RELATES TO:
KRS
12.290, Chapter 13B, 171.530, 205.455(4),
205.8451(3), 205.900 - 205.925
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
205.910 requires the Cabinet for Health and
Family Services to establish by administrative regulation, an eligibility
standard for personal care assistance services that takes into consideration
the unique economic and social needs of severely physically disabled adults.
KRS
205.920 authorizes the cabinet to promulgate
administrative regulations to implement provisions concerning personal care
assistance services. This administrative regulation establishes the personal
care attendant program.
Section 1.
Definitions.
(1) "Administrative support
personnel" means staff designated within a contract agency who offer technical
assistance to, and monitor the activities of, the qualified agency.
(2) "Approved plan" means an agreement
between the department and a contract agency to administer the personal care
attendant program.
(3) "Assessment"
means the collection and evaluation of information:
(a) About a person's situation and
functioning;
(b) To determine the
applicant's or participant's service level; and
(c) To develop a plan of care utilizing a
holistic, person-centered approach by the evaluation team.
(4) "Attendant" means a person who provides
personal care assistance services.
(5) "Contract agency" means the agency with
which the cabinet has contracted to administer the personal care attendant
program.
(6) "Department" means the
Department for Aging and Independent Living or its designee.
(7) "Evaluation team" is defined by
KRS
205.900(2).
(8) "Evaluation team's findings and
recommendations" means the official response of the evaluation team signed by
all three (3) team members.
(9)
"Immediate family member" is defined by
KRS
205.8451(3).
(10) "Income eligibility standard" means a
formula to determine an applicant's income eligibility for the personal care
attendant program pursuant to
KRS
205.910(1).
(11) "Natural supports" means a non-paid
person or persons or community resource, that can provide, or has historically
provided, assistance to the participant or due to the familial relationship,
and would be expected to provide assistance.
(12) "Participant" means a person accepted
into the personal care attendant program and who has met the eligibility
requirements of a severely physically disabled adult.
(13) "PCAP" means personal care attendant
program.
(14) "Personal care
assistance services" is defined by
KRS
205.900(3).
(15) "Prescreening" means a process that
assesses whether or not an applicant appears to meet the basic requirements for
eligibility.
(16) "Qualified agency
or organization" is defined by
KRS
205.900(4).
(17) "Reassessment" means reevaluation of the
situation and functioning of a client.
(18) "Service area" means those counties
listed in an approved plan of the qualified agency or organization.
(19) "Severely physically disabled adult" is
defined by KRS
205.900(6).
(20) "Subsidy" means a financial
reimbursement paid by the cabinet to an adult who qualifies to receive personal
care assistance services in accordance with
KRS
205.905(1).
(21) "Work agreement" means an agreement of
time and tasks developed by the participant as the employer for the attendant
as the employee.
Section
2. Eligibility.
(1) To be
eligible for participation in the personal care attendant program, an applicant
shall:
(a) Be a severely physically disabled
adult who:
1. Meets the qualifications
required by KRS
205.905(1); and
2. Has the ability to be responsible for
performing the functions required by
KRS
205.905(2) to receive a
subsidy;
(b) Agree to
obtain an initial assessment for eligibility and a reasessment at least
biennially by an evaluation team in accordance with
KRS
205.905(2)(b) 1 and
2;
(c) Be able to reside or reside
in a non-institutional setting;
(d)
Work with a program coordinator in establishing a work agreement between the
participant and attendant;
(e) Be
responsible for attendant payroll reports and computing required employer tax
statements;
(f) Have an immediate
family member or natural supports to meet the individual's needs if a paid
attendant is not available; and
(g)
Not be receiving the same services obtainable from any federal, state, or
combination of federal and state funded programs. If the individual's needs
cannot be met with the funding received from any of those programs, the
individual may be eligible to receive personal care attendant program services
above and beyond what the other programs provide.
(2) An applicant shall be accepted for
service if:
(a) The evaluation team determines
that the applicant is eligible to participate in the program in accordance with
this section;
(b) The department
agrees that the determination is in accordance with this section; and
(c) Funds are available.
