pled guilty to a:
a. Sex crime; or
b. Violent crime;
2. Is a violent
offender;
3. Has a prior
felony conviction;
4. Has a drug
related conviction, felony plea bargain, or amended plea bargain conviction
within the past five (5) years;
5. Has a conviction
of abuse, neglect, or exploitation;
6. Has a Cabinet
for Health and Family Services finding of:
a. Child abuse or
neglect pursuant to the Central Registry as described in 922 KAR 1:470; or
b. Adult abuse,
neglect, or exploitation pursuant to the Caregiver Misconduct Registry as
described in 922 KAR 5:120;
7. Is listed on the
Nurse Aide Abuse Registry pursuant to 906 KAR 1:100;
8. Within twelve
(12) months prior to employment is listed on or has a finding indicated on another
state’s equivalent of the:
a. Nurse Aide Abuse
Registry as described in 906 KAR 1:100 if the other state has an equivalent;
b. Caregiver
Misconduct Registry as described in 922 KAR 5:120 if the other state has an
equivalent; or
c. Central Registry
as described in 922 KAR 1:470 if the other state has an equivalent; or
9. Has been convicted of Medicaid or
Medicare fraud;
(i)1. Prior to the beginning of
employment, complete training on the:
a. Reporting of abuse, neglect, or
exploitation in accordance with KRS 209.030 or 620.030; and
b. Needs of the participant; and
2. Receive DAIL attendant care training initially
and then annually thereafter;
(j)1. Obtain first aid certification
within six (6) months of providing PDS services; and
2. Maintain first aid certification for
the duration of being a PDS provider;
(k)1. Except as established in
subparagraph 2 of this paragraph:
a. Obtain cardiopulmonary resuscitation
(CPR) certification by a nationally accredited entity within six (6) months of
employment; and
b. Maintain CPR certification for the duration
of being a PDS provider; or
2. If the participant to whom a PDS
provider provides services has a signed Do Not Resuscitate order, not be
required to meet the requirements established in subparagraph 1 of this
paragraph;
(l) Comply with the TB risk assessment
and test requirements established in Section 2(3)(h)5. of this administrative
regulation;
(m) Maintain and submit timesheets:
1. Signed by the:
a. Participant or representative; and
b. Provider; and
2. Documenting:
a. Hours worked;
b. The provision of a service including:
(i) A full description of the service
provided; and
(ii) Any concerns or issues, if existing,
regarding the general well-being of the participant; and
c. The participant’s choice of daily
activities and services; and
(n) Submit a completed Kentucky
Participant-Directed Services Employee Provider Contract to the service advisor.
(2)(a) A participant may designate a
representative to act on the participant’s behalf.
(b) A representative shall:
1. Submit to all of the background and
related checks established in Section 2(3)(j) of this administrative regulation;
2. Be at least eighteen (18) years of
age;
3. Be chosen by the participant, except
as established in paragraph (d) of this subsection, to manage and direct all
related aspects of the participant’s PDS; and
4. Not be a PDS representative if found
in violation of the provisions established in subsection (1)(h) of this section.
(c) A representative shall be chosen for
a participant if a condition established in this paragraph exists. If the participant:
1. Is under eighteen (18) years of age, a
family member of the participant shall appoint a representative for the
participant;
2. Has a guardian or legal representative,
the participant’s guardian or legal representative shall appoint a
representative for the participant; or
3. Has failed to adhere to the terms of a
participant corrective action plan and chooses to continue receiving PDS, the
participant’s person-centered team shall present a list of multiple potential
representatives to the participant from which the participant shall choose a
representative.
(d) A participant’s choice of
representative shall be made via a MAP-2000, Initiation/Termination of Participant-Directed
Service, which the participant shall submit to the participant’s service
advisor.
(3) A participant may voluntarily
terminate PDS by completing a MAP-2000, Initiation/Termination of
Participant-Directed Service and submitting it to the participant’s service
advisor.
(4) The department shall immediately
terminate a participant from receiving PDS if:
(a) Imminent danger to the participant’s health,
safety, or welfare exists; or
(b) The participant’s person-centered
service plan indicates he or she requires more hours of service than the
program can provide, which may jeopardize the participant’s safety and welfare
due to being left alone without a caregiver present.
