Homecare Workers Enrolled In The Client-Employed Provider Program

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_400/oar_411/411_031.html
Published: 2015

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

 

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DEPARTMENT OF HUMAN SERVICES,

AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES




 

DIVISION 31
HOMECARE WORKERS ENROLLED IN THE CLIENT-EMPLOYED PROVIDER PROGRAM

411-031-0020
Definitions
Unless the context indicates otherwise,
the following definitions apply to the rules in OAR chapter 411, division 31:
(1) "AAA" means "Area Agency
on Aging" as defined in this rule.
(2) "Abuse" means abuse as
defined by OAR 411-020-0002, 407-045-0260, and 943-045-0260.
(3) "Activities of Daily
Living (ADL)" mean those personal, functional activities required by an individual
for continued well-being, which are essential for the individual's health and safety.
Activities include eating, dressing/grooming, bathing/personal hygiene, mobility
(ambulation and transfer), elimination (toileting, bowel, and bladder management),
and cognition/behavior as defined in OAR 411-015-0006.
(4) "ADL" means "activities
of daily living" as defined in this rule.
(5) "Adult" means any person
at least 18 years of age.
(6) "Adult Protective Services"
mean the services provided in response to the need for protection from abuse described
in OAR chapter 411, division 20, OAR chapter 407, division 45, and OAR chapter 943,
division 45.
(7) "Area Agency on Aging
(AAA)" means the Department designated agency charged with the responsibility to
provide a comprehensive and coordinated system of services to older adults and adults
with disabilities in a planning and service area. The terms AAA and Area Agency
on Aging are inclusive of both Type A and Type B Area Agencies on Aging as defined
in ORS 410.040 and described in 410.210 to 410.300.
(8) "Burden of Proof" means
the existence or nonexistence of a fact is established by a preponderance of evidence.
(9) "Career Homecare Worker"
means a homecare worker with an unrestricted provider enrollment. A career homecare
worker has a provider enrollment that allows the homecare worker to provide services
to any eligible in-home services consumer. At any given time, a career homecare
worker may choose not to be referred for work.
(10) "Case Manager" means
an employee of the Department or Area Agency on Aging who assesses the service needs
of individuals, determines eligibility, and offers service choices to eligible individuals.
The case manager authorizes and implements an individual's service plan and monitors
the services delivered as described in OAR chapter 411, division 28.
(11) "Collective Bargaining
Agreement" means the ratified Collective Bargaining Agreement between the Home Care
Commission and the Service Employees International Union, Local 503. The Collective
Bargaining Agreement is maintained on the Department's website: (http://www.dhs.state.or.us/spd/tools/cm/homecare/index.htm).
Printed copies may be obtained by calling (503) 945-6398 or writing the Department
of Human Services, Aging and People with Disabilities, ATTN: Rules Coordinator,
500 Summer Street NE, E-10, Salem, Oregon 97301.
(12) "Companionship Services"
mean those services designated by the Department of Labor as meeting the personal
needs of a consumer. Companionship services are exempt from federal and state minimum
wage laws.
(13) "Consumer" or "Consumer-Employer"
means an individual eligible for in-home services.
(14) "Consumer-Employed Provider
Program" refers to the program wherein a provider is directly employed by a consumer
to provide either hourly or live-in in-home services. In some aspects of the employer
and employee relationship, the Department acts as an agent for the consumer-employer.
These functions are clearly described in OAR 411-031-0040.
(15) "Department" means the
Department of Human Services.
(16) "Disability" means a
physical, cognitive, or emotional impairment which, for an individual, constitutes
or results in a functional limitation in one or more of the activities of daily
living defined in OAR 411-015-0006.
(17) "Evidence" means testimony,
writings, material objects, or other things presented to the senses that are offered
to prove the existence or nonexistence of a fact.
(18) "Fiscal Improprieties"
means a homecare worker committed financial misconduct involving a consumer's money,
property, or benefits.
(a) Fiscal improprieties
include but are not limited to financial exploitation, borrowing money from a consumer,
taking a consumer's property or money, having a consumer purchase items for the
homecare worker, forging a consumer's signature, falsifying payment records, claiming
payment for hours not worked, or similar acts intentionally committed for financial
gain.
(b) Fiscal improprieties
do not include the exchange of money, gifts, or property between a homecare worker
and a consumer-employer with whom the homecare worker is related unless an allegation
of financial exploitation, as defined in OAR 411-020-0002 or 407-045-0260, has been
substantiated based on an adult protective services investigation.
(19) "Homecare Worker" means
a provider, as described in OAR 411-031-0040, that is directly employed by a consumer
to provide either hourly or live-in services to the consumer.
(a) The term homecare worker
includes:
(A) A consumer-employed provider
in the Spousal Pay and Oregon Project Independence Programs;
(B) A consumer-employed provider
that provides state plan personal care services; and
(C) A relative providing
Medicaid in-home services to a consumer living in the relative’s home.
