Ohio Admin. Code 5123-9-06 - Home and community-based services waivers - administration of the individual options and level one waivers

(A) Purpose

This rule establishes standards governing administration of the individual options and level one waivers, components of the medicaid home and community-based services program the Ohio department of developmental disabilities administers pursuant to section 5166.21 of the Revised Code.

(B) Definitions

For the purposes of this rule, the following definitions apply:

(1) "Adult" means an individual who is at least twenty-two years old or an individual who is under twenty-two years old and no longer eligible for educational services based on graduation, receipt of a diploma or equivalency certificate, or permanent discontinuation of educational services within parameters established by the Ohio department of education.

(2) "Budget authority" means an individual has the authority and responsibility to manage the individual's budget for participant-directed services. This authority supports the individual in determining the budgeted dollar amount for each participant-directed waiver service that will be provided to the individual and making decisions about the acquisition of participant-directed waiver services that are authorized in the individual service plan (e.g., negotiating payment rates to providers within the applicable range as specified in rules adopted by the department).

(3) "Child" means an individual who is under twenty-two years old and eligible for educational services.

(4) "Cost projection and payment authorization" means the process followed and the form used by county boards (including the payment authorization for waiver services) to communicate the frequency, duration, scope, and amount of payment requested for each home and community-based service that is identified in the individual service plan.

(5) "Cost projection tool" means the web-based analytical tool that is a component of the medicaid services system, developed and administered by the department, used to project the cost of home and community-based services identified in an individual service plan.

(6) "County board" means a county board of developmental disabilities.

(7) "Department" means the Ohio department of developmental disabilities.

(8) "Employer authority" means an individual has the authority to recruit, hire, supervise, and direct the staff who furnish supports. The individual functions as the common law employer or the co-employer of these staff.

(9) "Fifteen-minute billing unit" means a billing unit that equals fifteen minutes of service delivery time or is greater or equal to eight minutes and less than or equal to twenty-two minutes of service delivery time. Minutes of service delivery time accrued throughout a day shall will be added together for the purpose of calculating the number of fifteen-minute billing units for the day.

(10) "Financial management services entity" means a governmental entity and/or another third-party entity designated by the department to perform necessary financial transactions on behalf of individuals who receive participant-directed services.

(11) "Funding range" means one of the dollar ranges contained in appendix A to this rule to which individuals enrolled in the individual options waiver have been assigned for the purpose of funding services other than adult day support, career planning, group employment support, individual employment support, non-medical transportation, vocational habilitation, waiver nursing delegation, and waiver nursing services. The funding range applicable to an individual is determined by the score derived from the Ohio developmental disabilities profile that has been completed by a county board employee qualified to administer the tool.

(12) "Guardian" means a guardian appointed by the probate court under Chapter 2111. of the Revised Code. If the individual is a minor, "guardian" means the individual's parents. If no guardian has been appointed for a minor under Chapter 2111. of the Revised Code and the minor is in the legal or permanent custody of a government agency or person other than the minor's natural or adoptive parents, "guardian" means that government agency or person. "Guardian" includes an agency under contract with the department for the provision of protective service in accordance with sections 5123.55 to 5123.59 of the Revised Code.

(13) "Home and community-based services" has the same meaning as in section 5123.01 of the Revised Code.

(14) "Individual" means a person with a developmental disability or for purposes of giving, refusing to give, or withdrawing consent for services, the person's guardian in accordance with section 5126.043 of the Revised Code or other person authorized to give consent.

(15) "Individual funding level," as established for each individual enrolled in the individual options waiver, means the total funds, calculated on a twelve-month basis, that result from applying the payment rates in service-specific rules in Chapter 5123-9 of the Administrative Code to the units of all waiver services other than adult day support, career planning, group employment support, individual employment support, non-medical transportation, vocational habilitation, waiver nursing delegation, and waiver nursing services established by the individual service plan development process to be sufficient in frequency, duration, and scope to meet the individual's health and welfare needs. Unless prior authorization has been obtained in accordance with rule 5123-9-07 of the Administrative Code, the individual funding level for services paid in accordance with this rule shall will be within or below the funding range assigned to the individual as the result of administration of the Ohio developmental disabilities profile.