(3) An applicant shall be income eligible if
they are eligible for:
(a) Supplemental
Security Income; or
(b)
Medicaid.
(4) If an
applicant's gross annual income is less than 200 percent of the official
poverty income guidelines published annually in the Federal Register by the
United States Department of Health and Human Services, the applicant shall be
income eligible.
(5) If an
applicant is not eligible pursuant to subsections (3) or (4) of this section,
the income eligibility standard shall be determined by a program coordinator
using the PCAP-05 Income Eligibility form as follows:
(a) The program coordinator shall determine
the adjusted gross income by deducting:
1. The
cost of unreimbursed extraordinary medical expenses, and impairment-related
expenses as recorded on the PCAP-05;
2. An amount adjusted for family size based
on 200 percent of the official poverty guidelines published annually in the
Federal Register by the United States Department of Health and Human Services;
and
3. Dependent care
expenses.
(b) If the
adjusted gross income is less than 200 percent of the annual federal poverty
guidelines, the applicant shall be income eligible.
(c) If the adjusted gross income is more than
200 percent of the annual federal poverty guidelines, the following shall be
used to determine the applicant's contribution to cost of care:
1. From the adjusted gross income subtract a
current annual standard deduction for one (1) as determined by the Internal
Revenue Service;
2. Divide the
remaining income by two (2) to allow for the unique economic and social needs
of the severely disabled adult;
3.
Divide the final income by fifty-two (52) weeks; and
4. Calculate the estimated cost of personal
care services by multiplying the estimated number of hours of personal care
assistance services per week times the cost per hour of service.
(d)
1. If the resulting monetary amount in
paragraph (c)3. of this subsection is less than the estimated cost of services
calculated in paragraph (c)4. of this subsection, the qualified agency shall
provide the full subsidy.
2. If the
resulting monetary amount in paragraph (c)3. of this subsection is more than
the estimated cost of services calculated in paragraph (c)4. of this
subsection, the participant shall pay the difference between the cost of
services and the qualified agency's maximum hourly rate.
(6) The income eligibility
criteria established in subsections (3) through (5) of this section shall be
applied to a current participant at the time of the participant's next
reassessment.
Section 3.
Application and Evaluation.
(1) A referral to
the personal care attendant program may be made by:
(a) The applicant;
(b) Family, with applicant
knowledge;
(c) Another person, with
applicant knowledge; or
(d) Agency,
with applicant knowledge.
(2) If an opening for services is available,
a program coordinator shall:
(a) Visit and
assist an applicant in the completion of a PCAP-01 Application for Services;
and
(b) Complete and have all
evaluation team members sign a PCAP-04 Evaluation Team Findings and
Recommendations.
(3) A
qualified agency shall:
(a) Report an
evaluation team's findings and recommendations to the contract agency for final
review of the applicant or participant; and
(b) Notify the applicant or participant if
the evaluation team's findings and recommendations are accepted by the contract
agency.
(4) A contract
agency shall:
(a) Review the evaluation team's
findings and recommendations and notify the qualified agency in writing of the
final determination within ten (10) business days of receipt of the
recommendations; and
(b) Notify the
applicant or participant in writing within twenty (20) business days of receipt
of the evaluation team's findings and recommendations in accordance with
KRS
205.905(3):
1. Whether the evaluation team's findings and
recommendations are accepted or not accepted; and
2. The reasons for the contract agency's
decision.
Section 4. Waiting List.
(1) If the personal care attendant program is
at capacity, an eligible applicant shall be placed on a waiting list entered
into the state data system and, as a vacancy occurs, be accepted for services
in priority order based on the following categories:
(a) Emergency situation because of an
imminent danger to self or at risk of institutionalization;
(b) Urgent situation because there are no
community supports; or
(c) Stable
because there is a currently reasonable support system.
(2) Every effort shall be used to provide
referrals to other services if personal care assistance services are not
available.
Section 5.
Relocation.
(1) If an eligible participant
receiving personal care assistance services relocates to another service area
to complete a training or educational course, the participant shall remain a
client of the service area of origin, if the:
(a) Participant considers the personal care
attendant program service area of origin to be his or her place of residence;
and
(b) Participant's purpose for
relocation is to complete a course of education or training to increase
employment skills.
