907 KAR 1:160. Home and community based waiver services Version 1

Link to law: http://www.lrc.ky.gov/kar/907/001/160reg.htm
Published: 2015

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CABINET FOR HEALTH AND

FAMILY SERVICES

Department for Medicaid

Services

Division of Community

Alternatives

(Amendment)

 

      907 KAR 1:160. Home and community

based waiver services version 1.

 

      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[the

provision of medical assistance to Kentucky's indigent citizenry. KRS

205.5606(1) requires the cabinet to promulgate administrative regulations to establish

a consumer-directed services program to provide an option for the home and

community based services waiver]. This administrative regulation

establishes the provisions for home and community based waiver services version

1, including participant-[a consumer]directed services[option]

pursuant to KRS 205.5606.

 

      Section 1. Definitions. (1) "1915(c)

home and community based services waiver program" means a Kentucky

Medicaid program established pursuant to and in accordance with 42 U.S.C.

1396n(c).

      (2) "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)[(2)]

"ADHC center" means an adult day health care center licensed in accordance

with 902 KAR 20:066.

      (5)[(3)] "ADHC

services" means health-related services provided on a regularly-scheduled

basis that ensure optimal functioning of a participant[an HCB recipient] who does not require twenty-four (24) hour care in an

institutional setting.

      (6)[(4)] "Advanced

practice registered nurse[practitioner]" or "APRN[ARNP]"

means a person who acts within his or her scope of practice and is licensed in

accordance with KRS 314.042.

      (7)[(5)] "Assessment

team" means a team that[which]:

      (a) Conducts assessment or

reassessment services; and

      (b) Consists of:

      1. Two (2) registered nurses;

or

      2. One (1) registered nurse and one

(1) of the following:

      a. A certified social worker;

      b. A certified psychologist with

autonomous functioning;

      c. A licensed psychological practitioner;

      d. A licensed marriage and family

therapist;[or]

      e. A licensed professional clinical

counselor; or

      f. A licensed clinical social worker.

      (8)[(6)] "Blended

services" means a nonduplicative combination of HCB waiver services

identified in Section 5 of this administrative regulation and PDS[CDO

services] identified in Section 6 of this administrative regulation

provided pursuant to a recipient's approved plan of care.

      (9)[(7)] "Budget

allowance" is defined by KRS 205.5605(1).

      (10)[(8)] "Certified

psychologist

with autonomous functioning" or "licensed psychological

practitioner" means a person licensed pursuant to KRS Chapter 319.

      (11) "Certified social worker"

means an individual who meets the requirements established in KRS 335.080.

      (12) "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.

      (13)[(9)] "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.

      (14)[(10) "Consumer"

is defined by KRS 205.5605(2).

      (11) "Consumer-directed

option" or "CDO" means an option established by KRS 205.5606

within the home- and community-based services waiver that allows recipients to:

      (a) Assist with the design

of their programs;

      (b) Choose their providers

of services; and

      (c) Direct the delivery of

services to meet their needs.

      (12)] "Covered

services and supports" is defined by KRS 205.5605(3).

      (15)[(13)] "DCBS"

means the Department for Community Based Services.

      (16)[(14)] "Department"

means the Department for Medicaid Services or its designee.

      (17)[(15)] "Electronic

signature" is defined by KRS 369.102(8).

      (18) "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.

      (19)[(16) "HCB

recipient" means an individual who:

      (a) Is a recipient as

defined by KRS 205.8451(9);

      (b) Meets the NF level of

care criteria established in 907 KAR 1:022; and

      (c) Meets the eligibility

criteria for HCB waiver services established in Section 4 of this

administrative regulation.

      (17)] "Home and

community based waiver services" or "HCB waiver services" means

home and community based waiver services:

      (a) For individuals

who meet the requirements of Section 4 of this administrative regulation;

and

      (b) Covered by the

department pursuant to this administrative regulation.

      (20)[(18)] "Home

and community support services" means nonresidential and nonmedical home

and community based services and supports that:

      (a) Meet the participant’s[consumer's]

needs; and

      (b) Constitute a

cost-effective use of funds.

      (21)[(19)] "Home

health agency" means an agency that is:

      (a) Licensed in accordance

with 902 KAR 20:081; and

      (b) Medicare and Medicaid

certified.

      (22) "Illicit drug" means:

      (a) A drug,

prescription or not prescription, used illegally or in excess of therapeutic levels;

or

      (b) A prohibited

drug.

      (23) "Licensed clinical social

worker" means an individual who meets the requirements established in KRS

335.100.

      (24)[(20)] "Licensed

marriage and family therapist" or "LMFT" is defined by KRS

335.300(2).

      (25)[(21)] "Licensed

practical nurse" or "LPN" means a person who:

      (a) Meets the definition

established by[in] KRS 314.011(9); and

      (b) Works under the

supervision of a registered nurse.

      (26)[(22)] "Licensed

professional clinical counselor" or "LPCC" is defined by KRS

335.500(3)

      (27) "Neglect"

regarding:

      (a) An adult is defined by

KRS 209.020(16); or

      (b) A child means neglect

pursuant to KRS Chapter 600 or 620.

      (28)[(23)] "NF"

means nursing facility.

      (29)[(24)] "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.

      (30)[(25)] "Normal baby sitting" means

general care provided to a child that[which] includes custody,

control, and supervision.

      (31)[(26)] "Occupational therapist" is

defined by KRS 319A.010(3).

      (32)[(27)] "Occupational therapy

assistant" is defined by KRS 319A.010(4).

