Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This rule establishes the scope of and
requirements for the use of Self-Directed Supports, a service delivery option
available under Home and Community Based waivers as created by section 1915(c)
of the Social Security Act.
(1) Definitions.
(A) Agency-based supports-supports provided
by a public or private agency, including independent contractors, under
contract with the Department of Mental Health and enrolled with the MO
HealthNet Division to serve participants of any home and community-based
waivers operated by the department.
(B) Back-up plan-an emergency plan developed
to address situations when the employee providing essential supports is
unavailable. The individual support plan for all individuals receiving self-
and family-directed supports must provide information about the back-up
plan.
(C) Budget authority-the
right and responsibility of the employer to exercise control and management of
a yearly budget allocation.
(D)
Designated representative (DR) - a parent, relative, or other person designated
by an adult individual or a guardian, who shall act in the best interest of the
individual and serves at the discretion of the individual.
(E) Employer-individual receiving services
through self-directed supports and/or person with the power to act on such
individual's behalf, such as: a designated representative; guardian; or parent,
if the individual is a minor. The employer maintains the Federal Employer
Identification Number and employs persons to provide services to the
individual.
(F) Employment
authority-the right and responsibility of the employer to recruit, hire, train,
manage, supervise, fire, and establish the wages for employees within the
limits described in section (16) of this rule.
(G) Family member-a parent, stepparent,
sibling, child, grandchild, or grandparent related by blood, adoption, or
marriage, or a spouse.
(H) Fiscal
management service (FMS) - a service to assist the employer with
payroll-related functions. The FMS ensures the selfdirected supports program
meets federal, state, and local employment tax, labor and workers' compensation
insurance rules, and other requirements that apply when the individual or
his/her designee functions as the employer of workers. The FMS makes financial
transactions on behalf of the individual.
(I) Home and community-based waivers (HCB
waivers)-a set of long term community-based supports and services authorized by
the Centers for Medicare and Medicaid Services which are provided as an
alternative to care in institutions such as nursing facilities and intermediate
care facilities for individuals with intellectual disabilities. The specific
services provided under a home and community-based waiver is referred to as
home and community-based services.
(J) Improvement plan-a corrective action plan
to address issues of non-compliance with program requirements. The goal of the
improvement plan is to focus on needed supports to ensure the employer succeeds
when using self-directed supports.
(K) Individual-person receiving supports
through a home and community-based waiver.
(L) Individual Support Plan (ISP)-a document
that results from the person-centered planning process, which identifies the
strengths, capacities, preferences, needs, and personal outcomes of the
individual. The ISP includes a personalized mix of paid and non-paid services
and supports that will assist the person to achieve personally defined
outcomes.
(M) Individual Support
Plan team (ISP team)-the individual, the individual's designated
representative(s), and the support coordinator. Providers of waiver-funded
services may also participate in the support plan team if such participation is
requested by the individual or guardian.
(N) Natural supports-unpaid support provided
through relationships that occur in everyday life. Natural supports typically
involve family members, friends, co-workers, neighbors, acquaintances, and
community resources.
(O)
Self-directed supports (SDS)-a service delivery option available under the home
and community-based waivers for persons with intellectual and developmental
disabilities and who wish to exercise more choice, control, and authority over
their supports.
(2)
Eligibility Criteria. Every individual who is receiving services through an HCB
waiver shall have the opportunity to utilize SDS as his/her own employer as
long as-
(A) The individual; designated
representative; guardian; or a parent, if the individual is a minor, is willing
and able to act as the employer, assuming both budget and employment
responsibilities while receiving HCB waiver services from the Division of
Developmental Disabilities (DD); and
(B) The Division of DD does not find good
cause to deny the use of this service model under the criteria stated in
section (11) of this rule.
