Ohio Administrative Code
Title 5123:2 - Community Services
Chapter 5123:2-9 - Home and Community-Based Services Waivers
Section 5123:2-9-40 - Home and community-based services waivers - administration of the self-empowered life funding waiver
Universal Citation: OH Admin Code 5123:2-9-40
Current through all regulations passed and filed through September 16, 2024
(A) Purpose
This rule implements the self-empowered life funding waiver, a component of the medicaid home and community-based services program administered by the department pursuant to section 5166.21 of the Revised Code. Individuals enrolled in the self-empowered life funding waiver exercise participant direction through budget authority and/or employer authority.
(B) Definitions
(1) "Adult" means an individual who is at
least twenty-two years old or an individual who is under twenty-two years old
and eligible for adult day support, career planning, group employment support,
individual employment support, or vocational habilitation.
(2) "Agency with choice" means
a service arrangement in which an agency provider
acts as a co-employer with an
individual. Under this arrangement, the individual is responsible
for hiring, managing, and dismissing staff. The agency with choice enables the
individual to exercise choice and control over services while relieving him or
her of the burden of carrying out financial matters and other legal
responsibilities associated with the employment of workers. The agency with
choice is considered the employer of staff who are selected, hired, and trained
by the individual and assumes responsibility for:
(a) Employing and paying staff who have been
selected by the individual;
(b)
Reimbursing allowable services;
(c)
Withholding, filing, and paying federal, state, and local income and employment
taxes; and
(d) Providing other
supports to the individual as described in the individual service
plan.
(3) "Budget
authority" means the individual has the authority and responsibility to manage
his or her budget. This authority supports the individual in determining the
budgeted dollar amount for each waiver service that will be provided to the
individual and making decisions about the acquisition of waiver services that
are authorized in the individual service plan (e.g., negotiating payment rates
to providers within the applicable range as specified in rules adopted by the
department).
(4) "Child" means an
individual who is under twenty-two years old and is not eligible for adult day
support, career planning, group employment support, individual employment
support, or vocational habilitation.
(5) "Co-employer" means either an agency with
choice or a financial management services entity under contract with the state
that functions as the employer of staff recruited by the individual. The
individual directs the staff and is considered their co-employer
. The
co-employer conducts all necessary payroll functions and is legally responsible
for discharging the employment-related functions and duties for
individual-selected staff with the individual based on the roles and
responsibilities identified in the individual service plan for the two
co-employers. The co-employer may function solely to support the individual's
employment of workers or it may provide other employer-related supports to the
individual, including providing traditional agency-based staff.
(6) "Common law employer" means the
individual is the legally responsible and liable employer of staff selected by
the individual. The individual hires, supervises, and discharges staff. The
individual is liable for the performance of necessary employment-related tasks
and uses a financial management services entity under contract with the state
to perform necessary payroll and other employment-related functions as the
individual's agent in order to ensure that the employer-related legal
obligations are fulfilled.
(7)
"County board" means a county board of developmental disabilities.
(8) "Department" means the Ohio department of
developmental disabilities.
(9)
"Employer authority" means the individual has the authority to recruit, hire,
supervise, and direct the staff who furnish supports. The individual functions
as the common law employer or the co-employer of these staff.
(10) "Financial management services" means
services provided to an individual who directs some or all of his or her waiver
services. When used in conjunction with budget authority, financial management
services includes, but is not limited to, paying invoices for waiver goods and
services and tracking expenditures against the individual's budget. When used
in conjunction with employer authority, financial management services includes,
but is not limited to, operating a payroll service for individual-employed
staff and making required payroll withholdings. Financial management services
also includes acting as the employer of staff on behalf of an individual under
the co-employer model of employer authority.
(11) "Home and community-based services" has
the same meaning as in section
5123.01 of the Revised
Code.
(12) "Individual" means a
person with a developmental disability or for purposes of giving, refusing to
give, or withdrawing consent for services, his or her guardian in accordance
with section 5126.043 of the Revised Code or
other person authorized to give consent. An individual
may
designate another person to assist the individual with development of the
individual service plan and budget, selection of residence and providers, and
negotiation of payment rates for services; the individual's designee shall not
be employed by a county board or a provider, or a contractor of
either.
(13) "Individual service
plan" means the written description of services, supports, and activities to be
provided to an individual.
