Current through Register Vol. 63, No. 3, March 1, 2024
(1) An hour
allocation or staffing ratio that requires approval under this rule may not be
included in an authorized Individual Support Plan (ISP) prior to the date of
the approval.
(2) HOUR ALLOCATION
EXCEPTIONS. The Department or the Department's designee shall review and
approve a request for an hour allocation greater than the service level to the
extent the individual is unable to have their support needs met within the
service level because the individual has one of the following circumstances
described in (a), (b), (c), or (d) below:
(a)
Intermittent needs that cannot be scheduled that must be met throughout the day
to keep the individual healthy and safe. The need must be related to a
physical, behavioral, or medical condition that may reasonably be expected to
cause physical harm to the individual or other person if left unmet. The need
must arise multiple times in a typical week, or must be a need that is known to
occur less frequently but if unmet would likely result in hospitalization or
death.
(A) The reviewing entity may approve a
request for an exceptional hourly allocation when the individual requires
support in at least one of the following:
(i)
Toileting.
(ii)
Transfers.
(iii)
Mobility.
(iv) Managing a recurring
behavior described in section (3)(a)(A) of this rule.
(v) Uncontrolled seizures.
(vi) Diabetes management that includes
administration of sliding scale insulin.
(vii) Airway, tracheal, or nasopharyngeal
suctioning.
(viii) Use of a
CPAP/BiPAP or mechanical ventilator.
(B) When the conditions of (A) are met, the
reviewing entity shall determine an hour allocation to approve. When
considering the hour allocation, the reviewing entity must consider:
(i) Usual parental supports provided to a
minor child based on the age of the child; and
(ii) Whether denying any portion of the
requested allocation would put the individual at risk of moving out of a
preferred setting.
(C)
The reviewing entity may approve an increase to the hour allocation by 30 hours
per month until the allocation is able to meet the assessed Activities of Daily
Living (ADL), Instrumental Activities of Daily Living (IADL), or health-related
task.
(b) At least one
ADL need or health-related task that reasonably requires substantially more
time to meet than other individuals with a similarly assessed need and that
causes the time it takes to meet the total amount of support for the individual
to exceed the individual's service level.
(A)
To determine the need for an hour allocation greater than the individual's
service level, the Department or designee shall consider:
(i) Frequency of the care needs that require
additional time in the relevant ADLs or health-related task.
(ii) Duration of the care needs that require
additional time in the relevant ADLs or health-related task.
(iii) The reasons driving the increased
duration and frequency.
(iv) The
number and duration of other ADL, IADL support needs and health-related
tasks.
(v) The complexity of the
individual's care need.
(vi) The
chosen provider's ability to complete the task in a reasonable time.
(vii) Whether denying any portion of the
requested allocation would put the individual at risk of moving out of a
preferred setting.
(B)
When the reviewing entity determines that an hour allocation greater than the
individual's service level is required, the hour allocation may be increased by
increments of 30 hours per month until the allocation is able to meet the
assessed need.
(c)
EXCEPTIONS FOR COMMUNITY INCLUSION. The Department or the Department's designee
may approve an exception to service level for an adult when approval is
necessary for the adult to be able to have reasonable access, outside of their
home, for inclusion in the community where they live.
(A) An individual or the individual's
representative must demonstrate that the individual's service level is
inadequate to meet the identified need for support with ADL, IADL, or
health-related tasks, including those supports that are necessary to have
reasonable access for inclusion in the community where the individual
lives.
(B) An inadequate hour
allocation may be demonstrated by evidence of isolation due to an inadequate
amount of support for community inclusion. An individual may be considered
isolated when unable to engage in at least 20 hours of community inclusion
activities in a week when so desired, after having other identified ADL, IADL,
health-related tasks met. Community inclusion activities are activities that
take place away from the home, including travel time, but do not include
employment services. Community inclusion activities do include activities such
as:
(i) IADLs that occur away from the
home.
(ii) Entertainment
out.
(iii) Dining out.
(iv) Attending religious services.
(v) Errands.
(vi) Day support activities.
(d) Support needs that
must be met in order to prevent a serious risk of institutionalization. The
Department shall review and approve an hour allocation or staffing ratio that
is adequate to meet the unmet support needs. An institution includes the
following:
(A) A nursing facility;
(B) An institution as outlined in ORS
426.010;
(C) An intermediate care facility for
individuals with intellectual disabilities;
(D) A hospital providing long-term care
services; or
(E) Any other setting
that has the following qualities of an institution.
(i) A setting that is located in a building
that is also a publicly or privately operated facility that provides inpatient
institutional treatment;
(ii) A
setting that is located in a building on the grounds of, or immediately
adjacent to, a public institution; or
(iii) A setting that has the effect of
isolating individuals receiving home and community-based services from the
greater community.
(3) STAFFING RATIO EXCEPTIONS.
(a) Indicators of the possible need for a
staffing ratio of greater than 1:1 are:
(A)
Presence of a Professional Behavior Support Plan that includes safeguarding
interventions and the Oregon Needs Assessment (ONA) identifies at least one of
the following behaviors that are:
(i)
Self-injurious behavior that may lead to a serious injury.
(ii) Aggressive or combative.
(iii) Injurious to animals.
(iv) Sexual aggression or assault.
(v) Property destruction.
(vi) Leaving the supervised area.
(vii) A diagnosis of Pica.
(B) The medical section of the ONA
identifies that the individual is receiving or needs special treatments five or
more times per day from a provider.
(C) Two-person assist is selected in an
individual's ONA for at least one ADL activity.
(D) Individual requires intensive focus from
a paid provider to assure the individual's health and safety and it is
necessary for a different provider to complete an IADL that would otherwise
detract from the intensive focus.
