Code of Vermont Rules
Agency 13 - AGENCY OF HUMAN SERVICES
Sub-Agency 110 - DEPARTMENT OF DISABILITIES, AGING AND INDEPENDENT LIVING
Chapter 008 - CHOICES FOR CARE; 1115 LONG-TERM CARE MEDICAID WAIVER REGULATIONS
Section 13 110 008 - CHOICES FOR CARE; 1115 LONG-TERM CARE MEDICAID WAIVER REGULATIONS

A. The "Choices for Care" Medicaid waiver operates as a Research and Demonstration Project authorized under Section 1115(a) of the Social Security Act. This program provides long-term care services to elderly or physically disabled Vermont adults who are found eligible by the Department of Disabilities, Aging and Independent Living (the Department or DAIL). The primary goal of the Choices for Care waiver is to provide Vermonters with equal access to either nursing facility care or home and community-based services, consistent with their choice. The Choices for Care waiver is subject to approval by the Centers for Medicare and Medicaid Services (CMS) and is managed in compliance with CMS terms and conditions of participation.

B. The Choices for Care waiver shall serve the following long-term care financial eligibility groups as defined in Vermont Medicaid regulations:

[bullet] Categorically eligible individuals

[bullet] Medically needy individuals

[bullet] Medicaid Working Disabled

C. If an individual selects the Program for All-Inclusive Care for the Elderly (PACE), the regulations and procedures governing the administration of the PACE program will apply.

A. Long-term care services shall be based on person-centered planning and shall be designed to ensure quality and protect the health and welfare of the individuals receiving services.

B. Long-term care services shall be provided in a cost-effective and efficient manner, preventing duplication, unnecessary costs, and unnecessary administrative tasks. The Department shall manage long-term care services so as to use resources efficiently and to maximize the benefits and services available to the greatest number of eligible individuals.

C. The Department shall administer the Choices for Care waiver in accordance with these regulations, the CMS terms and conditions, and applicable state and federal law.

D. Eligible individuals shall be informed of feasible service alternatives.

E. Consistent with federal terms and conditions, the Department has the authority to implement different elements of the Choices for Care waiver at different times.

F. The Department encourages any applicant or participant who disagrees with a decision to contact the Department staff person who made the decision to try to resolve the disagreement informally.

1. "Activities of Daily Living" (ADLs) means dressing and undressing, bathing, personal hygiene, bed mobility, toilet use, transferring, mobility in and around the home, and eating.

2. "Adult Day Services" means a range of health and social services provided at a certified adult day site.

3. "Adult Foster Care" means care and supervision provided by an approved provider, limited to a maximum of two individuals in each setting.

4. "Applicant" means an individual who has submitted an application to the Department.

5. "Assistive Devices" means devices used to increase, maintain, or improve the individual's functional capabilities.

6. "Authorized Representative" means an individual who has been given legal authority to act on behalf of an applicant or participant.

7. "Behavioral Symptoms" means behavior that is severe, frequent and requires a controlled environment to provide continuous monitoring or supervision.

8. "Case Management" means assistance to individuals in gaining access to services, regardless of the funding source. Case management includes individual assessment, service planning, and monitoring of services.

9. "Cash and Counseling" means a service model through which an individual is given greater choice in how long-term care funds are spent to meet individual needs.

10. "Commissioner" means the Commissioner of the Department of Disabilities, Aging and Independent Living.

11. "Companion Care" means supervision and socialization of individuals who are unable to care for themselves, as required by the needs of the individual (e.g. protective supervision, assistance with transportation, recreation, etc.).

12. "Controlled Environment" means an environment that provides continuous care and supervision.

13. "Date of Application" means the date that an application is received by the Department.

14. "Department" means the Department of Disabilities, Aging and Independent Living.

15. "Elderly" means individuals age 65 and over.

16. "Eligible Groups" means the groups of people who are found to meet the eligibility criteria for the Highest, High, or Moderate Needs groups.

17. "Eligibility Screening" means the process used to determine if people are eligible for Choices for Care.

18. "Emergency" means circumstances that present a clear and imminent risk of irreparable harm or death.

19. "Enhanced Residential Care" means a package of services provided to individuals residing in a licensed Residential Care Home that has been approved to provide these services.