(5) A service advisor:
(a) Providing PDS
coordination shall:
1. Meet the case
manager requirements established in Section 8(1) and (2) of this administrative
regulation; and
2. Within seven (7) days
of receiving a referral regarding a participant from an independent assessor,
schedule a face-to-face visit with the participant, the participant’s guardian,
or the participant’s legal representative;
(b) Shall work with
the participant or participant’s legal representative to develop a participant
corrective action plan:
1. If the
participant, participant’s legal representative, or PDS employee has exhibited
abusive, intimidating, or threatening behavior; or
2. Pursuant to
Section 8(7)(d) of this administrative regulation;
(c) For a
participant with a participant corrective action plan shall:
1. Monitor the
progress of the participant corrective action plan; and
2.a. Determine that
the participant corrective action plan has been satisfied and continue with PDS;
b. Appoint a
representative pursuant to subsection (2)(c) of this section; or
c. Proceed with
involuntary termination of PDS if the participant or legal representative is
unable or unwilling to comply with the participant corrective action plan;
(d) If proceeding
with involuntary termination, shall:
1. Notify the
independent assessor in writing of termination of PDS within thirty (30) days;
2. Provide the
participant or participant’s legal representative with written information regarding
the traditional waiver program and traditional waiver providers;
3. Provide the
participant or participant’s legal representative with information regarding
the right to appeal the PDS denial in accordance with 907 KAR 1:563;
4. Complete and
submit to the department a MAP-2000, Initiation/Termination of Participant-Directed
Service terminating the participant from PDS; and
5. Document the:
a. Reason for the
termination;
b. Actions taken to
assist the participant with the participant corrective action plan; and
c. Outcomes; and
(e) Shall conduct
at least one (1) in person visit with:
1. The participant
each month at:
a. The
participant’s residence; or
b. ADHC center if
the participant receives services at an ADHC center; and
2. The
participant’s representative each three (3) months if designated by the participant.
(6) Except as provided in subsection (4) or
(5) of this section regarding a participant’s termination from PDS, the participant’s
service advisor shall:
(a) Notify the independent assessor and service
provider of potential termination;
(b) Assist the participant in developing
a participant corrective action plan;
(c) Allow at least thirty (30) but no
more than ninety (90) days for the participant to resolve the issue, develop
and implement a prevention plan, or designate a PDS representative;
(d) Complete and submit to the department
a MAP-2000, Initiation/Termination of Participant-Directed Service terminating
the participant from receiving PDS if the participant fails to meet the
requirements established in paragraph (c) of this subsection; and
(e) Assist the participant in
transitioning back to traditional HCB services by providing a current list of
traditional HCB service providers.
(7) A personal services agency shall:
(a) Meet the requirements established in
906 KAR 1:180; and
(b) Comply with the requirements of this
section of this administrative regulation.
(8) An immediate family member, guardian,
or legally responsible individual may provide a PDS upon written approval from
the department if:
(a) The individual submits to the
department a completed PDS Request Form for Immediate Family Member, Guardian,
or Legally Responsible Individual as a Paid Service Provider;
(b) The individual has unique abilities
necessary to meet the needs of the participant;
(c) The individual has obtained
education, job experience, volunteerism, or training beyond the direct care of
the participant;
(d) The services being provided are not
natural supports;
(e) The individual enables the
participant to be integrated in the community; and
(f)1. The nearest provider is more than
thirty (30) miles from the participant’s residence; or
2. A qualified provider cannot:
a. Provide the necessary services
according to the person-centered service plan; or
b. Accommodate the participant’s
schedule.
(9) A service advisor through PD care
coordination shall:
(a) Advise a participant regarding any
aspect of PDS or blended services and facilitate access to services;
(b) Provide information for accessing
assistance twenty-four (24) hours per day, seven (7) days per week;
(c) Comply with all applicable federal
and state laws and requirements;
(d) Continually monitor a participant’s health,
safety and welfare and provide information on how to access resources;
(e) Request a:
1. Copy of the participant’s current
person-centered service plan; or
2. Reassessment through the independent
assessor; and
(f) Conduct at least one (1) face-to-face
visit:
1. With the participant monthly;
2. With the participant and the
participant’s representative, if the participant has a representative, at least
once every three (3) months; and
3. At the participant’s residence at
least once every three (3) months.
(10) A participant shall be responsible
for all employer-related expenses and responsibilities.
(11) A PDS provider shall not provide
more than forty (40) hours of PDS in a calendar week (Sunday through Saturday).