(3) Designated Representative. An individual
who is eighteen (18) years or older, a guardian, or a parent (if the individual
is a minor), may identify a designated representative for purposes of utilizing
SDS. Designated representatives must demonstrate a history of knowledge of the
individual's preferences, values, needs, and other relevant information. The
individual, his or her planning team, and regional office are responsible to
ensure that this representative is able to perform all the employer-related
responsibilities and complies with requirements associated with representing
the individual in directing services and supports.
(A) The following individuals may be
designated as a representative:
1. Spouse,
unless a formal legal action for divorce is pending;
2. An adult child of the
individual;
3. A parent;
4. An adult brother or sister;
5. Another adult relative of the
individual;
6. A legal guardian;
and
7. Any other adult chosen by
the individual with approval of the ISP team consistent with the requirements
of this section.
(4) Employer Rights and Responsibilities.
(A) The employer must manage the employees'
day-to-day activities ensuring supports are provided as written in the
ISP.
(B) The employer may choose to
hire eligible persons in accordance with the HCB waiver services requirements
and with the following exceptions:
1. A
spouse;
2. A parent or stepparent
of an individual under age eighteen (18);
3. A legal guardian;
4. A designated representative; or
5. A person who is disqualified from
employment under section
630.170,
RSMo.
(C) The employer
shall complete all forms required by the state's FMS contractor, including
Internal Revenue Service (IRS) and Missouri state tax forms.
(D) The employer shall obtain a Federal
Employer Identification Number (FEIN) in the name of the individual (or
parent/guardian if the individual is under the age of eighteen (18)), with the
assistance of the FMS.
(E) The
employer shall follow all federal and state employment laws and regulations
including, but not limited to:
1. Recruiting,
interviewing, checking references, hiring, training, scheduling work, managing
and terminating employee(s). This includes directing the day-to-day care of the
individual and addressing conflicts between employees;
2. Submitting all new employee paperwork to
the FMS prior to the initiation of service. All required documents must be
completed, submitted, and approved as a complete packet in order for them to be
processed in a timely manner. Incomplete documents may delay an employee's
start date;
3. Providing equal
employment opportunities to all employees and interested employees without
discrimination as to race, creed, color, national origin, gender, age,
disability, marital status, sexual orientation, or any other legally protected
status in all employment decisions, including recruitment, hiring, changing
schedules and number of hours worked, layoffs, and terminations, and all other
terms and conditions of employment. The employer accepts full and specific
responsibility for following Equal Opportunity laws and requirements regarding
employees. Each employee is to be treated fairly and consistently. For example,
if the employer decides to check references on one (1) employee, it must be
done for all employees;
4. An
employee may not provide services while the individual is hospitalized or
receiving any other direct care service reimbursed through the MO HealthNet
Division (MHD);
5. Reviewing and
approving time worked, which authorizes billing;
6. Submitting documentation of time worked in
a timely manner in accordance with the FMS payroll schedule. The employer and
employee signatures on/approval of the time sheet validates that the
information submitted is accurate and true. If the employer signs/approves and
the hours have not been worked, the employer will be held financially liable
for payment for the time reported but not worked;
7. The employer is responsible for monitoring
the monthly spending summary report provided by the FMS and for keeping all
expenditures within the individual budget allocation as specified in the ISP.
The employer agrees to reimburse the FMS for any payment of wages and expenses
in excess of the amount in the individual budget allocation. Payment to the
employee is limited to services actually delivered by the employee;
8. If the employer authorizes use of all
funds/hours before the end of the period, the employer is responsible for other
service arrangements; for example, use of non-paid natural supports. The
employer is responsible for the payment of any wages and expenses in excess of
the individual budget allocation. Employees must be paid for all hours
worked;
9. Informing the FMS within
one working day of any changes in the individual's status, including name,
address, telephone number, hospitalization, and termination of program
eligibility; and
10. Informing the
FMS of the employee pay rate (wages), including timely notification of changes
to the pay rate. Changes in pay rates must occur at the beginning of a pay
period.
(F) The
following must be reported immediately:
1. Any
possible fraud, including MHD fraud to the FMS;
2. Abuse, neglect, misuse of property or
funds, health risk, or other reportable event to the appropriate authorities.
