6038073 Health Care Finance, Department of - Notice of Emergency and Proposed Rulemaking - Governing the Medicaid Participant-Directed Services My Way Program

DEPARTMENT OF HEALTH CARE FINANCE

 

NOTICE OF EMERGENCY AND PROPOSED RULEMAKING

 

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 (District) 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 gives notice of the adoption, on an emergency basis, of a new Chapter 101 (Services My Way Program) of Title 29 (Public Welfare) of the District of Columbia Municipal Regulations (DCMR).

 

These rules codify the program policies and procedures for the District of Columbia Medicaid participant-directed Services My Way program, offered under the Home and Community-Based Services Waiver for the Elderly and Persons with Physical Disabilities (EPD Waiver).

 

Emergency action is necessary for the immediate preservation of the health, safety, and welfare of EPD Waiver beneficiaries who are in need of EPD Waiver services through the participant-directed services program. The EPD Waiver serves some of the District’s most vulnerable residents. Furthermore, the Centers for Medicare and Medicaid Services (CMS) has directed that the District implement its participant-directed services program immediately in order to provide these services to vulnerable beneficiaries. These rules will provide guidance to providers, beneficiaries, and other stakeholders as the District implements this new program, and clarify program requirements that will assist in preserving the health, safety and welfare of these EPD Waiver beneficiaries.

The emergency rulemaking was adopted on May 11, 2016, and became effective on that date. The emergency rules shall remain in effect for one hundred and twenty (120) days until September 8, 2016, unless superseded by publication of a Notice of Final Rulemaking in the D.C. Register.  

                                                                                                            

The Director also gives notice of the intent to take final rulemaking action to adopt these rules not less than thirty (30) days from the date of publication of this notice in the D.C. Register.

 

A new Chapter 101, SERVICES MY WAY PROGRAM, is added to Title 29 DCMR, PUBLIC WELFARE, to read as follows:

 

CHAPTER 101         SERVICES MY WAY PROGRAM

 

10100              GENERAL PROVISIONS

 

10100.1           The Services My Way program shall be established as the Medicaid participant-directed services (PDS) program in the District of Columbia to afford persons enrolled in the Home and Community-Based Services Waiver for the Elderly and Persons with Physical Disabilities (EPD Waiver) the opportunity to self-direct certain EPD Waiver services.

 

10100.2           Participation in the Services My Way program shall be limited to beneficiaries enrolled in the EPD Waiver who live in their own private residence or in the home of a family member.

 

10100.3           The Services My Way program shall include the following services:

 

(a)        Participant-directed community support (PDCS) services as described in § 10102; and

 

(b)        Individual-directed goods and services as described in § 10104.

 

10100.4           PDCS services and individual-directed goods and services shall only be available to EPD Waiver beneficiaries enrolled as participants in the Services My Way program.

 

10100.5           Services My Way participants shall be afforded the following self-direction opportunities:

 

(a)        The opportunity to exercise “employer authority” to recruit, hire,                         supervise and discharge qualified participant-directed workers (PDWs) who provide PDCS services to them; and

 

(b)        The opportunity to exercise “budget authority” to purchase allowable and approved individual-directed goods and services using a participant-directed services (PDS) budget.

 

10100.6           The Services My Way participant or the participant’s authorized representative, if designated by the participant, shall serve as a “common law employer” of all PDWs          hired by the participant.

 

10100.7           Financial management services and information and assistance services, as set forth in § 10106.4 and § 10106.6, respectively, shall be provided to Services My Way participants through the Vendor Fiscal/Employer Agent (VF/EA) Financial Management Services (FMS)-Support Broker entity selected by the Department of Health Care Finance (DHCF) through a competitive procurement process.

 

10100.8           Services My Way participants shall not receive agency-based personal care aide services offered under Chapter 42 or Chapter 50 of Title 29 DCMR.

 

10100.9           Services My Way participants shall be eligible to receive all services offered under the EPD Waiver except for agency-based personal care aide services.

 

10100.10         Services My Way participants shall not serve as PDWs.

 

 

 

 

10101              OUTREACH AND ENROLLMENT

 

10101.1           Both current EPD Waiver beneficiaries and new EPD Waiver enrollees who meet the requirements of § 10100.2 may elect to enroll in the Services My Way program.

 

10101.2           DHCF or its agent shall provide information regarding self-direction and the Services My Way program to all current EPD Waiver beneficiaries and to new EPD Waiver enrollees at the time of EPD Waiver enrollment. 

 

10101.3           EPD Waiver case managers shall provide information regarding self-direction and the Services My Way program to all EPD Waiver beneficiaries who are not enrolled as Services My Way participants each time a beneficiary is reassessed for EPD Waiver services, each time a beneficiary’s person-centered plan (PCP) is updated, and upon a beneficiary’s request.

 

10101.4           If an EPD Waiver beneficiary expresses interest in the Services My Way program, the beneficiary’s EPD Waiver case manager shall assist the beneficiary in completing all required inquiry forms and submit the forms to the Services My Way Program Coordinator.

 

10101.5           All EPD Waiver case managers shall be required to complete a standardized training course on self-direction and the Services My Way program conducted by DHCF prior to the date enrollment begins for the Services My Way program, as well as all ongoing training required by DHCF.

 

10101.6           EPD Waiver case managers shall be responsible for providing an overview of Services My Way program requirements to interested beneficiaries and overseeing the beneficiary’s completion of all forms required to initiate Services My Way program enrollment. EPD Waiver case managers shall also be responsible to assist the beneficiary in revising an existing PCP or develop an initial PCP to include the Services My Way program.

 

10101.7           Upon completion of the documents referenced in § 10101.6, the EPD Waiver case manager shall submit all required documents to the Services My Way Program Coordinator for approval.

 

10101.8           Enrollment in the Services My Way program shall only occur following the Services My Way Program Coordinator’s approval of the beneficiary’s PDS budget as described in § 10107 and issuance of a prior authorization for all PDCS services and individual-directed goods and services included in the approved budget.

 

10101.9           Beneficiaries shall be notified at the time of enrollment in the Services My Way program that participation in the program is conditional upon compliance with all program rules and the terms of the Participant/Representative-Employer Agreement.

 

10102              PARTICIPANT-DIRECTED COMMUNITY SUPPORT SERVICES: SERVICE DESCRIPTION

 

10102.1           PDCS services shall be available only to EPD Waiver beneficiaries enrolled as participants in the Services My Way program.

 

10102.2           PDCS services shall be detailed in the participant’s PCP and PDS budget and shall be designed to promote independence and ensure the health, welfare, and safety of the participant.

 

10102.3           The participant or his/her authorized representative, as applicable, shall serve as a “common law employer” of the PDW providing services. In the role of “common law employer,” the participant or authorized representative shall be responsible for recruiting, hiring, supervising and discharging PDWs providing PDCS services.

 

10102.4           Supports shall be available to assist the participant/representative-employer with his or her own employer-related responsibilities as described in § 10102.3 through the VF/EA FMS-Support Broker entity.

 

10102.5           PDCS services shall include cueing and assistance with activities of daily living and instrumental activities of daily living. 

 

10102.6           All PDCS services provided by a PDW shall be prior authorized by DHCF or its agent in order             to be reimbursed under the Services My Way program.

 

10102.7           To be eligible for PDCS services, a participant shall be in receipt of a service authorization for personal care aide services from DHCF or its designated      agent that specifies the amount, duration, and scope of services authorized to be provided to the beneficiary, in accordance with 29 DCMR § 5003.

 

10102.8           Payment for PDCS services shall be provided in accordance with the participant’s PDS budget, at an hourly wage set by the participant/representative-employer which falls within the wage range established by DHCF as set forth in § 10102.9.

 

10102.9           The hourly wage paid to a PDW shall be no lower than the living wage in the District, set in accordance with the Living Wage Act of 2006, effective June 8, 2006 (D.C. Law 16-118; D.C. Official Code §§ 2-220.01 et seq.), and no higher than the wage paid by DHCF for services provided by a personal care aide in accordance with Chapter 42 of Title 29 DCMR.

 

10102.10         PDCS services shall not include the following:

 

(a)        Services that require the skills of a licensed professional, as defined in the District of Columbia Health Occupations Revision Act of 1985, effective March 25, 1986 (D.C. Law 6- 99; D.C. Official Code §§ 3-1201.01 et seq.); or

 

(b)        Tasks usually performed by chore workers or homemakers, such as cleaning of areas not occupied by the participant, laundry for family members, shopping for items not used by the participant, or money management.

 

10102.11         An agency-based provider of personal care aide services shall not be designated as an emergency back-up provider of PDCS services.

 

10103              PARTICIPANT-DIRECTED COMMUNITY SUPPORT SERVICES: PROVIDER REQUIREMENTS

 

10103.1           PDCS services shall be provided only to EPD Waiver beneficiaries enrolled as participants in the Services My Way program.

 

10103.2           Qualified PDWs shall provide PDCS services as employees of Services My Way participants.

 

10103.3           PDCS services may be provided by family members and individuals other than a participant’s spouse, other legally responsible relative, or court-appointed guardian. A legally responsible relative does not include parents of adult children, so parents of adult children are not precluded from providing PDCS services. Each family member providing PDCS services shall comply with the requirements set forth in these rules.

 

10103.4           All PDWs shall meet the following qualifications:

 

 (a)       Be at least eighteen (18) years of age;

 

 (b)       Complete and pass a criminal background check in accordance with the Health-Care Facility Unlicensed Personnel Criminal          Background Check Act of 1998, effective April 13, 2002 (D.C. Law 14-98; D.C. Official Code §§ 44-551 et seq.);

 

 (c)       Receive customized training provided by the participant and/or the participant’s authorized representative that is related to the participant’s functional needs and goals as outlined in the PCP;

 

 (d)      Be able and willing to perform the service-related responsibilities outlined in the participant’s PCP; and

 

 (e)       Be certified in cardiopulmonary resuscitation (CPR) and First Aid and maintain current certifications.

 

10103.5           Services My Way participants shall not serve as PDWs.

 

10103.6           The VF/EA FMS-Support Broker entity shall be responsible for collecting criminal background check fees from prospective PDWs, performing criminal background checks on all prospective PDWs in accordance with § 10103.4(b), and providing participants, authorized representatives, prospective PDWs, and the Services My Way Program Coordinator with the results of all criminal background checks performed on prospective PDWs.

 

10103.7           The participant, or the participant’s authorized representative if designated as the “common law employer” of the PDW, shall verify that a prospective PDW meets all qualifications set forth in § 10103.4 prior to hiring the PDW to provide PDCS services.

 

10103.8           The VF/EA FMS-Support Broker entity shall verify that a PDW meets all qualifications set forth in § 10103.4 prior to enrolling the PDW into its payroll system.

 

10103.9           The VF/EA FMS-Support Broker entity shall execute a Medicaid provider agreement with each PDW on behalf of DHCF at the time a PDW is enrolled into its payroll system.

 

10104              INDIVIDUAL-DIRECTED GOODS AND SERVICES: SERVICE DESCRIPTION

 

10104.1           Individual-directed goods and services are only available to EPD Waiver beneficiaries who are enrolled as participants in the Services My Way program, and are purchased from the participant’s PDS budget.

 

10104.2           Individual-directed goods and services are services, equipment or supplies not otherwise provided through the EPD Waiver or the Medicaid State Plan that address an identified need in the participant’s PCP, including improving and maintaining the participant’s opportunities for full membership in the community. Individual-directed goods and services shall meet the following requirements:

 

 (a)       The requested item or service would decrease the participant’s need for other Medicaid services;

 

 (b)      The requested item or service would promote the participant’s inclusion in the community; or

 

 (c)       The requested item or service would increase the participant’s safety in the home environment.

 

10104.3           Allowable goods and services shall include, but not be limited to, the following:

 

 (a)       Cleaning services from firms or individuals to clean the participant’s personal areas including bedroom, bathroom, kitchen, etc., only if necessary in addition to those services otherwise available through the EPD Waiver;

 

 (b)       Food preparation and delivery services, including grocery delivery and delivery of prepared foods (but not payment for the food itself);

 

 (c)       Transportation services not currently available under Medicaid or the District’s accessible transportation programs or through natural supports that are related to activities of daily living, and meet an objective outlined in the participant’s PCP;

 

 (d)      Small electric appliances which allow the individual to safely prepare meals;

 

 (e)       Laundry services; and

 

 (f)       The cost of changing locks at the participant’s home, as necessary, when a PDW stops working for the participant.

 

10104.4           Payment for allowable transportation services shall only be made in the form of reimbursement for mileage documented on a Mileage Reporting Form provided by DHCF or its agent and submitted to the VF/EA FMS-Support Broker entity.

 

10104.5           Non-allowable goods and services shall include, but not be limited to, the following:

 

 (a)       Gifts for PDWs, family or friends, including bonus payments to PDWs;

 

 (b)       Loans to PDWs, family or friends;

 

 (c)       Food, beverages and nutritional supplements;

 

 (d)      Entertainment equipment or supplies such as videos, VCRs, televisions, stereos, CDs, DVDs, audio/video tapes, etc.;

 

 (e)       Air conditioners, heaters, fans and similar items;

 

 (f)       Electronic devices that do not meet the requirements of § 10104.2 and do not meet an objective outlined in the participant’s PCP;

 

 (g)       Illegal drugs;

 

 (h)       Alcoholic beverages;

 

 (i)        Tobacco products;

 

(j)         Costs associated with travel (airfare, lodging, meals, etc.) for vacations or entertainment;

 

(k)        Utility, rent or mortgage payments;

 

(l)         Clothing or shoes;

 

(m)       Comforters, towels, linens or drapes;

 

(n)        Paint or related supplies;

 

(o)        Furniture or other household furnishings;

 

(p)        Cleaning or laundry for other household members or areas of a home that are not used as part of the participant’s personal care;

 

(q)        Large household or kitchen appliances such as washers, dryers, dishwashers, refrigerators, or freezers;

 

(r)        Exercise equipment;

 

(s)        Medications, vitamins or herbal supplements;

 

(t)        Experimental or prohibited treatments;

 

(u)        Laundry detergent and household cleaning supplies;

 

(v)        Vehicle expenses, including routine maintenance, repairs, or insurance costs;

 

(w)       Transportation services that are otherwise available under Medicaid or the District’s accessible transportation programs or through natural supports or that are not related to activities of daily living;

 

(x)        Landscaping and yard work;

 

(y)        Pet care and supplies, except when provided for service animals; and

 

(z)        Massages, manicures or pedicures.

 

10104.6           Participants in the Services My Way program may purchase individual-directed goods and services that are included in their PCP, meet the       requirements of §§ 10104.2 and 10104.3, and are within  their PDS budget to purchase.

 

10104.7           Individual-directed goods and services shall be documented in the participant’s PDS budget and PCP. The participant’s support broker shall assist participants to revise their PDS budgets, as necessary, to account for new, appropriate individual-directed goods and services they would like to purchase. All revisions to a participant’s PDS budget to account for new, appropriate individual-directed goods and services shall be accompanied by justification supporting the revision.

 

10104.8           Upon revising a PDS budget to reflect a new individual-directed good or service, the support broker shall submit the revised PDS budget and justification to the Services My Way Program Coordinator for approval.

 

10104.9           The Services My Way Program Coordinator shall review all requested individual-directed goods and services.

 

10104.10         The VF/EA FMS-Support Broker entity shall only authorize payment of invoices submitted for individual-directed goods and services that are included in the participant’s PCP and PDS budget and that have been approved by the Services My Way Program Coordinator.

