HOME    SEARCH    ABOUT US    CONTACT US    HELP   
           
Montana Administrative Register Notice 37-700 No. 21   11/06/2014    
Prev Next

 

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rules I through XXVIII pertaining to the supports for community working and living 1037 home and community services waiver program

)

)

)

)

)

NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

 

 

TO: All Concerned Persons

 

            1. On December 1, 2014, at 3:00 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption of the above-stated rules.

 

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on November 24, 2014, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

3. The rules as proposed to be adopted provide as follows:

 

NEW RULE I SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: SELF-DIRECTED SERVICES, DEFINITIONS As used in this subchapter the following terms apply:

(1) "Agency with choice" means a provider agency that is the legal entity under a contract with the Developmental Disabilities Program (DDP) to administratively undertake tax and labor law compliance responsibilities relating to the delivery of direct care services on behalf of a member receiving services who is authorized by the DDP to select and direct the staff who deliver those services. A member receiving services manages the scheduling, orienting, instructing, supervising, evaluating, and work records of the direct care staff. The contracted agency is responsible for the following duties as they pertain to a member's staff:

(a) compiles records necessary for the reporting and payment of wages and benefits;         

(b) calculates, withholds, and pays federal and state taxes; 

(c) calculates and pays wages and benefits;

(d)  arranges for workers' compensation coverage; and

(e) undertakes all other necessary activities.

(2) "Developmental disabilities program (DDP)" means the program of services within the Department of Public Health and Human Services that is responsible for state-funded services to members with developmental disabilities.

(3) "Employer authority" means a member receiving services or their legal representative who is responsible for all aspects of hiring and managing staff and service documentation requirements. A member or their legal representative acting as an employer must engage an FMS to ensure compliance with all employment, tax, and other applicable law.

(4) "Financial management service (FMS)" means a person or entity acting as the fiscal agent for a member while engaged in the self-direction of services, and acting as the employer of the direct care staff serving a member. The FMS educates a member as to their responsibilities, processes employment paperwork, administers necessary pre-employment screening, and processes employee timesheets. The FMS must withhold and pay all employment related taxes and obtains workers' compensation for a member's employees.

(5) "Integrated community employment" means full- or parttime paid work, based upon a member's identified needs and interests in the community that generally involves regular contact with people without disabilities. There are three models of integrated community employment:

(a) individual competitive employment;

(b) individual supported employment; and

(c) group supported employment.

(6) "Member" means a person eligible for and enrolled as a participant in the Montana Medicaid program.

(7) "1037 waiver services" means the "Supports for Community Working and Living 1037 Home and Community Services Waiver," as described in 42 USC 1396n(c) and 42 CFR 441.300 through 441.310, pertaining to members with developmental disabilities self-directing their working and living services in community settings.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE II SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: SELF-DIRECTED SERVICES, REQUIREMENTS (1) A member living in a natural home or private residence who is enrolled in 1037 waiver services may elect to self-direct some or all of their waiver services through either:

            (a) an agency with choice; or

            (b) employer authority.

            (2) In order to self-direct services, a member must live in their natural home or private residence where their choice of services, support worker, and schedule for delivery of service has no adverse effect on other persons receiving waiver services.

            (3) If a member is no longer able or willing to self-direct services they may elect to:

            (a) terminate 1037 waiver services funded through the DDP; or

            (b) enroll in a different DDP home and community services waiver.

            (4) A member who chooses not to participate in self-directed services must contact their case manager to initiate enrollment in an appropriate home and community services waiver and schedule a planning meeting.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE III SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM:  AUTHORITY

            (1) The department has been granted authority by the United States Department of Health and Human Services (HHS), under 42 USC 1396n(c) and 42 CFR 441.300 through 441.310, to provide Medicaid home and community-based services to persons with developmental disabilities who can benefit from self-directing their working and living services in community settings. HHS has granted the department, by agreement, authority to administer 1037 waiver services.  These rules implement 1037 waiver services for persons who are eligible for such waiver services.

            (2) In accordance with federal and state law, the federal-state agreement governing the provision of Medicaid-funded home and community waiver services to be delivered through 1037 waiver services, and within the fiscal limitations of funding appropriated and available for 1037 waiver services, the department may determine, within its discretion, the following features of 1037 waiver services:

            (a) the types of services to be available;

            (b) the amount, scope, and duration of the services;

            (c) the target population;

            (d) individual eligibility; and

            (e) delivery methodology.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE IV SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM:  GENERALLY 

            (1) Services and selection for 1037 waiver services are available only to the extent granted by federal approval and which available funding allows.