(b) The term homecare worker
does not include an Independent Choices Program provider or a personal support worker
enrolled through Developmental Disability Services or the Addictions and Mental
Health Division.
(20) "Hourly Services" mean
the in-home services, including activities of daily living and instrumental activities
of daily living, that are provided at regularly scheduled times.
(21) "IADL" means "instrumental
activities of daily living" as defined in this rule.
(22) "Imminent Danger" means
there is reasonable cause to believe an individual's life or physical, emotional,
or financial well-being is in danger if no intervention is immediately initiated.
(23) "Individual" means an
older adult or an adult with a disability applying for or eligible for services.
(24) "In-Home Services" mean
the activities of daily living and instrumental activities of daily living that
assist an individual to stay in his or her own home or the home of a relative.
(25) "Instrumental Activities
of Daily Living (IADL)" mean those activities, other than activities of daily living,
required by an individual to continue independent living. The definitions and parameters
for assessing needs in IADL are identified in OAR 411-015-0007.
(26) "Lack of Ability or
Willingness to Maintain Consumer-Employer Confidentiality" means a homecare worker
is unable or unwilling to keep personal information about a consumer-employer private.
(27) "Lack of Skills, Knowledge,
and Ability to Adequately or Safely Perform the Required Work" means a homecare
worker does not possess the skills to perform services needed by consumers of the
Department. The homecare worker may not be physically, mentally, or emotionally
capable of providing services to consumers. The homecare worker's lack of skills
may put consumers at risk because the homecare worker fails to perform, or learn
to perform, the duties needed to adequately meet the needs of the consumers.
(28) "Live-In Services" mean
the Consumer-Employed Provider Program services provided when a consumer requires
activities of daily living, instrumental activities of daily living, and twenty-four
hour availability. Time spent by any live-in homecare worker doing instrumental
activities of daily living and twenty-four hour availability are exempt from federal
and state minimum wage and overtime requirements.
(29) "Older Adult" means
any person at least 65 years of age.
(30) "Office of Administrative
Hearings" means the panel described in ORS 183.605 to 183.690 established within
the Employment Department to conduct contested case proceedings and other such duties
on behalf of designated state agencies.
(31) "Oregon Project Independence"
means the program of in-home services described in OAR chapter 411, division 032.
(32) "Preponderance of the
Evidence" means that one party's evidence is more convincing than the other party's.
(33) "Provider" means the
person who renders the services.
(34) "Provider Enrollment"
means a homecare worker's authorization to work as a provider employed by a consumer
for the purpose of receiving payment for authorized services provided to consumers
of the Department. Provider enrollment includes the issuance of a Medicaid provider
number.
(35) "Provider Number" means
an identifying number issued to each homecare worker who is enrolled as a provider
through the Department.
(36) "Relative" means a person,
excluding an individual's spouse, who is related to the individual by blood, marriage,
or adoption.
(37) "Restricted Homecare
Worker" means the Department or Area Agency on Aging has placed restrictions on
a homecare worker's provider enrollment as described in OAR 411-031-0040.
(38) "Self-Management Tasks"
means "instrumental activities of daily living" as defined in this rule.
(39) "Services are not Provided
as Required" means a homecare worker does not provide services to a consumer as
described in the consumer's service plan authorized by the Department.
(40) "These Rules" mean the
rules in OAR chapter 411, division 031.
(41) "Twenty-Four Hour Availability"
means the availability and responsibility of a homecare worker to meet the activity
of daily living and instrumental activity of daily living needs of a consumer as
required by the consumer over a twenty-four hour period. Twenty-four hour availability
services are provided by a live-in homecare worker and are exempt from federal and
state minimum wage and overtime requirements.
(42) "Unacceptable Background
Check" means a check that produces information related to a person's background
that precludes the person from being a homecare worker for the following reasons:
(a) The person applying to
be a homecare worker has been disqualified under OAR 407-007-0275;
(b) A homecare worker enrolled
in the Consumer-Employed Provider Program for the first time, or after any break
in enrollment, after July 28, 2009 has been disqualified under OAR 407-007-0275;
or
(c) A background check and
fitness determination has been conducted resulting in a "denied" status, as defined
in OAR 407-007-0210.
(43) "Unacceptable Conduct
at Work" means a homecare worker has repeatedly engaged in one or more of the following
behaviors:
(a) Delay in arrival to work
or absence from work not prior-scheduled with a consumer that is either unsatisfactory
to a consumer or neglects the consumer's service needs; or
(b) Inviting unwelcome guests
or pets into a consumer's home, resulting in the consumer's dissatisfaction or a
homecare worker's inattention to the consumer's required service needs.