(14)
"Participant direction" means the individual has authority to make decisions
about some or all of his or her waiver services and accepts responsibility for
taking a direct role in managing the services. Participant direction includes
the exercise of budget authority and employer authority as set forth in
paragraph (I) of this rule.
(15)
"Provider" means a person or agency certified or licensed by the department
that has met the provider qualification requirements to provide the specific
self-empowered life funding waiver service as specified in paragraph (M)(1) of
this rule and holds a valid medicaid provider agreement in accordance with
paragraph (M)(2) of this rule.
(16)
"Service and support administrator" means a person, regardless of title,
employed by or under contract with a county board to perform the functions of
service and support administration and who holds the appropriate certification
in accordance with rule
5123:2-5-02
of the Administrative Code.
(17)
"Support broker" means a person who is responsible, on a continuing basis, for
providing an individual with representation, advocacy, advice, and assistance
related to the day-to-day coordination of services (particularly those
associated with participant direction) in accordance with the individual
service plan. The support broker assists the individual with the individual's
responsibilities regarding participant direction, including understanding
employer authority and budget authority, locating and selecting providers,
negotiating payment rates, and keeping the focus of the services and support
delivery on the individual and his or her desired outcomes. The support broker,
working in conjunction with the service and support administrator, assists the
individual with creating the individual service plan, developing the waiver
budget, and doing day-to-day monitoring of the provision of services as
specified in the individual service plan.
(18) "Waiver eligibility span" means the
twelve-month period following either an individual's initial
waiver enrollment date or a subsequent
eligibility redetermination date.
(C) Financial management services entity
The state shall contract with an entity to provide financial management services to individuals enrolled in the self-empowered life funding waiver.
(D) Application for the self-empowered life funding waiver
(1)
Individuals enrolling in the self-empowered life funding waiver must complete
the Ohio department of medicaid form 02399, "Request for Medicaid Home and
Community-Based Services" (revised July 2014).
(2) The county board is responsible for
explaining to individuals requesting home and community-based services the
services available through the self-empowered life funding waiver benefit
package including the type, amount, scope, and
duration of services and any applicable benefit package limitations.
(E) Criteria for enrolling in the self-empowered life funding waiver
(1) The
individual enrolling in the self-empowered life funding waiver must be
determined to have a developmental disabilities level of care in accordance
with rule
5123:2-8-01
of the Administrative Code upon initial enrollment and no later than every
twelve months thereafter; and
(2)
The individual's medicaid eligibility has been established in accordance with
Chapters 5160:1-2 and 5160:1-3 of the Administrative Code; and
(3) The individual's health and welfare needs
can be met through the utilization of self-empowered life funding waiver
services at or below the federally-approved cost limitation and other formal
and informal supports regardless of funding source; and
(4) The individual must require, at a
minimum, one waiver service, as described in paragraph (H) of this rule, to be
considered eligible for this waiver; and
(5) The individual or the individual's
guardian or the individual's designee must be willing and able to perform the
duties associated with participant-direction (i.e., development of the
individual service plan and budget, selection of residence and providers, and
negotiation of payment rates for services); and
(6) The individual or the individual's
guardian or the individual's designee is required to exercise budget authority
or employer authority, in accordance with paragraph (I)(1) or (I)(2) of this
rule, for at least one service the individual receives under the
waiver.
(F) Reserved capacity for children with intensive behavioral needs
The department shall reserve capacity under the self-empowered life funding waiver for children with intensive behavioral needs who qualify based on an assessment approved by the department.
(G) Self-empowered life funding waiver enrollment, continued enrollment, and disenrollment
(1) An individual who meets the criteria
specified in paragraph (E) of this rule or the individual's guardian or the
individual's designee, as applicable, shall be informed by the county board of
the following:
(a) All services available
under the self-empowered life funding waiver, as delineated in paragraph (H) of
this rule, and any choices that the individual may make regarding those
services;
(b) Any feasible
alternative to the waiver; and
(c)
The right to choose either institutional or home and community-based
services.
(2) The
department shall allocate waivers to the county board in accordance with
section 5166.22 of the Revised
Code.
(3) The county board shall
offer available self-empowered life funding waivers to eligible individuals in
accordance with applicable waiting list requirements set forth in rules
5123:2-1-08
and
5160-41-05
of the Administrative Code.