            (2) The department, in order to comply with federal requirements, or to control expenditures within available funding, may:

            (a) reduce the number of members that may be served under 1037 waiver services;

            (b) postpone or waive implementation of a particular service under 1037 waiver services; or

            (c) eliminate one or more of the services under 1037 waiver services.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE V SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: ELIGIBILITY

            (1) A determination that a person is eligible to be considered for acceptance into 1037 waiver services does not entitle the person to selection and entry into the waiver.

            (2) A person is eligible to be considered for acceptance into 1037 waiver services if the person:

            (a) is determined by the DDP to be a person with a developmental disability in accordance with the criteria specified and approved in the 1037 waiver services agreement entered into with the Centers for Medicare and Medicaid Services and in accordance with ARM 37.34.201;

            (b) applies for and meets the applicable Medicaid financial eligibility requirements found in ARM Title 37, chapter 82; and

            (c) requires the level of care provided in an intermediate care facility for members with intellectual disability (ICF/IID), as determined by the DDP.

            (3) The level of care provided by an ICF/IID facility is needed when a member who is intellectually disabled:

            (a) has severe medical problems requiring substantial care, but not to the extent that habilitation is impossible;

            (b) has extreme deficits in self-care and daily-living skills which require intensive training;

            (c) has significant maladaptive social, interpersonal, or both behavior patterns which require an ongoing, supervised program of intervention; or

            (d) has specialized service needs, and exhibits physical or mental limitations or changes similar to those expected in an older person.

            (4) The following documents must be submitted to the department's eligibility specialist to make a determination of eligibility for acceptance into 1037 waiver services:

            (a) a Vineland II;

            (b) a current psychological evaluation, which for adults, is no more than ten years old; and

            (c) page one of the eligibility determination form.

            (5) "The Determining Eligibility for Services to Persons with Developmental Disabilities in Montana: A Staff Reference Manual," as adopted in ARM 37.34.201, sets forth the eligibility requirements for the DDP's services.

            (6) Upon determination of a member's ineligibility:

            (a) if the member is on the statewide waiting list, their name will be removed from the waiting list; or

            (b) if the member is currently receiving 1037 waiver services, the services will be terminated ten days from the date of the ineligibility notification letter.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE VI SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: SELECTION AND ENTRY (1) A member may be placed on the statewide waiting list for consideration for selection and entry into 1037 waiver services if:

(a) the member is found eligible in accordance with [NEW RULE V];

(b) the member is age 16 or older;

          (c) the member's needs can be met for $20,000 or less;

          (d) the member or their representative is willing and able to self-direct all services; and

          (e) the member is willing to achieve paid employment in an integrated community setting, by the third year of enrollment in 1037 waiver services.

          (2) A member is placed on the statewide waiting list on the date the member's case manager submits a waiting list entry change form to the appropriate DDP regional office.

          (3) The department provides 30 days for an interested party in 1037 waiver services to submit a referral packet which must include:

          (a) waiting list entry change form;

          (b) the Montana Individual Resource Allocation Protocol or an estimated cost plan in addition to the MONA if the member's MONA is over $20,000;

(c) a social history completed within the past 365 days; and

          (d) a skills assessment completed within the past 365 days.

          (4) Referral packets are scored by a screening committee with priority given to:

          (a) length of time on waiting list;

          (b) age 16 and older with a current Individualized Education Plan (IEP); and

          (c) evidence of work interest.

          (5) The selection for consideration of more than one member with the same score is made by the department through a random selection process.

          (6) A DDP designee notifies a member selected for entry into 1037 waiver services and the member's case manager, in writing, within ten working days of selection into the waiver.

(7) Within ten working days from the date of the notification letter, a DDP designee delivers to a selected member a list of appropriate 1037 waiver services available to the member and documents the member's choice.

          (8) When a member chooses to self-direct with employer authority:

          (a) the member must begin enrolling with the contracted FMS within 15 working days from the date of the selection letter; and

          (b) services must begin within 45 working days of completion of the enrollment process unless additional time is prior approved by a DDP regional manager.

          (9) When a member chooses to self-direct with an agency with choice as the member's provider, the member's case manager documents the choice and within 15 working days from the date of the selection letter the case manager submits to the provider:

          (a) a referral packet;

          (b) a plan of care; and

          (c) any other requested information.

          (10) A provider must contact the DDP designee within 15 working days from the date the provider service referral packet is submitted to the provider and either accept or decline to offer service to the member.

           (11) A member must determine from which provider they will accept services within five working days following the offer.

