Current through Register Vol. 49, No. 9, September, 2024
3007.0.0
OPTIONS COUNSELING AND MDS
REFERRALS TO THE DEPARTMENT OF HUMAN SERVICES (DHS)
3007.1.0
Authority
Options Counseling: Ark. Code Ann. §
20-10-2101 through 2107. Minimum
Data Set Section Q: 42
U.S.C. §
1395i-3 and 42 C.F.R. §
483.20.
3007.2.0
Purpose: This rule implements both the long-term care Options
Counseling and the Minimum Data Set (MDS) Section Q referral processes that are
made to the Department of Human Services (DHS). In both programs, long-term
care facilities are required to refer to DHS residents who are interested in
other care alternatives. State law requires that referrals be made for Options
Counseling by the day after admission. Federal law and regulations require
facilities to refer those interested within ten days of completion of the
MDS.
3007.3.0 The Options
Counseling Program provides information regarding long-term care options to an
individual (or the individual's representative) who:
A. Seeks an Options Counseling
consultation
B. Seeks admission to
a long-term care facility, regardless of payment source
C. Resides in a long-term care facility and
applies for Medicaid reimbursement
3007.3.1 For the purposes of Options
Counseling, "Long-Term Care Facility" means a nursing facility or a licensed
level II assisted living facility. For the purposes of the referral through
Section Q, "Long-Term Care Facility" means any nursing facility required by
federal law to complete an MDS on residents.
3007.3.2 When completing Section Q of the
MDS, the long-term care facility shall be required to refer the individual to
the "local contact agency" (DHS) if the care plan process determines that it is
feasible that the individual may be able to return to the community, or if the
individual or representative responds positively to the question, "Do you want
to talk with someone about the possibility of returning to the
community?"
3007.4.0
Long-Term Care Options Counseling Consultation
3007.4.1 Regardless whether the individual is
referred to DHS through the Options Counseling Program or through the MDS, for
administrative ease, the individual will be referred in the same manner and
will receive the same type of consultation. For the purposes of this policy,
the consultation for both programs will be referred to as Options
Counseling.
3007.4.2 Each long-term
care Options Counseling consultation shall include information about:
A. Factors to consider when arranging for
care, including methods for maximizing independence and
self-reliance;
B. Available
options;
C. Costs and potential
payment sources;
3007.4.3 Each long-term care Options
Counseling consultation may include an assessment of the individual's
functional capabilities.
3007.5.0
Division of Aging and Adult Services Responsibilities
3007.5.1 Overall Responsibilities:
The Division of Aging and Adult Services (DAAS) is responsible
for providing Options Counseling to residents who indicate interest. The
response to a resident may be in the form of mailing community resource
information to the resident or it may include a face-to-face consultation with
the resident/representative by a DAAS employee in the facility. DAAS employees
may include Home and Community-Based Services (HCBS) Nurses, Transition
Coordinators and Eligibility Facilitators.
3007.5.2 Assistance to Medicaid
Recipients/Applicants
Residents who are on Medicaid or who have applied for Medicaid
may receive assistance from DAAS with meeting the resident's transition and
community service goals, if the resident is interested in transitioning to a
community setting.
3007.5.3
Responsibilities of DAAS Employees:
DAAS employees will have an active presence in facilities
throughout Arkansas to help ensure that Medicaid recipients are aware of
community options and are able to make informed decisions about how the
resident receives long-term services and supports. The DAAS employee will seek
to develop a working relationship with members of the facility's staff. As
appropriate for the needs of the resident, DAAS employee's duties will
include:
A. Assuring residents have
information about community long-term services and supports options;
B. Screening residents for potential
transition;
C. Requesting and
gathering copies of resident information from the facility, such as MDS, care
plan, etc., once permission from the resident/authorized representative is
secured, in order to fully screen the resident and plan for
transition;
D. Identifying barriers
to transition and working with the resident, his/her family, facility staff and
others to remove or address the barriers to transition;
E. Conducting appropriate assessment, care
planning and coordinating the authorization of services;
F. Referring residents to available
transition resources;
G.