(44) "Violation of a Drug-Free
Workplace" means there was a substantiated complaint against a homecare worker for:
(a) Being intoxicated by
alcohol, inhalants, prescription drugs, or other drugs, including over-the-counter
medications, while responsible for the care of a consumer, while in the consumer's
home, or while transporting the consumer; or
(b) Manufacturing, possessing,
selling, offering to sell, trading, or using illegal drugs while providing authorized
services to a consumer or while in the consumer's home.
(45) "Violation of Protective
Service and Abuse Rules" means, based on a substantiated allegation of abuse, a
homecare worker was found to have violated the protective service and abuse rules
described in OAR chapter 411, division 20, OAR chapter 407, division 45, or OAR
chapter 943, division 45.
Stat. Auth.: ORS 409.050, 410.070 &
410.090
Stats. Implemented: ORS 410.010,
410.020 & 410.070
Hist.: SPD 17-2004, f. 5-28-04,
cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05;
SPD 10-2005, f. & cert. ef. 7-1-05; SPD 15-2005(Temp), f. & cert. ef. 11-16-05
thru 5-15-06; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 28-2006(Temp), f. 10-18-06,
cert. ef. 10-23-06 thru 4-20-07; SPD 4-2007, f. 4-12-07, cert. ef. 4-17-07; SPD
3-2010, f. 5-26-10, cert. ef. 5-30-10; SPD 4-2010(Temp), f. 6-23-10, cert. ef. 7-1-10
thru 12-28-10; SPD 26-2010, f. 11-29-10, cert. ef. 12-1-10; SPD 13-2012(Temp), f.
& cert. ef. 9-26-12 thru 3-25-13; SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13;
SDP 18-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 47-2013, f. 12-13-13,
cert. ef. 12-15-13
411-031-0030
Purpose
The rules in OAR
chapter 411, division 031 establish the standards and procedures governing homecare
workers and the fiscal services provided on behalf of Department/AAA consumers to
homecare workers enrolled in the Consumer-Employed Provider Program. Homecare workers
provide home and community-based waiver, state plan, and Oregon Project Independence
in-home services to the Department/AAA consumers. In-home services supplement the
ability of the Department/AAA consumers to continue to live in their own homes.
Stat. Auth.: ORS
409.050, 410.070 & 410.090

Stats. Implemented:
ORS 410.010, 410.020 & 410.070

Hist.: SPD
17-2004, f. 5-28-04, cert.ef. 6-1-04; SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10;
SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13
411-031-0040
Consumer-Employed
Provider Program
The Consumer-Employed Provider Program
contains systems and payment structures to employ both hourly and live-in providers.
The live-in structure assumes a provider is required for activities of daily living
(ADLs), instrumental activities of daily living (IADLs), and twenty-four hour availability.
The hourly structure assumes a provider is required for ADLs and IADLs during specific
substantial periods. Except as indicated, all of the following criteria apply to
both hourly and live-in providers:
(1) EMPLOYMENT RELATIONSHIP.
The relationship between a provider and a consumer is that of employee and employer.
(2) CONSUMER-EMPLOYER JOB
DESCRIPTIONS. A consumer-employer is responsible for creating and maintaining a
job description for a potential provider in coordination with the services authorized
by the consumer's case manager.
(3) HOMECARE WORKER LIABILITIES.
The only benefits available to homecare workers are those negotiated in the Collective
Bargaining Agreement and as provided in Oregon Revised Statute. This Agreement does
not include participation in the Public Employees Retirement System or the Oregon
Public Service Retirement Plan. Homecare workers are not state employees.
(4) CONSUMER-EMPLOYER ABSENCES.
When a consumer-employer is absent from his or her home due to an illness or medical
treatment and is expected to return to the home within a 30 day period, the consumer's
live-in provider may be retained to ensure the live-in provider's presence upon
the consumer's return or to maintain the consumer's home for up to 30 days at the
rate of pay immediately preceding the consumer's absence.
(5) SELECTION OF HOMECARE
WORKER. A consumer-employer carries primary responsibility for locating, interviewing,
screening, and hiring his or her own employees. The consumer-employer has the right
to employ any person who successfully meets the provider enrollment standards described
in section (8) of this rule. The Department/AAA office determines whether a potential
homecare worker meets the enrollment standards needed to provide services authorized
and paid for by the Department.
(6) EMPLOYMENT AGREEMENT.
A consumer-employer retains the full right to establish an employer-employee relationship
with a person at any time after the person's Bureau of Citizenship and Immigration
Services papers have been completed and identification photocopied. Payment for
services is not guaranteed until the Department has verified that a person meets
the provider enrollment standards described in section (8) of this rule and notified
both the employer and homecare worker in writing that payment by the Department
is authorized.
(7) TERMS OF EMPLOYMENT.