            (12) The case manager must:

            (a) document the member's choice of provider;

            (b) obtain the member's or their legal representative's signature; and

            (c) maintain the documentation in the member's file.

            (13) Upon acceptance of 1037 waiver services, a member must begin services within 45 working days from the date the provider offers services to the member.

            (14) If a member selected for entry into 1037 waiver services cannot find a provider able or willing to provide services within 90 days from the date of the selection notification letter, the opening will be considered forfeited unless exempted from forfeiture by a DDP regional manager.

            (15) Upon submission of a member's written request for an extension of time to locate a provider, a DDP regional manager is authorized to grant an exception, at their discretion, to the timeline described in (14).

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE VII SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: AVAILABLE SERVICES (1) The following services may be provided under 1037 waiver services:

            (a) adaptive equipment, as provided in [NEW RULE XIII];

            (b) behavioral support, as provided in [NEW RULE XIV];

            (c) environmental modifications, as provided in [NEW RULE XV];

            (d) individual goods and services, as provided in [NEW RULE XVI];

            (e) job discovery, as provided in [NEW RULE XVII];

            (f) job preparation, as provided in [NEW RULE XVIII];

            (g) meals, as provided in [NEW RULE XIX];

            (h) personal emergency response, as provided in [NEW RULE XX];

            (i) personal supports, as provided in [NEW RULE XXI];

            (j) respite, as provided in [NEW RULE XXII];

            (k) supported employment and follow-along support, as provided in [NEW RULE XXIII];

            (l) supported employment and individual employment support, as provided in [NEW RULE XXIV];

            (m) supported employment and small group, as provided in [NEW RULE XXV];

            (n) supported employment and coworker support, as provided in [NEW RULE XXVI];

            (o) supports brokerage, as provided in [NEW RULE XXVII]; and

            (p) transportation, as provided in [NEW RULE XXVIII].

            (2) Services provided to a member through 1037 waiver services are limited to the services specified in the member's individual plan of care and the individual cost plan. The individual cost plan must not exceed $20,000.

            (3) Services available through the Medicaid state plan may only be provided as home and community waiver services if the required services exceed or are different from the services available in the Medicaid state plan.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE VIII SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: PROVIDER REQUIREMENTS (1) The criteria for a qualified provider to deliver a service available through 1037 waiver services are specified in the Provider Specifications for Services Matrix for 1037 waiver services.

            (2) The Provider Specifications for Services Matrix for 1037 waiver services, dated December 12, 2014, sets forth the qualifications and standards that govern provider requirements in the provision of 1037 waiver services.

            (3) The department adopts and incorporates by reference the Provider Specifications for Services Matrix for 1037 waiver services dated June 24, 2014.

            (4) A copy of the matrix may be obtained through the Department of Public Health and Human Services, Developmental Disabilities Program, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210 or at http://www.dphhs.mt.gov/dsd/ddp/medicaidwaivers.shtml.

            (5) If not utilizing the College of Direct Supports curriculum, a provider or employer must document the completion of training in the personnel file of the staff or in the provider's staff training file including:

            (a) the date of the training;

            (b) name and title of trainer;

            (c) name and signature of the persons receiving the training;

            (d) type of training;

            (e) the agenda of the training; and

            (f) hours of training.

            (6) Any facility providing services must meet all applicable licensing requirements and fire and safety standards.

            (7) A person directly providing services to a member must be mentally and physically capable of assisting the member receiving services as required by the DDP.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE IX SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: REIMBURSEMENT (1) Reimbursement for the provision of services or items funded through 1037 waiver services is available in accordance with criteria and procedures in ARM 37.34.3001 and 37.34.3002.

            (2) The rates of reimbursement for particular types of services and items that may be funded through 1037 waiver services are established in accordance with ARM 37.34.3005.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE X SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: TERMINATION OF ENROLLMENT (1) The department may terminate a member's enrollment in 1037 waiver services if the member does not meet the eligibility requirements, in accordance with this subchapter.

            (2) The department may terminate a member's enrollment if:

            (a) the services or funding necessary to implement the member's service plan are unavailable;

            (b) the professional or other services necessary to implement the member's service plan are unavailable;

            (c) the member does not cooperate in the eligibility determination process;

            (d) the member does not participate in planning for service delivery;

            (e) services are no longer appropriate or cost efficient for the member's needs and there are no alternative services available by which a service plan can be implemented to provide for the member's needs;

            (f) the member poses imminent risk to the health and safety of another person or themselves by not participating in available services;

            (g) the behaviors of the member precluded the delivery of 1037 waiver services as provided for in the member's service plan;

            (h) behaviors of the member necessitate that the member must be served in a setting that is not available through 1037 waiver services or in which the services of the waiver may not be delivered;

            (i) the health status of the member necessitates that they must be served in a setting that is not available through 1037 waiver services or in which such services may not be delivered; or

            (j) the member does not achieve 10 hours per week (or maximum amount allowed to maintain Medicaid eligibility if less than 10) of integrated community employment by the third year of enrollment in 1037 waiver services.