Facilitating the transition of enrollment to the appropriate waiver with the
Division of County Operations (DCO) local office.
3007.6.0
Offering Long-Term Care
Options Counseling Consultations
3007.6.1 Long-Term Care Facility
Responsibilities
A. Long-Term Care Facility
Admissions
1. Long-term care facilities must
inform new admissions of the opportunity for a long-term care Options
Counseling consultation at admission regardless of the individual's payment
source.
2. When admitting a
resident, the long-term care facility must:
a.
Complete and obtain the signature of each resident or the resident's
representative on a separate Form DHS-9571;
b. Transmit the form to the Arkansas
Department of Human Services (DHS) via online submission at
https://dhs.arkansas.gov/daas/NursingHome/
no later than 5:00 p.m. of the next business day following the admission. Due
to the one-day timeline for submission that is required by law, if the facility
is having connectivity problems, it may fax the form to the Office of Long Term
Care in order to meet the timeline; but once connectivity returns, the facility
must follow-up and enter the information that had previously been faxed, via
the website;
Note: There are two methods for obtaining a signed
DHS-9571. The long-term care facility may complete the form manually, obtain
the signature of the individual or representative, and then key the information
into the website; or, key the information into the website, print the completed
form from the website, and then obtain the signature of the individual or
representative.
c. Maintain
the original DHS-9571 in the resident's file at the long-term care facility
until completion of the next standard survey or for 18 months, whichever is
longer; and
d. Make these records
available for audit purposes as requested by DHS, its representatives, or
designees.
B.
Previously Admitted Long-Term Care Facility Residents Who Apply For Long-Term
Care Medicaid
Each long-term care facility must:
1. Offer the opportunity for an Options
Counseling consultation to previously admitted residents who apply for
long-term care Medicaid reimbursement;
2. Offer the opportunity for an Options
Counseling consultation to each resident before the Medicaid application is
filed if possible; and
3. Transmit
the form to DHS via online submission at
https://dhs.arkansas.gov/daas/NursingHome/
no later than 5:00 p.m. of the next business day following the offer;
4. When a person or the person's
representative declines an offer for an Options Counseling consultation, the
long-term care facility must complete Form DHS-9571 documenting that the
individual refused an Options Counseling consultation.
5. Maintain the original DHS-9571 in the
resident's patient file at the long-term care facility until completion of the
next standard survey (for nursing homes) or licensure survey (for Level II
Assisted Living Facilities), or for 18 months, whichever is longer;
and
6. Make these records available
for audit purposes as requested by DHS, its representatives, or
designees.
C. For
Long-Term Care Facilities completing an MDS either at admission or at
reassessment, the facility shall:
1. Complete
section Q of the MDS. The long-term care facility shall be required to refer
the individual to the "local contact agency" (DHS) if the care plan process
determines that it is feasible that the individual may be able to return to the
community, or if the individual or representative responds positively to the
question, "Do you want to talk with someone about the possibility of returning
to the community?";
2. If a
referral is appropriate, the long-term care facility will transmit the
information on the individual via the same online submission as Options
Counseling at
https://dhs.arkansas.gov/daas/NursingHome/
no later than 10 days from the time the MDS is completed;
3005.6.2 DHS, Division of County
Operations, (DCO), Responsibilities.
DCO will offer information on Options Counseling to each
long-term care Medicaid applicant.
3007.7.1 Deliver to Division of Aging and
Adult Services (DAAS) all DHS-9571 forms received from long-term care
facilities.
3007.7.2 After the
first three failures of a long-term care facility to complete the form required
under §
20-10-2106 in any calendar year,
the Department of Human Services, through the Office of Long Term Care, shall
assess a fee against the long-term care facility of twenty-five dollars for
each failure beyond three, with an annual maximum fee of one thousand two
hundred dollars ($1,200).