(16) "Individual service plan" means the written description of services, supports, and activities to be provided to an individual developed in accordance with rule 5123-4-02 of the Administrative Code.

(17) "Natural supports" means the personal associations and relationships typically developed in the community that enhance the quality of life for individuals. Natural supports may include family members, friends, neighbors, and others in the community or organizations that serve the general public who provide voluntary support to help an individual achieve agreed upon outcomes through the individual service plan development process.

(18) "Ohio developmental disabilities profile" means the standardized instrument used by the department to assess the relative needs and circumstances of an individual compared to others. The individual's responses are scored and the individual is linked to a funding range, which enables similarly situated individuals to access comparable waiver services paid in accordance with rules adopted by the department.

(19) "Participant direction" means an individual has authority to make decisions about the individual's waiver services and accepts responsibility for taking a direct role in managing the services. Participant direction includes the exercise of budget authority and/or employer authority as set forth in paragraph (E) of this rule.

(20) "Prior authorization" means the process to be followed in accordance with rule 5123-9-07 of the Administrative Code to authorize an individual funding level for an individual enrolled in the individual options waiver that exceeds the maximum value of the funding range.

(21) "Provider" means a person or entity certified or licensed by the department that has met the provider qualification requirements to provide specific home and community-based services and holds a valid medicaid provider agreement with the Ohio department of medicaid or a person or entity that has been determined by the financial management services entity to be qualified to provide participant-directed goods and services or self-directed transportation.

(22) "Service and support administrator" means a person, regardless of title, employed by or under contract with a county board to perform the functions of service and support administration and who holds the appropriate certification in accordance with rule 5123:2-5-02 5123-5-02 of the Administrative Code.

(23) "Service documentation" means all records and information on one or more documents, including documents that may be created or maintained in electronic software programs, created and maintained contemporaneously with the delivery of services, and kept in a manner as to fully disclose the nature and extent of services delivered that shall include includes the items delineated in service-specific rules in Chapter 5123-9 of the Administrative Code to validate payment for medicaid services.

(24) "Team" has the same meaning as in rule 5123-4-02 of the Administrative Code means the group of persons chosen by an individual with the core responsibility to support the individual in directing development of the individual service plan. The team includes the individual's guardian or adult whom the individual has identified, as applicable, the service and support administrator, direct support professionals, providers, licensed or certified professionals, and any other persons chosen by the individual to help the individual consider possibilities and make decisions.

(25) "Waiver eligibility span" means the twelve-month period following either an individual's initial waiver enrollment date or a subsequent eligibility re-determination date.

(C) Funding ranges and individual funding levels for individuals enrolled in the individual options waiver

(1) Individuals enrolled in the individual options waiver shall will be assigned to a funding range based on completion and scoring of the Ohio developmental disabilities profile and the cost-of-doing-business category that applies to the county in which the individual receives the preponderance of services. The funding ranges are contained in appendix A to this rule. The cost-of-doing-business categories are contained in appendix B to this rule.

(2) The funding ranges shall consider:

(a) The natural supports available to the individual;

(b) The individual's living arrangement;

(c) The individual's behavioral support and medical assistance needs;

(d) The individual's mobility;

(e) The individual's ability for self care; and

(f) Any other variable that significantly impacts the individual's needs as determined by the department through statistical analysis.

(3) The service and support administrator shall will ensure that an Ohio developmental disabilities profile is completed with input from the individual and the team. The service and support administrator shall will inform the individual, and the team with consent of the individual, of the assigned funding range at the time of enrollment and any time the Ohio developmental disabilities profile is reviewed or updated. The service and support administrator shall will ensure the individual, and the team with consent of the individual, have access to review the Ohio developmental disabilities profile and other assessments used in relation to completion of the Ohio developmental disabilities profile.

(4) Following assignment of a funding range, an individual service plan that assures the individual's health and welfare shall will be reviewed, revised, or developed with the individual. The service and support administrator shall will ensure that individuals share services to whatever extent practical and with the agreement of the team. Paid services should be used in conjunction with available natural supports. The service and support administrator shall will ensure that development or revision of the individual service plan addresses the availability of natural supports that currently exist or could be developed to meet assessed needs, including:

(a) Supports that family members provide including, but not limited to, basic personal care, performing health care activities, transportation, attending family/social/recreational activities, laundry, meal preparation, and grocery shopping; and

(b) Supports that friends, neighbors, and others in the community provide.

