COMMENT DUE DATE:
March 16, 2012
February 16, 2012
Samantha Galloway, DDSD (405) 521-4489
Dena Thayer, OIRP Programs Administrator (405) 521-4326
Nancy Kelly, OIRP (405) 522-6703
APA WF 12-02
The proposed policy is Permanent . This proposal will go to the Commission meeting on
Chapter 100. DEVELOPMENTAL DISABILITIES SERVICES DIVISION
Subchapter 5. Client Services
Part 3. Service Provisions
OAC 340:100-5-35 [AMENDED]
SUMMARY:The proposed amendments to Chapter 100 Subchapter 5 amend the rule to: (1) allow for exceptions for members of the Homeward Bound Waiver; and (2) clarify the monitoring requirements for non-residential Habilitation Training Specialist Services (HTS) services.
OAC 340:100-5-35 is amended to allow for exceptions to a 40 hour limitation of HTS for members of the Homeward Bound Waiver when services are provided by a HTS residing in the same home as the service recipient; and (2) clarify the monitoring requirements for non-residential HTS service providers.
PERMANENT RULEMAKING APPROVAL IS REQUESTED.
LEGAL AUTHORITY:Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution.
OKLAHOMA DEPARTMENT OF HUMAN SERVICES
Rule Impact Statement
To:Dena Thayer, Programs Administrator
Policy Management Unit
Developmental Disabilities Services Division
Date:February 10, 2012
Re:Chapter 100. DEVELOPMENTAL DISABILITIES SERVICES DIVISION
Subchapter 5. Client Services
Part 3. Service Provisions
OAC 340:100-5-35 [AMENDED]
(Reference APA WF12-02)
Contact: Samantha Galloway 405-521-4989
A. Brief description of the purpose of the proposed rule:
Purpose.The proposed amendments to Chapter 100 Subchapter 5 amend the rule to: (1) allow for exceptions for members of the Homeward Bound Waiver; and (2) to clarify the monitoring requirements for non-residential HTS services.
Strategic Plan impact.The proposed rule achieves Oklahoma Department of Human Services (OKDHS) goals by supporting the Developmental Disabilities Services Division (DDSD) long-term goal to provide community services to Oklahoman's with developmental disabilities.
OAC 340:100-5-35 is amended to allow for exceptions to a 40 hour limitation of Habilitation Training Specialist Services (HTS) for members of the Homeward Bound Waiver when services are provided by a HTS residing in the same home as the service recipient; and (2) clarify the monitoring requirements for non-residential HTS service providers.
Reasons.The proposed revision is the result of a settlement and corrects the inadvertent omission of the Homeward Bound exception language in the rule promulgated on July 1, 2011, and clarifies the monitoring requirements for non-residential HTS services providers.
Repercussions.If the proposed rule is not implemented, the settlement agreement will be deemed invalid, and may result in further litigation.
Legal authority.Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution.
Permanent approval.Permanent rulemaking approval is requested.
B. A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities:The classes of persons most likely to be affected by the proposed rule are Oklahomans receiving services through the Homeward Bound Waiver and providers of non-residential HTS services.The affected classes of persons will bear no costs associated with implementation of the rule.
C. A description of the classes of persons who will benefit from the proposed rule:The classes of persons who will benefit are Oklahomans receiving services through the Homeward Bound Waiver and providers of non-residential HTS services.
D. A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each:The revised rule does not have a known economic impact on the affected entities. There are no fee changes associated with the revised rule.
E. The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency:The probable cost to OKDHS includes the cost of printing and distributing the rule, which is estimated to be less than $10.
F. A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule:The proposed rule does not have an economic impact on any political subdivisions, nor will the cooperation of any political subdivisions be required in implementation or enforcement of the rule.
G. A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act:There are no anticipated adverse effects on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act.
H. An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or non-regulatory methods or less intrusive methods for achieving the purpose of the proposed rule:There are no less costly or non-regulatory methods or less intrusive methods for complying with the settlement agreement.
I. A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk:Implementation of the proposed rule will satisfy a settlement agreement.
J. A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented:If the proposed rule is not implemented the settlement agreement will be deemed invalid, and may result in further litigation.