Reports of abuse, neglect, or exploitation of adults shall be made to the
Department of Health and Senior Services, to the Division of DD, or to the
individual's support coordinator; and
3. Employee changes, including name, address,
contact number, and/or employment status.
(G) Appointment of a temporary representative
if the employer is not capable or available to manage employees and contact
made to the support coordinator to evaluate if a new representative must be
appointed.
(H) Establishing a work
schedule for employees. Time worked by employees in excess of forty (40) hours
per week cannot be billed to MHD. Hours worked over forty (40) hours per week
are the responsibility of the employer and must be paid through the FMS to
ensure employee taxes are withheld.
(I) The employer shall not supplement wages
to the employee outside of the fiscal management agreement.
(J) In accordance with the approved HCB
waivers, payment for personal assistance services is not allowed for employee
sleep time. If an employer schedules an employee to work a period of
twenty-four (24) consecutive hours or more, the employer and employee may agree
to exclude from hours worked up to eight (8) hours of sleep time when both of
the following conditions are met:
1. The
employer furnishes sleeping facilities; and
2. The employee can usually sleep
uninterrupted.
(5) Combination of Supports. An individual
receiving service through an HCB waiver may receive a combination of supports
through SDS and agency-based supports so long as services from one (1) program
do not duplicate services from the other.
(6) Exemption from Personal Assistance
Services Training. The employer may exempt training for personal assistant
services under the following circumstances documented in the ISP:
(A) Duties of the personal assistant will not
require skills to be attained from the training requirement; or
(B) The personal assistant has adequate
knowledge or experience as determined by the employer.
(7) Family Members Providing Services. The
only service family members may provide is personal assistance services and
only if he/she is not disqualified under section (4). When a family member
provides personal assistance support, the ISP must reflect-
(A) The individual is not opposed to a family
member providing the service;
(B)
The services to be provided are solely to support the individual and not
household tasks expected to be shared with people living in the family
unit;
(C) The ISP team determines
the paid family member will best meet the needs of the individual;
and
(D) The family member cannot be
paid for over forty (40) hours per week. Support in excess of forty (40) hours
per week provided by a family member is considered a natural (unpaid)
support.
(8) Parameter
of Services. Services that may be self-directed are specified in each HCB
waiver for people with developmental disabilities operated by the Division of
DD and approved by the Centers for Medicare and Medicaid Services. Services
included in the individual's ISP that may not be self-directed will be
delivered through agency-based supports by a provider chosen by the
individual.
(9) Consumer-Directed
Personal Assistance Program through the Department of Health and Senior
Services. Individuals who receive services under the consumer-directed personal
assistance program authorized in 19 CSR 15 Chapter 8 and administered by the
Department of Health and Senior Services (DHSS) may not simultaneously use SDS
under any HCB waiver operated by the Division of DD. Individuals eligible to
self-direct supports under both the DHSS consumer-directed personal assistance
program and under an HCB waiver operated by the Division of DD must choose
which program to direct supports under and choose a qualified provider of
agency-based supports for the other.
(10) Voluntary Termination. If an individual
voluntarily requests to terminate SDS in order to receive services through an
agency, the support coordinator will work with the individual, guardian, or
designated representative to select a provider agency and transition services
to agency-based supports by changing prior authorizations based on the
individual's needs. When the self-directed services are voluntarily terminated,
the same level of service is offered to the individual through agency-based
supports.
(11) Denial and Mandatory
Termination of SDS. The option of self-direction may be denied or terminated
under any of the following conditions:
(A) The
ISP team determines the health and safety of the individual is at
risk;
(B) The employer is unable or
unwilling to ensure employee records are accurately kept;
(C) The employer is unable or unwilling to
supervise employees to receive services according to the plan;
(D) The employer is unable or unwilling to
use adequate supports or unable or unwilling to stay within the budget
allocation; or
(E) The employer has
been the subject of a Medicaid audit resulting in sanctions for false or
fraudulent claims under
13
CSR 70-3.030 Conditions of Provider Participation,
Reimbursement, and Procedures of General Applicability, Sanctions for False or
Fraudulent Claims for MHD.