A consumer-employer must establish terms of an employment relationship with an employee
at the time of hire. The terms of employment may include dismissal or resignation
notice, work scheduling, absence reporting, and any sleeping arrangements or meals
provided for live-in or hourly employees. Termination and the grounds for termination
of employment are determined by a consumer-employer. A consumer-employer has the
right to terminate an employment relationship with a homecare worker at any time
and for any reason.
(8) PROVIDER ENROLLMENT.
(a) ENROLLMENT STANDARDS.
A homecare worker must meet all of the following standards to be enrolled with the
Department's Consumer-Employed Provider Program:
(A) The homecare worker must
maintain a drug-free work place.
(B) The homecare worker must
complete the background check process described in OAR 407-007-0200 to 407-007-0370
with an outcome of approved or approved with restrictions. The Department/AAA may
allow a homecare worker to work on a preliminary basis in accordance with 407-007-0315
if the homecare worker meets the other provider enrollment standards described in
this section of the rule.
(C) The homecare worker must
have the skills, knowledge, and ability to perform, or to learn to perform, the
required work.
(D) The homecare worker's
U.S. employment authorization must be verified.
(E) The homecare worker must
be 18 years of age or older. The Department may approve a restricted enrollment,
as described in section (8)(d) of this rule, for a homecare worker who is at least
16 years of age.
(F) The homecare worker must
complete an orientation as described in section (8)(e) of this rule.
(G) The homecare worker must
have a tax identification number or social security number that matches the homecare
worker's legal name, as verified by the Internal Revenue Service or Social Security
Administration.
(b) The Department/AAA may
deny an application for provider enrollment in the Consumer-Employed Provider Program
when:
(A) The applicant has a history
of violating protective service and abuse rules;
(B) The applicant has committed
fiscal improprieties;
(C) The applicant does not
have the skills, knowledge, or ability to adequately or safely provide services;
(D) The applicant has an
unacceptable background check;
(E) The applicant is not
18 years of age;
(F) The applicant has been
excluded by the Health and Human Services, Office of Inspector General, from participation
in Medicaid, Medicare, and all other Federal Health Care Programs;
(G) The Department/AAA has
information that enrolling the applicant as a homecare worker may put vulnerable
consumers at risk; or
(H) The applicant’s
tax identification number or social security number does not match the applicant's
legal name, as verified by the Internal Revenue Service or Social Security Administration.
(c) BACKGROUND CHECKS.
(A) When a homecare worker
is approved without restrictions following a background check fitness determination,
the approval must meet the homecare worker provider enrollment requirement statewide
whether the qualified entity is a state-operated Department office or an AAA operated
by a county, council of governments, or a non-profit organization.
(B) Background check approval
is effective for two years unless:
(i) Based on possible criminal
activity or other allegations against a homecare worker, a new fitness determination
is conducted resulting in a change in approval status; or
(ii) Approval has ended because
the Department has inactivated or terminated a homecare worker’s provider
enrollment for one or more reasons described in this rule or OAR 411-031-0050.
(C) Prior background check
approval for another Department provider type is inadequate to meet background check
requirements for homecare worker enrollment.
(D) Background rechecks are
conducted at least every other year from the date a homecare worker is enrolled.
The Department/AAA may conduct a recheck more frequently based on additional information
discovered about a homecare worker, such as possible criminal activity or other
allegations.
(d) RESTRICTED PROVIDER ENROLLMENT.
(A) The Department/AAA may
enroll an applicant as a restricted homecare worker. A restricted homecare worker
may only provide services to a specific consumer.
(i) Unless disqualified under
OAR 407-007-0275, the Department/AAA may approve a homecare worker with a prior
criminal record under a restricted enrollment to provide services to a specific
consumer who is a family member, neighbor, or friend after conducting a weighing
test as described in 407-007-0200 to 407-007-0370.
(ii) Based on an applicant’s
lack of skills, knowledge, or abilities, the Department/AAA may approve the applicant
as a restricted homecare worker to provide services to a specific consumer who is
a family member, neighbor, or friend.
(iii) Based on an exception
to the age requirements for provider enrollment approved by the Department as described
in subsection (a)(E) of this section, a homecare worker who is at least 16 years
of age may be approved as a restricted homecare worker.
(B) To remove restricted
homecare worker status and be designated as a career homecare worker, the restricted
homecare worker must complete a new application and background check and be approved
by the Department/AAA.
(e) HOMECARE WORKER ORIENTATION.
Homecare workers must participate in an orientation arranged through a Department/AAA
office. The orientation must occur within the first 30 days after the homecare worker
becomes enrolled in the Consumer-Employed Provider Program and prior to beginning
work for any specific Department/AAA consumers. When completion of an orientation
is not possible within those timelines, orientation must be completed within 90
days of being enrolled. If a homecare worker fails to complete an orientation within
90 days of provider enrollment, the homecare worker's provider number is inactivated
and any authorization for payment of services is discontinued.