CHAPTER 100. DEVELOPMENTAL DISABILITIES SERVICES DIVISION
SUBCHAPTER 5. ADMISSION AND SAFEGUARDS
Part 3. SERVICE PROVISIONS
340:100-5-35 Non-Residential Habilitation Training Specialist (HTS) services
(a) Applicability.Habilitation Training Specialist (HTS) services per OAC 317:30-5-482 and authorized per OAC 317:40-5-110 or
111 OAC 317:40-5-111 and OAC 340:100-3-33 .This policy and applies to nonresidential HTS services provided to service recipients not receiving community residential or group home services per OAC 340:100-5-22.1 or OAC 340:100-6.
(b) General information.
(1) Non-residential HTS services are authorized:
(A) as a result of needs identified by the team and informed selection by the service recipient;
(B) only during periods when staff are engaged in purposeful activity
which that directly or indirectly benefits the service recipient;
(C) when directed toward the development or maintenance of a skill in order to achieve a specifically stated outcome; and
(D) when the service provided is not a function that the parent would provide for the individual without charge as a matter of course in the relationship among members of the nuclear family when the member resides in a family home.
(2) Non-residential HTS services are not authorized when a service recipient is in need of:
(A) sleep time supervision; or
(B) assistance responding to emergencies, in which
cases they must select case a residential alternative per OAC 317:40-1-2 must be selected, unless unpaid natural supports are available to meet these needs and identified in the Individual Plan (Plan).
(3) Non-residential HTS services are not authorized for:
(A) services provided in the home of the HTS, unless the service recipient and the HTS reside in the same home;
(B) employment supports
which that are provided per OAC 317:40-7;
(C) respite services provided per OAC 317:30-5-517;
(D) homemaker services provided per OAC 317:30-5-537;
(E) adult day services provided per OAC 317:40-5-113; or
(F) child care services.
(4) In accordance with OAC 340:100-3-33.1, services must be provided in the most cost effective manner.When the need for HTS services is expected to continue to exceed an average of nine hours daily, cost effective community residential services must be considered and requested per OAC 317:40-1-2.For adults, continuation of non-residential services in excess of nine hours per day for more than one plan of care year will not be authorized except:
(A) when needed for members who receive services through the Homeward Bound Waiver;
(B) when determined by the division administrator or designee to be the most cost effective option; or
(C) as a transition period of 120 days or less to allow for identification of and transition to a cost effective residential option.Members who do not wish to receive residential services will be assisted to identify options that meet their needs within an average of nine hours daily.
(5) Non-residential HTS providers may not perform any job duties associated with other employment, including on call duties
, at the same time they are providing HTS services.
(6) Non-residential HTS services are limited to no more than 40 hours per week when the HTS resides in the same home as the service recipient.If additional hours of service are needed, they must be provided by someone living outside the home.Exceptions may be authorized when needed for service recipients who receive services through the Homeward Bound Waiver.
(7) When the service recipient also receives Homemaker services or is out of the home for school, work, adult day services, or other non-HTS supported activities, the total number of hours of non-residential HTS, Homemaker, and hours away from the home cannot exceed 12 hours per day, unless an exception is granted per OAC 317:40-5-110.
(c) Service location.
(1) Non-residential HTS services are provided in:
(A) the service recipient’s home; or
(B) the community.
(2) Non-residential HTS services are not provided in:
(A) a school;
(B) a hospital;
(C) a nursing facility;
ICF/MR intermediate care facility for persons with intellectual disabilities (ICF/ID);
(E) an unlicensed facility-based program;
(F) a private home except the service recipient’s home or the home of a relative, unless the home has been approved per OAC 317:40-5-40; or
(G) the service recipient’s employment setting or any other employment setting.
(d) Backup plan.Prior to service delivery, an emergency backup plan must be developed and specify how the service recipient's needs will be met if paid staff are unavailable.The emergency backup plan is included in the
Individual Plan (Plan ).
(e) Service requirements.
(1) The provider:
(A) implements the service recipient’s Plan;
(B) promotes community inclusion;
(C) promotes the service recipient’s health and welfare, increased independence,
and self-sufficiency; and
(D) cooperates in securing alternative services while continuing to provide services when the service recipient, legal guardian, or provider wishes to discontinue services until the Team confirms all essential services are in place.