      (33) "Participant" means a

recipient who meets the:

      (a) NF level of care

criteria established in 907 KAR 1:022; and

      (b) Eligibility criteria for

HCB waiver services established in Section 4 of this administrative regulation.

      (34)[(28)] "Patient liability" means

the financial amount an individual is required to contribute toward cost of

care in order to maintain Medicaid eligibility.

      (35) "PDS" means

participant-directed services.

      (36) "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

including 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.

      (37)[(29)] "Physical

therapist" is defined by KRS 327.010(2).

      (38)[(30)] "Physical

therapist assistant" means a skilled health care worker who:

      (a) Is certified by the Kentucky Board of

Physical Therapy; and

      (b) Performs physical therapy and related duties as assigned by the supervising physical

therapist.

      (39)[(31)] "Physician assistant" or "PA" is

defined by KRS 311.840(3).

      (40)[(32)] "Plan of care" or "POC" means a written

individualized comprehensive plan that:

      (a) Encompasses all HCB

waiver services; and

      (b) Is developed by a

participant[an HCB recipient] or a participant’s[an HCB

recipient's] legal representative, case manager, or other individual

designated by the participant[HCB recipient].

      (41)[(33)] "Plan of treatment" means a care plan developed

and used by an ADHC center based on the recipient's individualized ADHC service

needs, goals, interventions and outcomes.

      (42) "Prohibited drug" means

a drug or substance that is illegal under KRS Chapter 218A or statutes or

administrative regulations of the Commonwealth of Kentucky.

      (43)[(34)] "Registered nurse" or "RN" means a person

who:

      (a) Meets the definition

established by[in] KRS 314.011(5); and

      (b) Has one (1) year or more

experience as a professional nurse.

      (44)[(35)] "Representative" is defined by KRS 205.5605(6).

      (45)[(36)] "Sex crime" is defined by KRS 17.165(1).

      (46)[(37) "Social worker" means a person with a bachelor's

degree in social work, sociology, or a related field.

      (38)] "Speech-language pathologist" is defined by KRS

334A.020(3).

      (47)[(39)] "Support broker" means an individual chosen by a participant[consumer]

from an agency designated by the department to:

      (a) Provide training,

technical assistance, and support to a participant[consumer]; and

      (b) Assist a participant[consumer]

in any other aspects of PDS [CDO].

      (48)[(40)] "Support spending plan" means a plan for a participant[consumer]

that identifies the:

      (a) PDS[CDO

services] requested;

      (b) Employee name;

      (c) Hourly wage;

      (d) Hours per month;

      (e) Monthly pay;

      (f) Taxes; and

      (g) Budget allowance.

      (49)[(41)] "Violent crime" is defined by KRS 17.165(3).

      (50) "Violent

offender" is defined by KRS 17.165(2).

 

      Section 2. Provider

Participation. (1) In order to provide HCB waiver services version 1, excluding

participant-[consumer] directed [option] services, an

HCB waiver[a] provider shall be a home health agency or ADHC center

that provides services:

      (a) Directly; or

      (b) Indirectly through a

subcontractor.

      (2) An out-of-state provider

shall comply with the requirements of this administrative regulation.

      (3) An HCB waiver[A]

provider[shall]:

      (a) Shall comply with the

following administrative regulations and program requirements:

      1. 902 KAR 20:081[,

Operations and services; home health agencies];

      2. 907 KAR 1:671[,

Conditions of Medicaid provider participation; withholding overpayments,

administrative appeal process, and sanctions];

      3. 907 KAR 1:672[,

Provider enrollment, disclosure, and documentation for Medicaid participation];

      4. 907 KAR 1:673[, Claims

processing];

      5. The Department for

Medicaid Services Home and Community Based Waiver Services Manual; and

      6. The Department for

Medicaid Services Adult Day Health Care Services Manual;

      (b) Shall not enroll a

participant[an HCB recipient] for whom the provider cannot provide

HCB waiver services;

      (c) Shall be permitted to accept or not accept a participant[an

HCB recipient];

      (d) Shall implement a procedure to ensure that the following

is reported:

      1. Abuse, neglect, or exploitation of a

participant[an HCB recipient] in accordance with KRS Chapters 209 or

620;

      2. A slip or fall;

      3. A transportation incident;

      4. Improper administration of

medication;

      5. A medical complication; or

      6. An incident caused by the

recipient, including:

      a. Verbal or physical abuse

of staff or other recipients;

      b. Destruction or damage of

property; or

      c. Recipient self-abuse;

      (e) Shall ensure a copy of each

incident reported in accordance with paragraph (d) of this subsection is

maintained in a central file subject to review by the department;

      (f) Shall implement a process for communicating the incident,

the outcome, and the prevention plan to:

      1. A participant[an HCB recipient],

family member, or [his] responsible party; and

      2. The attending physician, PA, or APRN[ARNP];

      (g) Shall maintain documentation of any communication

provided in accordance with paragraph (f) of this subsection. The documentation

shall be:

      1. Recorded in the participant’s[HCB

recipient’s] case record; and

      2. Signed and dated by the staff member

making the entry;

      (h) Shall implement a procedure that ensures the reporting of a

recipient or any interested party's complaint against the provider or its personnel

to the provider agency or facility;

      (i) Shall ensure that

a copy of each complaint reported is maintained in a central file subject to

review by the department;

      (j) Shall implement a

process for communicating a complaint, the resulting outcome, and related prevention

plan to:

      1. The participant[HCB

recipient], family member, or the participant’s[HCB recipient’s] responsible party; and

      2. The attending physician,

PA, or APRN[ARNP] if appropriate;

      (k) Shall maintain

documentation of any communication provided in accordance with paragraph (j) of

this subsection. The documentation shall be:

      1. Recorded in the participant’s[HCB

recipient’s] case record; and

      2. Signed and dated by the

staff member making the entry;

      (l) Shall inform a

recipient or any interested party in writing of the provider's:

      1. Hours of operation; and

      2. Policies and procedures;

      (m) Shall not permit a

staff member who has contracted a communicable disease to provide a service to a participant[an HCB recipient]

until the condition is determined to no longer be contagious;[and]

      (n) Shall ensure that

a staff member who provides direct services:

      1. Demonstrates the ability

to:

      a. Read;

      b. Write;

      c. Understand and carry out

instructions;

      d. Keep simple records; and

      e. Interact with a participant[an HCB recipient] when providing an HCB waiver service;

      2. Is trained by an HCB

waiver provider; and

      3. Is supervised by an RN at

least every other month;

      (o) 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

cardio pulmonary resuscitation certification and first aid certification provided

by a nationally accredited entity within six (6) months of employment;

      3. Maintains current CPR

certification and first aid certification for the duration of the staff

person’s employment;

      4.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

      5. Prior to the

beginning of employment, has successfully passed a drug test with no indication

of prohibited or illicit drug use;

      (p) Prior to hiring an individual:

      1. Shall obtain:

      a. The result 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;

      b. 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;

      c. 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

      d. Within thirty

(30) days of the date of hire, 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

      (q) 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 the

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.

 

      Section 3. Maintenance of

Records. (1) An HCB waiver provider shall maintain:

      (a) A clinical record for

each participant[HCB recipient]. The clinical record shall contain

the following:

      1. Pertinent medical,

nursing, and social history;

      2. A comprehensive assessment

entered on form MAP-351, Medicaid Waiver Assessment and signed by the:

      a. Assessment team; and

      b. Department;

      3. A completed MAP 109,

Plan of Care/Prior Authorization for Waiver Services;

      4. A copy of the MAP-350, Long Term Care

Facilities and Home and Community Based Program Certification Form signed by the

recipient or recipient's[his] legal representative at the time of

application or reapplication and each recertification thereafter;

      5. The name of the case

manager;

      6. Documentation of all level

of care determinations;

      7. All documentation related

to prior authorizations, including requests, approvals, and denials;

      8. Documentation of each contact

with, or on behalf of, a

participant[an

HCB recipient];

      9. Documentation that the participant[HCB

recipient] receiving ADHC services was provided a copy of the ADHC center’s

posted hours of operation;[and]

      10. Documentation that the participant[recipient]

or legal representative was informed of the procedure for reporting complaints;

and

      11.

Documentation of each service provided that shall include:

      a. The date the service was

provided;

      b. The duration of the

service;

      c. The arrival and departure

time of the provider, excluding travel time, if the service was provided at the

participant’s[HCB recipient’s] home;

      d. Itemization of each personal

care or homemaking service delivered;

      e. The participant’s[HCB

recipient’s] arrival and departure time, excluding travel time, if the

service was provided at the ADHC center;

      f. Progress notes,

which shall include

documentation of changes, responses, and treatments utilized to evaluate

the participant’s[HCB recipient’s] needs; and

      g. The name, title, and

signature of the service provider; and

      (b) Fiscal reports, service

records, and incident reports regarding services provided. These reports shall

be retained:

      1. At least six (6) years

from the date that a covered service is provided; or

      2. For a minor, three

(3) years after the recipient reaches the age of majority under state law, whichever

is longest.

      (2) Upon request, an HCB waiver

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) Department for Health and

Human Services or its designee;

      (d) General Accounting Office

or its designee;

      (e) Office of the Auditor of

Public Accounts or its designee; or

      (f) Office of the Attorney

General or its designee.

 

      Section 4. Participant[HCB

Recipient] Eligibility Determinations and Redeterminations. (1) An HCB

waiver service shall be provided to a Medicaid eligible participant[HCB

recipient] who:

      (a) Is determined by the

department to meet NF level of care requirements; and

      (b) Would, without waiver

services, be admitted by a physician's order to an NF.

      (2) The department shall

perform an NF level of care determination for each participant[HCB

recipient] at least once every twelve (12) months or more often if necessary.

      (3) An HCB waiver service

shall not be provided to an individual who:

      (a) Does not require a

service other than:

      1. A minor home adaptation;

      2. Case management; or

      3. A minor home adaptation

and case management;

      (b) Is an inpatient of:

      1. A hospital;

      2. An NF; or

      3. An intermediate care

facility for individuals with an intellectual disability[an individual

with mental retardation or a developmental disability];

      (c) Is a resident of a licensed

personal care home; or

      (d) Is receiving services

from another 1915(c)[Medicaid] home and community based services

waiver program.

      (4) An HCB waiver provider

shall:

      (a) Inform a participant[an HCB recipient] or the participant’s[his] legal representative

of the choice to receive:

      1. HCB waiver services; or

      2. Institutional services;

and

      (b) Require a participant[an HCB recipient]

to sign a MAP-350, Long Term Care Facilities

and Home and Community Based Program Certification Form at the time of application or reapplication and at each

recertification to document that the individual was informed of the choice to receive

HCB waiver or institutional services.

      (5) An eligible participant[HCB

recipient] or the participant’s[recipient's] legal representative

shall select a participating HCB waiver provider from which the participant[recipient]

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 use a MAP-24, Memorandum to notify the local DCBS office and the

department of a

participant’s[an

HCB recipient’s]:

      (a) Termination from the HCB

waiver program; or

      (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.

 

      Section 5. Covered Services.

