6209084 Health Care Finance, Department of - Notice of Final Rulemaking - Governing Day Habilitation Services for Participants in the Home and Community Based Services Waiver for Individuals with Intellectual and Developmental Disabilities  

  • DEPARTMENT OF HEALTH CARE FINANCE

     

    NOTICE OF FINAL 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 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. & 2016 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 of an amendment to Section 1920, entitled “Day Habilitation Services,” 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 standards governing reimbursement of day habilitation one-to-one services and day habilitation small group services provided to participants in the Home and Community-Based Services Waiver for Individuals with Intellectual and Developmental Disabilities (ID/DD Waiver) and conditions of participation for providers.  Day habilitation services are aimed at developing activities and skills acquisition to support or further integrate community opportunities outside of a person’s home and assist the person in developing a full life within the community.  Day habilitation one-to-one services are provided to persons with intense medical behavioral supports who require a behavioral support plan or require intensive staffing and supports. 

     

    The ID/DD Waiver was approved by the Council of the District of Columbia (Council) and renewed by the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), for a five-year period beginning November 20, 2012.  An amendment to the ID/DD 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) (2014 Repl. & 2016 Supp.)).  CMS approved the amendment to the ID/DD Waiver effective September 24, 2015.

     

    The rules for Day Habilitation Services (29 DCMR § 1920) have undergone three sets of emergency and proposed rulemakings since October 2015.  The Notice of Emergency and Proposed Rulemaking, published in the D.C. Register on October 23, 2015, at 62 DCR 013880, amended the rules by: (1) clarifying the purpose of day habilitation services; (2) adding a nursing component to the service definition for the purpose of medication administration, and staff training and monitoring of waiver participants’ Health Care Management Plans; (3) modifying the rate to reflect the approved methodology in accordance with the ID/DD Waiver; (4) adding small group day habilitation for people with higher intensity needs and describing the conditions in which services may be delivered; (5) specifying that the required staff to person ratio for small group day habilitation is 1:3; (6) introducing a small group day habilitation rate for the staffing ratio of 1:3; (7) adding the provision of one nutritionally adequate meal per day for persons who live independently or with their families and who select to receive a meal; (8) adding to the list of activities that day habilitation shall consist of, including requiring activities to support community integration and inclusion; (9) requiring the development of a Positive Personal Profile, Job Search and Community Participation Plan; (10) requiring an individualized daily schedule; (11) requiring that, if day habilitation is provided in a facility, it must provide opportunities for community engagement, inclusion and integration; (12) requiring that all day habilitation providers comply with Section 1938 of Chapter 19 of Title 29 DCMR; (13) requiring that quarterly reports include a description of the person’s activities in the community that support community integration and inclusion; and (14) barring the payment of stipends by the day habilitation provider to a waiver beneficiary. 

     

    DHCF received public comments on the first emergency and proposed rulemaking requesting clarification for the staffing ratios and billing rates. The Notice of Second Emergency and Proposed Rulemaking, published in the D.C. Register on February 12, 2016, at 63 DCR 001707, continued the program changes reflected in the first emergency and proposed rules as described above and further amended the rules by: (1) clarifying the staffing ratios for day habilitation and small group day habilitation; (2) clarifying the billing rates for day habilitation and small group day habilitation; (3) providing further details about provider responsibility for offering activities that support community integration and inclusion; and (4) including rates that align with Waiver Year 4.

     

    DHCF did not receive public comments on the second emergency and proposed rulemaking.  However, DHCF promulgated the Notice of Third Emergency and Proposed Rulemaking, published in the D.C. Register on May 27, 2016, at 63 DCR 007988, which continued the cumulative changes as reflected in the second emergency and proposed rules as described above and further amended the rules by: (1) clarifying that all persons in day habilitation services must receive individualized services; (2) specifying requirements for activities to support community integration and inclusion; (3) requiring compliance with the DDS guidance on individualized schedules; (4) describing provider staffing requirements; and (5) requiring that all small group day habilitation settings fully comply with the federal Home and Community-Based Settings Rule.  The third emergency and proposed rulemaking was adopted on May 11, 2016, became effective immediately, and remained in effect until September 8, 2016.  DHCF received no comments to the third emergency and proposed rulemaking and no changes have been made.