 

10105              INDIVIDUAL-DIRECTED GOODS AND SERVICES: PROVIDER REQUIREMENTS

 

10105.1           Individual-directed goods and services shall be provided only to EPD Waiver beneficiaries enrolled as participants in the Services My Way program.

 

10105.2           All individuals and vendors providing individual-directed goods and services shall meet the following minimum qualifications:

 

(a)        All individuals providing individual-directed goods and services shall be at least eighteen (18) years of age;

 

 (b)       All individuals and vendors providing individual-directed goods and services shall be able to demonstrate to the participant that:

 

(1)        The individual/vendor has the capacity to perform the requested work;

 

(2)        The individual/vendor has the ability to successfully communicate with the participant; and

 

(3)        The individual/vendor has all the necessary professional and/or commercial licenses required by federal and District law.

 

10105.3           Individuals and vendors providing non-medical transportation as an individual-directed service shall meet the following additional    qualifications:

 

(a)        The individual/vendor shall have a valid driver’s license; and

 

(b)        The individual/vendor shall have the minimum amounts of property damage liability, third party personal liability, uninsured motorist bodily injury, and uninsured motorist property damage insurance coverage required by the District of Columbia for the type of vehicle used to provide the transportation, in accordance with the Compulsory/No-Fault Motor Vehicle Insurance Act, effective September 18, 1982 (D.C. Law 4-155; D.C. Official Code §§ 31-2401 et seq.).

 

10105.4           No individual or vendor shall provide any individual-directed good or service that is not:

 

(a)        Documented in the participant’s PCP and PDS budget; and

 

(b)        Approved by the Services My Way Program Coordinator.

 

10105.5           An individual or vendor selected by a participant to provide individual-directed goods or services on a recurrent basis may be required to enter into a Medicaid provider agreement with DHCF prior to providing the goods or services. The Medicaid provider agreement shall be executed by the VF/EA FMS-Support Broker entity supporting the Services My Way program on behalf of DHCF.

 

10105.6           The VF/EA FMS-Support Broker entity shall verify that an individual or vendor selected by the participant to provide individual-directed goods and services meets all applicable requirements set forth in §§ 10105.2 and 10105.3 at the time of enrollment into the VF/EA FMS-Support Broker entity’s provider payment system and thereafter, as necessary.

 

10106              VENDOR FISCAL/EMPLOYER AGENT FINANCIAL MANAGEMENT SERVICES-SUPPORT BROKER ENTITY FUNCTIONS

 

10106.1           Services My Way participants shall receive financial management services and information and assistance services through the VF/EA FMS-Support Broker entity selected by DHCF through a competitive procurement process.

 

10106.2           The VF/EA FMS-Support Broker entity shall operate in accordance with 26 U.S.C. § 3504 and Rev. Proc. 70-6, as modified by REG-137036 and Rev. Proc. 2013-39, as well as all applicable federal and District labor, citizenship and immigration, and workers compensation requirements.

 

10106.3           The VF/EA FMS-Support Broker entity shall consist of the following two (2) divisions:

 

                        (a)        The Financial Management Services Division; and

 

                        (b)        The Support Broker Division.

 

10106.4           The VF/EA FMS-Support Broker entity’s Financial Management Services Division shall provide the following services to Services My Way participants:

 

(a)        Assist participants in verifying citizenship status of prospective PDWs;

 

(b)        Report PDWs in the District New Hire Reporting System;

 

(c)        Collect and process timesheets for PDWs;

 

(d)       Process payroll, withholding, filing and payment of applicable federal and District employment-related taxes and insurance for PDWs;

 

(e)        Manage the receipt and renewal of workers’ compensation insurance policies for participants’ PDWs;

 

(f)        Track and report participant funds, disbursements, and the balance of participant funds;

 

(g)        Process and pay invoices for individual-directed goods and services outlined in the participant’s PCP and approved PDS budget;

 

(h)        Provide participants with periodic reports of expenditures and the status of their PDS budgets, as described in § 10113.2;

 

(i)         Provide customer service, including toll-free phone numbers, written translation and oral language services in accordance with the Language Access Act of 2004, effective June 19, 2004 (D.C. Law 15-167; D.C. Official Code §§ 2-1931 et seq.); and

 

(j)         Any other services specified in the VF/EA FMS-Support Broker entity contract and accompanying documents.

 

10106.5           The VF/EA FMS-Support Broker entity’s Financial Management Services Division shall execute the following tasks on behalf of DHCF:

 

(a)        Execute Medicaid provider agreements for PDWs and individual-directed goods and services vendors providing goods or services on a recurrent basis and maintaining such agreements as authorized under a written agreement with DHCF;

 

(b)        Process returned PDW payroll checks and returned payments to individual-directed goods and services vendors in accordance with the District Unclaimed Property Law, effective March 5, 1981 (D.C. Law 3-160; D.C. Official Code §§ 41-101 et seq.); and

 

(c)        Any other tasks specified in the VF/EA FMS-Support Broker entity contract and accompanying documents.

 

10106.6           The VF/EA FMS-Support Broker entity’s Support Broker Division shall provide each Services My Way participant with a support broker to furnish information and assistance services. Support brokers shall provide the following services to Services My Way participants:

 

(a)        Assist participants in designating an authorized representative, if participants choose to do so;

 

(b)        Provide initial orientation to participants and authorized representatives, as appropriate, on participating in the Services My Way program, including the role and responsibilities of acting as a “common law employer “and the VF/EA FMS-Support Broker entity, the exercise of employer and budget        authority, and management of the PDS budget;

 

(c)        Provide initial and ongoing skills training to participants and authorized representatives, as appropriate, on performing as a common law employer, utilizing financial management and information and assistance services provided by the VF/EA FMS-Support Broker entity, and managing the PDS budget;

 

(d)       Assist participant/representative-employers in developing, implementing, and revising, as needed, emergency back-up and natural support plans;

 

(e)        Receive participants’ monthly PDS allocation amount from DHCF and assist participants and authorized representatives, as appropriate, in developing initial and revised PDS budgets using allocation amounts;

 

(f)        Conduct monthly phone calls and quarterly in-home visits with all participants and authorized representatives, as appropriate;

 

(g)        Communicate with EPD Waiver case managers to address any health and safety concerns identified for participants; and

 

(h)        Any other services specified in the VF/EA FMS-Support Broker entity contract and accompanying documents.

 

10107              PARTICIPANT-DIRECTED SERVICES BUDGET FORMULATION

 

10107.1           To be eligible for PDCS services, a Services My Way participant shall be in receipt of a service authorization for personal care aide services that specifies the amount, duration, and scope of services authorized to be provided, in accordance with 29 DCMR § 5003.

 

10107.2           A PDS budget shall be developed based on the following methodology:

 

(a)        The participant’s total assessed hours per week for personal care aide services is determined through the assessment process as set forth in 29 DCMR § 5003.3 and converted to hours per month;

 

(b)        The total number of personal care aide services hours per month is multiplied by the hourly rate paid by DHCF for personal care aide services; and

 

(c)        The total amount computed in (b) above is reduced by a pre-determined percentage to reflect the administrative overhead amount included in the hourly rate paid by DHCF for personal care aide services. 

 

10107.3           The amount resulting from the calculation described in § 10107.2 shall represent the Services My Way participant’s monthly PDS allocation amount, which shall be used to compute the participant’s PDS budget. 

 

10107.4          A PDS budget shall be developed by the participant and authorized representative, as appropriate, with assistance from the participant’s support broker.

 

10107.5           A PDS budget shall contain the following two (2) cost components:

 

(a)        PDCS services; and

 

(b)        Individual-directed goods and services.

 

10107.6           Participant/representative-employers shall set the hourly wage rate paid to their PDWs within the wage range established by DHCF as set forth in § 10102.9.

 

10107.7           Funds available for purchase of individual-directed goods and services shall be those funds, if any, remaining in the PDS budget after the amount for PDCS services has been determined.

 

10107.8           Support brokers shall be responsible for explaining the method used to develop the monthly PDS allocation amount to Services My Way participants.

 

10107.9           DHCF shall calculate the monthly PDS allocation amount for all Services My Way participants.

 

10107.10         DHCF or its agent shall notify all Services My Way participants each time   PDS allocation amounts are adjusted as a result of a change to the hourly rate paid by DHCF for personal care aide services.

 

10107.11         The participant and the authorized representative, if applicable, shall work with the support broker to develop the participant’s PDS budget based on the allocation amount.

 

10107.12         The participant’s support broker shall submit the participant’s completed PDS budget to the Services My Way Program Coordinator for approval within the timeframe established by DHCF.

 

10107.13         The Services My Way Program Coordinator shall review all PDCS services and individual-directed goods and services requested in a participant’s PDS budget.

 

10107.14         If the Services My Way Program Coordinator denies any PDCS services or individual-directed good or service requested in a participant’s PDS budget, the Program Coordinator shall send written notice of the denial to the participant, authorized representative as appropriate, and the participant’s support broker. The notice shall contain information on the reconsideration process, as described in § 10108, and the participant’s appeal rights.  

 

10107.15         Once a participant’s PDS budget is approved by the Services My Way Program Coordinator, the Program Coordinator shall provide the approved PDS budget to the VF/EA FMS-Support Broker entity.

 

10107.16         The VF/EA FMS-Support Broker entity shall only release payment for PDCS services and individual-directed goods and services included in the participant’s approved PDS budget and for which prior authorizations have been issued.

 

10108              RECONSIDERATION PROCESS

 

10108.1           If the Services My Way Program Coordinator denies any PDCS services or individual-directed good or service requested in a participant’s PDS budget, the participant may request reconsideration of the denial in accordance with § 10108.2.

 

10108.2           If the participant wishes to request reconsideration of the denial, the following steps shall occur:

 

(a)        The participant shall submit a written request for reconsideration to DHCF within twenty-one (21) days of the postmark date on the notice of denial, containing the following elements:

 

(1)        The reason the participant believes the denial decision should not be upheld; and

 

(2)        Any additional information and/or documentation the participant believes is relevant to the reconsideration decision;

 

(b)        The Director of DHCF or a designee shall issue a reconsideration decision within forty-five (45) days of the date the reconsideration request was received, containing the following elements:

 

(1)        An explanation of the reason the PDS budget denial was upheld or overturned; and

 

(2)        Information regarding the participant’s right to appeal the reconsideration decision by filing a notice of appeal with the Office of Administrative Hearings.

 

10108.3           A Services My Way participant shall not be required to request reconsideration of the denial and may appeal the PDS budget denial decision directly by filing a notice of appeal with the Office of Administrative Hearings.

 

10109              AUTHORIZED REPRESENTATIVES

 

10109.1           A Services My Way participant may designate an authorized representative to exercise employer-related responsibilities in the Services My Way program.

 

10109.2           An authorized representative is an individual who willingly accepts responsibility for performing employer and PDS budget management tasks that a participant is unable to perform without the assistance of a representative.

 

10109.3           An individual shall execute a Designation of Authorized Representative form in order to be recognized as a Services My Way participant’s authorized representative.

 

10109.4           A Services My Way participant may designate one (1) of the following three (3) types of authorized representative:

 

(a)        Pre-Determined Representative: A legal guardian or other court-appointed representative in place at the time of the participant’s enrollment in the Services My Way program;

 

(b)        Voluntary Representative: An individual twenty-one (21) years of age or older who is actively engaged in the participant’s life and lives in the participant’s community; or

 

(c)        Mandated Representative: An individual who meets the criteria of (b) above who is designated by the participant if DHCF or its agent determines that the participant requires an authorized representative in order to continue participation in the Services My Way program.

 

10109.5           A Services My Way participant shall only have one (1) authorized representative at any time.

 

10109.6           No individual shall receive any monetary compensation for acting as an authorized representative for a Services My Way participant.

 

10109.7           No individual acting as an authorized representative for a Services My Way participant shall serve as a PDW for that participant.

 

10109.8           All authorized representatives shall be responsible for working collaboratively with Services My Way participants to ensure that:

 

(a)        The participant receives all needed PDCS services from qualified PDWs; and

 

(b)        PDCS services and individual-directed goods and services are provided in accordance with the participant’s PCP and PDS budget.

 

10109.9           Services My Way participants may revoke an authorized representative designation at any time by notifying the support broker, who shall assist the participant to complete any required forms.

 

10109.10         DHCF may determine that a participant requires an authorized representative to continue participation in the Services My Way program if the participant has demonstrated an inability to self-direct their services after additional counseling, information, training or assistance.

 

10109.11         If DHCF determines that a participant requires an authorized representative to continue participation in the Services My Way program in accordance with § 10109.10, DHCF shall issue written notice to the participant, support broker and EPD Waiver case manager which shall:

 

(a)        Inform the participant that designation of an authorized representative is required in order to continue participation in the Services My Way program;

 

(b)        Detail the reasons that designation of an authorized representative is required;

 

(c)        Provide instructions on designating an authorized representative; and

 

(d)       Provide information regarding the participant’s right to appeal the determination by filing a notice of appeal with the Office of Administrative Hearings.

 

10110              MANDATORY REPORTING

 

10110.1           All EPD Waiver case managers, authorized representatives, and employees of the VF/EA FMS-Support Broker entity shall be required to report any suspected instance of abuse, neglect, or exploitation of a Services My Way participant to DHCF and Adult Protective Services.

 

10111              VOLUNTARY TERMINATION OF PROGRAM PARTICIPATION

 

10111.1           Services My Way participants may decide at any time to voluntarily terminate their participation in the Services My Way program.

 

10111.2           A Services My Way participant shall indicate the decision to voluntarily terminate participation in the program by completing and submitting any required voluntary termination forms to the Services My Way Program Coordinator. The participant’s authorized representative and/or support broker shall assist the participant to complete the forms as necessary.

 

10111.3           Upon receipt of the participant’s voluntary termination forms, the Services My Way Program Coordinator shall inform the participant’s EPD Waiver case manager and support broker of the participant’s decision to terminate program participation.

 

10111.4           EPD Waiver case managers shall be responsible for assisting participants to transition to agency-based personal care aide services. EPD Waiver case managers shall ensure that there is no break in service provision during the transition period and shall coordinate the approval by DHCF or its designee of the request to initiate agency-based personal care aide services.

 

10112              INVOLUNTARY TERMINATION OF PROGRAM PARTICIPATION

 

10112.1           Participant/representative-employers shall be required to comply with all program rules and terms of the Participant/Representative-Employer Agreement executed at the time of enrollment in the Services My Way program.

 

10112.2           Non-compliance with program rules or the terms of the Participant/ Representative-Employer Agreement shall result in referral of the participant to the Remediation, Training and Termination Protocol established by DHCF.

 

10112.3           Non-compliance with the terms of the Participant/Representative-Employer Agreement may be identified by the VF/EA FMS-Support Broker entity, the participant’s support broker, the participant’s EPD Waiver case manager, or DHCF staff.

 

10112.4           If a Services My Way participant is found to be non-compliant with the terms of the Participant/Representative-Employer Agreement three (3) times within a twelve (12) month period, the third episode of non-compliance shall necessitate termination from the program and transition to agency-based personal care aide services.

 

10112.5           When a participant/representative-employer is found to be out of compliance with the Participant/Representative-Employer Agreement for the first time, the following steps shall occur:

 

(a)        The Services My Way Program Coordinator shall issue a notice of non-compliance to the participant/representative-employer, the support        broker, and the EPD Waiver case manager, which shall:

 

(1)        Identify the issue of non-compliance and request that the issue be corrected, if possible, and not repeated;

 

(2)        Detail requirements of the Corrective Action Plan (CAP) the participant shall create to address the issue;

 

(3)        Offer training and/or technical assistance;

 

(4)        Encourage the participant/representative-employer to direct questions to the support broker regarding the issue of non-compliance, including requesting training, obtaining assistance in preparing the CAP, and designating an authorized representative;

 

(5)        Identify consequences of further non-compliance with the Participant/Representative-Employer Agreement; and

 

(6)        Provide information on the participant’s appeal rights for termination from the program should three (3) episodes of non-compliance occur in a twelve (12) month period.

 

(b)        Within five (5) business days of issuing the notice of non-compliance, the support broker shall contact the participant/representative-employer to discuss the episode of non-compliance;

 

(c)        Within five (5) business days of the contact described in (b) above, the participant shall, with the assistance of the authorized representative and/or the support broker, if needed, draft and sign a written CAP regarding the issue of non-compliance; and

 

(d)       The support broker shall provide copies of the participant’s signed CAP to the participant’s EPD Waiver case manager and the VF/EA FMS-Support Broker entity.

 

10112.6           The participant’s support broker shall be responsible for monitoring the participant’s adherence to the CAP.

 

10112.7           If the participant or authorized representative, as applicable, fails to implement all or a portion of the CAP, this failure shall be considered an episode of non-compliance with the terms of the Participant/Representative-Employer Agreement and shall be reported to the Services My Way Program Coordinator.

 

10112.8           If a participant/representative-employer is found to be out of compliance with the Participant/Representative-Employer Agreement a second time, the following steps shall occur:

 

(a)        The Services My Way Program Coordinator shall issue a second notice of non-compliance to the participant/representative-employer, the support broker, and the EPD Waiver case manager, which shall meet all requirements described in § 10112.5(a);

 

(b)        Within five (5) business days of issuing the notice of non-compliance, the support broker shall contact the participant/representative-employer to discuss the episode of non-compliance;

 

(c)        Within five (5) business days of the contact described in (b) above, the participant shall, with the assistance of the authorized representative and/or the support broker, if needed, draft and sign a written CAP regarding the issue of non-compliance; and

 

(d)       The support broker shall provide copies of the participant’s signed CAP to the participant’s EPD Waiver case manager and the VF/EA FMS-Support Broker entity.

 

10112.9           If a participant/representative-employer is found to be out of compliance with the Participant/Representative-Employer Agreement a third time, the following steps shall occur:

                                   

(a)        The Services My Way Program Coordinator shall issue a third notice of non-compliance to the participant, the support broker, and the EPD Waiver case manager, which shall:

 

(1)        Identify the three (3) episodes of non-compliance;

 

(2)        Clearly state that DHCF is terminating the participant’s enrollment in the Services My Way program, per notice provided in the first and second notifications of non-compliance;

 

(3)        Inform the participant that he/she will be transitioned to agency-based personal care aide services, per notice provided in the first and second notifications of non-compliance; and

 

(4)        Provide information regarding the participant’s right to appeal the Services My Way program termination decision by filing a notice of appeal with the Office of Administrative Hearings;

 

(b)        The support broker shall provide copies of the termination notice to the participant’s EPD Waiver case manager and the VF/EA FMS-Support Broker entity;

 

(c)        Within five (5) business days of issuing the termination notice, the support broker shall contact the participant/ representative-employer and address the following topics:

 

(1)        Reference to the first and second notices of non-compliance and the termination notice;

 

(2)        Review of the consequences of three (3) episodes of non-compliance within a twelve (12) month period;

 

(3)        Explanation of the process to transition the participant to agency-based personal care aide services; and

 

(4)        Explanation of the participant’s right to appeal the Services My Way program termination decision and the appeal process; and

 

(d)       Within five (5) business days of the contact described in (c) above, the support broker shall complete all required participant termination forms and submit them to the Services My Way Program Coordinator.

 

10112.10         If a participant files a notice of appeal with the Office of Administrative Hearings within thirty (30) days of the date on the Services My Way program termination notice, the participant shall remain enrolled in the Services My Way program and continue to receive PDCS services and individual-directed goods and services included in the participant’s approved PDS budget while the participant’s appeal is pending.

 

10112.11         EPD Waiver case managers shall be responsible for transitioning participants to agency-based personal care aide services. EPD Waiver case managers shall ensure that there is no break in service provision during the transition period and shall coordinate the approval by DHCF or its designee of the request to initiate agency-based personal care aide services.

 

10112.12         Nothing in this section shall be construed to limit the District’s authority to investigate and prosecute a Services My Way program participant for criminal acts including but not limited to theft and fraud.

 

10113              EXPENDITURE SAFEGUARDS

 

10113.1           DHCF shall implement all safeguards described in this section to prevent premature depletion of Services My Way participants’ PDS budgets and address potential service delivery issues associated with budget underutilization.