(1) An HCB waiver service shall:

      (a) Be prior authorized by

the department to ensure that the service or modification of the service already

meets the needs of the participant[HCB recipient];

      (b) Be provided pursuant to a

plan of care or, for a PDS[CDO service], pursuant to a plan of

care and support spending plan;

      (c) Except for a PDS[CDO

service], not be provided by a member of the participant’s[HCB

recipient’s] family. A PDS[CDO service] may be provided by a participant’s[an HCB recipient’s] family member; and

      (d) Be accessed within sixty

(60) days of the date of prior authorization.

      (2) To request prior

authorization, a provider shall submit a completed MAP 10, MAP 109, Plan of

Care/Prior Authorization for Waiver Services, and MAP 351, Medicaid

Waiver Assessment to the department.

      (3) Covered HCB services

shall include:

      (a) A comprehensive

assessment, which shall:

      1. Identify a participant’s[an HCB recipient’s ]

needs and the services that the participant[HCB

recipient] or the participant’s[recipient's] family cannot

manage or arrange for on the participant’s[recipient's] behalf;

      2. Evaluate a participant’s[an HCB recipient’s] physical health, mental health, social supports, and environment;

      3. Be requested by an

individual seeking HCB waiver services or the individual's family, legal

representative, physician, physician assistant, or APRN[ARNP];

      4. Be conducted by an

assessment team within seven (7) calendar days of receipt of the request for

assessment; and

      5. Include at least one (1)

face-to-face home visit by a member of the assessment team with the participant[HCB

recipient] and, if appropriate, the participant’s[recipient's]

family;

      (b) A reassessment service,

which shall:

      1. Determine the continuing

need for HCB waiver services and, if appropriate, PDS[CDO services];

      2. Be performed at least every

twelve (12) months;

      3. Be conducted using the

same procedures used in an assessment service;

      4. Not be retroactive; and

      5. Be initiated by an HCB

waiver provider or support broker who shall:

      a. Notify the department no

more than three (3) weeks prior to the expiration of the current level of care

certification to ensure that certification is consecutive; and

      b. Not be reimbursed for a

service provided during a period that a participant[an HCB recipient] is not covered by a valid level of care certification;

      (c) A case management service,

which shall:

      1. Consist of coordinating

the delivery of direct and indirect services to a participant[an HCB recipient];

      2. Be provided by a case

manager who shall:

      a. Be an RN, LPN, certified

social worker, certified psychologist with autonomous functioning, licensed

psychological practitioner, LMFT, licensed clinical social worker, or an

LPCC;

      b. Arrange for a service but

not provide a service directly;

      c. Contact the participant[HCB

recipient] monthly by telephone or through a face-to-face visit at the participant’s[HCB

recipient’s] residence or in the ADHC center, with a minimum of one (1)

face-to-face visit between the case manager and the participant[recipient]

every other month; and

      d. Assure that service

delivery is in accordance with a participant’s[an HCB recipient’s] plan of care;

      3. Not include a group

conference; and

      4. Include development of a

plan of care that shall:

      a. Be completed on the MAP

109, Plan of Care/Prior Authorization for Waiver Services;

      b. Reflect the needs of the participant[HCB

recipient];

      c. List goals, interventions,

and outcomes;

      d. Specify services needed;

      e. Determine the amount,

frequency, and duration of services;

      f. Provide for reassessment

at least every twelve (12) months;

      g. Be developed and signed by

the assessment team, case manager, and participant[HCB recipient]

or participant’s[his] family; and

      h. Be submitted to the

department no later than thirty (30) calendar days after receiving the

department's verbal approval of NF level of care;

      (d) A homemaker service,

which shall consist of general household activities and shall be provided:

      1. By staff pursuant to

Section 2(3)(m) and (n) of this administrative regulation; and

      2. To a participant[an HCB recipient]:

      a. Who is functionally unable,

but would normally perform age-appropriate homemaker tasks; and

      b. If the caregiver regularly

responsible for homemaker activities is temporarily absent or functionally

unable to manage the homemaking activities;

      (e) A personal care service,

which shall consist of age-appropriate medically-oriented services and be provided:

      1. By staff pursuant to

Section 2(3)(m) and (n) of this administrative regulation; and

      2. To a participant[an HCB recipient]:

      a. Who does not need highly

skilled or technical care;

      b. For whom services are

essential to the participant’s[recipient's] health and welfare

and not for the participant’s[recipient's] family; and

      c. Who needs assistance with

age-appropriate activities of daily living;

      (f) An attendant care service,

which shall consist of hands-on care that is:

      1. Provided by staff pursuant

to Section 2(3)(m) and (n) of this administrative regulation to a participant[an HCB recipient] who:

      a. Is medically stable but

functionally dependent and requires care or supervision twenty-four (24) hours

per day; and

      b. Has a family member or

other primary caretaker who is employed and not able to provide care during

working hours;

      2. Not of a general

housekeeping nature; and

      3. Not provided to a participant[an HCB recipient] who is receiving any of the following HCB waiver services:

      a. Personal care;

      b. Homemaker; or

      c. ADHC;

      (g) A respite care service,

which shall be short term care based on the absence or need for relief of the

primary caretaker and be:

      1. Provided by staff pursuant

to Section 2(3)(m) and (n) of this administrative regulation who provide services

at a level that appropriately and safely meets the medical needs of the participant[HCB

recipient] in the following settings:

      a. A participant’s[an HCB recipient’s] place of residence; or

      b. An ADHC center during

posted hours of operation;

      2. Provided to a participant[an HCB recipient]

who has care needs beyond normal baby sitting;

      3. Used no less than every

six (6) months; and

      4. Provided in accordance

with 902 KAR 20:066;