(5) The county board shall will apply rates for the units of each waiver service, other than adult day support, career planning, group employment support, individual employment support, non-medical transportation, vocational habilitation, waiver nursing delegation, and waiver nursing services, resulting from completion of the individual service plan development process to calculate the individual funding level.

(6) The county board shall will determine whether the individual funding level is within, exceeds, or is below the assigned funding range for the individual. The service and support administrator shall will inform the individual of this determination in accordance with procedures developed by the department.

(7) When an individual service plan is revised and a new funding level is determined, the providers of waiver services to the individual shall will verify to the county board the number of units of each waiver service delivered during the individual's current waiver eligibility span so that the county board may accurately calculate the number of units of services available for the individual's use during the remainder of the waiver eligibility span.

(8) The county board shall will complete the cost projection and payment authorization and the service and support administrator shall will ensure waiver services are initiated for an individual whose funding level is within the funding range determined by the Ohio developmental disabilities profile. The service and support administrator shall will inform the individual in writing and in a form and manner the individual can understand of the individual's due process rights and responsibilities as set forth in section 5160.31 of the Revised Code.

(9) When the individual funding level exceeds the assigned funding range:

(a) The county board shall will inform the individual of the individual's right to request prior authorization to obtain services that result in an individual funding level that exceeds the funding range using the process described in rule 5123-9-07 of the Administrative Code.

(b) If, through the prior authorization process, the request for the funding level is approved, the county board shall will ensure the cost projection and payment authorization is completed and waiver services are initiated.

(c) If, through the prior authorization process, the request for the funding level is denied, the service and support administrator shall will continue the individual service plan development process to determine if an individual service plan that assures the individual's health and welfare can be developed within the individual's funding range.

(i) If an individual service plan that meets these conditions is developed, the county board shall will ensure the cost projection and payment authorization is completed and waiver services are initiated.

(ii) If an individual service plan that meets these conditions cannot be developed, the county board shall will propose to deny the individual's initial or continuing enrollment in the waiver and inform the individual of the individual's due process rights and responsibilities as set forth in section 5160.31 of the Revised Code.

(10) The department shall will use the twelve-month period following either an individual's initial waiver enrollment date or a subsequent waiver eligibility re-determination date to verify that cumulative payments made for waiver services remain within the approved funding range for each individual or that cumulative payments made for waiver services remain within the approved funding range when prior authorization has been granted.

(11) The department shall will periodically re-examine the scoring of the Ohio developmental disabilities profile and the linkage of the scores to the funding ranges.

(D) Changes to individual funding levels and funding ranges

(1) The individual funding level may increase or decrease based on the outcome of the individual service plan development process. In no instance shall will the individual funding level exceed the cost cap approved for the waiver in which the individual is enrolled. The county board has the authority and responsibility to make changes to individual funding levels which result from the individual service plan development process in accordance with paragraph (C) of this rule. Changes to individual funding levels are subject to review by the department.

(2) A funding range established for an individual shall will change only when changes in assessment variable scores on the Ohio developmental disabilities profile justify assignment of a new funding range. Any or all Ohio developmental disabilities profile variables may be revised at any time at the request of the individual or at the discretion of the service and support administrator, with the individual's knowledge.

(3) Neither the department nor the county board shall will recommend a change in individual funding level within the funding range or assign a new funding range after notification that the individual has requested a hearing pursuant to section 5160.31 of the Revised Code concerning the approval, denial, reduction, or termination of services.

(E) Participant direction

(1) The individual options and level one waivers support individuals who want to direct some of their services through participant direction. The individual or the individual's guardian or the individual's designee must be willing and able to perform the duties associated with participant direction.

(2) An individual enrolled in the individual options waiver may exercise:

(a) Budget authority for:

(i) Participant-directed homemaker/personal care; and

(ii) Self-directed transportation.

(b) Employer authority for:

(i) Participant-directed homemaker/personal care; and

(ii) Self-directed transportation.

(3) An individual enrolled in the level one waiver may exercise:

(a) Budget authority for:

(i)) Clinical/therapeutic intervention;

(ii) Participant-directed goods and services;

(iii) Participant-directed homemaker/personal care; and

(iv) Self-directed transportation.

(b) Employer authority for:

(i) Participant-directed homemaker/personal care; and

(ii) Self-directed transportation.

(F) Level one waiver benefit limitation limitations

The cost of services available under the level one waiver shall will not exceed:

(1) Forty-five thousand Sixty-two thousand one hundred thirty-six dollars per waiver eligibility span for an adult; or

(2) Thirty thousand Forty-one thousand four hundred twenty-four dollars per waiver eligibility span for a child.

(G) Staffing ratios

(1) In situations where more than one staff member serves more than one individual simultaneously, the individuals' needs and circumstances shall will determine staffing ratios, based on a unit of one staff to the portion of the total group that includes the individual. Only when it is impractical to determine staff ratios based on a unit of one staff, the provider shall will, as authorized in the individual service plan, use the applicable service codes and payment rates established in service-specific rules in Chapter 5123-9 of the Administrative Code to indicate both staff size and group size.

(2) Staffing ratios do not change at times when one or more individuals, for whom the staff is responsible, are not physically present, but are within verbal, visual, or technological supervision of the staff providing the service. Technological supervision includes staff contact with individuals through telecommunication and/or electronic signaling devices.

(H) Projection of the cost of an individual's services

(1) Prior to the beginning of an individual's waiver eligibility span, the individual's service and support administrator or other county board designee shall will prepare a projection of the annual cost of every individual options or level one waiver service that is authorized in the individual service plan for the waiver eligibility span using the cost projection tool.

(2) The cost projection shall will be based on staffing ratios and the total estimated number of service units the individual is expected to receive in accordance with the individual service plan during the waiver eligibility span. Staffing ratios contained in the cost projection tool shall will be considered a part of the individual service plan.

(3) The total number of service units shall will be determined with input from the individual and the individual's team as part of the individual service plan development process.

(4) The cost projection tool shall will project the cost of services based on the payment rates established in service-specific rules in Chapter 5123-9 of the Administrative Code.

(5) Rule 5123-9-31 of the Administrative Code shall will govern the circumstances when an individual receives the homemaker/personal care daily billing unit.

(6) The cost projection tool shall will be used to project costs based on medicaid payment rates for individuals, regardless of funding source, who share services with individuals enrolled in home and community-based services waivers.

(7) The individual's provider shall will have access to the cost projection tool including, but not limited to, the detail and summary information. At the request of the individual, other persons shall will have access to the detail and summary information in the cost projection tool.

(8) When changes occur that the team determines affect the service authorization, the county board shall will enter changes to the cost projection tool within ten calendar days of a recommendation from the team to change the service authorization. These changes shall will be made along with any necessary revisions to the individual service plan and prior authorization request (as applicable) for the individual or individuals affected by the changes.

(9) County boards shall A county board will complete a cost projection using the cost projection tool when an individual is initially enrolled in an individual options or level one waiver and when an individual is annually re-determined eligible for continued enrollment in an individual options or level one waiver. The cost projection tool shall be is the only authorized cost projection instrument.

(I) Service documentation

(1) Providers shall will maintain service documentation in accordance with this rule and service-specific rules in Chapter 5123-9 of the Administrative Code.

(2) Claims for payment a provider submits to the department for services delivered shall will not be considered service documentation. Any information contained in the submitted claim for payment may not and shall will not be substituted for any required service documentation information that a provider is required to maintain to validate payment for medicaid services.

(3) Each provider shall will maintain all service documentation in an accessible location. The service documentation shall will be made available upon request for review by the department, the Ohio department of medicaid, the centers for medicare and medicaid services, a county board or regional council of governments that submits to the department payment authorization for the service, and those designated or assigned authority by the department or the Ohio department of medicaid to review service documentation.

(4) When a provider discontinues operations, the provider shall will, within seven calendar days, notify the county boards for the counties in which individuals for whom the provider has provided services reside, of the location where the service documentation will be stored, and provide the county board with the name and telephone number of the person responsible for maintaining the service documentation.

