907 KAR 7:010. Home and community based waiver services Version 2

Link to law: http://www.lrc.ky.gov/kar/907/007/010reg.htm
Published: 2015

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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: