5989282 Disability Services, Department on, and Health Care Finance, Department of - Notice of Final Rulemaking - Creating New Section 1940 (Waiting List) for the Home and Community-Based Services Waiver for Individuals with Intellectual and ...
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DEPARTMENT ON DISABILITY SERVICES AND
DEPARTMENT OF HEALTH CARE FINANCE
NOTICE OF FINAL RULEMAKING
The Director of the Department on Disability Services (DDS), pursuant to the authority set forth in Title I of the Department on Disability Services Establishment Act of 2006, effective March 14, 2007 (D.C. Law 16-264; D.C. Official Code § 7-761.01 et seq. (2012 Repl.)), and the Director of the Department of Health Care Finance (DHCF), pursuant to the authority set forth in An Act to enable the District of Columbia to receive federal financial assistance under Title XIX of the Social Security Act for a medical assistance program, and for other purposes, approved December 27, 1967 (81 Stat. 774; D.C. Official Code § 1-307.02 (2014 Repl. & 2015 Supp.)) and Section 6(6) of the Department of Health Care Finance Establishment Act of 2007, effective February 27, 2008 (D.C. Law 17-109; D.C. Official Code § 7-771.05(6) (2012 Repl.)), hereby give notice of the adoption of a new Section 1940 entitled “Waiting List,” of Chapter 19 (Home and Community-Based Services Waiver for Individuals with Intellectual and Developmental Disabilities) of Title 29 (Public Welfare) of the District of Columbia Municipal Regulations (DCMR).
These final rules establish a waiting list for people who are otherwise eligible for services and supports and requesting services and supports through enrollment in the District of Columbia Medicaid program’s Home and Community-Based Services (HCBS) Waiver for Persons with Intellectual and Developmental Disabilities (IDD). These rules also establish the procedures for an eligible person to be placed on the waiting list, to be assigned a priority status, to be removed from the waiting list, and to be reviewed at least quarterly while on the waiting list.
This final rulemaking is consistent with the provisions of the Department on Disability Services Reporting, Waiting List, and Assessment Amendment Act of 2009 (D.C. Law 18-111; D.C. Official Code § 7-761.05(7) (2012 Repl.)), and the District of Columbia Medicaid Home and Community-Based Services Waiver for Persons with Intellectual and Developmental Disabilities, No. DC.0307.R03.00, as approved November 20, 2012. An amendment to the HCBS IDD waiver was approved by the Council through the Medicaid Assistance Program Amendment Act of 2014, effective February 26, 2015 (D.C. Law 20-155; D.C. Official Code § 1-307.02(a)(8)(E) (2015 Supp.)). CMS approved the amendment to the HCBS IDD waiver effective September 24, 2015.
A Notice of Emergency and Proposed Rulemaking, which was published in the D.C. Register on February 12, 2016, at 63 DCR 001698, was adopted on February 3, 2016, and became effective on that date. The emergency rules are superseded by publication of this Notice of Final Rulemaking in the D.C. Register. Neither DDS nor DHCF received any comments to the emergency and proposed rules. The Directors of DDS and DHCF adopted these rules as final on April 12, 2016, and they shall become effective on the date of publication of this notice in the D.C. Register.
Chapter 19, HOME AND COMMUNITY-BASED SERVICES WAIVER FOR INDIVIDUALS WITH INTELLECTUAL AND DEVELOPMENTAL DISABILITIES, of Title 29 DCMR, PUBLIC WELFARE, is amended as follows:
A new Section 1940 is adopted to read as follows:
1940 WAITING LIST
1940.1 The Department on Disability Services (DDS), through its Developmental Disabilities Administration (DDA), may establish a waiting list for people who are otherwise eligible for and requesting services and supports through enrollment in the District of Columbia Medicaid program’s Home and Community-Based Services Waiver for Persons with Intellectual and Developmental Disabilities (HCBS IDD waiver), consistent with the approved HCBS IDD waiver, No. DC.0307.R03.00, as approved November 20, 2012, and in accordance with the requirements of the Department on Disability Services Establishment Act (D.C. Law 16-264; D.C. Official Code § 7-761.05(7) (2012 Repl.)), and as further amended.
