OAR 411-450-0065: Exceptions for Community Living Supports

(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 shall 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: (i) 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; or (ii) Up to 16 hours per day for an individual who needs support all waking hours and up to 24 hours per day for an individual who needs support during all waking and sleeping hours. (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: (i) By increments of 30 hours per month until the allocation is able to meet the assessed need. (ii) Up to 16 hours per day for an individual who needs support all waking hours and up to 24 hours per day for an individual who needs support during all waking and sleeping hours. (c) EXCEPTIONS FOR COMMUNITY INCLUSION. The Department or the Department’s designee shall 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.