            (3) The department may temporarily increase a member's individual cost plan for up to one year if the member's needs can no longer be met by a $20,000 individual cost plan and the department determines that the increased needs of the member will not exceed one year.

            (4) A member may pursue enrollment in another appropriate waiver if:

            (a) the member is no longer able to or interested in self-directing services;

            (b) the member is no longer interested in integrated community employment; or

            (c) the department determines that the member's increased service needs will exceed one year, as described in (3).

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XI SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: FREEDOM OF CHOICE (1) A member determined by the department to require the level of care provided in an ICF/IID must be given a choice between placement in an ICF/IID, if available, or in the department's 0208 Medicaid Home and Community-Based Services Waiver.

            (2) A member or their legal representative must be informed of the feasible alternatives in the community, if any, available through 1037 waiver services.

            (3) The DDP's quality improvement specialist completes the Waiver 5, Freedom of Choice form with a member during the initial in-person level of care determination, and documents in the member's file that the member was given the choice and records the choice.

            (4) Case managers must inform a member currently served in 1037 waiver services annually of feasible alternatives in the community and provide documentation for the member's case file.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XII SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: NOTICE AND FAIR HEARING (1) A member aggrieved by an adverse determination by the department may request a fair hearing as provided in ARM Title 37, chapter 5, subchapter 3.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XIII SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: ADAPTIVE EQUIPMENT (1) Adaptive equipment is equipment that is necessary for a member to obtain or retain employment or to increase independent functioning in completing activities of daily living.

            (2) Adaptive equipment must:

            (a) relate specifically to and be primarily for the member's disability;

            (b) have utility primarily for the member who has a disability;

            (c) meet the specifications, if applicable, for the equipment set by the American National Standards Institute (ANSI);

            (d) be prior authorized by the department if the cost of the project may exceed $4,000; and

            (e) be unavailable through any other sources.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XIV SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: BEHAVIORAL SUPPORT SERVICES (1) Behavioral support services teach others to carry out ethical and effective behavior interventions based on positive behavior supports. Behavioral support services staff may supervise the work of others who implement behavior interventions.

            (2) Behavioral support services may include:

            (a) designing behavioral assessments and functional analysis of behavior;

            (b) interpreting assessment and evaluation results for staff and unpaid caregivers;

            (c) designing, monitoring, and modifying written behavior support intervention procedures;

            (d) training staff and unpaid caregivers in the implementation of formal and informal behavioral support procedures; and

            (e) attending planning meetings for the purpose of providing guidance and information to plan team persons.

            (3) A person providing behavioral support services must meet the requirements of ARM 37.34.1422(2).

            (4) A member receiving behavioral supports may only self-direct this service using agency with choice.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XV SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: ENVIRONMENTAL MODIFICATIONS (1) Environmental modifications are those physical adaptations to a member's home or vehicle which are necessary to safeguard the health, welfare, and safety of the member, or which enable the member to function with greater independence and without which they would require institutionalization.

            (2) An environmental modification must:

            (a) relate specifically to and be primarily for a person with a disability;

            (b) have utility primarily for a person who has a disability;

            (c) not be an item or modification that a family would normally be expected to provide for a nondisabled family member;

            (d) not be in the form of room and board or general maintenance;

            (e) meet the specifications, if applicable, for the modifications set by the American National Standards Institute (ANSI); and

            (f) be prior authorized by the department if the cost of the project may exceed $4,000.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XVI SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: INDIVIDUAL GOODS AND SERVICES (1) Individual goods and services are services, supports, or goods that enhance opportunities to achieve outcomes related to living arrangements, relationships, and inclusion in the community as identified and documented in the plan of care.

            (2) Individual goods and services must fall into one of the following categories:

            (a) memberships and fees; or

            (b) equipment and supplies.

            (3) Individual goods and services must be:

            (a) exclusively for the benefit of a member; and

            (b) the most cost-effective alternative that reasonably meets the assessed needs of a member.