(f) INACTIVATED PROVIDER
ENROLLMENT. A homecare worker's provider enrollment may be inactivated when:
(A) The homecare worker has
not provided any paid services to any consumer in the last 12 months;
(B) The homecare worker’s
background check results in a closed case pursuant to OAR 407-007-0325;
(C) The homecare worker informs
the Department/AAA the homecare worker is no longer providing services in Oregon;
(D) The homecare worker fails
to participate in an orientation arranged through a Department/AAA office within
90 days of provider enrollment;
(E) The homecare worker,
who at the time is not providing any paid services to consumers, is being investigated
by Adult Protective Services for suspected abuse that poses imminent danger to current
or future consumers; or
(F) The homecare worker’s
provider payments, all or in part, have been suspended based on a credible allegation
of fraud pursuant to federal law under 42 CFR 455.23.
(9) PAID LEAVE.
(a) LIVE-IN HOMECARE WORKERS.
Irrespective of the number of consumers served, the Department authorizes one twenty-four
hour period of leave each month when a live-in homecare worker or spousal pay provider
is the only live-in provider during the course of a month. For any part of a month
worked, the live-in homecare worker receives a proportional share of the twenty-four
hour period of leave authorization. A prorated share of the twenty-four hours is
allocated proportionately to each live-in when there is more than one live-in provider
per consumer.
(A) ACCUMULATION AND USAGE
FOR LIVE-IN PROVIDERS. A live-in homecare worker may not accumulate more than 144
hours of accrued leave. A consumer-employer, homecare worker, and case manager must
coordinate the timely use of accrued hours. Live-in homecare workers must take vacation
leave in twenty-four hour increments or in hourly increments of at least one but
not more than twelve hours. A live-in homecare worker must take accrued leave while
employed as a live-in.
(B) THE RIGHT TO RETAIN LIVE-IN
PAID LEAVE. A live-in homecare worker retains the right to access earned paid leave
when terminating employment with one employer, so long as the homecare worker is
employed with another employer as a live-in within one year of separation.
(C) TRANSFERABILITY OF LIVE-IN
PAID LEAVE. A live-in homecare worker who converts to hourly or separates from live-in
service and returns as an hourly homecare worker within one year from the last day
of live-in services is credited with their unused hours of leave up to a maximum
of 32 hours.
(D) CASH OUT OF PAID LEAVE.
(i) The Department pays live-in
homecare workers 50 percent of all unused paid leave accrued as of January 31 of
each year. The balance of paid leave is reduced 50 percent with the cash out.
(ii) Vouchers requesting
payment of paid leave received after January 31 may only be paid up to the amount
of remaining unused paid leave.
(iii) A live-in homecare
worker providing live-in services seven days per week for one consumer-employer
may submit a request for payment of 100 percent of unused paid leave if:
(I) The live-in homecare
worker's consumer-employer is no longer eligible for in-home services described
in OAR chapter 411, division 030; and
(II) The live-in homecare
worker does not have alternative residential housing.
(iv) If a request for payment
of 100 percent of unused paid leave based on subparagraph (D)(iii)(I) and (II) of
this subsection is granted, the homecare’s paid leave balance is reduced to
zero.
(b) HOURLY HOMECARE WORKERS.
(A) On July 1st of each year,
active homecare workers who worked 80 authorized and paid hours in any one of the
three months that immediately precede July (April, May, June) are credited with
one 16 hour block of paid leave to use during the current fiscal biennium (July
1 through June 30) in which the paid leave was accrued.
(B) On February 1st of each
year, active homecare workers who worked 80 authorized and paid hours in any one
of the three months that immediately precede February (November, December, January)
are credited with one 16 hour block of paid leave.
(C) One 16 hour block of
paid leave is credited to each eligible homecare worker, irrespective of the number
of consumers the homecare worker serves. Such leave may not be cumulative from biennium
to biennium.
(D) UTILIZATION OF HOURLY
PAID LEAVE.
(i) Time off must be utilized
in one eight hour block subject to authorization. If a homecare worker's normal
workday is less than eight hours, the time off may be utilized in blocks equivalent
to the homecare worker's normal workday. Any remaining hours that are less than
a normally scheduled workday may be taken as a single block.
(ii) Hourly homecare workers
may take unused paid leave when the homecare worker's employer is temporarily unavailable
for the homecare worker to provide services. In all other situations, a homecare
worker who is not working during a month is not eligible to use paid time off in
that month.
(E) LIMITATIONS OF HOURLY
PAID LEAVE. Homecare workers may not be compensated for paid leave unless the time
off work is actually taken except as noted in subsection (b)(G) of this section.
(F) TRANSFERABILITY OF HOURLY
PAID LEAVE. An hourly homecare worker who transfers to work as a live-in homecare
worker (within the biennium that the hourly leave is earned) maintains the balance
of hourly paid leave and begins accruing live-in paid leave.