20. "Enrolled" means that a person has been found eligible, has been assigned to an eligibility group, and is authorized to receive services.

21. "Feasible Service Alternatives" means service options that are available and can reasonably be expected to meet an individual's needs.

22. "High Needs Group" means those individuals who have been found to meet the high needs group eligibility criteria and have been authorized to receive services.

23. "Highest Needs Group" means those individuals who have been found to meet the highest needs group eligibility criteria and have been authorized to receive services.

24. "Home and Community-Based Services" means all long-term care services provided under these regulations, with the exception of nursing facility care.

25. "Home Modifications" means physical adaptations to the individual's home that help to ensure the health and welfare of the individual or that improve the individual's ability to perform ADLs, IADLs, or both.

26. "Homemaker Services" means home-based services such as shopping, cleaning, and laundry provided to help people live at home in a healthy and safe environment.

27. "Informed Consent" means a process by which an individual or an individual's legal representative makes choices or decisions based on an understanding of the potential consequences of the decision, free from any coercion, and fully informed about all feasible options and their potential consequences.

28. "Instrumental Activities of Daily Living" (IADLs) means meal preparation, medication management, phone use, money management, household maintenance, housekeeping, laundry, shopping, transportation, and care of adaptive equipment.

29. "Intermediary Services Organization" means an organization that provides assistance to individuals with payroll, taxes, and other financial management tasks.

30. "Legal Representative" means a court-appointed guardian or an agent acting under a durable power of attorney, if the power to make the relevant decision is specified in the terms of the appointment or power of attorney.

31. "Long-Term Care Services" means those services covered by the Choices for Care 1115 Medicaid Waiver as described in these regulations.

32. "Moderate Needs Group" means those individuals who have been found to meet the Moderate Needs group eligibility criteria and who have been authorized to receive services.

33. "Negotiated Risk" means a process of negotiation and selection of services that respects the participant's preferences, choices, and capabilities while allowing the participant to choose service options and to accept the reasonable risk for the consequences of those decisions.

34. "Participant" means an individual for whom services have been authorized in accordance with these regulations.

35. "PASARR" means "Pre-Admission Screening and Annual Resident Review" that is used to identify a need for active treatment due to a mental illness or mental retardation.

36. "Person-Centered Planning" means a process by which services are planned and delivered, based on an individual's strengths, capacities, preferences, needs, and desired outcomes.

37. "Personal Care" means assistance to individuals with ADLs and IADLs that is essential to the individual's health and welfare.

38. "Personal Emergency Response Systems (PERS)" means electronic devices that enable individuals to secure help in an emergency.

39. "Physically Aggressive Behavior" means hitting, shoving, scratching, or sexual assault of other persons. The behavior must be severe and frequent, requiring a controlled environment to provide continuous monitoring or supervision.

40. "Program for All-Inclusive Care for the Elderly (PACE)" means a combination of medical, acute, and long-term care services provided to individuals aged 55 and over by an approved PACE provider.

41. "Provider" means any individual, organization, or agency that has been authorized by the Department to provide Medicaid Choices for Care waiver services.

42. "Provider Qualifications" means the requirements established by the Department for providers of specific services, including any regulations pertaining to each provider.

43. "Reimbursement" means payment made to a provider for the provisions of services, including any special rates established by the Department.

44. "Resists Care" means unwillingness or reluctance to take medications, injections or accept ADL assistance. Resisting care does not include instances where the individual has made an informed choice not to follow a course of care (e. g., individual has exercised his or her right to refuse treatment, and reacts negatively as staff try to reinstitute treatment). Resistance may be verbal or physical (e. g., verbally refusing care, pushing caregiver away, scratching caregiver).

45. "Respite Care" means relief from caregiving and supervision for primary caregivers.

46. "Service Definition" means the formal definition established by the Department for reimbursement of specific services.

47. "Service Plan" means a written document by which services are authorized and which guides the delivery of services.

48. "Service Standards" means the requirements established by the Department for the delivery of specific services.

49. "Significant Change" means a change in condition or circumstances that substantially affects an individual's need for assistance including increases in functional independence, decreases in functional independence, and a change in other services or support provided by family and friends.