(4) An
individual's continued enrollment in the self-empowered life funding waiver
shall be redetermined no less frequently than every twelve months beginning
with the individual's initial enrollment date or subsequent redetermination
date. Individuals must continue to meet the criteria specified in paragraph (E)
of this rule to continue enrollment in the waiver.
(5) The maximum number of individuals that
can be enrolled in the self-empowered life funding waiver statewide shall not
exceed the allowable number specified in the federally-approved waiver
document.
(6) The individual must
require at least one waiver service monthly, or, if less than monthly as
described in the individual service plan, require monthly monitoring of the
individual's health and welfare. If no services are planned to be delivered in
a month, monthly monitoring of the individual's health and welfare must be
required in the individual service plan and must include at least periodic
face-to-face monitoring.
(7) The
county board shall be responsible for providing notification to an individual's
support broker under the following circumstances:
(a) When the individual is enrolled in the
waiver;
(b) When the individual is
disenrolled or potentially disenrolled from the waiver; and
(c) For all other situations where the
individual's enrollment status may be jeopardized.
(8) An individual enrolled in the
self-empowered life funding waiver who is recommended for disenrollment from
the waiver and the individual's support broker shall be given notification of
hearing rights as established in paragraph (P) of this rule.
(H) Self-empowered life funding waiver benefit package
The self-empowered life funding waiver benefit package is comprised of the following services:
(1) Adult day support in accordance with rule
5123:2-9-17
of the Administrative Code;
(2)
Career planning in accordance with rule
5123:2-9-13
of the Administrative Code;
(3)
Clinical/therapeutic intervention in accordance with rule
5123:2-9-41
of the Administrative Code;
(4) Community respite
in accordance with rule
5123:2-9-22
of the Administrative Code;
(5) Functional
behavioral assessment in accordance with rule
5123:2-9-43
of the Administrative Code;
(6) Group employment
support in accordance with rule
5123:2-9-16
of the Administrative Code;
(7) Individual
employment support in accordance with rule
5123:2-9-15
of the Administrative Code;
(8) Non-medical
transportation in accordance with rule
5123:2-9-18
of the Administrative Code;
(9)
Participant-directed goods and services in accordance with rule
5123:2-9-45
of the Administrative Code;
(10)
"Participant-directed homemaker/personal care" in
accordance with rule
5123:2-9-32
of the Administrative Code;
(11) Participant/family stability assistance
in accordance with rule
5123:2-9-46
of the Administrative Code;
(12)
Remote monitoring in accordance with rule
5123:2-9-35
of the Administrative Code;
(13)
Remote monitoring equipment in accordance with rule
5123:2-9-35
of the Administrative Code;
(14)
Residential respite in accordance with rule
5123:2-9-34
of the Administrative Code;
(15)
Support brokerage in accordance with rule
5123:2-9-47
of the Administrative Code;
(16)
"Transportation"
in accordance with rule
5123:2-9-24
of the Administrative Code; and
(17) Vocational
habilitation in accordance with rule
5123:2-9-14
of the Administrative Code.
(I) Participant direction
The self-empowered life funding waiver is designed to support individuals who want to direct their services through exercise of budget authority and/or employer authority.
(1) Individuals enrolled in the
self-empowered life funding waiver may exercise budget authority for:
(a) Clinical/therapeutic
intervention;
(b) Community
respite;
(c) Functional behavioral assessment;
(d)
Participant-directed goods and services;
(e)
Participant-directed homemaker/personal
care;
(f) Participant/family
stability assistance;
(g) Remote
monitoring;
(h) Remote monitoring
equipment;
(i) Residential
respite;
(j) Support brokerage; and
(k)
Transportation.
(2) Individuals enrolled in the
self-empowered life funding waiver may exercise employer authority for:
(a) Participant-directed goods and services;
(b)
Participant-directed homemaker/personal
care;
(c) Participant/family
stability assistance;
(d) Support brokerage; and
(e)
Transportation.
(3) Individuals enrolled in the
self-empowered life funding waiver may not exercise either budget authority or
employment authority for:
(a) Adult day
support;
(b) Career
planning;
(c) Group employment
support;
(d) Individual employment
support;
(e) Non-medical
transportation; or
(f) Vocational
habilitation.
(J) Benefit limitations
(1) The cost of services available under the
self-empowered life funding waiver shall not exceed the following overall
benefit limitations:
(a) Adult -- forty
thousand dollars per waiver eligibility span.
(b) Child -- twenty-five thousand dollars per
waiver eligibility span.
(2) The following services are subject to
specific benefit limitations:
(a) Payment for
support brokerage shall not exceed eight thousand dollars per waiver
eligibility span.
(b) An individual
may receive only one functional behavioral assessment per waiver eligibility
span, the cost of which shall not exceed one thousand five hundred
dollars.
(3) The benefit
limitations in rule
5123:2-9-19
of the Administrative Code apply to adult day support, career planning, group
employment support, individual employment support, non-medical transportation,
and vocational habilitation provided under the self-empowered life funding
waiver.
(K) Individual service plan requirements
(1) All services
shall be provided to an individual enrolled in the self-empowered life funding
waiver pursuant to a written individual service plan that meets the
requirements set forth in rule
5123:2-1-11
of the Administrative Code.
(2)
When adult day support and/or vocational habilitation are identified in the
individual service plan as the service or services to be provided, the
individual service plan shall include a justification as to why these services
are more appropriate than career planning, group employment support, and/or
individual employment support.
(3)
The individual service plan is subject to approval by the department and the
Ohio department of medicaid pursuant to section
5166.21 of the Revised Code.
Notwithstanding the procedures set forth in this rule, the Ohio department of
medicaid may in its sole discretion, and in accordance with section
5166.05 of the Revised Code,
direct the department or the county board to amend individual service plans for
individuals if the Ohio department of medicaid determines that such services
are medically necessary and the procedures set forth in Chapter 5160-1 of the
Administrative Code would not accommodate a request for such medically
necessary services.
(L) Free choice of provider
Individuals enrolled in the self-empowered life funding waiver shall be given free choice of qualified self-empowered life funding waiver providers in accordance with rules 5123:2-9-11 and 5160-41-08 of the Administrative Code. Providers are qualified if they meet the standards established in paragraph (M) of this rule.
(M) Provision of self-empowered life funding waiver services
(1) Self-empowered life
funding waiver services shall be provided by persons or agencies that are
certified or licensed in accordance with section
5123.045 of the Revised Code and
rules adopted by the department.
(2) Self-empowered life funding waiver
services shall be provided by persons or agencies that have a valid medicaid
provider agreement in accordance with rule 5160-1-17.2 of the Administrative
Code.
(3) Self-empowered life
funding waiver services shall be provided only to individuals who have met the
criteria specified in paragraph (E) of this rule and are enrolled in the
self-empowered life funding waiver at the time of service delivery.
(N) Service documentation
(1) Services under the self-empowered life
funding waiver shall not be considered delivered unless the provider maintains
service documentation.
(2) A
provider shall maintain all service documentation in an accessible location.
The service documentation shall be available, upon request, for review by the
centers for medicare and medicaid services, the Ohio department of medicaid,
the department, a county board or regional council of governments that submits
to the department payment authorization for the service, and those designated
or assigned authority by the Ohio department of medicaid or the department to
review service documentation.
(3)
A provider shall maintain all service documentation for a period of six years
from the date of receipt of payment for the service or until an initiated audit
is resolved, whichever is longer.
(4) If a provider discontinues operations,
the provider shall, within seven calendar days of discontinuance, notify the
county boards for the counties in which individuals to whom the provider has
provided services reside, of the location where the service documentation will
be stored, and provide each such county board with the name and telephone
number of the person responsible for maintaining the records.
(5) Claims for payment a provider submits for
services delivered shall not be considered service documentation. Any
information contained on the submitted claim shall not be substituted for any
required service documentation information that the provider is required to
maintain to validate payment for medicaid services.
(O) Payment standards
(1) Services provided under the
self-empowered life funding waiver shall be subject to the payment standards
set forth in rules adopted by the department.
(2) Rule
5123:2-9-06
of the Administrative Code does not apply to services provided under the
self-empowered life funding waiver.
(3) Payment for services constitutes payment
in full. Payment shall be made when:
(a) The
service is identified in an approved individual service plan;
(b) The service is recommended for payment
through the payment authorization process; and
(c) The service is provided by a provider
selected by an individual enrolled in the self-empowered life funding
waiver.
(4) Payment for
services shall not exceed amounts authorized through the payment authorization
process for the individual's corresponding waiver eligibility span.