(2)
The receiving service area shall provide courtesy monitoring to coordinate the
aspects of program requirements.
(3) The service area of origin shall retain
responsibility for:
(a) Payment of a subsidy,
if the participant meets eligibility for the duration of the educational or
training course; and
(b) Monthly
programmatic and financial reports.
(4) The receiving service area shall forward
a copy of reports to the service area of origin by the fifth of the following
month.
(5) If a participant moves
from one service area of origin to another for any reason other than relocation
for a training or educational course, the participant's program funding shall
be transferred to the receiving service area.
(6) If a participant's personal care
assistance services terminate, the program funding shall return to the service
area of origin.
Section
6. Suspension of Services.
(1)
Suspension of services shall occur for the following reasons:
(a) Condition improved - on reassessment a
participant is determined to need less than fourteen (14) hours of care per
week;
(b) Condition worsened - on
reassessment a participant is determined to need more hours of care than the
program can provide and to be in danger if left alone due to lack of other
caregivers;
(c) Participant's
behavior clearly presents a danger to the program coordinator or
attendant;
(d) Participant does not
submit required employer taxes to the qualified agency;
(e) Participant moves from
Kentucky;
(f) Participant fails to
hire an attendant;
(g) Participant
dies;
(h) Participant chooses to:
1. Give up personal care assistance services;
and
2. Be admitted to a long-term
care facility; or
(i)
Participant requests suspension of services.
(2) Services may be suspended if there is:
(a) A non-return of an overpayment of
services; or
(b) An intentional
deception to obtain services.
(3) Suspension of services shall occur if
there are any substantiated deceptive practices of paying for services that
are:
(a) Not actually provided; or
(b) Duplicative services obtained through
another program or agency at the same time.
Section 7. Participant Responsibilities. A
participant shall:
(1) Meet the eligibility
requirements to receive a subsidy established in Section 2(1) of this
administrative regulation;
(2)
Select an attendant for personal care assistance services including screening
and interviewing the attendant for employment;
(3) Instruct the attendant on specific
personal care assistance services;
(4) Evaluate the attendant's personal care
assistance services;
(5) Discuss
and come to a written agreement with each attendant about:
(a) Services that shall be provided;
and
(b) The terms of employment,
including:
1. Time;
2. Hours;
3. Duties; and
4. Responsibilities;
(6) Keep records and report to the
qualified agency attendant hours worked for payment to the attendant;
(7) Be responsible for all requirements of
being an employer, including:
(a) Employee
payroll;
(b)
Withholdings;
(c) Actual payment of
required withholdings;
(d) Taxes
appropriate to being an employer; and
(e) Issuing the employee a W-2 as required by
the Internal Revenue Service;
(8) Negotiate for room and board for an
attendant as established in Section 9(4)(a) of this administrative regulation;
and
(9) Coordinate with a program
coordinator the aspects of program requirements.
Section 8. Attendant Responsibilities.
(1) An attendant shall:
(a) Enter into and comply with the written
agreement for terms of work required by Section 7(5) of this administrative
regulation;
(b) Perform personal
care assistance services and other tasks that may include:
1. Turning;
2. Repositioning;
3. Transferring;
4. Assistance with oxygen;
5. Hygiene;
6. Grooming;
7. Washing hair;
8. Skin care;
9. Shopping;
10. Transportation;
11. Chores;
12. Light correspondence;
13. Equipment cleaning; and
14. Emergency procedures, if
necessary;
(c) Perform
tasks consistent with the work agreement as instructed by the
participant;
(d) Report to work as
scheduled;
(e) Maintain the privacy
and confidentiality of the participant;
(f) If unable to report for work as
scheduled, notify the participant at least six (6) hours in advance unless an
emergency arises;
(g) Maintain a
list of emergency numbers;
(h)
Participate in attendant training provided by the participant related to his or
her specific care needs and, if applicable, training related to dementia care,
established by
910 KAR 4:010;
(i) Keep a daily record of hours worked and
services rendered;
(j) Submit to
the participant documents and material necessary to comply with the formal
payment process;
(k) Meet with the
participant and program coordinator for monitoring and coordinating the aspects
of the program;
(l) Disclose
misdemeanor or felony convictions to the applicant or participant through a law
enforcement agency;
(m) Authorize a
qualified agency to obtain a criminal background check from the Kentucky
National Background Check Program as defined in
906 KAR 1:190; and
(n) Notify the program coordinator of
conditions that seriously threaten the health,safety, or welfare of the
participant or attendant.
