OAR 411-034-0091: Exceptions to Maximum Hours of Service

(1) Eligibility for SPPC Exceptions to Maximum Hours of Service. (a) If the Department determines the individual’s assessed service needs will not be met within the maximum 270 annual hours as set forth in Oregon’s Medicaid State Plan the individual may receive an exception to the maximum annual hours. (b) The Department may deny an exception if the request is: (A) Based on a request for services outside of assessed service needs. (B) Not medically appropriate. (C) For assistance types not allowed by OAR 411-034-0010(6) for a particular ADL or IADL. (D) For services not covered in the Medicaid State Plan, OAR 411-034-0020(2). (E) For tasks not identified in OAR 411-034-0020(2). (c) An exception is valid for the period determined by the case manager and communicated to the individual in the notice, not to exceed one calendar year. (d) If an individual has an existing approved SPPC exception, a new request must be submitted after the annual assessment is completed and will be reviewed prior to the exception end date. If the individual requests the same or fewer exception hours, a decision to renew the exception may be made if section (3)(d) of this rule is not met. The case manager may supply the required documentation as outlined in section (4) of this rule. (e) Exceptions may be reviewed at reassessments, change of care setting or living situations, or change of conditions. (2) Responsibility for Applying for an SPPC Exception. (a) An individual, or their representative, may make an initial exception request either orally or in writing if the individual believes their service plan is not meeting, or will not meet, their service needs. (b) If the individual, or their representative, requests an exception or expresses concerns that their service needs are not being met, the case manager must help the individual apply for an exception, including completing required forms and gathering Department-required documentation. (c) If the individual’s case manager assesses or is notified by others with knowledge of the individual’s needs, that the individual’s needs exceed the maximum hours, the case manager must work with the individual to determine the appropriate number of hours and submit an exception application. (d) If the number of hours the case manager approves or recommends is fewer than the number requested by the individual or their representative, the individual’s requested exception shall be reviewed as presented by the individual, and a decision will be made on that request per the process defined in section (3) of this rule. (e) In-home care providers may not submit requests for exceptions. They may notify the case manager of concerns and the case manager shall discuss the concerns with the individual or their representative and ask if the individual wants to apply for an exception. (3) Exception Application Process. (a) An individual may apply for a SPPC exception, described in section (2) of this rule, either by completing: (A) A SPPC exception application form, available from the case manager, and providing any information that supports the request for additional hours; or (B) By requesting that their case manager complete the SPPC exception application form on their behalf; or (C) Expressing to their case manager that the authorized hours are not sufficient to meet their needs. (b) Prior to processing an application for a SPPC exception, the case manager must discuss alternate ways to meet the individual’s needs consistent with the individual’s right to independence, choice, and responsibility to assist in developing the less costly plan as described in OAR 411-034-0010(15) and 411-034-0070(2)(d). Additionally, the case manager must assess if the individual is eligible for services through any other Medicaid program that provides the supports the individual needs. (c) After discussing alternative ways to meet the individual’s needs described in subsection (b) of this rule, if the individual continues to desire an exception, then the exception application shall be processed. (d) The Exception Application Form, regardless of who completes the form, must be signed by the individual or their representative in order for the application to be reviewed. (e) The CA/PS assessment must have been completed within three months before the SPPC exception request, and it must represent the individual’s current condition and functioning. (f) If the individual's application for an exception is not within the timeframe noted in subsection (e), a new assessment must be completed to document current needs. ODHS Central Office may waive this requirement in special circumstances which must be documented in the individual’s application. (g) If the wait for a new assessment threatens the health, safety, or welfare of the individual, as determined by the Department, the Department shall waive the three-month requirement in subsection (e) of this rule. (h) The Exception Application Request must clearly describe: (A) The frequency per day, week or month an individual requires assistance from another person to complete personal care needs described in 411-034-0020(2). This includes personal care needs that occur regularly but on an unpredictable schedule. (B) The duration needed to complete personal care tasks described in 411-034-0020(2). (C) The number of providers needed for each task and, if applicable, an explanation of why the task requires more than one provider. (D) An explanation of why less costly options, including the maximum allowable hours, will not meet the personal care needs in 411-034-0020(2). (E) Any additional information that may assist the reviewer in understanding the need for exceptional hours. (i) The Exception Application Form shall include an attestation that all the information is accurate and truthful. (j) The individual, or their representative, is responsible for ensuring that sufficient documentation is provided. A case manager shall assist the individual in collecting the requested documentation. If the requested documentation is not provided to the Department may issue an exception denial. (4) Required Documentation. (a) All Exception applications must include the SPPC Exception Application Form. The form must be complete, signed by the individual or their representative, and accurate. (b) To support the application, the Department may require the individual, or their representative, to provide further documentation during the Exception decision making process. This documentation, in addition to the SPPC Exception Application Form, may include, but is not limited to: (A) A SPPC Exception Calculator, which will be provided by the Department. (B) Care provider logs detailing the performance of all personal care tasks defined in 411-034-0020(2) for one complete pay period. The log shall include the name of the personal care task, the actions required to complete the task, and the duration of the task. (C) Any relevant medical or mental health records to support the additional time requested to complete personal care needs. (5) Exception Decision Making Authority. (a) ODHS Central Office shall make final decisions on exception requests that exceed the maximum allowable hours in 411-034-0090(1). (b) Local