Section 7. Person-centered Service Plan
Requirements. (1) A person-centered service plan shall:
(a) Be established for each participant;
(b) Be developed by:
1. The participant, the participant’s
guardian, or the participant’s legal 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;
(c) 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
participant’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; and
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 participant;
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 participant’s 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 that the
individual elects to self-direct; and
o. Prevents the provision of unnecessary
or inappropriate services and supports; and
(d) Include 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.
(2) 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.
(3)(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 8. Case Management Requirements.
(1) A case manager shall:
(a) Have:
1.a. A bachelor's degree in a health or
human services field from an accredited college or university; and
b.(i) At least one (1) year of experience
in a health or human services field; or
(ii) The educational or experiential
equivalent in the field of aging or disabilities; or
(b) Be a registered nurse who has:
1. At least two (2) years of experience
as a professional nurse in the field of aging or disabilities; or
2. A master’s degree in a health or human
services field from an accredited college or university.
(2) A case manager shall be supervised by
a case management supervisor who:
(a) Has at least four (4) years of
experience as a case manager in the field of aging or disabilities; and
(b) Meets the requirements established in
subsection (1) of this section.
(3) A case manager shall meet with a
participant, the participant’s guardian, or the participant’s legal
representative within seven (7) days of receiving a referral from an independent
assessor regarding the participant.
(4) 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 that 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, guardian’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
provides case management in ensuring that the participant’s needs are met;
2. A participant’s person-centered 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) Accurately reflect
in the MWMA portal if a participant is:
1. Terminated from
the HCB waiver program;
2. Admitted to a
hospital;
4. Admitted to a
skilled nursing facility;
4. Transferred to
another Medicaid 1915(c) home and community based waiver service program; or
5. Relocated to a different
address; and
(n) Provide
information about participant-directed services to the participant, participant’s
guardian, or participant’s legal representative:
1. At the time the
initial person-centered service plan is developed; and
2. At least annually
thereafter and upon inquiry from the participant, participant’s guardian, or
participant’s legal representative.
(5)(a) Case management for any individual
who begins receiving HCB waiver services after the effective date of this
administrative regulation shall be conflict free except as allowed in paragraph
(b) of this subsection.
(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 HCB waiver 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 HCB 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 HCB
waiver services.
(e) If a participant chooses a new case
manager in order to comply with the conflict free case management requirement,
the new case manager and the participant’s assessment team shall be responsible
for:
1. Developing the material necessary for
the participant’s next level of care determination;
2. Submitting the material associated
with the participant’s next level of care determination to the MWMA portal;
3. Developing the participant’s next
person-centered service plan; and
4. Submitting the participant’s next
person-centered service plan to the MWMA portal.
(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.
(7) A case manager shall:
(a) Arrange for a service but not provide
a service directly;
(b) Contact the participant
at least monthly by telephone or through a face-to-face visit with a minimum of
one (1) face-to-face visit between the case manager and the participant:
1. Every other
month in:
a. An adult day health care center; or
b. The participant’s residence;
2. At least three (3) times a calendar
year in the participant’s residence;
(c) Ensure that services are provided in
accordance with the participant’s person-centered service plan;
(d) Issue a participant corrective action
plan if:
1. The participant does not comply with
the person-centered service plan;
2. The participant, a family
member of the participant, an employee of the participant, the participant’s
guardian, or a legal representative of the participant threatens, intimidates,
or consistently refuses services from any HCB waiver provider;
3. Imminent threat
of harm to the participant’s health, safety or welfare exists;
4. The participant,
a family member of the participant, an employee of the participant, the participant’s
guardian, or a legal representative of the participant interferes with or
denies the provision of an assessment, case management, or service advisory; or
5. If the PDS
provider does not comply with the PDS provider requirements established in
Section 6(1) of this administrative regulation; and
(e) Issue a
recommendation to the department for termination from HCB waiver services or PDS
if a participant corrective action plan cannot be agreed upon or fulfilled by
the participant, participant’s guardian, or participant’s legal representative.
Section 9. Critical Incident Reporting. (1)(a)
An event
that potentially or actually impacts the health, safety, or welfare of the
participant shall be a critical incident.
(b) A critical incident may include:
1. Death;
2. Alleged or suspected abuse, neglect,
or exploitation;
3. Homicidal or suicidal ideation;
4. Missing person;
5. A medication error resulting in consultation
or intervention of a licensed medical professional;
6. An event involving police or emergency
response personnel intervention; or
7. Other action or event that may result
in harm to the participant.
(2)(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 inci-
dent shall be reported by
the individual who witnessed or discovered the critical incident via the MWMA
portal within eight (8) hours of discovery.