            (4) The service, equipment, or supply must meet a member's medical needs or provide support in order to be independent in daily activities and must meet one of the following criteria:

            (a) promotes inclusion in the community;

            (b) increases the member's safety in the home environment; or

            (c) decreases the need for other Medicaid services.

            (5) The cost of the service, equipment, or supply must not compromise a member's health or safety by depleting their individual cost plan to the extent they cannot receive services that provide for their health and safety.

            (6) Services, equipment, or supplies which are experimental will not be reimbursed.

            (7) A member or their delegate who is self-directing services with employer authority using the FMS must purchase goods and services in accordance with the requirements set forth by the DDP and receive reimbursement from the FMS.

            (8) Individual goods and services expected to exceed a $2,000 annual aggregate limit require prior approval by the DDP regional manager.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XVII SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: JOB DISCOVERY (1) Job discovery is individual assistance to identify supports and develop employment goals and a career profile or career plan for achieving integrated employment. Career profiles or career plans may be developed through various strategies such as job exploration, job shadowing, informational interviewing, job and task analysis activities, employment preparation, business plan development for self-employment, and volunteerism.

          (2) Job discovery is limited to 40 hours of service per year, unless additional hours are prior approved by the DDP.

(3) Job discovery may be provided in conjunction with other employment services.

(4) Agency with choice based services may be provided in:

(a) a community setting; or

(b) a provider site.

(5) Job discovery must be provided in a community setting with 1:1 staff-to-member ratio. Community settings do not include group work or day areas.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XVIII SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: JOB PREPARATION (1) Job preparation provides formalized training and work experiences, based upon the goals identified during job discovery, intended to teach a member the skills necessary to succeed in a paid competitive, customized, or self-employment setting. Training may also address workplace social skills and the development of practices and behaviors necessary for successful employment.

            (2) Job preparation must be primarily for the purpose of habilitation.

            (3) If a member has not obtained integrated employment after one year of receiving job preparation, the job discovery process must be repeated.

            (4) Job preparation may be provided in conjunction with other employment services.

  (5) Job preparation must be provided in a community setting with 1:1 staff-to-member ratio which does not include group work or day areas.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XIX SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: MEALS  (1) Meal services provide hot or other appropriate meals once or twice a day, up to seven days a week, to ensure that a member receives adequate nourishment and to prevent institutional placement.

            (2) Meal services may only be provided to a member who is not eligible to receive meals from any other source, or who needs different or more extensive services than are otherwise available.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XX SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: PERSONAL EMERGENCY RESPONSE SYSTEM (1) Personal emergency response system (PERS) is an electronic device that enables a person to secure help in an emergency. The system is connected to a member's phone and programmed to notify a response center once a help button is activated. The response center is staffed by trained professionals. PERS services may be appropriate for members who live alone, or who are alone for parts of the day, and have no regular caregiver for periods of time. PERS service may be delivered via a cellular phone.

            (2) To access the cellular phone option, a member must:

            (a) require access to assistance or supports; and

            (b) frequently be beyond the range of coverage of a PERS system.

            (3) Cellular phone plans must be basic plans and must not include features or applications unrelated to health and safety issues.

            (4) A usage control feature and insurance may be added to the basic phone plan.

            (5) A member must pay for any excess fees and costs that are not approved in the plan of care.

            (6) The case manager must review the cellular phone guidelines with a member upon receipt of the phone and at the annual planning meeting.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XXI SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: PERSONAL SUPPORTS (1) Personal supports services assist a member in carrying out daily living tasks and other activities essential for living in the community and provide supervision and monitoring to ensure the member's health and safety.

            (2) Personal supports may assist a member with:

            (a) ensuring the member's health and safety;

            (b) accessing the community;

            (c) development of self-advocacy skills;

            (d) identifying and sustaining a personal support network;

            (e) household activities necessary to maintain the home-living environment;

            (f) home maintenance activities;

            (g) maintaining employment; and

            (h) accessing opportunities.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XXII SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: RESPITE  (1) Respite care is relief services designed to allow family members, who regularly care for a member receiving 1037 waiver services, to be relieved from their caregiver responsibilities in relation to reducing stress generated by the provision of constant care to the member receiving services.

            (2) Respite providers must be selected and trained by the parents or legal representatives of a member.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XXIII SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: SUPPORTED EMPLOYMENT, FOLLOW-ALONG SUPPORT (1) Follow-along support consists of habilitation services and supports that enable a member to stabilize or expand employment in a competitive, customized, or self-employment setting.

            (2) A member may require follow-along support when:

            (a) the member's job is in jeopardy; or

            (b) a job promotion opportunity requires more complex, comprehensive, or intensive supports.