(G) CASH OUT OF PAID LEAVE.
(i) The Department pays hourly
providers for all unused paid leave accrued as of January 31 of each year. The balance
of paid leave is reduced to zero with the cash out.
(ii) Vouchers requesting
payment of paid leave received after January 31 may not be paid if paid leave has
already been cashed out.
(10) DEPARTMENT FISCAL AND
ACCOUNTABILITY RESPONSIBILITY.
(a) DIRECT SERVICE PAYMENTS.
The Department makes payment to a homecare worker on behalf of a consumer for all
in-home services. The payment is considered full payment for the Medicaid home and
community-based services rendered. Under no circumstances is a homecare worker to
demand or receive additional payment for Medicaid home and community-based services
from a consumer or any other source. Additional payment to homecare workers for
the same home and community-based services covered by Medicaid is prohibited.
(b) TIMELY SUBMISSION OF
CLAIMS. In accordance with OAR 410-120-1300, all claims for services must be submitted
within 12 months of the date of service.
(c) ANCILLARY CONTRIBUTIONS.
(A) FEDERAL INSURANCE CONTRIBUTIONS
ACT (FICA). Acting on behalf of a consumer-employer, the Department applies applicable
FICA regulations; and
(i) Withholds a homecare
worker-employee contribution from payments; and
(ii) Submits the consumer-employer
contribution and the amounts withheld from the homecare worker-employee to the Social
Security Administration.
(B) BENEFIT FUND ASSESSMENT.
The Workers' Benefit Fund pays for programs that provide direct benefits to injured
workers and the workers' beneficiaries and assist employers in helping injured workers
return to work. The Department of Consumer and Business Services sets the Workers'
Benefit Fund assessment rate for each calendar year. The Department calculates the
hours rounded up to the nearest whole hour and deducts an amount rounded up to the
nearest cent. Acting on behalf of the consumer-employer, the Department:
(i) Deducts a homecare worker-employees'
share of the Benefit Fund assessment rate for each hour or partial hour worked by
each paid homecare worker;
(ii) Collects the consumer-employer's
share of the Benefit Fund assessment for each hour or partial hour of paid services
received; and
(iii) Submits the consumer-employer's
and homecare worker-employee's contributions to the Workers' Benefit Fund.
(C) The Department pays the
consumer-employer's share of the unemployment tax.
(d) ANCILLARY WITHHOLDINGS.
For the purpose of this subsection of the rule, "labor organization" means any organization
that represents employees in employment relations.
(A) The Department deducts
a specified amount from the homecare worker-employee's monthly salary or wages for
payment to a labor organization.
(B) In order to receive payment,
a labor organization must enter into a written agreement with the Department to
pay the actual administrative costs of the deductions.
(C) The Department pays the
deducted amount to the designated labor organization monthly.
(e) STATE AND FEDERAL INCOME
TAX WITHHOLDING.
(A) The Department withholds
state and federal income taxes on all payments to homecare workers, as indicated
in the Collective Bargaining Agreement.
(B) A homecare worker must
complete and return a current Internal Revenue Service W-4 form to the Department/AAA's
local office. The Department applies standard income tax withholding practices in
accordance with 26 CFR 31.
(11) REIMBURSEMENT FOR COMMUNITY
TRANSPORTATION.
(a) A homecare worker is
reimbursed at the mileage reimbursement rate established in the Collective Bargaining
Agreement when the homecare worker uses his or her own personal motor vehicle for
community transportation, if prior authorized by a consumer's case manager. If unscheduled
transportation needs arise during non-office hours, the homecare worker must provide
an explanation as to the need for the transportation and the transportation must
be approved by the consumer's case manager prior to reimbursement.
(b) Medical transportation
through the Division of Medical Assistance Programs (DMAP), volunteer transportation,
and other transportation services included in a consumer's service plan is considered
a prior resource.
(c) The Department is not
responsible for vehicle damage or personal injury sustained when a homecare worker
uses his or her own personal motor vehicle for DMAP or community transportation,
except as may be covered by workers' compensation.
(12) BENEFITS. Workers' compensation
and health insurance are available to eligible homecare workers as described in
the Collective Bargaining Agreement. In order to receive homecare worker services,
a consumer-employer must consent and provide written authorization to the Department
for the provision of workers' compensation insurance for the consumer-employer's
employee.
(13) OVERPAYMENTS. An overpayment
is any payment made to a homecare worker by the Department that is more than the
homecare worker is authorized to receive.
(a) Overpayments are categorized
as follows:
(A) ADMINISTRATIVE ERROR
OVERPAYMENT. The Department failed to authorize, compute, or process the correct
amount of in-home service hours or wage rate.
(B) PROVIDER ERROR OVERPAYMENT.
The Department overpays the homecare worker due to a misunderstanding or unintentional
error.