(c) The HCB waiver
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) A listing of
recent medical concerns;
(ii) An analysis of
causal factors; and
(iii)
Recommendations for preventing future occurrences.
(d) The
participant’s case manager shall follow up to ensure that the participant’s
health, safety, and welfare are not jeopardized.
(3)(a) Following a
death of a participant receiving services from an HCB waiver
provider, the
participant’s case manager 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. A full life
history of the participant including any update from the last version of the
life history;
9. 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;
10. Emergency
medical services notes regarding the participant if available;
11. The police
report if available;
12. A copy of:
a. The
participant’s advance directive, medical order for scope of treatment, living
will, or health care directive if applicable;
b. The
cardiopulmonary resuscitation and first aid card for any HCB provider’s staff
member who was present at
the time of the incident that resulted in the participant’s
death;
13. A record of all
medical appointments or emergency room visits by the participant within the
past twelve (12) months; and
14. A record of any
crisis training for any staff member present at the time of the incident that
resulted in the participant’s death.
(4) An HCB provider
shall report a medication error by making an entry into the MWMA portal.
Section 10. Involuntary
Termination of HCB Waiver Services. (1) If the department involuntarily
terminates a participant’s participation in the HCB waiver program,
the department shall:
(a) Notify in
writing of the decision to terminate services the:
1. Participant’s
independent assessor;
2. Participant,
participant’s guardian, or participant’s legal representative;
3. Participant’s case
manager; and
4. Participant’s
HCB waiver service providers; and
(b) Inform the
participant, participant’s guardian, or participant’s legal representative of
the right to appeal the department’s decision to terminate HCB waiver services.
(2)(a) If an HCB waiver provider involuntarily
terminates providing HCB waiver services to a participant, the HCB waiver
provider shall:
1. At least thirty (30) days prior to the
effective date of the termination:
a. Simultaneously notify in writing the:
(i) Participant, participant’s
guardian, or participant’s legal representative;
(ii) Participant’s case
manager;
(iii) The participant’s
independent assessor; and
(iv) Department;
2. Document the termination in the MWMA
portal; and
3. In conjunction with the participant’s
case manager:
a. Provide the participant, participant’s
guardian, or participant’s legal representative with the name, address, and
telephone number of each HCB waiver provider in Kentucky;
b. Provide assistance to the participant,
participant’s guardian, or participant’s legal representative in contacting
another HCB waiver provider; and
c. Provide a copy of pertinent
information to the participant, participant’s guardian, or participant’s legal
representative.
(b) The notice referenced in paragraph
(a) of this subsection shall include:
1. A statement of the
intended action;
2. The basis for
the intended action;
3. The authority by
which the intended action is taken; and
4. The
participant’s right to appeal the intended action through the provider’s appeal
or grievance process.
Section 11. Use of Electronic Signatures.
The creation, transmission, storage, and other use of electronic signatures and
documents shall comply with the requirements established in KRS 369.101 to
369.120.
Section 12. Applicability and Transition
to Version 2. (1) The provisions and requirements established in this
administrative regulation shall not apply to individuals receiving HCB waiver
services version 1 pursuant to 907 KAR 1:160.
(2) A participant receiving services
pursuant to 907 KAR 1:160 shall transition to receiving services pursuant to this
administrative regulation upon the participant’s next level-of-care
determination provided that the determination confirms that the individual is
still eligible for HCB waiver services.
Section 13. Appeal Rights. An appeal of a
department determination regarding NF level of care or services to a
participant shall be in accordance with 907 KAR 1:563.
Section 14. Incorporation by Reference.
(1) The following material is incorporated by reference:
(a) "MAP – 115
Application Intake – Participant Authorization", May 2015;
(b) "MAP – 116
Service Plan – Participant Authorization", May 2015;
(c) "MAP – 531
Conflict-Free Case Management Exemption", May 2015;
(d) "PDS
Request Form for Immediate Family Member, Guardian, or Legally Responsible Individual
as a Paid Service Provider", August 1, 2015;
(e) "MAP-350, Long Term Care
Facilities and Home and Community Based Program Certification Form", June
2015;
(f) "MAP 2000,
Initiation/Termination of Participant-Directed Services", June 2015;
(g) "MAP-10, Waiver Services
Physician’s Recommendation", June 2015;
(h) "Kentucky Participant-Directed
Services Employee Provider Contract", June 2015; and
(i) "Kentucky Home Assessment Tool
(K-HAT)", July 1, 2015.