            (3) Follow-along support may be provided in an extended ongoing manner or intermittently, as needed.

            (4) Follow-along support may include:

            (a) person-centered employment planning;

            (b) job promotion activities;

            (c) observation and job support to enhance job task skills;

            (d) monitoring at the work site to ascertain the success of the job placement;

            (e) job coaching;

            (f) follow up with the employer, coworkers, employed member, parents, legal representatives, and others as needed, in order to reinforce and stabilize job placement;

            (g) facilitation of natural supports at the work site;

            (h) advocating for the member at the employment site;

            (i) assistance with management of financial paperwork;

            (j) assistance with medication administration considered incidental to the follow-along support; and

            (k) application of behavioral intervention programs, when developed and approved according to the positive behavioral support rule.

            (5) Follow-along support may be provided in conjunction with other employment services.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XXIV SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: SUPPORTED EMPLOYMENT, INDIVIDUAL EMPLOYMENT SUPPORT (1) Individual employment supports are habilitation services and staff supports needed by a person to acquire integrated employment or career advancement in the general workforce.  Individual employment support is delivered in a competitive, customized, or self-employment setting. The outcome of this service is paid employment in a competitive, customized, or self-employment setting within the general workforce that meets the member's personal and career goals, as documented in the plan of care.

            (2) Individual employment supports may include:

            (a) person-centered employment planning;

            (b) job development;

            (c) negotiation with prospective employers;

            (d) creating a job description based on a task derived from a single traditional job (job carving);

            (e) job placement;

            (f) support for career advancement opportunities;

            (g) job analysis;

            (h) training, support, coordination, and communication in related skills needed to obtain or retain employment;

            (i) job coaching;

            (j) job loss support; and

            (k) benefit planning support.

            (3) Individual employment supports may be provided in conjunction with other employment services.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XXV SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: SUPPORT EMPLOYMENT, SMALL GROUP SUPPORT (1) Small group employment support consists of habilitation services and staff supports needed for groups of two to eight workers with disabilities to acquire and maintain a job or position in the general workforce at or above the state's minimum wage.

            (2) Small group employment support must be provided in a manner that promotes integration into the workplace and interaction between people with and without disabilities in those workplaces.

            (3) Small group employment support must occur in business settings during the hours typical for the industry.

            (4) Small group employment support may include:

            (a) person-centered employment planning;

            (b) job development;

            (c) negotiation with prospective employers;

            (d) creating a job description based on a task derived from a single traditional job, also referred to as job carving;

            (e) job placement;

            (f) support for career advancement opportunities;

            (g) job analysis;

            (h) training, support, coordination, and communication in related skills needed to obtain or retain employment;

            (i) job coaching; and

            (j) benefit planning support.

            (5) Small group employment support may be provided in conjunction with other employment services.

            (6) A member receiving small group employment support may only self-direct this service using the agency with choice model.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XXVI SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: SUPPORT EMPLOYMENT, COWORKER SUPPORT (1)  Coworker support service allows the DDP and developmental disabilities provider agencies to contract with a business to provide coworker job supports as a part of the natural workplace. This service differs from supported employment and follow-along support in that it creates opportunity for services and supports to be provided by the employee of a local business where a member is employed. This service is intended to provide ongoing coworker support allowing follow-along support to be decreased.

            (2) The purpose of supported employment coworker support is to assist a member to:

            (a) develop positive work-related habits, attitudes, and skills;

            (b) acquire work etiquette directly related to their specific employment;

            (c) gain knowledge of the health and safety aspects/requirements of their particular job;

            (d) assist the member in becoming a part of the informal culture of the workplace;

            (e) provide job skill maintenance or assistance with incorporating new tasks; and

            (f) facilitate other supports at the work site.

            (3) Coworker support may be provided in conjunction with other employment services.

            (4) The employer is reimbursed a daily rate to offset the cost to the employer for providing the supports which may be needed to maintain a person in the job.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XXVII SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM: SUPPORTS BROKERAGE (1) Supports brokerage services assist a member self-directing service with employer authority in arranging, directing, and managing self-directed services as described in the member's plan of care. The supports broker acts as an agent of a member or their legal representative and is available to assist in identifying immediate and long-term needs, developing options to meet those needs, and accessing identified supports and services.

            (2) As determined by the scope and nature of the opportunities afforded to a member receiving 1037 waiver services, supports brokers may provide information regarding the following:

            (a) person-centered planning and how it is applied;

            (b) the range and scope of the choices and options the member has;

            (c) the process for changing the plan of care and the individual budget;

            (d) the grievance process;

            (e) risks and responsibilities of self-direction;

            (f) freedom of choice of providers;

            (g) reassessment and review of schedules; and

            (h) other information pertinent to managing self-directed services.