(J) Payment for waiver services

(1) Providers shall will be paid the lesser of their usual and customary rate or the payment rate for each waiver service that is delivered. The department will maintain a mechanism through which providers shall will communicate their usual and customary rates to the department. A single provider may charge different usual and customary rates for the same service when the service is provided in different geographic areas of the state. In this instance, the usual and customary rates charged shall will be declared for each cost-of-doing-business category contained in appendix B to this rule that identifies the counties in which the provider intends to provide specific services. Upon notification of a provider's usual and customary rate or change in usual and customary rate, the department shall will provide notice to the appropriate county board.

(2) The billing units, service codes, and payment rates for waiver services are contained in service-specific rules in Chapter 5123-9 of the Administrative Code including, but not limited to:

(a) 5123-9-12 (assistive technology under the individual options and level one waivers);

(b) 5123-9-13 (career planning under the individual options and level one waivers);

(c) 5123-9-14 (vocational habilitation under the individual options and level one waivers);

(d) 5123-9-15 (individual employment support under the individual options and level one waivers);

(e) 5123-9-16 (group employment support under the individual options and level one waivers);

(f) 5123-9-17 (adult day support under the individual options and level one waivers);

(g) 5123-9-18 (non-medical transportation under the individual options and level one waivers);

(h) 5123-9-20 (money management under the individual options and level one waivers);

(i) 5123-9-21 (informal respite under the level one waiver);

(j) 5123-9-22 (community respite under the individual options and level one waivers);

(k) 5123-9-23 (environmental accessibility adaptations under the individual options and level one waivers);

(l) 5123-9-24 (transportation under the individual options and level one waivers);

(m) 5123-9-25 (specialized medical equipment and supplies under the individual options and level one waivers);

(n) 5123-9-26 (self-directed transportation under the individual options and level one waivers);

(o) 5123-9-28 (nutrition services under the individual options waiver);

(p) 5123-9-29 (home-delivered meals under the individual options and level one waivers);

(q) 5123-9-30 (homemaker/personal care under the individual options and level one waivers);

(r) 5123-9-31 (homemaker/personal care daily billing unit under the individual options waiver);

(s) 5123-9-32 (participant-directed homemaker/personal care under the individual options and level one waivers);

(t) 5123-9-33 (shared living under the individual options waiver);

(u) 5123-9-34 (residential respite under the individual options and level one waivers);

(v) 5123-9-35 (remote support under the individual options and level one waivers);

(w) 5123-9-36 (interpreter services under the individual options waiver);

(x) 5123-9-37 (waiver nursing delegation under the individual options and level one waivers);

(y) 5123-9-38 (social work under the individual options waiver);

(z) 5123-9-39 (waiver nursing services under the individual options waiver);

(aa) 5123-9-41 (clinical/therapeutic intervention under the level one waiver);

(bb) 5123-9-43 (functional behavioral assessment under the level one waiver);

(cc) 5123-9-45 (participant-directed goods and services under the level one waiver);

(dd) 5123-9-46 (participant/family stability assistance under the level one waiver); and

(ee) 5123-9-48 (community transition under the individual options waiver).

(3) The department shall will periodically collect payment information for a comprehensive, statistically valid sample of individuals from providers of home and community-based services at the time the information is collected. Based upon the department's review of the information, the department shall will recommend to the Ohio department of medicaid any changes necessary to assure that the payment rates are sufficient to enlist enough waiver providers so that waiver services are readily available to individuals, to the extent that these types of services are available to the general population, and that provider payment is consistent with efficiency, economy, and quality of care.

(4) Payment for home and community-based services constitutes payment in full. Payment shall will be made for home and community-based services when:

(a) The service is identified in an approved individual service plan;

(b) The service is recommended for payment through the cost projection and payment authorization process; and

(c) The service is provided by a provider selected by an individual enrolled in the waiver.

(5) Payment for waiver services shall will not exceed amounts authorized through the cost projection and payment authorization for the individual's corresponding waiver eligibility span.

(K) Claims for payment for home and community-based services

(1) When home and community-based services are also available on the medicaid state plan, state plan services shall will be billed first. Only home and community-based services in excess of those covered under the medicaid state plan shall will be authorized.

(2) Claims for payment for home and community-based services shall will be submitted to the department in the format prescribed by the department. The department shall will inform county boards of the billing information submitted by providers in a manner and at a frequency necessary to assist county boards to manage the waiver expenditures being authorized.