(2) An individual shall not be hired as an
attendant if the individual:
(a) Has not
submitted to the background checks established in subsection (1)(m) of this
section;
(b) Has pled guilty or
been convicted of committing:
1. A felony
crime related to theft or drugs; or
2. A misdemeanor or felony crime related to
sexual or violent offenses, including assault; or
(c) Is not able to understand and carry out a
participant's instructions.
Section 9. Attendant Payment.
(1) The amount of attendant payment shall be
in compliance with paragraphs (a) through (d) of this subsection.
(a) The maximum hourly subsidized rate for
direct personal care assistance services shall be eleven (11) dollars per
hour.
(b) If the hourly subsidized
rate established in paragraph (a) of this subsection is insufficient to obtain
direct personal care assistance services in a specific Kentucky service area, a
provider may request a higher rate by mailing a written request and
justification of the need for a higher rate to the Department for Aging and
Independent Living, 275 East Main Street, Frankfort, Kentucky 40621.
(c) Minimum hours for direct personal care
assistance services per week shall be fourteen (14).
(d) Maximum hours for direct personal care
assistance services per week shall be forty (40).
(2) In an extreme situation that results in a
temporary increased need for services, such as the illness of the participant,
or illness or death of a caregiver, a temporary waiver of maximum hours and the
resulting cost may be granted by the contract agency.
(3) A special night rate may be negotiated:
(a) If a participant does not:
1. Require an attendant during the day;
or
2. Need direct personal care
assistance services from this attendant; or
(b) To provide for caregiver respite
service.
(4)
(a) It shall be the responsibility of the
participant who is in need of a live-in attendant to directly negotiate, if
necessary, with a potential attendant on room and board for personal care
assistance services.
(b) A live-in
attendant shall not be excluded from employment as a part-time
attendant.
(c) Maximum payment
under this arrangement shall be for forty (40) hours of personal care
assistance services per week, and overtime shall not be provided or
paid.
Section
10. Program Coordinator Qualifications and Responsibilities.
(1) A program coordinator shall meet at least
one (1) of the following minimum qualifying requirements:
(a) A bachelor's degree with two (2) years'
experience working in the disability community; or
(b) Completion of fifty-four (54) semester
hours of college with four (4) years working in the disability
community.
(2) The
department may waive the education requirements required by subsection (1) of
this section based on consideration of work experience involving:
(a) Interviewing to select an employment
candidate;
(b) More than five (5)
years of experience working with the disability community;
(c) Administrative work involving:
1. The review of assessment
criteria;
2. Monitoring program
compliance;
3. Training program
participants, employees, and staff regarding program requirements; or
(d) Determination of eligibility
for human services programs.
(3) If employed, a program coordinator shall
complete the following hours of training:
(a)
Within thirty (30) working days of hire:
1.
Complete a minimum of sixteen (16) hours of orientation program training;
and
2. Shadow an experienced
program coordinator for one (1) to two (2) days;
(b) Within the first six (6) months of
employment, complete a minimum of fourteen (14) hours of initial program
coordination training; and
(c)
Complete follow-up quarterly trainings with the department and contract
agency.
(4) A program
coordinator shall:
(a) Collaborate with the
evaluation team to determine if an applicant is eligible to participate in the
personal care attendant program in accordance with Section 2 of this
administrative regulation;
(b)
Complete the application process required by Section 3(2)(a) of this
administrative regulation;
(c)
Maintain a waiting list of eligible applicants who are unable to be funded for
program participation until an opening occurs; and
(d) Perform the assessments required in
Section 12(2) of this administrative regulation.