(C) FRAUD OVERPAYMENT. "Fraud"
means taking actions that may result in receiving a benefit in excess of the correct
amount, whether by intentional deception, misrepresentation, or failure to account
for payments or money received. "Fraud" also means spending payments or money the
homecare worker was not entitled to and any act that constitutes fraud under applicable
federal or state law (including 42 CFR 455.2). The Department determines, based
on a preponderance of the evidence, when fraud has resulted in an overpayment. The
Department of Justice, Medicaid Fraud Control Unit determines when to pursue a Medicaid
fraud allegation for prosecution.
(b) Overpayments are recovered
as follows:
(A) Overpayments are collected
prior to garnishments, such as child support, Internal Revenue Service back taxes,
or educational loans.
(B) Administrative or provider
error overpayments are collected at no more than 5 percent of the homecare worker's
gross wages.
(C) The Department determines
when a fraud overpayment has occurred and the manner and amount to be recovered.
(D) When a person is no longer
employed as a homecare worker, any remaining overpayment is deducted from the person's
final check. The person is responsible for repaying an overpayment in full when
the person's final check is insufficient to cover the remaining overpayment.
Stat. Auth.: ORS 409.050, 410.070 &
410.090
Stats. Implemented: ORS 410.010,
410.020, 410.070, 410.612 & 410.614
Hist.: SPD 17-2004, f. 5-28-04,
cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05;
SPD 10-2005, f. & cert. ef. 7-1-05; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06;
SPD 28-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07; SPD 4-2007, f.
4-12-07, cert. ef. 4-17-07; SPD 18-2007(Temp), f. 10-30-07, cert. ef. 11-1-07 thru
4-29-08; SPD 6-2008, f. 4-28-08, cert. ef. 4-29-08; SPD 16-2009(Temp), f. &
cert. ef. 12-1-09 thru 5-30-10; SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10; SPD 4-2010(Temp),
f. 6-23-10, cert. ef. 7-1-10 thru 12-28-10; SPD 26-2010, f. 11-29-10, cert. ef.
12-1-10; SPD 13-2012(Temp), f. & cert. ef. 9-26-12 thru 3-25-13; SPD 4-2013,
f. 3-25-13, cert. ef. 3-26-13; SDP 18-2013(Temp), f. & cert. ef. 7-1-13 thru
12-28-13; SPD 47-2013, f. 12-13-13, cert. ef. 12-15-13
411-031-0050
Termination,
Administrative Review, and Hearing Rights
(1) EXCLUSIONS TO APPEAL AND HEARING
RIGHTS. The following are excluded from the administrative review and hearing rights
process described in this rule:
(a) Terminations based on
a background check. The homecare worker has the right to a hearing in accordance
with OAR 407-007-0200 to 407-007-0370.
(b) Homecare workers that
have not worked in the last 12 months. The provider enrollment may become inactivated
but may not be terminated. To activate the provider enrollment number, the homecare
worker must complete an application and background check.
(c) Homecare workers that
fail to complete a background recheck.
(d) Homecare workers that
are denied a provider enrollment number at the time of initial application.
(e) Homecare workers not
currently providing services to any consumers whose provider enrollment is inactivated
while an Adult Protective Services investigation is being completed.
(f) Homecare workers who
have been excluded by Health and Human Services, Office of Inspector General, from
participation in Medicaid, Medicare, and all other federal programs.
(2) VIOLATIONS RESULTING
IN TERMINATION OF PROVIDER ENROLLMENT. The Department may terminate the homecare
worker's provider enrollment when a homecare worker:
(a) Violates the requirement
to maintain a drug-free work place;
(b) Has an unacceptable background
check;
(c) Lacks the skills, knowledge,
and ability to adequately or safely perform the required work;
(d) Violates the protective
service and abuse rules in OAR chapter 411, division 20, OAR chapter 407, division
45, and OAR chapter 943, division 45;
(e) Commits fiscal improprieties;
(f) Fails to provide services
as required;
(g) Lacks the ability or
willingness to maintain consumer-employer confidentiality. Unless given specific
permission by the consumer-employer or the consumer-employer's legal representative,
the homecare worker may not share any personal information about the consumer including
medical, social service, financial, public assistance, legal, or interpersonal details;
(h) Engages in unacceptable
conduct at work;
(i) Has been excluded by
the Health and Human Services, Office of Inspector General, from participation in
Medicaid, Medicare, and all other federal health care programs; or
(j) Fails to provide a tax
identification number or social security number that matches the homecare worker's
legal name, as verified by the Internal Revenue Service or Social Security Administration.
(3) IMMEDIATE TERMINATION.
The Department/AAA may immediately terminate a provider enrollment on the date the
violation is discovered, prior to the outcome of the administrative review, when
an alleged violation presents imminent danger to current or future consumers. The
homecare worker may file an appeal of this decision directly to the Department -
Central Office. The homecare worker must file any appeal within 10 business days
from the date of the notice.