50. "Variance" means an exception to or exemption from these regulations granted by the Department as allowed under applicable statute and regulation.

51. "Verbally Aggressive Behavior" means threatening, screaming at, or cursing people. The behavior must be severe and frequent, and because of its hostile nature, requires consistent planned behavioral interventions and approaches requiring a controlled environment to provide continuous monitoring or supervision.

52. "Wandering" means locomotion with no discernible, rational purpose by an individual who behaves as one who is oblivious to his or her physical or safety needs, and which locomotion presents a clear risk to the individual. Wandering may be manifested by walking or wheelchair. Pacing back and forth is not considered wandering.

A. Standards for Eligibility

B. Clinical Eligibility Criteria

The Department shall determine whether an applicant or participant is eligible under any of three categories:

C. Clinical Eligibility for Current Long-Term Care Medicaid Recipients

All individuals who are currently being served under a preexisting 1915c Medicaid Waiver (Home-Based or Enhanced Residential Care) or who are receiving Medicaid nursing facility care at the time of the implementation of the Choices for Care waiver shall be enrolled in the Choices for Care waiver and shall continue to receive services. Thereafter, these participants shall continue to be enrolled in Choices for Care if, at reassessment, they meet the eligibility criteria for the Highest Needs group, the High Needs group or the Guidelines for Nursing Home Eligibility adopted in April of 1997.

D. Financial (Medicaid) Eligibility Standards

A. Application Process: Individuals who wish to enroll in the Choices for Care Medicaid Waiver shall complete an application and file it with Department or with the Department's clinical coordinators in the district offices. If an application is filed in the Department's central office, it shall be conveyed to the appropriate clinical coordinator as soon as possible.

B. Application: The application for Choices for Care shall consist of the Department's application form related to clinical eligibility and the Department for Children and Families (D)'s long-term care Medicaid application form. The applicant may submit the two application forms at the same time or may submit them separately. The date of application for purposes of home-base long-term care Medicaid eligibility and retroactive coverage shall be the date the D long-term care application is received by D and shall begin no sooner than the date both clinical and financial eligibility are met. If the applicant does not receive community Medicaid but may be eligible for it, the Department shall forward the application to D in order to process the applicant's eligibility for community Medicaid. Community Medicaid eligibility and retroactive coverage shall be determined according to D rules, and the date of application shall be the date the D financial eligibility application is received by D.

C. Initial Screening: Department staff shall screen application forms for missing/incomplete information. Department staff shall contact the individual, the referral source, or both, to gather additional information as needed.

D. Clinical Assessment: Department staff shall determine clinical eligibility and category (Highest or High Needs group) from assessment information submitted with the application and, if needed, from a face-to-face review.

E. Financial Assessment: If the individual meets the Highest Need group clinical criteria, or meets the High Need clinical criteria and funds are available, Department staff will supply the individual with a D Long-Term Care Medicaid financial eligibility form if needed.

F. The Department shall make a decision regarding clinical eligibility for Choices for Care within 30 days of receiving the application.

G. Notifications: If the applicant is found clinically eligible for the Highest Needs group, or the High Needs group with funds available, DAIL staff will send a Clinical Certification notice to D and Choices for Care provider(s). D staff will then complete the Long-Term Care Medicaid financial eligibility process. If the applicant is found ineligible, DAIL staff shall send a written notice with appeal rights as set forth in the notice section below.

H. Final Authorization: When financial eligibility is determined, D staff will notify the Department, the applicant and the highest paid provider (if a patient share is due). If the applicant is found eligible, Department staff will authorize services and send notification to the individual and providers. Department staff will complete and send a copy of the transitional service plan to the individual.

A. Screening: Department staff will screen reassessment and plan of care forms for missing or incomplete information. Department staff will contact the case manager or individual to gather additional information, as needed.

B. Clinical Re-Assessment: Department staff will determine clinical eligibility and category (Highest Needs group or High Needs group) from assessment information submitted with the continued eligibility materials. A face-to-face review may be completed as necessary.

C. Financial Eligibility: D staff shall be responsible for determining whether individuals remain eligible under Long-Term Care Medicaid financial eligibility criteria for the Highest Needs group or the High Needs group. Department staff shall be responsible for determining whether individuals remain eligible under financial eligibility criteria for the Moderate Needs group.