     

    The Director of DHCF adopted these rules as final on September 21, 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:

     

    Section 1920, DAY HABILITATION SERVICES, is amended to read as follows:

     

    1920                DAY HABILITATION SERVICES

     

    1920.1             The purpose of this section is to establish standards governing Medicaid eligibility for day habilitation for persons enrolled in the Home and Community-Based Services (HCBS) Waiver for Individuals with Intellectual and Developmental Disabilities (Waiver), and to establish conditions of participation for providers of day habilitation services.

     

    1920.2             Day habilitation services are aimed at developing meaningful adult activities and skills acquisition to: support or further community integration, inclusion, and exploration, improve communication skills; improve or maintain physical, occupational and/or speech and language functional skills; foster independence, self-determination and self-advocacy and autonomy; support persons to build and maintain relationships; facilitate the exploration of employment and/or integrated retirement opportunities; help a person achieve valued social roles; and to foster and encourage persons on their pathway to community integration, employment and the development of a full life in the person’s community.

     

    1920.3                         Day habilitation services are intended to be different and separate from residential services.  These services are delivered in group settings or can be provided as day habilitation one-to-one services. 

     

    1920.4             Day habilitation services may also be delivered in small group settings at a ratio of one-to-three for persons with higher intensity support needs.  Small group day habilitation settings must include integrated skills building in the community and support access to the greater community.  It cannot be:

     

    (a)        Provided in the same building as a large day habilitation facility setting; or

     

    (b)        Delivered in groups larger than fifteen (15) persons.

     

    1920.5                         To be eligible for day habilitation services:

     

    (a)                The service shall be requested by the person and recommended by the person’s Support Team and included in the Individualized Support Plan (ISP) and Plan of Care; and

     

    (b)               A person shall have a demonstrated personal and/or social adjustment need that can be addressed through participation in a habilitation program that is individualized to meet their goals, preferences, and needs.

     

    1920.6             Day habilitation one-to-one services shall consist of:

     

    (a)                Intense behavioral supports that require a behavioral support plan; or

    (b)               Services for a person who has medical needs that require intensive staffing and supports.

    1920.7             To be eligible for day habilitation one-to-one services, a person shall meet at least one of the following requirements:

     

    (a)                Exhibit elopement which places the health, safety, or well-being of the person at risk;

     

    (b)               Exhibit behavior that poses serious bodily harm to self or others;

     

    (c)                Exhibit destructive behavior that poses serious property damage, including fire-setting;

     

    (d)               Have any other intense behavioral problem that has been deemed to require one-to-one supervision;

     

    (e)                Exhibit sexually predatory behavior; or

     

    (f)                Have a medical history of, or high risk for, falls with injury, be physically fragile or have physical needs that do not require professional nursing but require intensive staffing, and have a physician’s order for one-to-one staffing support.

     

    1920.8             Day habilitation one-to-one services shall be authorized and approved in accordance with DDS/DDA policies and procedures available at

                             http://dds.dc.gov/page/policies-and-procedures-dda.

     

    1920.9             Day habilitation services shall be provided pursuant to the following service delivery criteria:

                                                                                                                       

    (a)                The service may be provided in a group setting.  However, persons within the group must also receive individualized services to meet their goals, preferences and needs;

     

    (b)               The services provided in a community-based venue shall offer skill-building activities to enhance the person’s habilitation needs; and

     

    (c)                The service shall be provided in the most integrated setting appropriate to the needs of the person.

     

    1920.10           Day habilitation services shall consist of the following activities that are based on what is important to and for the person as documented in his or her Individualized Support Plan and reflected in his or her Person-Centered Thinking and Discovery tools:

     

    (a)        Training and skills development that increase participation in community activities, enhance community inclusion, and foster greater independence, self-determination and self-advocacy;

     

    (b)        A diversity of activities that allow the person the opportunity to choose and identify his or her own areas of interest and preferences;

     

    (c)        Activities that provide opportunities for socialization and leisure activities in the community, community explorations, and activities that support the person to build and maintain relationships;

     

    (d)       Training in the safe and effective use of one or more modes of accessible public transportation;

     

    (e)        Coordination of transportation to enable the person to participate in community activities;

     

    (f)                Activities to support community integration and inclusion: 

     

    (1)               These must occur in the community in groups not to exceed four (4) participants for regular day habilitation or three (3) participants for persons in small group day habilitation; 

     

    (2)               The activities, frequency and duration of these activities must be based on a person’s interests and preferences as reflected in his or her Individualized Support Plan and Person-Centered Thinking and Discovery tools;

     

    (3)               There should be documentation that efforts were made to match persons together in community outings based on common interests, goals, and/ or friendships, including that a person is given a choice as to whom he or she would like to spend time with during these activities;   

     

    (4)               Except when a person’s ISP indicates a lower frequency, each person must be offered the opportunity to engage in community integration and inclusion activities at least once per week, and more if  indicated by the ISP; 

     

    (5)               The Department on Disability Services (DDS) encourages the use of learning logs for documentation of community integration and inclusion activities;

     

    (6)               At least quarterly there must be a community integration activity in which a Program Coordinator, Assistant Director, and/or a Qualified Intellectual and Developmental Disabilities Profession participates to ensure: proper matching of participants; that the community outings reflect each person’s interests, goals, or friendships; that each person receiving supports has opportunities to engage with people while in the community and to coach Direct Support Professionals (DSPs) on the skills needed to successfully connect persons receiving supports with the broader community; and

     

    (7)               Each day habilitation provider must have, and must train their DSP staff on,  written protocols regarding how DSPs are expected to support persons in the community and requirements for documenting progress notes regarding community engagement activities; and 

     

    (g)               Individualized or group services that enable the person to attain his/her maximum functional level based on the ISP and Plan of Care.

     

    1920.11           Day habilitation services shall include a nursing component for the purposes of:

     

    (a)                Medication administration;

     

    (b)               Staff training in components of the Health Care Management Plan (regardless of the author of the plan); and

     

    (c)        Oversight of Health Care Management Plans (regardless of the author of the plan).

     

    1920.12           Day habilitation services shall include a nutritionally adequate meal for participants who live independently or in the family home and who select to receive a meal.  The meal shall be provided during lunch hours, meet one-third of a person’s daily Recommended Dietary Allowance, be based on the person’s preferences, and not be medically contraindicated.

     

    1920.13           Each day habilitation provider shall develop a day habilitation plan for each person that corresponds with the person’s ISP and Plan of Care that supports the interests, choices, goals and prioritized needs of the person.  In order to develop this plan, the provider must first develop a Positive Personal Profile (PPP) and Job Search and Community Participation Plan; the initial PPP and Job Search and Community Participation Plan shall be developed within thirty (30) days of the initiation of services and shall be updated at least annually.  Activities set forth in the day habilitation plan shall be functional, chosen by the person, correspond with habilitation needs and provide a pattern of life experiences common to other persons of similar age and the community-at-large. To develop the plan, the provider shall:

     

    (a)        Use observation, conversation, and other interactions, including assessments such as a vocational assessment, as necessary, to develop a functional analysis of the person's capabilities within the first month of participation and annually thereafter;

     

    (b)        Use the functional analysis, the ISP and Plan of Care, Person-Centered Thinking and Discovery tools, and other information available to identify what is important to and for the person and to develop a plan with measurable outcomes that develops to the extent possible the skills necessary to allow the person to reside and work in the community while maintaining the person’s health and safety; and

     

    (c)        Focus on enabling each person to attain his or her maximum functional level by coordinating Waiver services with other services provided by any licensed professionals listed in the person’s ISP and Plan of Care.