(12) Improvement Plans.
(A) When an employer is found to be out of
compliance with program requirements, an improvement plan shall be established.
The improvement plan shall be jointly developed by the employer, individual,
support broker, support coordinator, and other regional office staff, as
needed.
(B) The plan shall include
the specific issues of concern and shall include specific strategies and time
frames for improvement.
(C) Failure
to successfully meet the terms of the improvement plan within the established
time frames shall result in termination of the option to use SDS.
(13) Termination of SDS for
Non-Compliance. Except under circumstances described in section (11) of this
rule, before terminating SDS, the support coordinator or appropriate staff of
the regional office will first counsel the employer to assist in understanding
the issues, inform the employer what corrective action is needed, and offer
assistance in making changes. Counseling shall include the establishment of an
improvement plan. If the employer refuses to cooperate, including failure to
successfully carry out the terms of the improvement plan, the option of SDS
shall be terminated.
(A) A letter shall be
sent notifying the employer that the option of SDS will be terminated and a
choice of agency-based providers offered.
(B) A choice of agency-based provider(s) must
be made within fifteen (15) days.
(C) The employer may request a meeting with
the regional director to discuss the unsuccessful completion of the improvement
plan. The request for a meeting must be made within five (5) business days of
the written notification that the option of SDS will be terminated.
(D) The regional director must schedule the
meeting within ten (10) business days of the request.
(E) The regional director shall make a final
decision within three (3) business days of the meeting. The decision of the
regional director shall be final.
(14) Immediate Termination for
Non-Compliance. When there is evidence of fraud or repeated patterns or trends
of non-compliance with program requirements, counseling has been provided to
the employer, an improvement plan has been established but has not been
successfully completed within the agreed upon time frames, the regional
director shall immediately terminate SDS and shall authorize agency-based
services from a provider agency chosen by the individual.
(A) The regional office shall request
repayment from the employer for any recoupments by the Department of Social
Services Missouri Medicaid Audit and Compliance office from the DMH Division of
DD.
(15) Service Level
Requirements after SDS Termination. When the option for SDS is terminated, the
same level of services must be made available to the individual through a
qualified waiver provider. The individual shall have a choice of
provider.
(16) Individual Budget
Allocation, Employee Wages, and Reimbursement.
(A) The SDS individual budget allocation
shall be based on the total number of hours needed for the span dates of the
ISP multiplied by the statewide base rate for comparable agency-based
supports.
(B) The SDS individual
budget allocation shall be equal to but shall not exceed the level of support
the individual would receive from a provider agency.
(C) Supports included in the SDS individual
budget allocation to be paid through the HCB waiver shall not supplant or
duplicate natural supports available to the individual.
(D) The Department of Social Services, MHD
shall establish maximum allowable rates as recommended by DMH for all HCB
supports.
(E) Once the individual
receives their SDS individual budget allocation, the employer is responsible to
set the wages of his/her employees. Wages shall not be less than minimum wage
and not in excess of the MHD maximum allowable rate. The wage includes the net
pay to the employee plus all related taxes, worker's compensation, and
unemployment insurance.
(17) Fiscal management services (FMS).
(A) DMH shall select a FMS contractor through
a competitive bid process.
(B) The
FMS shall perform the following functions:
1.
Managing and directing the distribution of funds contained in the individual
budget allocation;
2. Facilitating
the employment of staff by the employer by performing employer responsibilities
such as processing payroll, withholding and filing federal state, and local
taxes, and making tax payments to appropriate tax authorities;
3. Performing fiscal accounting and making
expenditure reports to the employer and state authorities;
4. Collecting provider qualifications and
training information;
5. Conducting
background screens of potential employee candidates;
6. Collecting documentation of services
provided; and
7. Collecting and
processing employees' time sheets.