(5) When a service is also available on the
state plan, state plan services shall be billed first. Only services in excess
of what is covered under the state plan shall be authorized.
(6) Claims for payment shall be submitted to
the department or the financial management services entity in the format
prescribed by the department. The department or the financial management
services entity, as applicable, shall inform county boards of the billing
information submitted by providers in a manner and at the frequency necessary
to assist the county boards to manage the waiver expenditures being
authorized.
(7) Claims for payment
shall be submitted within three hundred thirty calendar days after the service
is provided. Payment shall be made in accordance with the requirements of rule
5160-1-19 of the
Administrative Code. Claims for payment shall include the number of units of
service.
(8) Providers shall take
reasonable measures to identify any third-party health care coverage available
to the individual and file a claim with that third party in accordance with the
requirements of rule
5160-1-08
of the Administrative Code.
(9) For
individuals with a monthly patient liability for the cost of self-empowered
life funding waiver services, as defined in rule
5160:1-6-07 of the Administrative Code, and determined
by the county department of job and family services for the county in which the
individual resides, payment is available only for the waiver services delivered
to the individual that exceed the amount of the individual's monthly patient
liability. Verification that patient liability has been satisfied shall be
accomplished as follows:
(a) The department
shall provide notification to the appropriate county board identifying each
individual who has a patient liability for waiver services and the monthly
amount of the patient liability.
(b) The county board shall assign the waiver
services to which each individual's patient liability shall be applied and
assign the corresponding monthly patient liability amount to the provider that
provides the preponderance of waiver services. The county board shall notify
each individual and waiver service provider, in writing, of this
assignment.
(c) Upon submission of
a claim for payment, the designated waiver service provider shall report the
waiver service to which the patient liability was assigned and the applicable
patient liability amount on the claim for payment using the format prescribed
by the department.
(10)
The department, the Ohio department of medicaid, the centers for medicare and
medicaid services, and/or the auditor of state may audit any funds a provider
receives pursuant to this rule, including any source documentation supporting
the claiming and/or receipt of such funds.
(11) Overpayments, duplicate payments,
payments for services not rendered, payments for which there is no
documentation of services delivered or the documentation does not include all
the required items as set forth in rules adopted by the department, or payments
for services not in accordance with an approved individual service plan are
recoverable by the department, the Ohio department of medicaid, the auditor of
state, or the office of the attorney general. All recoverable amounts are
subject to the application of interest in accordance with rule
5160-1-25
of the Administrative Code.
(P) Due process rights and responsibilities
(1)
An applicant for
or recipient of self-empowered life funding waiver services may
use
the process set forth in section
5160.31 of the Revised Code and
rules implementing that statute, for any purpose authorized by that statute.
The process set forth in section
5160.31 of the Revised Code is
available only to applicants, recipients, and their lawfully appointed
authorized representatives. Providers shall have no standing in an appeal under
this section.
(2)
An applicant for or recipient of self-empowered life
funding waiver services shall use the process set forth in section
5160.31 of the Revised Code and
rules implementing that statute for any challenge related to the type,
amount, scope, or duration of services included in or
excluded from an individual service plan.
(Q) Ohio department of medicaid authority
The Ohio department of medicaid retains final authority to establish payment rates for self-empowered life funding waiver services; to review and approve each service identified in an individual service plan that is funded through the self-empowered life funding waiver and the payment rate for the service; and to authorize the provision of and payment for waiver services through the payment authorization process.
(R) Monitoring, compliance, and quality assurance
The Ohio department of medicaid shall conduct periodic monitoring and compliance reviews related to the self-empowered life funding waiver in accordance with Chapter 5166. of the Revised Code. Reviews may consist of, but are not limited to, physical inspections of records and sites where services are provided and interviews of providers, recipients, and administrators of waiver services. A financial management services entity under contract with the state, self-empowered life funding waiver providers, the department, and county board shall furnish to the Ohio department of medicaid, the centers for medicare and medicaid services, and the medicaid fraud control unit or their designees any records related to the administration and/or provision of self-empowered life funding waiver services. Individuals enrolled in the self-empowered life funding waiver shall cooperate with all monitoring, compliance, and quality assurance reviews conducted by the Ohio department of medicaid, the department, the county board, the centers for medicare and medicaid services, and the medicaid fraud control unit or their designees.
Disclaimer: These regulations may not be the most recent version. Ohio may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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