               

    1920.14           Each provider of Medicaid reimbursable day habilitation services shall develop, with the person, an individualized schedule of daily activities that meets all requirements in the DDS guidance on daily schedules, including that it is based upon the person’s goals and activities as identified in his or her ISP, and consistent with what is in his or her Person-Centered Thinking and Discovery tools, of meaningful adult activities that support the person on his or her pathway to employment and community integration and inclusion. 

     

    1920.15           Day habilitation providers may not pay a stipend to a person for attendance or participation in activities at the day habilitation program.

     

    1920.16           Each day habilitation provider shall meet the following provider qualification and enrollment requirements:

     

    (a)        Comply with the requirements described under Section 1904 (Provider Qualifications) and Section 1905 (Provider Enrollment Process) of Chapter 19 of Title 29 DCMR;

     

    (b)        Maintain the required staff-to-person ratio, indicated on the person's ISP and Plan of Care, to a maximum staffing ratio of 1:4 for regular day habilitation or 1:3 for persons in small group day habilitation; 

     

    (c )       Shall have at least one individual on staff as a full-time employee or consultant basis that has experience developing adult education programs for a person with intellectual disabilities, to ensure outcome-based learning is taking place; and

     

    (d)               Shall have one individual on staff as a full-time employee or consultant basis that has experience developing adult senior curriculums for persons with intellectual disabilities, to ensure outcome-based learning is taking place.

     

    1920.17           In addition to the requirements at Subsection 1920.16, each small group day habilitation provider shall meet the following provider qualifications and enrollment requirements:

     

    (a)                Fully comply with all requirements of the HCBS Settings Rule as that phrase is defined in Section 1999 (Definitions); and

     

    (b)               Provide documentation that the program manager of the HCBS Waiver provider agency has at least three (3) years of experience working with persons with intellectual and developmental disabilities who have complex medical and/or behavioral needs.

     

    1920.18           Each DSP providing day habilitation services for a provider shall comply with Section 1906 (Requirements of Direct Support Professionals) of Chapter 19 of Title 29 DCMR.

     

    1920.19           To receive Medicaid reimbursement, day habilitation services shall be provided in the community or in a facility-based setting that provides opportunities for community engagement, inclusion and integration.

     

    1920.20           Each provider of Medicaid reimbursable day habilitation services shall comply with the requirements under Section 1938 (Home and Community-Based Settings Requirements) of Chapter 19 of Title 29 DCMR.

     

    1920.21            All day habilitation services shall be authorized in accordance with the following requirements:

     

    (a)                DDS shall provide a written service authorization before the commencement of services;

    (b)               The day habilitation DSP providing one-to-one services shall be trained in physical management techniques, positive behavioral support practices and other training required to implement the person’s health care management plan and behavioral support plan, as applicable;

     

    (c)                The service name and provider entity delivering services shall be identified in the ISP and Plan of Care;

    (d)               The ISP, Plan of Care and Summary of Supports and Services shall document the amount and frequency of services to be received;

    (e)                Completion of the person’s day habilitation plan;

     

    (f)                Approval of the behavioral support plan or the physician’s order for one-to-one staffing support for persons receiving day habilitation one-to-one services; and

     

    (g)               When required by a person’s BSP, accurate completion by the DSP of the behavioral data sheets for persons receiving day habilitation one-to-one services.

     

    1920.22           Each provider shall comply with the requirements described under Section 1908 (Reporting Requirements) of Chapter 19 of Title 29 DCMR and Section 1911 (Individual Rights) of Chapter 19 of Title 29 DCMR. Additionally, quarterly reports shall include a description of the person’s activities in the community that support community integration and inclusion.

     

    1920.23           Each provider shall comply with the requirements described under Section 1909 (Records and Confidentiality of Information) of Chapter 19 of Title 29 DCMR.

     

    1920.24           The reimbursement rate for regular day habilitation services shall be twenty-one dollars and eighty cents ($21.80) per hour. Services shall be provided for a maximum of eight (8) hours per day. The billable unit of service for regular day habilitation services shall be fifteen (15) minutes. A provider shall provide at least eight (8) minutes of service in a span of fifteen (15) continuous minutes to be able to bill a unit of service. The reimbursement rate for regular day habilitation services shall be five dollars and forty-five cents ($5.45) per billable unit.

     

    1920.25           The reimbursement rate for day habilitation one-to-one services shall be forty-one dollars and twenty-four cents ($41.24). The billable unit of service for day habilitation one-to-one services shall be fifteen (15) minutes. A provider shall provide at least eight (8) minutes of service in a span of fifteen (15) continuous minutes to be able to bill a unit of service. The reimbursement rate for day habilitation one-to-one services shall be ten dollars and thirty-one cents ($10.31) per billable unit. 

     

    1920.26           The reimbursement rate for small group day habilitation services shall be thirty-two dollars and eighty-eight cents ($32.88).  The billable unit of service for small group day habilitation shall be fifteen (15) minutes.  A provider shall provide at least eight (8) minutes of service in a span of fifteen (15) continuous minutes to be able to bill a unit of service.  The reimbursement rate for small group day habilitation services shall be eight dollars and twenty-two cents ($8.22) per billable unit.

     

    1920.27           For persons who live independently or with family and select to receive a meal, the rate is increased by seven dollars and thirty-two cents ($7.32) per day that the person receives a meal, and an additional five dollars and two cents ($5.02) per day that the person receives a meal, if that meal is delivered by a third-party vendor. 

    1920.28           Day habilitation services, small group day habilitation, and day habilitation one-to-one services shall be provided for a maximum of eight (8) hours a day, not to exceed forty (40) hours per week and two thousand eighty hours (2080) hours annually.

     

    1920.29           Day habilitation services shall not be provided concurrently with Individualized Day Supports, Companion, Supported Employment or Employment Readiness services.

     

    1920.30           No payment shall be made for care and supervision normally provided by the family or natural caregivers, residential provider, or employer.

     

    1920.31           Provisions shall be made by the day habilitation provider for persons who arrive early and depart late.

     

    1920.32           Time spent in transportation to and from the program shall not be included in the total amount of services provided per day.

     

    Section 1999, DEFINITIONS, § 1999.1,  is amended by adding the following:

     

    Behavioral Support Plan (BSP) - A plan that is a component of the ISP that outlines positive supports and strategies to help a person ameliorate and/or eliminate the negative impact of one or more challenging behaviors that have a negative impact on a person’s ability to achieve his or her goals.

     

    Day Habilitation Plan - A person-centered plan developed by the day habilitation provider, based on a person-centered planning process that takes into account the results of a functional analysis, ISP, Plan of Care and other available information which lists services and outlines preferences, interests, and measurable outcomes to enable the person to reside, work and participate in the community, and maintain the person’s health. 

     

    Direct Support Professional (DSP) - A person who works directly with persons with developmental disabilities with the aim of assisting the individual to become integrated into his or her community or the least restrictive environment.

     

    Family - Any person who is related to the person by blood, marriage, or adoption.

     

    Functional Analysis - The process of identifying a person’s specific strengths, preferences, developmental needs, and need for services by identifying the person’s present developmental level, health status,  expressed needs and desires of the person and his or her family, and environmental or other conditions that would facilitate or impede the person’s growth and development.

     

    Small Group Day Habilitation – Day habilitation services delivered in small group settings at a ratio of one-to-three for persons with higher intensity support needs in a setting not to exceed fifteen (15) people.

     

    Staffing Plan - A written document that includes the numbers and titles of staff assigned to the particular person, for a specified time period and scheduled for a given site and/or shift to successfully provide oversight and to ensure the maintenance of the health, safety and well-being of the person receiving services.

     

    Stipend – Nominal fee paid to a person for attendance and/ or participation in activities designed to achieve his or her goals, as identified in the person’s ISP.

     

    Summary of Supports and Services - A written document that lists the various supports and services to be received by a person and a component of the person’s ISP. 

     

    Support Team - A group of people providing support to a person with an intellectual/developmental disability, who have the responsibility of performing a comprehensive person-centered evaluation to support the development, implementation and monitoring of the person’s person-centered ISP and Plan of Care. 

     

Document Information

Rules:
29-1920