            (3)  The supports broker may assist a member with:

            (a) defining goals, needs, and preferences;

            (b) training the member on the material contained in the self-directed employer handbook;

            (c) day-to-day management of the budget for self-directed services;

            (d) identifying and accessing services, support, and resources;

            (e) practical skills training regarding hiring, managing, and terminating employees;

            (f) problem solving and conflict resolution;

            (g) development of risk management agreements;

            (h) development of an emergency backup plan;

            (i) exercising independent advocacy;

            (j) completing required forms; and

            (k) development and maintenance of service documentation.

            (4) Duplicative services are not allowed concurrent with supports brokerage.  In instances where activities of the supports broker duplicate the provisions of case management, the plan of care must clearly delineate the responsibilities for performance activities.

            (5) The annual cap for supports brokerage is $4,000. This value may be exceeded for a limited time period in extraordinary circumstances with prior approval of the DDP.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            NEW RULE XXVIII  SUPPORTS FOR COMMUNITY WORKING AND LIVING 1037 HOME AND COMMUNITY SERVICES WAIVER PROGRAM:

TRANSPORTATION  (1) Transportation services are those services which enable persons served in 1037 waiver services to gain access to waiver and other community services, activities, and resources.

            (2) Transportation may be offered in addition to medical transportation required under 42 CFR 431.53 and transportation services under the state plan, defined at 42 CFR 440.170(a).

            (3) Reimbursable transportation expenses may include assistance with reasonable costs related to one or more of the following areas, as determined by the DDP:

            (a) operator training and licensure;

            (b) insurance; and

            (c) registration or other costs associated with the member's dependence on the use of a personal vehicle as outlined in the plan of care.

            (4) The following are excluded from transportation services:

            (a) adaptations or improvements to the vehicle that are of general utility, and are not of direct medical or remedial benefit to a member;

            (b) purchase or lease of a vehicle;

            (c) regularly scheduled upkeep and maintenance of a vehicle with the exception of upkeep and maintenance of any modifications; and

            (d) escort services.

            (5) Transportation may be provided when required transportation services exceed the Medicaid state plan or are different from the services available in the Medicaid state plan.

            (6) Legal representatives and other persons who are not employees of agencies with a DDP contract may be reimbursed for the provision of a member's transportation, at the mileage rate based on the operational expense of a motor vehicle, but such reimbursement does not include:

            (a) reimbursement for work performed;

            (b) the driver's time expended during transportation; or

            (c) transportation not directly related to the specific disability needs of the member, as outlined in the plan of care.

            (7) For self-directed services, the FMS may only pay mileage reimbursement upon receiving documentation that transportation was provided in accordance with Montana state requirements for operating a motor vehicle.

            (8) Mileage reimbursement through the FMS may be available to the owner of the vehicle when:

            (a) transportation services for a member are for approved community functions;

            (b) all the requirements for operating a motor vehicle that are required have been met; and

            (c) the mileage reimbursement provision is approved in the plan of care.

  (9) A person providing transportation services to a member must:

            (a) be 18 years of age or older;

            (b) have a valid motor vehicle license;

            (c) maintain liability insurance; and

            (d) have proof of vehicle registration.

 

AUTH: 53-6-113, 53-6-402, MCA

IMP:     53-6-101, 53-6-402, MCA

 

            4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (the department) proposes to adopt New Rules I through XXVIII for the 1915(c) Home and Community-Based Services (HCBS) Program pertaining to the Supports for Community Working and Living 1037 Home and Community Services Waiver Program (1037 Waiver Services).

 

The department received approval for a 1915(c) HCBS waiver proposal from the Centers for Medicare and Medicaid Services (CMS) on October 1, 2013. The purpose of the 1037 waiver is to establish a program of Medicaid-funded home and community-based services for persons with developmental disabilities who wish to achieve integrated community employment. The proposed Administrative Rules of Montana, New Rules I through XXVIII, are specific for administering the 1037 HCBS Waiver Program.

New Rule I - New Rule II

The department is proposing these rules to provide the definitions of self-directed services. All of the services in these rules are only available by self-direction. These proposed new rules are necessary to provide uniform definitions and the foundational requirements for self-directed services.