(3) Claims for payment for home and community-based services shall will be submitted within three hundred fifty calendar days after the home and community-based services are provided. Payment shall will be made in accordance with the requirements of rule 5160-1-19 of the Administrative Code. Claims for payment shall will include the number of units of service.

(4) All providers of home and community-based services shall will take reasonable measures to identify any third-party health care coverage available to the individual and file a claim with that third party in accordance with the requirements of rule 5160-1-08 of the Administrative Code.

(5) For individuals with a monthly patient liability for the cost of home and community-based services, as described in rule 5160:1-6-07.1 of the Administrative Code, and determined by the county department of job and family services for the county in which the individual resides, payment is available only for the home and community-based services delivered to the individual that exceed the amount of the individual's monthly patient liability. Verification that patient liability has been satisfied shall will be accomplished as follows:

(a) The department shall will provide notification to the appropriate county board identifying each individual who has a patient liability for home and community-based services and the monthly amount of the patient liability.

(b) The county board shall will assign the home and community-based services to which each individual's patient liability shall will be applied and assign the corresponding monthly patient liability amount to the provider that provides the preponderance of home and community-based services. The county board shall will notify each individual and provider, in writing, of this assignment.

(c) Upon submission of a claim for payment, the designated provider shall will report the home and community-based services to which the patient liability was assigned and the applicable patient liability amount on the claim for payment using the format prescribed by the department.

(6) The department, the Ohio department of medicaid, the centers for medicare and medicaid services, and/or the auditor of state may audit any funds a provider of home and community-based services receives pursuant to this rule, including any source documentation supporting the claiming and/or receipt of such funds.

(7) Overpayments, duplicate payments, payments for services not rendered, payments for which there is no documentation of services delivered or for which the documentation does not include all of the items required in service-specific rules in Chapter 5123-9 of the Administrative Code, or payments for services not in accordance with an approved individual service plan are recoverable by the department, the Ohio department of medicaid, the auditor of state, or the office of the attorney general. All recoverable amounts are subject to the application of interest in accordance with rule 5160-1-25 of the Administrative Code.

(8) Providers of home and community-based services shall will maintain the records necessary and in such form to disclose fully the extent of home and community-based services provided, for a period of six years from the date of receipt of payment or until an initiated audit is resolved, whichever is longer. The records shall will be made available upon request to the department, the Ohio department of medicaid, the centers for medicare and medicaid services, and/or the auditor of state. Providers who fail to produce the records requested within thirty calendar days following the request shall be are subject to denial, suspension, or revocation of certification and/or loss of their medicaid provider agreement.

(L) Due process rights and responsibilities

(1) Applicants for and recipients of waiver services administered by the department may use the process set forth in section 5160.31 of the Revised Code and rules implementing that statute for any purpose authorized by that statute. The process set forth in section 5160.31 of the Revised Code is available only to applicants, recipients, and their lawfully appointed authorized representatives. Providers shall have no standing in an appeal under that section.

(2) Applicants for and recipients of waiver services administered by the department shall will use the process set forth in section 5160.31 of the Revised Code and rules implementing that statute for any challenge related to the administration and/or scoring of the Ohio developmental disabilities profile or to the type, amount, level, scope, or duration of services included in or excluded from an individual service plan. A change in staff to waiver recipient service ratios does not necessarily result in a change in the level of services received by an individual.

(M) Ohio department of medicaid authority

The Ohio department of medicaid retains final authority to establish funding ranges for home and community-based services; to establish payment rates for home and community-based services; to review and approve each service identified in an individual service plan that is funded through a home and community-based services waiver; and to authorize the provision of and payment for home and community-based services through the cost projection and payment authorization.

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Notes

Ohio Admin. Code 5123-9-06

Effective: 1/1/2024
Five Year Review (FYR) Dates: 10/13/2023 and 01/01/2029
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.049
Rule Amplifies: 5123.04, 5123.049, 5166.21
Prior Effective Dates: 07/01/2005, 09/30/2005, 07/01/2007, 12/21/2007 (Emer.), 03/20/2008, 07/01/2010, 04/19/2012, 09/01/2013, 01/01/2016, 04/01/2017, 01/01/2019, 07/01/2019, 01/01/2020, 06/11/2020 (Emer.), 11/19/2020, 06/17/2021 (Emer.), 10/15/2021, 01/01/2022, 07/01/2022