Current through Register Vol. 63, No. 3, March 1, 2024
(1) An individual receiving in-home service
hours may be eligible for an exception to the hourly cap on homecare worker
weekly hours as defined in OAR 411-030-0070(5)(b) and (c), if:
(a) There are specific service needs that are
not able to be met by other resources, homecare workers or providers;
and
(b) The individual or their
representative is appropriately managing their Consumer Employer
Responsibilities as described in OAR 411-030-040(4)(a-f).
(2) An individual, their representative, or
Case Manager may request an exception to the homecare worker cap orally or in
writing if the individual believes their situation meets the criteria in (1)
and (5).
(3) Exception to Homecare
Worker Cap Application Process.
(a) Before
processing an exception application for the homecare worker cap, the case
manager must follow OAR 411-030-0050(2)(a)(B) and discuss with the individual
or their representative alternative ways, if any, to meet the individual's
needs. This includes discussing:
(A) The
individual's responsibility to assist in developing less costly service
alternatives described in OAR 411-030-0050(2)(a)(A); and
(B) Management of the Consumer Employer
Responsibilities described in OAR 411-030-0040(4)(a-f).
(b) After the discussion in (a) of this
section occurs and is documented by the case manager, an individual may apply
for an exception to the homecare worker cap by completing an Exception
Application Form, available from the case manager, and by providing any
documentation required by the Department that supports the requested need for
the weekly cap exception.
(c) The
Exception Application Form for the homecare worker cap must:
(A) Be signed by the individual, or their
representative.
(B) Clearly
describe the reason the homecare worker cap is not appropriate to meet the
individual's service needs.
(C)
Include an attestation that all the information is accurate and
truthful.
(4)
Exceptions to the homecare worker cap must be prior approved by DHS Central
Office before payment will be made except when circumstances meet criteria in
OAR 411-030-0070(7).
(5) DHS
Central Office may grant an exception to the homecare worker cap if the
individual or their representative continues to demonstrate the ability to
engage in and manage their consumer employer responsibilities related to
recruiting, hiring, and training workers, and at least one of the following are
met:
(a) In the individual's geographic area
there is an insufficient number of homecare workers to meet the individual's
service plan, and, despite efforts to find or identify providers, no other
resources are available, including in-home agencies, to meet the
need;
(b) A homecare worker has
quit or has been terminated. The exception is valid for the specified time
period in the notice of cap exception approval, or until a replacement homecare
worker can be hired, whichever comes first;
(c) The individual is traveling out of town
and needs just one of the homecare workers to accompany them;
(d) A homecare worker does not show up when
scheduled due to weather, illness, or any reason and needs are time-sensitive
and would risk harm to the individual if a delay in services occurs. The
circumstance meets criteria in OAR 411-030-0070(7).
(e) There is an emergent or urgent need of
the individual such that postponing care until another worker could arrive or
going without care would more likely than not result in the need for medical
intervention; or
(f) The individual
has specific ADL or IADL needs requiring care from a trained existing provider
until additional providers are found and trained.
(6) The Department may approve exceptions up
to 90 calendar days at a time.
(7)
The Department shall notify the individual about the outcome of the request for
an exception to homecare worker cap within 30 calendar days of the
request.
(8) Notification shall
include:
(a) For approval:
(A) The name of the particular homecare
worker(s) approved;
(B) The
approval begin and end dates; and
(C) The number of hours the specific HCW may
exceed the cap.
(b) For
a denial:
(A) The reason the request was
denied or partially denied; and
(B)
Information on hearing rights and how to request a hearing.
(9) An approved
exception to the homecare worker cap is valid for the period defined in the
notice, not to exceed 90 calendar days.
(10) When the conditions for initial approval
of a homecare worker cap are likely to continue beyond the approval period, in
order to get re-approved without an interruption, a new request must be
submitted on the SDS 514i form by the individual 15 calendar days prior to the
approval period end date and include documentation describing actions taken and
any progress made in reducing the need to exceed the homecare worker weekly
hours cap.
(11) An exception to the
homecare worker cap that has been granted is valid for only the specific
consumer-employer and the homecare worker identified in the approval
notice.
(12) The Department may
deny or partially deny a request to exceed the Homecare Worker Cap if:
(a) The request does not meet the criteria in
section (1) and one or more criteria in (5)(a)-(f) of this rule;
(b) The homecare worker in question is
working for more than one individual;
(c) The individual or their representative
fails to manage the Consumer-Employer Responsibilities described in OAR
411-030-0040(4)(a)-(f), as determined by the department;
(d) There is a conflict of interest created
by the homecare worker also acting as a representative for an individual (OAR
411-031-0040(1));
(e) There exists
another way to safely meet the individual's needs;
(f) The request is based solely on consumer
preference;
(g) Exceeding the cap
is recurring to the extent that the need for additional workers becomes
predictable as determined by the department; or
(h) When there are additional qualified
providers available to select and the consumer has chosen not to select
them.
(13) No exceptions
to homecare worker's cap may exceed an average of 16 hours a day per pay
period. This limit applies per homecare worker.
(14) The individual is responsible for
reducing or minimizing the need to exceed the cap by using other
resources.
Statutory/Other Authority: ORS
409.050 & ORS
410.070
Statutes/Other Implemented: ORS
410.070