 

New Rule III

 

The department is proposing this rule in order to outline the federal authority under Section 1915(c) of the Social Security Act, providing each state the option to renew its Medicaid waiver to offer home and community-based services. In addition, the proposed new rule establishes the discretion of the department to manage the various aspects of the 1037 Waiver Services Program in conformance with federal authority and as otherwise determined appropriate by the department. This application of discretion to the 1037 Waiver Services Program is necessary to ensure continuing conformance with the governing federal authority so as to avoid withdrawal of federal approval for the 1037 Waiver Services Program and to avoid federal recoupment for inappropriate expenditures of federal monies.

 

New Rule IV

 

The department is proposing this rule because it is the goal of the department to provide services to those in need at the least restrictive levels available and it is the department's contention that focusing services on integrated community employment reduces the risk of placement into an ICF/IID. The 1037 Waiver Services Program provides opportunity for adults with developmental disabilities to maximize their level of independence by providing the opportunity to have more control over their services while focusing on integrated community employment. The state provides services in accordance with Medicaid home and community services standards and available funding. In order to participate in the 1037 Waiver Services Program, the department has no other option but to strictly comply with these regulations or face the loss of the federal funding.

 

New Rule V

 

The department is proposing this rule in order to outline the developmental disability eligibility determination requirements for the 1037 Waiver Services Program. This is necessary because a person seeking acceptance into the 1037 Waiver Services Program must first be found to have a developmental disability and must also meet Medicaid financial eligibility requirements.

 

New Rule VI

 

The department is proposing this rule in order to outline the process for selection and entry into the 1037 Waiver Services Program. The 1037 Waiver Services Program selection process involves a scoring system awarding available waiver slots to applicants with the highest points. This is necessary in order to describe how points are awarded and to outline the steps and timelines involved once an individual is selected into waiver services.

 

New Rule VII

 

The department is proposing this rule in order to provide an outline of services available under the 1037 Waiver Services Program as approved by CMS. This is necessary to provide a reference guide for providers to assist in identifying services available and locating the corresponding rule.

 

New Rule VIII

 

The department is proposing to adopt and incorporate by reference the Provider Specifications for Services Matrix for the 1037 Waiver Services Program, dated December 12, 2014. The matrix conveys the training, licensing, certification, and educational requirements for each service and service provider option. Due to the fact that these requirements vary by service as well as by service providers, the department created the matrix to articulate a large quantity of information in one comprehensive document. This rule is necessary to stipulate current requirements.

 

New Rule IX

 

The department is proposing this rule because it specifies the reimbursement for services under the 1037 Waiver Services Program. This rule is necessary to direct a person to the correct location for the rates of reimbursement.

New Rule X

The department is proposing this rule because it is necessary to outline the reasons why the department may terminate a person's placement in the 1037 Waiver Services Program. The 1037 Waiver Services Program has several unique requirements that must be met in order to ensure continuing conformance with the governing federal authority so as to avoid withdrawal of federal approval for the 1037 Waiver Services Program and to avoid federal recoupment for inappropriate expenditures of federal monies. New Rule XI stipulates that if these criteria are not met, a person may transition to the 0208 HCBS Waiver Program.

 

New Rule XI

 

The department is proposing this rule because it is necessary to maintain the department's obligation to meet the federal assurance of informing an individual of their freedom of choice, as provided in 42 CFR Section 441.302(d). The department's Waiver-5 Freedom of Choice form is part of the assurances the department attested to in the 1037 HCBS application and therefore must be implemented.

 

New Rule XII

 

The department is proposing this rule because it references the administrative rule that defines the responsibilities of the department for appropriate notice to applicants regarding a person's level of care and selection or denial for placement. A person who disagrees with an adverse action relating to services rendered, including such actions as suspension, reduction, or termination of services, the denial of a requested service, or an adverse action resulting from the individual planning process, may appeal the decision through a fair hearing procedure available through the authority of the Montana Administrative Procedure Act.

 

New Rule XIII - New Rule XXVIII

 

The department is proposing these rules because they pertain to the particular services available through the 1037 Waiver Services Program and define the available services along with the various requirements pertaining to their utilization. This is necessary to establish the definition and requirements in administrative rule to ensure compliance with CMS approval of the 1037 HCBS waiver application.

 

            5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., December 4, 2014.

 

6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of a person to receive notices and specifies for which program a person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Cary B. Lund                                           /s/ Richard H. Opper                                   

Cary B. Lund                                               Richard H. Opper, Director

Rule Reviewer                                             Public Health and Human Services

           

Certified to the Secretary of State October 27, 2014.

 

Home  |   Search  |   About Us  |   Contact Us  |   Help  |   Disclaimer  |   Privacy & Security