      (h) A minor home adaptation

service, which shall be a physical adaptation to a home that is

necessary to ensure the health, welfare, and safety of a participant,[an HCB recipient] and which shall:

      1. Meet all applicable safety

and local building codes;

      2. Relate strictly to the participant’s[HCB

recipient’s] disability and needs;

      3. Exclude an adaptation or

improvement to a home that has no direct medical or remedial benefit to the participant[HCB

recipient]; and

      4. Be submitted on form

MAP-95 Request for Equipment Form for prior authorization; or

      (i) An ADHC service,

which shall:

      1. Except for a participant[an HCB recipient] approved for an ADHC service prior to May 1, 2003, be

provided to a participant[an HCB recipient] who is at least twenty-one (21) years of age;

      2. Include the following

basic services and necessities provided to participants[Medicaid

waiver recipients] 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[Supervision

by] 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[an HCB recipient], 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[an HCB recipient];

      3. Include developing,

implementing, and maintaining nursing policies for nursing or medical

procedures performed in the ADHC center;

      4. Include ancillary services

in accordance with 907 KAR 1:023, if ordered by a physician, PA, or APRN[ARNP]

in a

participant’s[an

HCB recipient’s] ADHC plan of treatment.

Ancillary services shall:

      a. Consist of evaluations or

reevaluations for the purpose of developing a plan, which shall be

carried out by the participant[HCB recipient] or ADHC center

staff;

      b. Be reasonable and

necessary for the participant’s[HCB recipient’s] condition;

      c. Be rehabilitative in

nature;

      d. Include physical therapy

provided by a physical therapist or physical therapist[therapy]

assistant, occupational therapy provided by an occupational therapist or

occupational therapy[therapist] assistant, or speech therapy

provided by a speech-language pathologist; and

      e. Comply with the physical,

occupational, and speech therapy requirements established in Technical Criteria

for Reviewing Ancillary Services for Adults;

      4. Include respite care

services pursuant to paragraph (g) of this subsection;

      5. Be provided to a participant[an HCB recipient] by the health team in an ADHC center, which may include:

      a. A physician;

      b. A physician assistant;

      c. An APRN[ARNP];

      d. An RN;

      e. An LPN;

      f. An activities director;

      g. A physical therapist;

      h. A physical therapist

assistant;

      i. An occupational therapist;

      j. An occupational therapy

assistant;

      k. A speech pathologist;

      l. A certified social

worker;

      m. A licensed clinical

social worker;

      n. A nutritionist;

      o.[n.] A health

aide;

      p.[o.] An LPCC;

      q.[p.] An LMFT;

      r.[q.] A

certified psychologist with autonomous functioning; or

      s.[r.] A

licensed psychological practitioner; and

      7. Be provided pursuant to a

plan of treatment. The plan of treatment shall:

      a.[(i)] Be

developed and signed by each member of the plan of treatment team, which

shall include the participant[recipient] or a legal

representative of the participant[recipient];

      b.[(ii)] Include

pertinent diagnoses, mental status, services required, frequency of visits to

the ADHC center, prognosis, rehabilitation potential, functional limitation,

activities permitted, nutritional requirements, medication, treatment, safety

measures to protect against injury, instructions for timely discharge, and

other pertinent information; and

      c.[(iii)] Be

developed annually from information on the MAP 351, Medicaid Waiver

Assessment and revised as needed.

      (4) Modification of an

ancillary therapy service or an ADHC unit of service shall require prior

authorization as established in this subsection.[follows:]

      (a) Prior authorization shall:

      1. Be requested by an RN or

designated ADHC center staff; and

      2. Require submission of a

revised MAP 109, Plan of Care/Prior Authorization for Waiver Services

and an order signed by a physician, physician assistant, or APRN.[ARNP;]

      (b) An RN or designated ADHC

center staff shall forward a copy of the documents required in paragraph (a) of

this subsection to the HCB case manager or the participant’s[consumer's]

support broker for inclusion in the participant’s[HCB recipient’s]

case records within ten (10) working days of the prior authorization request.[;

and]

      (c) Upon approval or denial

of a prior authorization request, the department shall provide written

notification to the HCB agency, the ADHC center, and the participant[HCB

recipient].

      (d) The case manager or

support broker shall:

      1. Inform the ADHC center

of approval or denial; and

      2. Document the approval

or denial in the case record.

      (5)(a) An ADHC center shall maintain a

sign in and out log documenting the provision of services to participants.

      (b) Documentation shall include:

      1. The date the service was provided;

      2. The duration of the service;

      3. The arrival and departure time of

the participant;

      4. A description of the service

provided; and

      5. The title and signature of the

staff who provided the service.

 

      Section 6. Participant-[Consumer]

Directed Services[Option]. (1) Covered services and supports provided to a

participant[an HCB recipient] participating in PDS[CDO]

shall include:

      (a) A home and community support service, which shall:

      1. Be available only under the participant-[consumer]

directed services [option];

      2. Be provided in the participant’s[consumer's]

home or in the community;

      3. Be based upon therapeutic goals and

not divisional in nature; and

      4. Not be provided to a participant[an

individual] if the same or similar service is being provided to the participant[individual]

via non-PDS[CDO] HCB waiver services; or

      (b) Goods and services, which shall:

      1. Be individualized;

      2. Meet identified needs required by the participant’s[individual's]

plan of care that[which] are necessary to ensure the health,

welfare and safety of the participant[individual];

      3. Be items or minor adaptations[in

the] that are utilized to reduce the need for personal care or to enhance

independence within the home or community of the participant[recipient];

      4. Not include experimental goods or services;

and

      5. Not include chemical or physical restraints.

      (2) To be covered, a PDS[CDO

service] shall be specified in the plan of care.