(4) TERMINATION PENDING APPEAL.
When a violation does not present imminent danger to current or future consumers,
the provider enrollment may not be terminated during the first 10 business days
of the administrative review appeal period. The homecare worker must file any appeal
within 10 business days from the date of the notice. If the homecare worker appeals
in writing prior to the deadline for appeal, the enrollment may not be terminated
until the conclusion of the administrative review.
(5) TERMINATION IF NO APPEAL
FILED. The decision of the reviewer becomes final if the homecare worker does not
appeal within 10 business days from the date of the notice of the decision. Once
the time period for appeal has expired, the provider enrollment is terminated by
the reviewer or designee.
(6) BURDEN OF PROOF. The
Department has the burden of proving the allegations of the complaint by a preponderance
of the evidence. Evidence submitted for the administrative hearing is governed by
OAR 137-003-0050.
(7) ADMINISTRATIVE REVIEW
PROCESS. The administrative review process allows an opportunity for the Department/AAA
program manager or the Department - Central Office to review and reconsider the
decision to terminate the homecare worker's provider enrollment. The appeal may
include the provision of new information or other actions that may result in the
Department/AAA changing its decision.
(a) A written notice is issued
by the Department/AAA when the Department decides to terminate a homecare worker's
provider enrollment. The written notice includes:
(A) An explanation of the
reason for termination of the provider enrollment;
(B) The alleged violation
as listed in section (2) of this rule; and
(C) The homecare worker's
appeal rights, including the right to union representation, and where to file the
appeal.
(D) For terminations based
on substantiated protective services allegations, the notice may only contain the
limited information allowed by law. In accordance with ORS 124.075, 124.085, 124.090,
and OAR 411-020-0030, complainants, witnesses, the name of the alleged victim, and
protected health information may not be disclosed.
(b) INFORMAL CONFERENCE.
At the first level of appeal, an informal conference (described in OAR 461-025-0325)
if requested by the homecare worker, is scheduled with the homecare worker and any
union representative. The Department/AAA program manager, or designee, meets with
the homecare worker, reviews the facts, and explains why the decision was made.
The informal conference may be held by telephone.
(c) The homecare worker must
specify in the request for review the issues or decisions being appealed and the
reason for the appeal. The appropriate party, as stated in the notice, must receive
the request for review within 10 business days of the date of the decision affecting
the homecare worker. If the homecare worker decides to file an appeal, they must
file their appeal in the following order:
(A) ADMINISTRATIVE REVIEW.
(i) Program manager (or designee)
at the local Department/AAA office. This is the first level of review for terminations
pending appeal described in section (4) of this rule.
(ii) Department Central Office.
This is the second level of appeal for terminations pending appeal described in
section (4) of this rule. This is the only level of review for immediate terminations
described in section (3) of this rule.
(B) OFFICE OF ADMINISTRATIVE
HEARINGS.
(i) A homecare worker may
file a request for a hearing with the local office if all levels of administrative
review have been exhausted and the homecare worker continues to dispute the Department’s
decision. The local office files the request with the Office of Administrative Hearings
as described in OAR chapter 137, division 003. The request for the hearing must
be filed with the local office within 30 calendar days of the date of the written
notice from the Department — Central Office.
(ii) When the Department
refers a contested case under these rules to the Office of Administrative Hearings,
the Department indicates on the referral whether the Department is authorizing a
proposed order, a proposed and final order, or a final order.
(iii) No additional hearing
rights have been granted to homecare workers by this rule other than the right to
a hearing on the Department’s decision to terminate the homecare worker's
provider enrollment.
(d) A written response of
the outcome of the administrative review is sent to the homecare worker within 10
business days of the review date.
(e) If the administrative
review determines that the decision to immediately terminate the provider enrollment
was unjustified, the reviewer or designee must have the provider enrollment restored
to active status and any earned benefits such as paid leave reinstated. The written
response must notify the homecare worker that the provider enrollment is restored.
(8) REQUEST FOR EXTENSION
TO DEADLINE. The Department/AAA or the homecare worker may request an extension
of the 10-day deadline described in subsection (7)(d) above for circumstances beyond
their control, if further information needs to be gathered to make a decision, or
there is difficulty in scheduling a meeting between the parties.
Stat. Auth.: ORS 409.050, 410.070 &
410.090
Stats. Implemented: ORS 410.070
Hist.: SPD 17-2004, f. 5-28-04,
cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05;
Administrative correction 7-20-05; SPD 15-2005(Temp), f. & cert. ef. 11-16-05
thru 5-15-06; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 3-2010, f. 5-26-10,
cert. ef. 5-30-10; SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13; SPD 47-2013, f. 12-13-13,
cert. ef. 12-15-13

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