office management may deny an application for exceptional hours if, after review, it is determined there is clear and convincing evidence that the individuals care needs do not exceed the maximum allowable hours in 411-034-0090(1). (c) If the exception application does not meet the criteria in (5)(b) of this section, local office management must submit the exception application to ODHS CO within three business days of receipt of the completed application. (d) ODHS CO has 30 days from the date the local office manager submits the exception request to ODHS CO. (A) In emergency situations that threaten the health, welfare or safety of the individual, ODHS CO will make a decision within two business days of receipt of the application. ODHS CO may elect to make a decision without all of the required documentation. Any emergent approvals end the last day of the next period after which the emergency occurred. (B) If ODHS CO determines that it needs additional information, ODHS CO will notify the case manager or local office manager in writing within three business days of receipt of the application. The case manager, or local office manager must notify the individual, or their representative, within two business days that additional information is needed. (e) The individual, or their representative, or case manager must provide the requested information to ODHS CO within 14 days of the Department’s request. The request for additional information will specify the due date and explain how to submit the required information. (A) ODHS CO has 14 days from the date of receipt of the additional information to make a determination. (B) If the individual fails to provide the requested information within the required timeframe, ODHS CO will complete the review based on the documentation in its possession. ODHS CO has 14 days from the date of the individual’s deadline for additional information to complete its review. (C) If the individual, or their representative, responds to the request for additional information after the exception application has been denied due to a failure to provide additional information, the individual’s response will be considered a new request for a new SPPC exception, with a new effective date based on the date the new information was provided. (D) If the individual submits the required documentation after the 14-day timeframe, the individual may request an extension for good cause and request that the ODHS CO issue a revised decision. ODHS CO will review the request and make a determination within 3 business days regarding good cause. (E) The individual may request a good cause extension prior to the expiration of 14-day timeframe by requesting it via their case manager. (F) 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. (f) For each Exception Application: (A) If the Department determines that the documentation supports the requested additional hours over the maximum for the specific personal care needs, the exception will be granted. (B) If the Department determines that the documentation supports additional hours but not as many hours as requested or for the timeframe requested, the exception will be “partially denied” and only those additional hours supported by the documentation will be granted. (C) If the Department determines that the documentation does not support any additional hours over the maximum, the exception application will be denied. (D) If ODHS denies any portion of an Exception Application the individual, or their representative, may request a hearing. (6) Exception Application Reviews and Decision Making (a) All exception applications must be for services that meet the definitions of personal care services and associated assistance types defined in 411-034-0020. (b) Exception approvals are effective no earlier than the date the Exception Application is requested by the individual and received by the case manager and the Medicaid approved provider has been authorized to work. If these do not occur on the same date, the later date is the effective date. (c) To determine the need for additional hours, the Department shall review any available documentation, including: (A) SPPC Assessment Synopsis; (B) CA/PS Assessment Comments; (C) Treatments that may drive care needs; (D) Diagnosis that may drive care needs; (E) Medical documentation supporting the way services are being provided to meet the personal care needs of the individual; (F) Medical documentation, including those from the Long-Term Care Community Nurse or Behavior Support Specialists, that shows that the allowable hours are not meeting the individual’s personal care needs; (G) The change or cause driving increased duration and frequency; and (H) Other available information explaining or related to the need for additional hours. (d) To determine the appropriate number of exception hours, the Department shall review: (A) The frequency per day, week or month an individual requires assistance from another person to complete personal care needs described in 411-034-0020(2). This includes personal care needs that occur regularly but on an unpredictable schedule. (B) The duration needed to complete personal care tasks described in 411-034-0020(2). (C) The number of Medicaid approved providers required to perform assessed personal care service needs. (D) The reasons driving the increased duration and frequency. (E) The complexity of the individual’s care needs. (F) Whether denying the exception would put the individual at risk of placement out of home if the individual prefers to live in their own home. (G) Whether or not denying the exception would result in substantial unmet needs of the individual. (e) The Department may reduce the requested exceptional hours if the individual’s personal care needs are already met by: (A) Natural supports as defined in OAR 411-034-0010(29); (B) Durable Medical Equipment, assistive devices or other assistive technology; (C) Emergency Response Systems; (D) Home and Environmental Modifications; (E) Other supports that replace the need for human assistance as determined on a case-by-case basis consistent with individual choice; (f) The Department may reduce requested hours if: (A) The requested hours are not for personal care needs defined in 411-034-0020(2); or (B) The information regarding how services are provided is determined to be not medically appropriate or necessary. (7) NOTIFICATION. (a) The Department shall notify the individual about the outcome of the exception request in the notice of hours authorization decision, or an amended notice, if appropriate. (b) Notification shall include: (A) The name of the person who applied for exceptional service hours. (B) The date the request was approved or denied. (C) For personal care services, the number of hours requested, compared to maximum hours and total approved hours. (D) A summary of the reasons why the exceptional hours requested were approved, partially denied, or denied. (E) The duration of the exception. (F) Hearing rights and what to do if the individual does not agree with the decision. (8) EXCEPTION DECISION AUTHORITY. The final decision may be made by the local office or ODHS CO when the exception application does not exceed the total 270 annual hour maximum defined in OAR 411-034-0090(1).