(b) To determine the need for a higher
staffing ratio, the Department or the Department's designee shall review:
(A) The necessity for more than one attendant
at a time to address an identified support need.
(B) Frequency of the care needs that require
additional staffing for the relevant ADLs and IADLs.
(C) Duration of the care needs that require
additional staffing for the relevant ADLs and IADLs.
(D) The reasons driving the increased
staffing ratio.
(E) The complexity
of the individual's support needs.
(F) The chosen provider's ability to support
the individual alone.
(G) When a
higher staffing ratio is the most cost-effective way for providers to receive
instruction on the implementation of a Positive Behavior Support Plan from a
behavior professional or to be delegated a nursing task by a Long Term Care
Community Nurse.
(c) A
staffing ratio of greater than 1:1 must be necessary to provide support. It may
not be approved:
(A) For the purpose of
training providers without an approved exception as described in this
rule.
(B) For
convenience.
(C) Due to a specific
provider's inability to do the task alone when another provider reasonably
could.
(D) If none of the
indicators identified in subsection (a) of this section are present.
(4) EXCEPTION REQUESTS
AND SUPPORTING DOCUMENTATION.
(a) A service
level or staffing ratio exception may be requested by the individual or the
individual's representative, as defined in OAR 411-318-0005, by completing a
form designated for that purpose. The form may be submitted to the case
management entity or to the Department.
(b) Except for an individual's case manager,
a paid provider may not submit an exception request.
(c) Documentation from sources that are free
from a conflict of interest shall be given precedence in decision making when
contradictory documentation exists. The opinion of a qualified professional
shall be given precedence over a lay opinion regarding support needs within the
area of expertise of the professional.
(d) To evaluate the request, the Department
or designee may require the individual, or their representative, to provide
further documentation during the exception decision making process. This
documentation may include, but is not limited to:
(A) Care provider time logs detailing the
support needs of the individual throughout the day.
(B) Daily, weekly, or monthly schedules that
show the individual's actual use of support for ADL, IADL, or health-related
tasks.
(C) Relevant medical,
behavioral, and mental health records to support the specific exception
request.
(D) Data tracking of
challenging behavior.
(e) When the Department or the Department's
designee determines that additional information is needed to complete a review,
it will notify the individual, and the case manager or case management entity,
in writing within ten business days of receipt of the Funding Review and
Exception Request Form, or other form designated by the Department to request
an exception, by sending a Notification of Pending Status (form
2853).
(f) The request for
additional information shall specify the due date and explain how to submit the
required information. If the requested documentation is not provided to the
reviewing entity, a denial of the request may be issued.
(A) If the individual or individual's
representative fails to timely provide the requested information, the reviewing
entity shall complete the review based on the documentation in its
possession.
(B) If the individual
or the individual's representative responds to the request for additional
information after the exception application has been denied, the individual's
response shall be considered a new request for an exception, with a new
submission date.
(C) If the
individual submits the required documentation after the 14 calendar day
timeframe, the individual may request an extension for good cause and request
that reviewing entity issue a revised decision.
(D) The individual may request a good cause
extension prior to the expiration of 14 calendar day timeframe by requesting it
via their case manager.
(E) Good
cause exists when an action, delay, or failure to act arises from an excusable
mistake or from factors beyond an individual's reasonable control.
(5) The reviewing
entity shall issue a Funding Decision notice which approves or disapproves the
request for exception, in whole or in part, within 45 calendar days of receipt
of the Funding Review and Exception Request Form, or other form designated by
the Department to request an exception. The Funding Decision notice must
include an approval date.
(a) If the reviewing
entity determines that the documentation supports the requested hour allocation
or staffing ratio, the exception request shall be approved and the hour
allocation or staffing ratio may become part of the individual's authorized
ISP.
(b) If the reviewing entity
determines that the documentation supports additional hours but not as many
hours as requested or for the timeframe requested, the exception request shall
be approved for only those additional hours supported by the
documentation.
(c) If the reviewing
entity determines that the documentation does not support any additional hours
over the service level or staffing ratio, the exception request shall be
denied.
(d) The reviewing entity
may deny an exception if the request is:
(A)
Unable to be approved because a circumstance required for approval in section
(2) or (3) is not present.
(B) For
supports that a parent would be expected to provide to a child of a similar age
who would not be eligible for developmental disabilities services.
(C) Based on the needs or abilities of a
chosen service provider when another qualified provider could reasonably meet
identified needs within the available hour allocation.
(D) Based on a desire for services outside of
assessed service needs.
(E)
Submitted prior to ruling out reasonable alternatives to meet the
need.
(F) Not medically or
behaviorally appropriate.
(G) For
services not covered in the Community First Choice 1915(k) State
Plan.
(H) For tasks that are not
consistent with the definition of community living supports.
(I) For service that would meet any one of
the conditions listed in OAR 411-450-0050(8).
(6) The Department or designee may revoke an
approved exception if:
(a) The documentation
supporting the approval is determined to have been inaccurate or
falsified.
(b) The individual no
longer meets the criteria in this rule for an approved exception.
(7) A revoked exception is treated
as a reduction for which the individual must be given the opportunity for a
hearing as described in ORS chapter 183 and OAR 411-318-0025. The individual
may have access to the approved exceptional hour allocation or staffing ratio
for no longer than the end of the month that follows the month in which the
approval was revoked.
(8) An
individual must be given Notice of Planned Action and the opportunity for a
hearing as described in ORS chapter 183 and OAR 411-318-0025 when an exception
requested under this rule is denied in whole or in part.
To view attachments referenced in rule text,
click here to view
rule.
Statutory/Other Authority: ORS
409.050,
427.104 & 430.662
Statutes/Other Implemented: 427.104, 430.662, ORS
409.010,
427.007,
430.215 &
430.610