1940.2 A person is considered “eligible” if he or she meets the requirements for DDA services as set forth in D.C. Official Code §§ 7-1301.01 et seq., and the eligibility criteria for participation in the HCBS IDD waiver program, which are found in the approved HCBS IDD waiver application, and are linked to the Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID) level of care criteria, and are set forth in 29 DCMR §§ 1902.1 to 1902.4. Waiver eligibility criteria require that a person be: (1) a District of Columbia resident currently receiving services from DDS/DDA; (2) a Medicaid recipient with income up to three hundred percent (300%) of Supplemental Security Income; and (3) a Medicaid recipient who meets an ICF/IID level of care criteria.
1940.3 All eligible people requesting supports, services, and HCBS IDD waiver enrollment shall be treated in a manner that is consistent with the terms of the HCBS IDD waiver, in accordance with the order of priority specified below.
1940.4 An eligible person seeking HCBS supports and services may do so through application to the HCBS IDD waiver program. The HCBS IDD waiver program is approved by the federal Centers for Medicare and Medicaid Services (CMS) to serve up to a set number of participants each year based on the approved HCBS IDD waiver application, as may be amended. If HCBS IDD waiver openings are not available because the maximum number of participants is being served, taking into account reserved capacity, DDA will establish a waiting list for deferred HCBS IDD waiver enrollment.
1940.5 Consistent with CMS requirements and based on the availability of appropriated funds for these services, DDA will make every reasonable effort to ensure that eligible people on the waiting list will be enrolled and begin to receive HCBS IDD waiver supports and services as quickly as feasible given the availability of waiver slots and the order of priority established by the terms of the waiver and these rules and the availability of funds.
1940.6 The application of each eligible person who applies for HCBS IDD waiver supports and services will be reviewed by DDA using the DDA Level of Need Assessment and Screening Tool (LON), or its successor.
1940.7 Based on the HCBS IDD waiver requirements and subject to the availability of appropriated funds for these services, eligible people on the waiting list for supports and services funded through the HCBS IDD waiver will be removed from the waiting list and be enrolled and begin to receive HCBS waiver supports and services in the following priority order, based upon the results of the Level of Need, or its successor, assessment:
(a) An eligible person determined to have a priority need for HCBS IDD waiver services will be enrolled and receive them before all other eligible people;
(b) An eligible person determined to have an emergency need for HCBS IDD waiver services will be enrolled and receive them after all identified priority needs have been met and before all other remaining eligible people;
(c) An eligible person determined to have an urgent need for HCBS IDD waiver services will be enrolled and receive them after all identified priority and emergency needs have been met and before all other remaining eligible people; and
(d) An eligible person determined to have a non-urgent need for HCBS IDD waiver services will be enrolled and receive them only after all identified priority, emergency and urgent needs have been met; there is available enrollment space in the waiver; and sufficient appropriated resources are available.
1940.8 Priority Need: The following eligible people would be considered to have a “priority need” for enrollment in the HCBS IDD waiver:
(a) A person who has no family or other natural support system to meet his/her assessed need for twenty-four (24) hour residential support;
(b) Any identified Evans class member, as defined in § 1940.99, who chooses HCBS IDD waiver services; and
(c) Any person who is a ward of the District of Columbia who has aged out of the DC Child and Family Services Agency (CFSA) and has been in an out-of-home placement, and for whom returning to a parental/natural home is not an option.
1940.9 Emergency Need: A person is considered to have an “emergency need” for enrollment in the HCBS IDD waiver if the health and safety of the person or others is in imminent danger and the situation cannot be resolved absent the provision of such services available from the HCBS IDD waiver program. Criteria for determining an emergency need include, but are not limited to:
(a) There is clear evidence of abuse, neglect, or exploitation;
(b) The person’s primary caregiver is deceased and the person lacks an alternative primary caregiver; or
(c) The person is homeless or at imminent risk of becoming homeless as these terms are defined in the Homeless Services Reform Act of 2005, effective October 22, 2005 (D.C. Law 16-35; D.C. Official Code § 4-751.01(18) and (23) (2012 Repl.)).
1940.10 Urgent Need: A person is considered to have an “urgent need” for enrollment in the HCBS IDD waiver if he or she is at significant risk of having his or her basic needs go unmet. Basic needs include the need for shelter, to eat, maintain one’s health and to be free from harm, injury or threats to one’s person or property.
1940.11 Non-Urgent Need: A person is considered to have a “non-urgent need” for enrollment in the HCBS IDD waiver if he or she:
(a) Meets eligibility criteria for supports through the HCBS IDD waiver; and
(b) Does not meet any of the priority, emergency, or urgent needs criteria.