      (3) Reimbursement for a PDS[CDO

service] shall not exceed the department’s allowed reimbursement for the

same or similar service provided in a non-PDS[CDO] HCB setting.

      (4) A participant[consumer],

including a married participant[consumer], shall choose providers

and a participant’s[consumer's] choice shall be reflected or documented

in the plan of care.

      (5)(a) A participant[consumer]

may designate a representative to act on the participant’s[consumer's] behalf.

      (b) A PDS[The CDO]

representative shall:

      1.[(a)] Be twenty-one (21)

years of age or older;

      2.[(b)] Not be monetarily

compensated for acting as the PDS [CDO] representative or

providing a PDS[CDO service];[and]

      3.[(c)] Be appointed by the

participant[consumer] on a MAP 2000, Initiation/Termination of

Participant-Directed Services;

      4. Comply with the requirements for background

and related checks established in Section 2(3)(p) of this administrative

regulation; and

      5. Not be a PDS representative if

found in violation of any of the provisions established in subsection (11)(i) of

this section[form].

      (6) A participant[consumer]

may voluntarily terminate PDS[CDO services] by completing a MAP 2000,

Initiation/Termination of Participant-Directed Services and submitting it

to the support broker.

      (7) The department shall immediately

terminate a participant[consumer] from PDS[CDO services] if:

      (a) Imminent danger to the participant’s[consumer's]

health, safety, or welfare exists;

      (b) The participant[consumer]

fails to pay patient liability;

      (c) The participant’s[consumer's] plan of care indicates he or she

requires more hours of service than the program can provide, which may

jeopardize the participant’s[consumer's] safety and welfare due to being

left alone without a caregiver present; or

      (d) The participant[consumer],

caregiver, family, or guardian threaten or intimidate a support broker

or other PDS[CDO] staff.

      (8) The department may terminate a participant[consumer]

from PDS[CDO

services] if it determines that the participant’s

PDS[consumer's CDO]

provider has not adhered to the plan of care.

      (9) Except as provided in subsection (7)

of this section to a participant’s[consumer's] termination from PDS[CDO

services], the support broker shall:

      (a) Notify the assessment or reassessment

service provider of potential termination;

      (b) Assist the participant[consumer]

in developing a resolution and prevention plan;

      (c) Allow at least thirty (30) but no

more than ninety (90) days for the participant[consumer] to

resolve the issue, develop and implement a prevention plan, or designate

a PDS[CDO] representative;

      (d) Complete[,] and submit to the

department[,] a MAP 2000, Initiation/Termination of

Participant-Directed Services terminating the participant[consumer]

from PDS[CDO

services] if the participant[consumer] fails to meet

the requirements in paragraph (c) of this subsection; and

      (e) Assist the participant[consumer]

in transitioning back to traditional HCB waiver services.

      (10) Upon an involuntary termination of PDS[CDO services],

the department shall:

      (a) Notify a participant[consumer]

in writing of its decision to terminate the participant’s PDS[consumer’s

CDO] participation; and

      (b) Except if a participant[in

a case where a consumer] failed to pay patient liability, inform the participant[consumer]

of the right to appeal the department’s decision in accordance with Section 9[8]

of this administrative regulation.

      (11) A PDS[CDO] provider

shall:

      (a) Be selected by the participant[consumer];

      (b) Submit a completed Kentucky Participant-[Consumer]

Directed Services[Option] Employee Provider Contract to the

support broker;

      (c) Be eighteen (18) years of age or

older;

      (d) Be a citizen of the United States

with a valid Social Security number or possess a valid work permit if not a

U.S. citizen;

      (e) Be able to communicate effectively

with the participant[consumer], participant[consumer] representative, or family;

      (f) Be able to understand and carry out instructions;

      (g) Be able to keep records as required

by the participant[consumer];

      (h) Submit to the[a criminal]

background and related checks established in Section 2(3)(p) of this

administrative regulation[check];

      (i) 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[Submit to a check of the nurse aide abuse registry

maintained in accordance with 906 KAR 1:100, and not be found on the registry];

      (j) Prior to the beginning of

employment,[Not have pled guilty or been convicted of committing a sex

crime or violent crime as defined in KRS 17.165(1) through (3);

      (k)] complete training on the reporting

of abuse, neglect, or exploitation in accordance with KRS 209.030 or

620.030 and on the needs of the participant[consumer];

      (k) Comply with the TB risk assessment

and test requirements established in Section 2(3)(o)4 of this administrative

regulation;

      (l)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; and

      (m)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;

      (n)[(l)] Be approved by the

department;

      (o)[(m)] Maintain and

submit timesheets documenting hours worked; and

      (p)[(n)] Be a friend,

spouse, parent, family member, other relative, employee of a provider agency,

or other person hired by the participant[consumer].

      (12) A PDS provider[parent,

parents combined or a spouse] shall not provide more than forty (40) hours

of PDS[services] in a calendar week (Sunday through Saturday)[regardless

of the number of children who receive waiver services].

      (13)(a) The department shall establish a

budget for a participant[consumer] based on the individual’s

historical costs minus five (5) percent to cover costs associated with

administering the participant-[consumer] directed services[option].

If no historical cost exists for the participant[consumer], the participant’s[consumer's]

budget shall equal the average per capita, per service historical costs of HCB

recipients minus five (5) percent.

      (b) Cost of services authorized by the

department for the participant’s[individual’s] prior year plan of

care but not utilized may be added to the budget if necessary to meet the participant’s[individual’s]

needs.