A. OLTC shall
provide written notice to long-term care facilities that a fee is
imposed.
B. Notice shall:
1. State or list the specific failures
leading to the imposition of the fine, including the dates on or about which
the failure occurred, the names of residents for whom the failure occurred, and
the amount of the fine imposed; and,
2. Set forth the long-term care facility's
appeal rights.
3007.7.3 While state level penalties are not
applicable to a failure to refer under MDS Section Q, federal deficiencies and
penalties may be applicable.
3007.8.0
Appeal
A. A long-term care facility may appeal a fee
by sending a written request for a hearing to the Director of the Department of
Human Services ("Director")
B. The
Director must receive the appeal within sixty calendar days after OLTC mails
the notice of fee to the long-term care facility by regular mail to the most
recent address provided by the facility in facility license records.
C. The Director shall assign the appeal to a
fair and impartial hearing officer who shall not be a full-time DHS employee.
The hearing officer shall preside over the hearing and make findings of fact
and conclusions of law in the form of a recommendation to the
Director.
D. DHS shall commence
each hearing within forty-five days of receipt of a timely request for hearing.
The hearing officer shall notify the OLTC Director of the date, time, and place
of the hearing. Such notification shall be in writing sent by regular mail to
the appealing long-term care facility at least twenty days before the hearing
date.
E. The appealing facility may
agree in writing to resolve the appeal without a hearing.
F. If the facility waives the time limit
under subdivision (D) of this section, the hearing officer shall begin the
hearing at a time agreed to by the parties.
G. Hearing Officers shall conduct the appeal
hearing in accordance with the Administrative Procedure Act and DHS Policy
1098.
H. Upon written request of a
facility, OLTC shall provide copies of all documents, papers, reports, and
other information that relate to the appeal. OLTC must make such disclosure
within ten working days of receipt of the written request unless the hearing
officer specifies a different date.
I. Upon failure of a person without lawful
excuse to obey a subpoena or to give testimony, the aggrieved party may apply
to the circuit court in the county where the hearing will be held for a court
order compelling compliance.
3007.9.0
Appeal Decision
A. The Hearing Officer shall issue a
recommended decision within 10 working days after the close of the hearing, the
receipt of the transcript, or the submission of post-trial briefs requested or
approved by the hearing officer, whichever is latest.
B. The Director shall review each
recommendation. He or she may:
1. Approve the
recommendation; or
2. Modify the
recommendation in whole or in part; or
3. Remand the appeal to the hearing officer
for further proceedings. On remand the hearing officer shall conduct further
proceedings as set forth in the Notice of Remand and shall submit a new
recommended decision to the Director.
C. If the Director modifies a recommendation,
in whole or in part, or remands the decision, the Director shall state in
writing the reasons for the remand or modification, including statutory,
regulatory, factual, or other grounds.
D. If the Director takes no action on the
hearing officer's recommendation within 60 calendar days of receiving the
recommendation, the recommendation shall be the final agency disposition as
defined at Ark. Code Ann. §
25-15-202(5).
E. The Director's modification or approval of
a hearing officer's recommendation is the final agency disposition as defined
at Ark. Code Ann. §
25-15-202(5).
3007.10.0
Payment of
Fees
A. Unless the Director denies a
stay, a written request for a hearing shall stay any fee pending the hearing
and the final decision of the Director of the Department of Human
Services.
B. Long-term care
facilities must pay fees to OLTC within thirty working days of receipt of the
notice of fee, or if stayed pending appeal, within thirty working days of
receipt of the final agency disposition unless the disposition has been timely
appealed to circuit court.
3007.11.0
Originating
Section/Department Contact:
DHS has designated the following entity as the Local Contact
Agency:
Aging and Disability Resource Center 700 Donaghey Plaza South
P. O. Box 1437, Slot S-530 Little Rock, AR 72203-1437 Contact:
501-682-8509