1940.12 For people with the same priority status, when there are openings available in the HCBS IDD waiver DDA shall review all candidates and, based upon their needs as determined by the LON, shall make a determination of order of placement. Length of time on the waiting list shall be a factor considered, but is not solely considered to determine order of placement.
1940.13 Based on funding availability, DDA will provide immediate non-waiver services to people on the waiting list who have been identified as having a priority or emergency need:
(a) If the person is homeless or at imminent risk of becoming homeless as these terms are defined in D.C. Official Code §§ 4-751.01(18) and (23); or
(b) If there is reasonable belief that person is in imminent danger, or would be subject to abuse or neglect if the person does not receive immediate support or services.
1940.14 The application of each person on the waiting list will be reviewed by DDA at least quarterly to determine any change in the support needs of the person, the person’s family, and other relevant circumstances affecting the support needs of the person. A review of a change in priority status will also be initiated within five (5) business days of the request by the person, or any member of his or her support team.
1940.15 Once a person’s application has been approved for HCBS IDD waiver enrollment, the person will be assigned a service coordinator, who shall assist the person with completing his/her HCBS IDD waiver application and with development of the person’s Individual Service Plan and HCBS IDD waiver Plan of Care.
1940.16 If the person is seeking out of home residential services through enrollment in the HCBS IDD waiver program, the person must be Medicaid-eligible and the person and his or her caregiver must be willing to accept available residential opportunities if necessary that meet the person’s primary needs at the time of assessment.
1940.17 DDA will refer and assist people on the waiting list to identify, apply for and, when appropriate, obtain services from other District of Columbia or community based agencies for which they might be eligible, including services through the Medicaid State Plan.
1940.18 A person may be removed from the waiting list for HCBS IDD waiver service for any of the following reasons:
(a) The person or his or her substitute decision-maker requests removal;
(b) The person is no longer eligible for services from DDA; or
(c) If, as part of the quarterly review of the person’s priority status, the person’s service coordinator is unable to reach the person or his or her family after three (3) documented attempts each at least one week apart. However, the service coordinator must first send a written notice by certified mail to the last known address notifying the person/family of DDA’s intent to remove the person’s name from the waiting list. For purposes of this provision, DDA need not make contact in order to remove the person from the waiting list but need only send written notice to the last address provided by the person/family.
1940.19 Each person on the waiting list and his or her legal representative shall be provided sufficient information and opportunity to request an agency review of any DDA decision with which they disagree relating to the person’s placement on the waiting list, priority status or removal from the waiting list for reasons other than enrollment and initiation of HCBS IDD waiver services.
1940.20 The agency review contemplated by this provision is an informal process by which the person and his or her legal representative may seek reconsideration of a DDA decision by the DDS Deputy Director for DDA, or his or her designee, and requires a written request for reconsideration setting forth the factual and legal basis for the disagreement relating to the person’s placement on the waiting list, determination of order of priority status, or removal from the waiting list. Request for agency review must be made within thirty (30) days plus five (5) for mailing) from the date the written notice in §§ 1940.22 and 1940.23 was mailed, unless there is good cause for a late request.
1940.21 Each person placed on the waiting list or removed from the waiting list for reasons other than enrollment and initiation of HCBS IDD waiver services shall be entitled to a fair hearing at the Office of Administrative Hearings (OAH) in accordance with 42 CFR 43, D.C. Official Code §§ 4-210.01 et seq., and 29 DCMR §§ 1909.1 to 1909.3. Each person on the waiting list and their legal representative shall have thirty (30) calendar days from receipt of the written notice in §§ 1940.22 and 1940.23 to demand a fair hearing.
1940.22 DDA shall provide to each person on the waiting list and their legal representative timely and adequate written notice of the DDA decision to place the person on the waiting list or to remove the person from the waiting list (for reasons other than enrollment and initiation of HCBS IDD waiver services).
(a) Timely means that the written notice is sent by first-class U.S. Mail, postage prepaid, within five (5) business days of the decision to the last known address for the person and their legal representative as included in the completed application or entered in the DDA database for the person.
