OAR 411-027-0050: Exceptions to Payment Limitations in Home and Community-Based Services

(1) Eligibility for Exceptions. (a) Exceptions for in-home services as defined in OAR 411-030-0020 are not subject to this rule. (b) Exceptions will only be granted when the requirements of this rule are met and the provider submits all requested documentation, as required by this rule verifying that additional caregiving was delivered to each current Individual as funded by their respective Tiers and exceptions. (c) Exceptions authorized by this rule shall only be provided to Individuals living in the following licensed settings: (A) Adult Foster Homes; or (B) Residential Care Facilities, including Intensive Intervention Communities; or (C) Licensed 24-hour residential programs as defined in and licensed in accordance with OAR 411-325-0020 (1) and (2); or (D) Residential Treatment Homes or Residential Treatment Facilities as defined and licensed in accordance with OAR 309-035-0105 (77) and (78). (d) Exceptions are not allowed for: (A) Individuals served under a specific needs contract(s) unless the Department has determined a specific Individual has care needs that require additional staff hours beyond what is provided by the contract; (B) Assisted Living Facilities; (C) Nighttime care needs that fall outside of regular or anticipated routines. Occasional night needs are not eligible for an exception. (D) Anticipatory or just in case needs. (e) The amount of any approved exception is based on the additional Caregiver staff hours required to meet the Individual’s assessed and verified ADL, IADL, health related tasks, or behavioral needs per OAR chapter 411, division 15 that exceed the service expectations in licensing rules. For Individuals residing in AFHs, the needs must also exceed all the hours funded by Individuals’ assigned Tier. (f) Exceptional hours may be approved to monitor the Individual when they have a history of physically or sexually harming others and there is a documented likelihood that the Individual could harm themselves or others in the immediate future. (g) For providers referenced in (1)(c)(B), (C), and (D) of this rule, exceptions are only allowed when the consumers residing in those settings have behavioral needs that require regular one to one intervention to address elopement or self-harming behaviors and will be approved for the number of hours needed to meet the exceptional care needs. (h) At the sole discretion of the Department, an exception may be granted without required documentation if an individual is in an unsafe or dangerous situation. Such exception may not exceed 90 days. Providers must submit the required documentation within that time period, or the exception will end. Documentation may include, but is not limited to: (A) Documentation of medical conditions or treatments that may drive care needs; (B) Medical documentation that the way services are being provided is appropriate to the needs of the Individual; (C) Documentation from medical professionals, a Long-Term Care Community Nurse or a Behavior Support Specialists that reflect the needs that meet exceptional criteria; (D) The reasons for increased duration and frequency of care need or health related tasks; (E) Other information explaining or related to the need for additional hours; and (F) Diagnosed psychiatric conditions, period(s) of institutionalizations or other documented behavioral health history that demonstrates the Individual poses a current threat or the high likelihood that the Individual will pose a threat of harm to themselves, the community, other Individuals in the facility, the provider and/or caregivers. (G) Past criminal charges with period(s) of incarcerations, that demonstrates the Individual poses a current threat or the high likelihood that the Individual will pose a threat of harm to themselves, the community, other Individuals in the facility, the provider and/or caregivers. (i) For Adult Foster Homes, exceptions are limited to needs that exceed the level of staffing required by the Individual’s tier and requires: (A) One-to-one assistance or supervision for a significant amount of time to manage behavioral care needs. (B) Two or more staff to provide ADL task assistance to the Individual at the same time; (C) Additional frequent monitoring due to a history in the last 90 days of behaviors that currently endanger the individual, other Individuals in the facility, the community and/or caregivers and there is a likelihood of harm to the Individual or other Individuals; (D) To meet ongoing care needs of the Individual that occur during sleeping hours. Exceptions approved for night needs will not exceed 8 hours per individual for a 24-hour period and may be reduced when there are multiple individuals requiring night care and the care needs of all Individuals in the facility can be met by one awake caregiver; (E) Additional staff to assist with ADL, IADL or health related tasks due to the Individual experiencing false memories that has resulted in inaccurate or distorted reporting of events and leading to multiple false allegations of abuse or criminal acts against others. (j) Exceptions for more than one Individual in a facility will only be allowed if: (A) The exception request meets the requirements in these rules. (B) The information provided indicates the assessed needs of each individual are independently documented in the individual’s person-centered service plan. (C) For Adult Foster Homes, the provider has supplied evidence they can and will provide the staffing for all the required staffing in the tiers for their current Individuals and approved exception hours in the home. This evidence may include but is not limited to, staffing plans and payroll records. (k) Exceptions will not be approved when: (A) Proposed services are not based on the Individual’s assessed service needs, except as otherwise provided in these rules; (B) Proposed services are not medically appropriate or necessary as determined by a qualified medical professional; (C) Proposed services would violate licensing regulations applicable to the provider’s license or certification; (D) Proposed services include activities or instrumental activities of daily living not allowed in OAR 411-015-0006 and 411-015-0007; (E) Proposed services are not covered in the 1915(k) State Plan, OAR 411-015-0006, or OAR 411-015-0007; (F) Proposed tasks are not allowed in OAR 411-015-0006 and OAR 411-015-0007 unless identified in the Individual’s behavior support plan, or directed by a qualified medical professional; (G) Proposed exception request includes building utilities, food, or, building maintenance costs; (H) Proposed services address