(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: October 13, 2015
FILED WITH LRC: October 14, 2015 at 1
p.m.
PUBLIC HEARING AND PUBLIC COMMENT PERIOD:
A public hearing on this administrative regulation shall, if requested, be held
on November 23, 2015, at 9:00 a.m. in Suite B of the Health Services
Auditorium, Health Services Building, First Floor, 275 East Main Street,
Frankfort, Kentucky 40621. Individuals interested in attending this hearing
shall notify this agency in writing November 16, 2015, five (5) workdays prior
to the hearing, of their intent to attend. If no notification of intent to
attend the hearing is received by that date, the hearing may be canceled. The
hearing is open to the public. Any person who attends will be given an
opportunity to comment on the proposed administrative regulation. A transcript
of the public hearing will not be made unless a written request for a transcript
is made. If you do not wish to attend the public hearing, you may submit
written comments on the proposed administrative regulation. You may submit
written comments regarding this proposed administrative regulation until November
30, 2015. Send written notification of intent to attend the public hearing or
written comments on the proposed administrative regulation to:
CONTACT PERSON: Tricia Orme, tricia.orme@ky.gov, Office of Legal Services, 275 East Main
Street 5 W-B, Frankfort, Kentucky 40601, phone (502) 564-7905, fax (502)
564-7573.
REGULATORY IMPACT
ANALYSIS And Tiering Statement
Contact Person: Stuart Owen
(1) Provide a brief summary of:
(a) What this administrative regulation
does: This administrative regulation establishes the Medicaid program coverage
provisions and requirements regarding a new version – Version 2 – of home and
community based (HCB) waiver services. The HCB program enables individuals who
have nursing facility level-of-care needs to live, and receive services, in a
community setting rather than in a nursing facility. Individuals will be
transitioned to the new version of the HCB program at the time of their next
level-of-care certification/determination. The certification is a process that
assesses the individual to determine if they still meet HCB waiver program
participation criteria (i.e. still have nursing facility level-of-care needs).
Differences between Version 2 and Version 1 include establishing new
federally-mandated case management requirements (that case management be free
from conflict of interest); 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; establishing a person-centered service plan along with associated
requirements (federally mandated) for each program participant. The
over-arching requirement of the person-centered service plan is to more greatly
involve and afford more choice by the participant and/or participant’s
representative in designing the plan and related components as well as better
enable them to assimilate into their community. Additional differences include
adding home-delivered meals as a covered service; creating a new service (home
and community supports) by consolidating former services (homemaking and
personal care); establishing a specialized and non-specialized version of
respite; adding a new service called participant-directed service (PDS) coordination;
adds new rights that must be guaranteed for individuals receiving services; require
providers to check the Caregiver Misconduct Registry before hiring an
individual and prohibits the hiring of anyone listed on the registry; and narrows
the classes of incidents (to be reported) from two (2) classes to one (1) class
(critical).
(b) The necessity of this administrative
regulation: The administrative regulation is necessary to establish coverage
policies for a new version – Version 2 - of Medicaid’s home and community based
waiver program and in accordance with federal requirements.
(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 coverage provisions and requirements for a new version of a program
that enables individuals who have nursing facility level-of-care needs to live,
and receive services, in a community setting rather than in a nursing facility.
(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
nursing facility level-of-care needs to live, and receive services, in a
community setting rather than in a nursing facility.
(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. This is a new administrative regulation
rather than an amendment.
(b) The necessity of the amendment to
this administrative regulation: This is a new administrative regulation rather
than an amendment.
(c) How the amendment conforms to the
content of the authorizing statutes: This is a new administrative regulation
rather than an amendment.
(d) How the amendment will assist in the
effective administration of the statutes: This is a new administrative
regulation rather than an amendment.
(3) List the type and number of
individuals, businesses, organizations, or state and local government affected
by this administrative regulation: Currently sixty-three (63) providers (home
health departments and adult day health care centers) enrolled as HCB waiver
program providers and over 9,500 individuals are receiving services through 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: Federal funds authorized under the Social Security Act,
Title XIX and state matching funds from general fund and restricted fund
appropriations are utilized to fund the this administrative regulation.
(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 SCL program that means that the individual who provides case
management to a given waiver participant provide actual SCL waiver services or
work for an entity that provides actual SCL waiver services or entity that has
a business interest in a provider of actual SCL 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 amendment will be budget neutral for the first year.
(d) How much will it cost to administer
this program for subsequent years? DMS anticipates that the amendment will be budget
neutral 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:
