OAR 410-141-3955: Transportation: Member Service Modifications and Rights

(1) For the purposes of this rule, “direct threat” means a significant risk to the health or safety of others and which: (a) Cannot be eliminated or reduced to an acceptable level through the provision of auxiliary aids and services or through reasonably modifying policies, practices, or processes; and (b) Is identified through an individual assessment that relies on current medical evidence or the best available objective evidence which shows: (A) The nature, duration, and severity of the risk; (B) The probability that a potential injury will actually occur; and (C) Whether reasonable modification of policies, practices, or processes will lower or eliminate the risk. (2) CCOs shall draft policies and procedures that ensure the safety of all passengers in NEMT vehicles which shall include, without limitation, policies and procedures that comply with this rule. CCOs shall provide its passenger safety policy and procedures to its NEMT subcontractors and require the NEMT subcontractors to implement and follow such policies and procedures. The CCOs’ passenger safety policy and procedures shall be included in their member handbooks and posted on their websites. (3) CCOs and their subcontractors shall comply with the Authority’s non-discrimination and modification rules found at OAR 943-005-0000 to 943-005-0070. (4) CCOs must not apply criteria, standards, or practices that screen out, or tend to screen out, individuals in a protected class, as defined under state anti-discrimination laws, from fully and equally enjoying any goods, services, programs, or activities unless: (a) The criteria can be shown to be necessary for providing those goods and services; or (b) The CCO determines the screening or exclusion identifies a direct threat to the health and safety of others. (5) A CCO may modify NEMT services when the member: (a) Threatens harm to the driver or others in the vehicle; (b) Presents a direct threat to the driver or others in the vehicle; (c) Engages in behaviors or circumstances that place the driver or others in the vehicle at risk of harm; (d) Engages in behavior that, in the CCO’s judgment, causes local medical providers or facilities to refuse to provide further services without modifying NEMT services; (e) Frequently does not show up for scheduled rides; (f) Exhibits chronic lateness, defined as being more than 15 minutes late after the driver arrives (within the pickup window) for 25 percent or more of those trips occurring within the previous three-months; or (g) Frequently cancels the ride on the day of the scheduled ride time. (6) A member may request modification of NEMT services when the NEMT driver: (a) Threatens to harm the member or others in the vehicle; (b) Drives or engages in other behavior that places the member or others in the vehicle at risk of harm; or (c) Presents a direct threat to the member or others in the vehicle. (7) Reasonable modifications include, but are not limited to, requiring members to: (a) Use a specific transportation provider; (b) Travel with an attendant; (c) Use public transportation where available; (d) Drive or locate someone to drive the member and receive mileage reimbursement; and (e) Confirm the ride with the NEMT brokerage/subcontractor on the day of or the day before the scheduled ride. (8) When the NEMT brokerage determines a need for a service modification, they shall notify the member using the member’s preferred method of notification. NEMT brokerages must make three (3) separate reasonable attempts to notify the member. This shall be followed by written confirmation to the member, the member’s care coordinator, and any requesting provider. Before modifying services, the NEMT brokerage/subcontractor, a CCO representative, and the member shall: (a) Communicate about the reason for imposing a modification; (b) Explore options that are appropriate to the member’s needs; and (c) Address health and safety concerns. (9) The communications discussed in section (8) of this rule may include: (a) The member’s care team, including any care coordinator, at the request or upon approval of the member or the CCO; (b) Any other individual of the member’s choosing. (10) Responses to requests for modification or auxiliary aids based on disability or other protected class status under state or federal rule or law must comply with the Americans with Disabilities Act and all other applicable state and federal laws and rules. (11) A CCO must not modify NEMT services unless the modification is permitted under this rule or required in order to accommodate a disability requiring modification or auxiliary aid. (12) A CCO must not modify NEMT services to result in a denial of NEMT services to a member. (13) A CCO shall make all reasonable efforts to offer an appropriate alternative to meet a member’s needs under the circumstances.