(5) A program coordinator or program
coordinator's designee shall:
(a) Identify
severely physically disabled adults who may be eligible for participation in
the personal care attendant program;
(b) Prescreen an applicant for eligibility to
participate in the personal care attendant program;
(c) Assist a participant in learning how to
conduct an interview and screen a prospective attendant;
(d) Assist in or arrange for the training of
the attendant, if necessary;
(e)
Review with the participant the results of an assessment or reassessment signed
by an evaluation team;
(f) Assist
the participant in completing and updating a PCAP-06 Plan of Care;
(g) Assist the participant in developing a
work agreement between the participant and attendant;
(h) Obtain a PCAP-02 Authorization for
Release of Confidential Information from the participant;
(i) Monitor the program with each participant
on a quarterly basis, including:
1. A
face-to-face visit with the participant during at least two (2) of the
quarters; and
2. Making verbal
contact with the participant in the quarters that a face-to-face visit is not
made;
(j) Assist the
participant in finding a back-up attendant for:
1. An emergency; or
2. The regular attendant's time
off;
(k) Assist in the
recruitment and referral of an attendant, if requested;
(l) Submit monthly activity reports to a
qualified agency as established in Section 15(2) of this administrative
regulation by the fifth (5th) of the following month; and
(m) Assure that the participant:
1. Enters into agreement to pay employee
taxes with a PCAP-03 Employer Tax Agreement; and
2. Receives training in recordkeeping and tax
responsibilities related to services.
Section 11. Qualified Agency
Responsibilities. A qualified agency shall:
(1) Employ or contract with an evaluation
team pursuant to KRS
205.905(2);
(2) Provide monthly programmatic and
financial reports on an attendant per participant to the contract agency by the
fifth of the following month;
(3)
Develop a procedure for:
(a) Payment of a
subsidy; and
(b) Establishment of
appropriate fiscal control within the qualified agency;
(4) Employ or contract for the services of a
program coordinator;
(5) Supervise
the training requirements for a program coordinator as established in Section
10(3) of this administrative regulation;
(6) Obtain a criminal background check from
the Kentucky National Background Check Program as defined in
906 KAR 1:190 on a potential
attendant;
(7) Report the
evaluation team's findings and recommendations to a contract agency as
established in Section 3(3) of this administrative regulation;
(8) Maintain participant records as required
by Section 15(1) of this administrative regulation; and
(9) Provide accessibility to services through
proper evaluation of applicants who are deaf or hard-of-hearing by utilizing an
interpreter service in accordance with
KRS
12.290.
Section 12. Evaluation Team Members and
Responsibilities.
(1) An evaluation team:
(a) Shall consist of a program coordinator;
and
(b) May consist of:
1. An occupational or physical
therapist;
2. A registered
nurse;
3. A director or executive
director of the qualified agency;
4. A fiscal officer of the qualified
agency;
5. A mental health
provider;
6. An in-home services
coordinator; or
7. Another entity
involved in the participant's care.
(2) The program coordinator of the evaluation
team shall complete:
(a) An applicant's
initial assessment to establish eligibility pursuant to
KRS
205.905(2)(b) 1;
and
(b) A participant's
reassessment, at least biennially for continuing services pursuant to
KRS
205.905(2)(b) 2.
Section 13. Contract
Agency Responsibilities. The contract agency shall:
(1) Have a process in place to conduct
prescreening of referrals to ensure they meet the program and financial
requirements;
(2) Implement a
personal care attendant program according to an approved plan;
(3) Assume fiscal accountability for state
funds designated for the program;
(4) Provide necessary administrative support
personnel within a contract agency office;
(5) Provide an appeals procedure and hearing
process in compliance with:
(a) KRS Chapter
13B; and
(b)
KRS
205.915;
(6) Monitor management practices, including
program evaluation, to assure effective and efficient program operation and
compliance with cabinet financial audit requirements;
(7) Provide, in conjunction with a qualified
agency, a procedure for attendant payment;
(8) Review the evaluation team's findings and
recommendations and notify a participant and qualified agency as established in
Section 3(4) of this administrative regulation;