needs that do not require additional caregiver hours or not documented in the individual’s CA/PS; (I) Proposed hours or services include supplementing the income for the provider, owners or investors of the facility or are not directly related to the need for additional care; (J) Proposed services are to provide wages to caregivers beyond the established hourly wage for exceptions; (K) Proposed services are based solely on fire evacuation needs; (L) The exceptional need could be provided by durable medical equipment or other community resources; (M) Staffing plans and payroll records indicate the exceptional hours are being provided concurrently to other Individuals, based on their Tier, to other approved exceptions or other required staffing; (N) Proposed services are meant to provide companionship hours; (O) Proposed services are to monitor the Individual unless the reason for monitoring is otherwise allowed in the rules; or (P) The provider fails to provide sufficient payroll documentation and staffing schedules, as required by this rule, that demonstrates they have been providing staffing as required in each of the Individual’s tier and each Individual’s exception as applicable. (2) INITIATION OF AN EXCEPTION REQUEST (a) A request for an exception may be initiated by the provider, the Individual, or the Individual’s representative. (b) A request for an exception may be initiated either orally or in writing by an Individual or the Individual’s representative to their case manager. An exception request initiated by an Individual or their representative can only be considered once the provider submits the required documentation requested by Department. (c) All exception requests regardless of requestor must include: (A) How the Individual’s assessed needs or documented safety needs exceed the staffing levels provided by the assessed rate and minimum staffing levels required by staffing expectations in the relevant licensing administrative rules. (B) The request must be in writing and include the Department assessment calculator that documents the amount of time it takes to complete each task the exceptional hours would support. (C) The specific ADL(s), IADL(s), health related task or behavioral need for which the exception is being requested.(D) A written staffing plan is submitted from the adult foster home provider that demonstrates they do provide sufficient caregiver hours for the Individual’s request, any other exceptions in the adult foster home and Tier staffing for all Individuals in the home. The staffing plan must include an attestation from the provider that the staffing plan is true, accurate and the provider intends to provide the additional caregiver hours. (d) Requests with incomplete information, incomplete documentation or information that doesn’t support the exception request will be denied and returned to the requestor as a denial. (e) The Department may require additional information to be submitted by the provider prior to making a decision. This information may include, but not limited to: (A) The Individual’s service plan or Care Plan; (B) Medical Records; (C) Existing and proposed staffing plan/schedule; (D) Payroll records that show the provider is appropriately staffing hours required by the Individuals’ assigned Tier and all existing exceptions in the facility as applicable. (E) Home health or hospice reports if available; (F) Long Term Care Community Nursing (LTCCN) or other nursing assessments and notes, if available; and (G) A Behavior Support Plan completed by a Department contracted Behavior Support Specialist if the exception is based on behavioral needs. (f) An exception request will be denied and returned to the requestor if the additional documentation is not submitted by the date specified in writing by the Department. (3) PROCESSING EXCEPTION REQUESTS. (a) Prior to forwarding any request for an exception to the Department’s APD Central Office, the case manager must discuss with the requestor whether there are alternate ways to meet the Individual’s needs consistent with the Individual’s right to independence and choice. This discussion must be documented in the Oregon Access Narration. (b) After discussing alternative ways to meet the Individual’s needs, and the requestor wishes to continue with the exception request, the case manager will forward the exception request to their manager for review and approval. Once approved, the manager will forward the request to the Department’s APD Central Office for a decision. (c) The CA/PS assessment must represent the Individual’s current condition and functioning unless an urgent situation exists as referenced in these rules. (d) If the CA/PS assessment does not reflect the needs described in an exception request, a new assessment will be required before the rate can be renewed unless an urgent situation exists as referenced in these rules. When there is an urgent situation, a new CA/PS must be completed and demonstrate the Individual’s needs by the date required by the Department’s Central Office. (4) The following required Documentation must be maintained by the provider and available to the Department at any time: (a) For all approved exception requests providers must maintain the following documentation: (A) Staffing schedules showing the dates and times each caregiver worked in the facility. (B) For exceptions based on behaviors, the following must also be maintained: (i) The frequency of behavioral interventions performed by caregivers, if applicable to the approved exception. (ii) Narrative notes and care plans that demonstrate Behavioral Support Plans are implemented (C) Payroll records, including pay stubs which show income tax withholdings, payroll tax withholdings, hours worked, pay periods, and hourly rate of pay. (b) When the Department has concerns about the accuracy of the records submitted, when there are reports the provider has not staffed appropriately and/or when the provider has a history of not staffing exception(s), the Department may require additional documentation to ensure the exception is appropriate for the Individual or to determine if the staffing required by the exception has been provided. This documentation can include, but is not limited to: (A) Verifiable records showing taxes were withheld and reported to the appropriate government agency. (B) Verifiable documentation payroll taxes were paid to the appropriate government agency. (c) Required documentation must be available to the Department at all times and provided immediately upon request unless the Department has given a different timeline. (5) EXCEPTION DECISIONS. (a) Only the Department’s APD Central Office can approve exceptions and has