(2) The provider develops and maintains written policies and procedures that are consistent with Oklahoma Department of Human Services (OKDHS) rules and govern all aspects of service provision, with the exception of services provided per OAC 317:40-9-1.
(A) Provider agency policies are made available to each service recipient, service recipient's parent(s), legal guardian, advocate, provider agency staff, and OKDHS.
(B) Provider agency policies and procedures include, but are not limited to:
(i) service recipient rights protection;
(ii) services provided;
(iii) admission and discharge criteria;
(iv) grievance procedures;
(v) prevention and reporting of abuse, neglect, and exploitation;
(vii) emergency management;
(viii) fees paid by service recipient;
(ix) health and safety precautions;
(x) safeguarding service recipient funds;
(xi) medication administration; and
(xii) incident reporting.
(3) The provider agency designates one person who, in the absence of the agency administrator, is responsible for the administration of the agency and is empowered to act on behalf of the provider agency, with the exception of services provided per OAC 317:40-9-1.
(4) The provider agency is responsible for recruitment, screening, training, and supervision of staff or volunteers providing direct services, and ensuring direct support staff:
(A) are not supervised by a relative or person living in the staff's home.A relative includes wife, husband, children, parents, stepparents, parents-in-law, grandchildren, grandparents, brothers, sisters, stepchildren, brothers-in-law, sisters-in-law, sons-in-law, daughters-in-law, aunts, uncles, nieces, nephews, first cousins or any such person with whom the employee shares a foster relationship;
(B) who provide backup services are available and have received training per OAC 340:100-3-38;
(C) are at least 18 years of age;
(D) are present as specified in the Plan and as authorized by the service recipient’s Plan of Care;
(E) are physically able and mentally alert to carry out the job duties
of the job;
(F) implement and follow the service recipient's Plan; and
(G) do not take the service recipient to visit staff's home, unless the Team has provided advance written approval
in advance of any visit with the purpose specified in the Plan.
(5) The provider agency ensures supervision, guidance, and oversight of all aspects of programming associated with receipt of non-residential HTS supports.
Program Coordination Staff program coordination staff (PCS) must:
(i) ensure staff are familiar with
the Plan requirements of the Plan;
(ii) make supervisory visits to the service site.The PCS makes a minimum of one monitoring visit per:
based on the need for supervision of staff and oversight of the program when a service recipient receives an average of 30 or more hours of HTS weekly; or
(II) quarter based on calendar year quarters, when a service recipient receives an average of 29 or fewer hours of HTS weekly;
(iii) supervise direct contact staff to promote achievement of Plan outcomes
in the Plan;
(iv) ensure staffing levels meet the requirements of the service recipient’s Plan, with staff trained per OAC 340:100-3-38;
(v) ensure records are maintained
according to DDSD community records per OAC 340:100-3-40;
(vi) assist the Developmental Disabilities Services Division (DDSD) case manager as requested to prepare for and implement the Plan and its revisions per OAC 340:100-5-50 through OAC 340:100-5-58;
(vii) ensure applicable OKDHS and Oklahoma Health Care Authority (OHCA) rules are followed;
(viii) complete necessary training per OAC 340:100-3-38; and
(ix) have a minimum of four years of any combination of college level education or full-time equivalent experience in serving persons with disabilities, or full-time equivalent experience in a supervisory position, unless this requirement is waived in writing by the DDSD director or designee.
(B) Provider agencies assign PCS caseloads per OAC 340:100-5-22.1.
, when assisting a service recipient with bathing or showering, must ensure the water temperature is safe and comfortable for the service recipient.The requirements of this paragraph are enforced even when an anti-scald device is used.The staff:
(A) tests the water temperature by touch or with a thermometer designed to test hot liquids, before the service recipient enters the water.The water must be determined safe and comfortable for the service recipient, not merely comfortable for the staff.
(B) is trained by his or her employer in the unique needs of each service recipient, including tolerance to water temperature and bathing or showering needs; and
(C) does not leave a service recipient who is unable to attend to safety considerations, alone in the bath or shower.