(9) Submit monthly program reports along with
the submission of financial invoices to the department as established in
Section 15(3) of this administrative regulation; and
(10) Maintain files and records for cabinet
audit, including participant records and statistical reports in accordance with
725 KAR 1:061.
Section 14. Department
Responsibilities. The department shall:
(1)
Provide a format for the approved plan for the personal care attendant
program;
(2) Review proposed plans
submitted by a contract agency to administer the personal care attendant
program;
(3) Inform the contract
agency in writing of the action taken regarding the proposed plan for
administration of the personal care attendant program that shall include one
(1) of the following outcomes:
(a) Approve
the plan as submitted;
(b) Require
the contract agency to revise the plan; or
(c) Reject the plan;
(4) Monitor the contract agency at least
annually;
(5) Develop and revise
program and fiscal requirements;
(6) Allocate available funding;
(7) Advocate for program expansion;
and
(8) Provide technical
assistance.
Section 15.
Reporting and Recording.
(1) An individual
record for each participant shall be maintained by the qualified agency and
shall include:
(a) The forms incorporated by
reference in Section 17 of this administrative regulation;
(b) A chronological record of contacts with:
1. The participant;
2. The family;
3. The physician; and
4. Others involved in care with quarterly
monitoring reports; and
(c) An assessment record of
eligibility.
(2) A
program coordinator shall:
(a) Submit
completed reports for monthly activities to a qualified agency by a designated
date in the contract; and
(b)
Forward a copy to the contract agency.
Section 16. Appeals. An applicant or
participant may request an informal dispute resolution or an appeal.
(1) A recipient may request an informal
dispute resolution.
(2) A dispute
resolution shall be limited to:
(a) The
denial, reduction, or termination of a:
1.
Personal care attendant program plan; or
2. Personal care attendant program plan
amendment;
(b) The
reduction of personal care attendant program funding as requested in the plan;
or
(c) The reduction or termination
of personal care attendant program grant program funding, unless due to state
budget cuts.
(3) A
request for an informal dispute resolution shall:
(a) Be submitted to the department's PCAP
program coordinator within thirty (30) days following the notification by the
personal care attendant program grant program coordinator of a decision in
subsection (2) of this section; and
(b) Contain the:
1. Name, address, and telephone number of the
recipient;
2. Decision being
disputed;
3. Justification for the
dispute;
4. Documentation
supporting the dispute; and
5.
Signature of person requesting the dispute resolution.
(4) The dispute resolution shall
be heard by:
(a) Three (3) members of the
council, one (1) of whom shall be the chairman or the chairman's
designee;
(b) One (1) member of the
review team; and
(c) The personal
care attendant program grant program coordinator.
(5) The recipient shall be provided an
opportunity to appear before the dispute resolution team to present facts or
concerns about the denial, reduction, or termination of the grant.
(6) The dispute resolution team shall inform
a recipient, in writing, of the decision resulting from the dispute resolution
within ten (10) business days of the review.
(7) A recipient dissatisfied with the result
of the dispute resolution may request an appeal. An appeal shall be made:
(a) In accordance with:
1. KRS Chapter 13B; and
2.
KRS
205.915; and
(b) Within thirty (30) days of any decision
by the:
1. Cabinet;
2. Contract agency; or
3. Qualified agency.
Section 17.
Incorporation by Reference.
(1) The following
forms are incorporated by reference:
(a)
"PCAP-01 Application for Services", edition 4/2018;
(b) "PCAP-02 Authorization for Release of
Confidential Information", edition 4/2018;
(c) "PCAP-03 Employer Tax Agreement", edition
4/2018;
(d) "PCAP-04 Evaluation
Team Findings and Recommendations", edition 4/2018;
(e) "PCAP-05 Income Eligibility", edition
4/2018; and
(f) "PCAP-06 Plan of
Care", edition 4/2018.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Department for Aging
and Independent Living, 275 East Main Street, Frankfort, Kentucky 40621, Monday
through Friday, 8 a.m. to 4:30 p.m. This material may also be viewed on the
department's Web site at
https://chfs.ky.gov/agencies/dail/Pages/default.aspx.