(b) Adequate means that the written notice includes:
(1) A statement of the action taken by DDA;
(2) The reason for the action and, if the action is placement on the waiting list, the person’s rank on the waiting list and estimate of how long the person can expect to wait for HCBS IDD waiver supports and services;
(3) That the person can contact his or her service coordinator at any time to report a change in his or her circumstances and request a review of his or her priority status;
(4) An explanation of the person’s right to an informal agency review and/ or fair hearing at the OAH;
(5) The method by which the person may request an informal agency review or demand a fair hearing;
(6) That the informal agency review is not required and does not toll the time that a person has to file with OAH; and that the person may immediately file a fair hearing request with OAH;
(7) That the person may represent himself or herself, or use legal counsel, a relative, a friend or other person for assistance; and
(8) Referral information for area legal services organizations.
1940.23 In addition to the written notice provided under § 1940.21, DDA shall send each person on the waiting list and their legal representative written notice of the DDA’s decision to continue the person’s placement on the waiting list beyond the first six (6) months, and twice annually thereafter.
1940.24 DDS shall publish an annual report on the waiting list during the prior fiscal year, which shall include a demographic profile of people on the waiting list; aggregate information on the level of need and requested supports and services of people on the waiting list; information about the length of time people have been on the waiting list; provide projected annual costs to meet the aggregate needs of all people on the waiting list; and discuss methods to reduce the waiting list and maximum waiting period.
1940.99 DEFINITIONS
When used in this section, the following terms and phrases shall have the meanings ascribed:
Aged Out – Refers to the threshold age when people receiving services from certain agencies are no longer eligible such services, but may then become eligible for services and supports from DDA. These include wards of the state that are residentially funded by the Children and Family Services Agency and, upon turning the age of twenty two (22), if they choose to continue to receive supports and meet the eligibility criteria for DDA, DDA provides those supports.
CMS - The Centers for Medicare and Medicaid Services is the federal agency under Title XIX of the Social Security Act responsible for approving HCBS waiver applications and monitoring the operation of waiver programs in the states and the District of Columbia.
Department on Disability Services (DDS) - The agency that provides services to District of Columbia residents with intellectual and other disabilities through its Developmental Disabilities Administration and Rehabilitation Services Administration.
Evans class member – Refers to any person who was a former resident of Forest Haven and therefore is identified as a member of the class as defined in the Order to Amend Class Action Order in Evans v. Washington, Civil Action No. 76-0293 (D.D.C. filed Jan. 19, 1977).
Home and Community-Based Services Waiver for Individuals with Intellectual and Developmental Disabilities (HCBS IDD waiver) - The HCBS IDD waiver is a District of Columbia Medicaid program as approved by the Council of the District of Columbia and CMS that funds home and community-based services and supports as an alternative to receiving services in an Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID).
HCBS IDD Waiver Waiting List - The list of people who have been reviewed and assessed by DDA, have been assigned a priority ranking, and are waiting for an opening in the DDA HCBS waiver program to be enrolled and receive services.
Intermediate Care Facility for Individuals With Intellectual Disabilities (ICF/IID) - ICFs/IID are Medicaid State Plan funded residential settings that provide all residential (room and board), day/vocational, therapeutic, habilitative, supervision and transportation services as specified in the person’s Person Support Plan. ICF/IID homes are certified and licensed by the D.C. Department of Health.
ICF/IID Level of Care Criteria – These criteria establish the diagnostic and functional eligibility criteria for HCBS IDD waiver services and are set forth in 29 DCMR §§ 1902.1 to 1902.4, as amended.
Reserved Capacity - Reserve capacity is a number of waiver slots set aside for people who are currently in an ICF/IID settings who want to move to smaller, integrated residential settings through the waiver, as well as a commitment to wards of the State who are transitioning from the Children and Family Services Agency (CFSA) to adult services in DDS/DDA that are placed in out-of-home services to assure a seamless transfer to adult services.
Residential Supports - A broad term used to describe options for people who need housing supports (i.e. rent, food, utilities and supplies) outside of the family or person’s home in addition to paid staff supports, clinical services or other HCBS waiver services. Residential supports are included if a person chooses to receive services through the Medicaid State Plan ICF/IID program. Residential supports are not included in the HCBS IDD waiver program (except for Host Home and Live-in Caregiver Services, in part), and therefore must be requested and managed separately from HCBS IDD waiver enrollment. Residential supports for persons participating in the HCBS IDD waiver program are one hundred percent (100%) dependent upon local funding, and should be combined with housing vouchers, food stamps, cash benefits, wages and other sources of housing subsidies to maximize the capacity of DDA to support all people who need such support.