final decision authority and discretion over the approval or denial of an exception. (b) An exception may be approved temporarily with documentation requirements and/or actions the provider must implement to mitigate the need for an exception. Any required documentation or other requirements will be communicated to the provider in writing. (c) Local ODHS offices, APD and Type B Area Agencies on Aging may deny or choose not to renew exceptions when: (A) There is no demonstrated need for the exception; (B) The provider fails to submit sufficient documentation to show that all exceptions within the adult foster home can be appropriately staffed. (d) Exceptions will be approved until the Individual’s current CA/PS assessment is due for renewal, or for a shorter period when: (A) The Individual is discharging from a hospital; (B) The exception was approved due to an urgent situation as specified in these rules; (C) Medical records or verification from the Individual’s medical or behavioral health professional indicate that the need for additional caregiving hours may be temporary; (D) When the exception is for behavioral or cognitive needs and Individual doesn’t have a behavior support plan; (E) The provider has a history of not appropriately staffing exceptions, an Intensive Individual Rate or specific need contracts, including instances of licensing violations related to insufficient or unqualified staff; (F) The Department determines there is reason to believe the Individual may not require the exception on a long-term basis. (G) The Department has reports of licensing complaints or adult protective service allegations. (H) The request for an exception renewal was not received timely. (e) Renewals of exception requests must be requested prior to the expiration date and must include: (A) Payroll records, staffing schedules, as specified in this rule that demonstrate the additional caregiving hours as funded by the exception were provided; (B) Documentation as specified in OAR 411-027-0050 (2) (a) – (g); (C) Other documentation as required by the Department. (f) Exceptions may only be renewed when: (A) The Individual’s CA/PS assessment continues to show the need for the exception; (B) The provider has demonstrated they have provided the additional caregiver hours as required by all Individuals’ Tiers and funded by all exceptions in the facility. (g) Exceptions may be terminated, denied or partially approved when: (A) The documentation does not support the requested number of exceptional hours. This includes instances where the requestor did not submit sufficient evidence to allow APD Central Office to make a decision or did not complete the required forms within the timeframe set by the Department; (B) The staffing plan does not demonstrate sufficient proposed staffing for the requested exception and other existing exceptions and Tiers in the facility. (C) When the Individual’s CA/PS assessment does not reflect the need for additional caregiving hours unless an urgent situation exists as referenced in these rules. (D) As applicable, when the Individuals Behavior Support Plan doesn’t reflect the behavioral needs or interventions as documented in the exception request. (E) The Individual’s medical documentation doesn’t support the number of exceptional hours requested, when alternatives could be tried or when the verification doesn’t address all of the requirements by OAR 411-027-0050 (2) (c) (D) (i) –(vi). (F) When the Provider is not able to supply documentation as required by the Department or taken actions that could mitigate the need for an exception. (G) When Provider has a history of not appropriately staffing exceptions, an Intensive Individual Rate or specific need contracts, on multiple occasions. This includes instances of licensing violations related to insufficient or unqualified staff. (h) If the exception request is partially approved, terminated or denied as described in this subsection, a written decision will be provided to the provider indicating the reasons for the action. (i) When exception orientation training has been temporarily waived due to lack of availability or an urgent situation, as specified in these rules, the exception may be terminated if the provider does not complete the training by the date required by the department. (j) If the Individual or the Individual’s legal representative, as applicable, initiated the request, a notice of planned action will be sent to the requestor which includes contested hearing rights under ORS chapter 183 when an exception request is denied, reduced, partially approved or terminated. Hearing requests must be submitted within 30 days. (k) If the provider initiated the request, the Department will provide a written notice that includes the following elements: (A) The date; (B) The name of the provider; (C) The Department’s decision; and (D) Reason(s) for the Department’s decision. (l) The provider may request an administrative review within 14 days of receiving notice of denial, termination, or partial approval by sending a written notice to the Individual’s case manager. (m) A provider, Individual, or Individual’s legal representative may submit a request to increase an exception. The request must include additional information demonstrating the need for the exception and a new CA/PS assessment has been conducted by the case manager that documents the need for the change to an exception. Requests for an increase will be treated as a new exception request. (n) Exceptions expire at the end of the Individual’s service plan authorization or at an earlier date as determined by the Department. (o) Adult Foster Home providers will be given at least 10 business days written notice prior to the expiration or termination of an exception. Providers that do not receive this notice will continue to be paid the exception until a 10-day written notice is issued. (p) The requestor seeking a renewal must submit the renewal request on the required forms and payroll documentation showing additional caregivers were provided as funded by the exception, prior to the exception expiration date. (q) Failure to comply with these timelines will result in an exception expiring. If an exception expires, a new request must be completed and providers will not be paid for the period between when the exception expired and when a new exception, if approved, begins. (r) The Department may deny an exception request, regardless of who has initiated it, when in the last three years the provider has a history of not appropriately providing sufficient staffing to meet an exception or not providing requested documentation to the Department on multiple occasions to support an exception.