D. Final Authorization: Department staff shall authorize services and send written notice to the individual, the legal representative, if applicable, and the provider(s). If the participant is found to be ineligible, DAIL staff shall send a written notice with appeal rights as set forth in the notice section below.

E. Time Limit: Department staff shall make a clinical eligibility determination within 30 days of receiving application materials.

A. Consistent with Act 123 of the 2003-2004 Legislative Session, the Department is charged with implementing the following statewide protocols to ensure that individuals entering the long-term care system are assessed and informed of their options prior to entering a nursing facility. The protocol attempts to ensure that the assessment and information is provided in a timely manner so as not to delay discharges from hospitals and includes provisions for emergency admissions to nursing facilities.

B. Assessments and Service Plans. All individuals shall receive an initial assessment and periodic re-assessments. Participants shall be re-assessed after any significant change in circumstances or condition, or at the request of the participant, but no less than annually.

C. Long-Term Care Options: Department staff shall discuss Choices for Care options as part of the application and assessment process. Department staff shall ensure that options brochures and information are readily available.

A. Highest Needs Group Services

Individuals enrolled in the Highest Needs group may receive the following services, based on a service plan that is approved by the Department:

B. High Needs Group Services

Individuals enrolled in the High Needs group may receive the following services, based on a service plan that is approved by the Department:

C. Moderate Needs Group Services

Individuals enrolled in the Moderate Needs group may receive the following services, based on a service plan that is approved by the Department:

D. Transitional Service Plan:

In addition to the Clinical Certification, Department staff will create a transitional services plan identifying the Choices for Care waiver services and estimated volume of services. Providers may use this plan to start services pending Long-Term Care Medicaid Waiver financial approval. Reimbursement for services shall not occur unless and until the individual is found financially eligible.

A. When the Department makes a decision regarding an applicant or participant's eligibility, type or amount of services authorized, or variance request, a written notice of the decision shall be sent.

B. The written notice of decision shall include:

A. The Department may grant variances to these regulations. Variances may be granted upon determination that:

B. Applicants, participants, and providers may submit requests for a variance to the Department at any time.

C. Variance requests shall be submitted in writing, and shall include:

D. In making a decision regarding a variance request, the Department may require further information and documentation to be submitted. The Department also may require an in-home visit by Department staff. The Department shall review a variance request and forward a decision to the individual, his or her legal representative, if applicable, and to the provider(s).

E. The Department shall make a decision regarding a variance request within 30 days of receiving the request and shall send written notice of the decision, with appeal rights, within thirty (30) days.

A. An individual may request a Commissioner's hearing, a fair hearing before the Human Services Board, or both. An appeal may be made to the Commissioner and the Human Services Board at the same time. An appeal may also be made to the Human Services Board following a Commissioner's hearing.

B. Commissioner's Hearing.

C. Fair Hearing. An applicant or participant, or his or her legal representative, may file a request for a fair hearing with the Human Services Board. An opportunity for a fair hearing will be granted to any individual requesting a hearing because his or her claim for assistance, benefits or services is denied, or is not acted upon with reasonable promptness; or because the individual is aggrieved by any other Department action affecting his or her receipt of assistance, benefits or services; or because the individual is aggrieved by Department policy as it affects his or her situation. The Department shall respond to any clear indication (oral or written) that an applicant or participant wishes to appeal by helping that person to submit a request for a hearing.

D. Continuation of Services Pending Appeal

E. Adverse Action

When a Department decision will end or reduce the amount of services an individual has been receiving, the notice of decision shall be mailed at least eleven (11) days before the decision will take effect, except when:

F. Financial Eligibility

Financial eligibility decisions or patient share determinations must be filed pursuant to D Medicaid regulations. If such an appeal is inadvertently submitted to the Department, it shall be forwarded to D as soon as possible.

A. The Department shall develop a quality assurance/quality improvement system that complies with federal terms and conditions.

B. The quality assurance/quality improvement system shall include elements of discovery, remediation, and improvement. The system shall include, but is not limited to, the following:

C. Service providers shall comply with the requirements of the quality assurance/quality improvement system, including survey and certification procedures established by the Department.