      (c) The department shall adjust a participant’s[consumer's]

budget based on the participant’s[consumer's] needs and in accordance with

paragraphs (d) and (e) of this subsection.

      (d) A participant’s[consumer's] budget shall not be adjusted to

a level higher than established in paragraph (a) of this subsection unless:

      1. The participant’s[consumer's] support broker requests an

adjustment to a level higher than established in paragraph (a) of this subsection;

and

      2. The department approves the

adjustment.

      (e) The department shall consider the

following factors in determining whether to allow for a budget adjustment:

      1. If the proposed services are necessary

to prevent imminent institutionalization;

      2. The cost effectiveness of the proposed

services;

      3. Protection of the participant’s[consumer's]

health, safety and welfare; and

      4. If a significant change has occurred

in the participant’s[recipient's]:

      a. Physical condition resulting in

additional loss of function or limitations to activities of daily living and

instrumental activities of daily living;

      b. Natural support system; or

      c. Environmental living arrangement

resulting in the participant’s[recipient's] relocation.

      (f) A participant’s[consumer's] budget shall not exceed the average

per capital cost of services provided to individuals in an[a] NF.

      (14) Unless approved by the department

pursuant to subsection (13)(b) through (e) of this section, if a PDS[CDO

service] is expanded to a point in which expansion necessitates a budget

allowance increase, the entire service shall only be covered via a traditional

(non-PDS[CDO]) waiver service provider.

      (15) A support broker shall:

      (a) Provide any needed assistance to a participant[consumer]

with any aspect of PDS[CDO] or blended services;

      (b) Be available to a participant[consumer]

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[consumer's]

health, safety, and welfare; and

      (e) Complete or revise a plan of care

using the person-centered planning principles established in Person Centered

Planning: Guiding Principles.

      (16)(a) For a PDS[CDO] participant,

a support broker may conduct an assessment or reassessment; and

      (b) A PDS[CDO] assessment

or reassessment performed by a support broker shall comply with the assessment

or reassessment provisions established in Section 5(3) of this administrative

regulation.

 

      Section 7. Use of Electronic Signatures. (1)

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.

      (2) A home health provider that chooses

to use electronic signatures shall:

      (a) Develop and implement a written security

policy that shall:

      1. Be adhered to by each of the

provider's employees, officers, agents, and contractors;

      2. Identify each electronic signature for

which an individual has access; and

      3. Ensure that each electronic signature

is created, transmitted, and stored in a secure fashion;

      (b) Develop a consent form that shall:

      1. Be completed and executed by each

individual using an electronic signature;

      2. Attest to the signature's

authenticity; and

      3. Include a statement indicating that

the individual has been notified of his or her responsibility in

allowing the use of the electronic signature; and

      (c) Provide the department,

immediately upon request, with:

      1. A copy of the provider's electronic

signature policy;

      2. The signed consent form; and

      3. The original filed signature[immediately

upon request].

 

      Section 8. Applicability

and Transition to HCB Waiver Version 2. (1) The provisions

and requirements established in this administrative regulation shall:

      (a)

Apply to HCB waiver services provided to an HCB waiver service recipient until

the recipient transitions to the HCB waiver version 2; and

      (b) Not apply to

individuals receiving HCB waiver services version 2 pursuant to 907 KAR 7:010.

      (2)

An HCB waiver recipient receiving services pursuant to this administrative

regulation shall transition to receiving services pursuant to 907 KAR 7:010

upon the recipient’s next level-of-care determination provided that the

determination confirms that the individual is still eligible for HCB waiver

services.

      (3)

The provisions and requirements established in this administrative regulation

shall become null and void at the time that every eligible HCB waiver recipient

served in accordance with this administrative regulation has transitioned to the

HCB waiver services Version 2 program pursuant to 907 KAR 7:010.

 

      Section 9. Appeal

Rights. An

appeal of a department determination regarding NF level of care or services to a

participant[an HCB recipient or a consumer] shall be in accordance

with 907 KAR 1:563.

 

      Section 10.[9.]

Incorporation by Reference. (1) The following material is incorporated by reference:

      (a) "Department for

Medicaid Services Adult Day Health Care Services Manual", May 2005[edition];

      (b) "Department for Medicaid

Services Home and Community Based Waiver Services Manual", September 2006[edition];

      (c) "Person Centered Planning:

Guiding Principles", March 2005 [edition];

      (d) "Technical Criteria for

Reviewing Ancillary Services for Adults", November 2003[edition];

      (e) "MAP-24, [The Commonwealth of

Kentucky, Cabinet for Health and Family Services, Department for Community

Based Services] Memorandum", August 2008[February 2001 edition];

      (f) "MAP-95 Request for Equipment

Form" June 2007[edition];

      (g) "MAP 109, Plan of Care/Prior Authorization

for Waiver Services", July 2008[March 2007 edition];

      (h) "MAP-350, Long Term Care

Facilities and Home and Community Based Program Certification Form", July

2008[January 2000 edition];

      (i) "MAP-351,[The Department for

Medicaid Services,] Medicaid Waiver Assessment", July 2015;[March

2007 edition:]

      (j) "MAP 2000,

Initiation/Termination of Participant-[Consumer] Directed Services[Option

(CDO)]", June 2015[2007, edition];

      (k) "MAP-10, Waiver Services Physician’s

Recommendation", August 2014[March 2007 edition]; and

      (l) Kentucky Participant-[Consumer]

Directed Services[Option] Employee Provider Contract, June

2015[March 2008].