 

10113.2           The Financial Management Services Division of the VF/EA FMS-Support Broker entity shall prepare and issue a monthly PDS budget report to all participant/representative-employers, their support brokers, EPD Waiver case managers, and the Services My Way Program Coordinator. The monthly PDS budget report shall include the following elements:

 

(a)        The participant’s monthly PDS budget amount, services used, and expenses incurred for both the current month and the year to date; and

 

(b)        The remaining balance of the participant’s PDS budget amount.

 

10113.3           Support brokers shall review the monthly PDS budget report with participant/representative-employers during their monthly phone contact.

 

10113.4           The Financial Management Services Division of the VF/EA FMS-Support Broker entity shall monitor PDCS services utilization and provide written notice to the participant/representative-employer, the support broker, the EPD Waiver case manager, and the Services My Way Program Coordinator of any over- or under-utilization of PDCS services.

 

10113.5           If the Financial Management Services Division of the VF/EA FMS-Support Broker entity discovers over-utilization of PDCS services, the participant/representative-employer shall be referred to the Remediation, Training and Termination Protocol described in § 10112.

 

10113.6           If the Financial Management Services Division of the VF/EA FMS-Support Broker entity discovers under-utilization of PDCS services, the support broker shall address the issue with the participant/representative-employer and develop a corrective action plan as necessary to remedy the issue.

 

10199              DEFINITIONS

 

Activities of Daily Living (ADLs) - The ability to bathe, transfer, dress, eat and feed oneself, engage in toileting, and maintain bowel and bladder control (continence).

 

Authorized Representative - An individual who willingly accepts responsibility for performing employer and PDS budget management tasks that a participant is unable to perform without the assistance of a representative, and who has been designated by the participant in writing by executing a Designation of Authorized Representative form.

 

Budget Authority - The authority granted to Services My Way program participants and their authorized representatives, as applicable, to develop and manage their own PDS budget with the assistance of the support broker and the approval of the Services My Way Program Coordinator. This authority allows participants to set the wage rate for their own participant-directed workers within the range prescribed by DHCF, and to allocate funds in their own PDS budget to individual-directed goods and services.

 

Common Law Employer - A person for whom the services are being performed who has the right to direct and control the actions of the individual who performs the services, not only as to the result to be accomplished by the work, but also as to the details and the means by which the result is accomplished, and who is responsible for payment of wages and employment taxes to its employees and all federal, state and local government agencies.

 

District New Hire Reporting System - The electronic system in which all District employers are required to enter new employees within twenty (20) days of hire, per 42 U.S.C. § 653A.

 

Employer Authority - The authority granted to Services My Way program participants and their authorized representatives, as applicable, to recruit, hire, supervise, and discharge their own qualified participant-directed workers who provide participant-directed community support services to program participants, with the assistance of the VF/EA FMS-Support Broker entity.

 

Fraud - An intentional deception or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to himself or herself or some other person, including any act that constitutes fraud under federal or District law.

 

Instrumental Activities of Daily Living (IADLs) - The ability to perform activities not necessary for day-to-day functioning, but which allow an individual to live independently in the community, such as telephone use and medication administration.

 

Participant-Directed Worker - An individual meeting the qualifications set forth in § 10103 who is hired by the participant/representative employer to provide PDCS services.

 

Participant/Representative-Employer - The Services My Way participant or the participant’s authorized representative, as applicable, who performs employer-related duties including recruiting, hiring, supervising and discharging participant-directed workers.

 

Person-Centered Plan - An individualized service plan developed by the EPD Waiver case manager that identifies the supports and services to be provided to the person enrolled in the EPD Waiver and the evaluation of the person’s progress on an ongoing basis to assure that the person’s needs and desired outcomes are being met.

 

Self-Direction - The ability of program participants, or their representatives if applicable, to exercise decision-making authority over certain services and take direct responsibility to manage their services with the assistance of a system of available supports.

 

Support Broker - An employee of the VF/EA FMS-Support Broker entity who provides information and assistance services to Services My Way participants to enable participants and authorized representatives, as appropriate, to independently direct and manage their participant-directed services.

 

Theft - To wrongfully obtain or use the property of another with intent to deprive the other of a right to the property or a benefit of the property or to appropriate the property to an individual’s own use or to the use of a third person.

 

Vendor - A corporate entity providing individual-directed goods or services.        

 

Vendor Fiscal/Employer Agent (VF/EA) Financial Management Services (FMS)-Support Broker Entity - An entity operating in accordance with 26 USC § 3504 and Rev. Proc. 70-6, as modified by REG-137036 and Rev. Proc. 2013-39, which provides financial management services and information and assistance services to Services My Way participants and their authorized representatives, as appropriate.

 

Wrongfully Obtain or Use - Taking or exercising control over property; making an unauthorized use, disposition, or transfer of an interest in or possession of property; or  obtaining property by trick, false pretense, false token, tampering, or deception. The term “wrongfully obtain or use” includes conduct previously known in the District as larceny, larceny by trick, larceny by trust, embezzlement, and false pretenses.

 

 

Comments on the proposed rule shall be submitted, in writing, to Claudia Schlosberg, Senior Deputy Director/State Medicaid Director, Department of Health Care Finance, 441 4th Street, N.W., Suite 900S, Washington, D.C. 20001, via telephone on [phone], via email at [e-mail], or online at www.dcregs.dc.gov, within thirty (30) days after the date of publication of this notice in the D.C. Register.  Copies of the proposed rule may be obtained from the above address.