      (2) This material may be inspected,

copied, or obtained, subject to applicable copyright law, at the Department for

Medicaid Services, 275 East Main Street, Frankfort, Kentucky, 40621, Monday

through Friday, 8 a.m. to 4:30 p.m.907 KAR 1:160

 

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 home and community based (HCB) waiver

services. This program enables individuals who have nursing facility level of

care needs to be able to reside in and receive services in a community setting

(including their own residence) rather than have to be admitted to a nursing

facility.

      (b) The necessity of this administrative

regulation: This administrative regulation is necessary to establish the

Medicaid program coverage provisions and requirements regarding

      (c) How this administrative regulation

conforms to the content of the authorizing statutes: This administrative

regulation conforms to the content of the authorizing statutes by helping

enable individuals who have nursing facility level of care needs to reside in

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: This administrative regulation will assist in the effective

administration of the authorizing statutes by helping enable individuals who

have nursing facility level of care needs to reside in 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: The amendments including establishing that

the provisions in this administrative regulation apply to individuals receiving

services under the current version of this waiver program until they transition

to a new version – Version 2. The Department for Medicaid Services (DMS) is

concurrently promulgating administrative regulations (907 KAR 7:010 and 907 KAR

7:015) which establish provisions and requirements associated with Version 2 of

this waiver program. Individuals currently receiving HCB waiver services will

continue to receive services pursuant to this administrative regulation until

their next "recertification." The recertification is an annual

process whereby individuals are re-assessed to verify that they continue to

meet the criteria to qualify for HCB waiver services. At the time individuals

are recertified (provided they continue to meet the criteria) they will

transition to Version 2 of this program. Until then they will receive services

pursuant to this administrative regulation (Version 1 of the program.) After

all individuals have transitioned to Version 2, DMS intends to repeal this

administrative regulation. Additional amendments include safeguards to protect

program participants such as prohibiting HCB provider staff (as well as

individuals who provide participant directed services) from providing services

if they’ve pled guilty to or been convicted of a sex crime or violent crime or

have a felony conviction; requiring providers to perform background checks such

as a criminal records check of the Kentucky Administrative Office of the

Courts, a Nurse Aid Abuse Registry check, a Caregiver Misconduct Registry

check, a Central Registry check (or allowing the checks established in the

Office of Inspector General’s Kentucky Applicant Registry and Employment

Screening (KARES) Program satisfy the aforementioned checks); requiring

providers to have staff complete training in abuse, neglect, fraud, and

exploitation; requiring provider staff to obtain cardiopulmonary resuscitation

(CPR) certification and first aid certification; requiring provider staff to

have been assessed for tuberculosis (TB) risk and prohibited from providing

care if signs of TB are present; prohibiting providers from hiring individuals

who have not successfully passed a drug test; requiring individuals chosen by

participants to represent them (representatives) or to provide

participant-directed services to them to meet background and related check

requirements; requiring individuals who provide participant-directed services

to obtain CPR and first aid certification; and other safeguards. Other

amendments include defining terms for clarity; replacing the term "consumer-directed

option" or "CDO" with "participant-directed services"

or "PDS"; and language or formatting revisions to comply with KRS

Chapter 13A standards.

      (b) The necessity of the amendment to

this administrative regulation: The amendment is necessary to enable DMS to

transition individuals who receive HCB waiver services over the course of a

year from this version of the program to Version 2. Additional amendments are

necessary to protect the health, safety, and welfare of individuals receiving

services via this program.

      (c) How the amendment conforms to the

content of the authorizing statutes: The amendment conforms to the content of

the authorizing statutes by enabling DMS to transition individuals from the

current version of this program to a new version over the course of a year and

by enhancing health, safety, and welfare safeguards for individuals who receive

services via this program.

      (d) How the amendment will assist in the

effective administration of the statutes: The amendment will assist in the

effective administration of the authorizing statutes by enabling DMS to

transition individuals from the current version of this program to a new version

over the course of a year and by enhancing health, safety, and welfare safeguards

for individuals who receive services via this program.

      (3) List the type and number of

individuals, businesses, organizations, or state and local government affected

by this administrative regulation: There are currently sixty-three (63)

providers (home health departments and adult day health care centers) enrolled

as HCB waiver program providers. Over 9,500 individuals are currently 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: No action is required by

providers. No action is required.

      (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): This

administrative regulation continues the program as is temporarily; thus, there

is no change in benefits.

      (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 amendment will be budget neutral

initially.

      (b) On a continuing basis: DMS

anticipates that the amendment will be budget neutral on a continuing basis.

      (6) What is the

source of the funding to be used for the implementation and enforcement of this

administrative regulation: The sources of revenue to be used for implementation

and enforcement of this administrative regulation are federal funds authorized

under the Social Security Act, Title XIX and matching funds of general fund

appropriations.

      (7) Provide an assessment of whether an

increase in fees or funding will be necessary to implement this administrative

regulation, if new, or by the change if it is an amendment. Neither an increase

in fees nor funding is necessary to implement the amendment.

      (8) State whether or not this

administrative regulation establishes any fees or directly or indirectly

increases any fees: The amendment neither establishes nor increases any fees.

      (9) Tiering: Is tiering applied? Tiering

was not appropriate in this administrative regulation because the

administrative regulation applies equally to all those individuals or entities

regulated by it.

 

FEDERAL MANDATE ANALYSIS

COMPARISON

 

      1. Federal statute or regulation

constituting the federal mandate. 42 U.S.C. 1396a(a)(19), and 42 C.F.R. 447.26.

      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. 42 U.S.C. 1396a(a)(19) requires Medicaid programs to

provide care and services consistent with the best interests of Medicaid

recipients.

      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.

      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).

      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 for 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: No additional

expenditures are necessary to implement this amendment.