COMMENT DUE DATE:

March 19, 2015

DATE:

February 9, 2015

Ray Hester, DDS (405) 522-8094

Dena Thayer, OIRP Programs Administrator (405) 521-4326

RE:

APA WF 14-03

It is very important that you provide your comments regarding the DRAFT COPY of policy by the comment due date. Comments are directed to *STO.LegalServices.Policy@okdhs.org.

The proposed policy is Permanent .

SUBJECT:CHAPTER100. DEVELOPMENTAL DISABILITIES SERVICES

Subchapter 1. General Provisions

OAC 340:100-1-2. [AMENDED]

Subchapter 3. Administration

Part 1. General Administration

OAC 340:100-3-5.1 [AMENDED]

Part 3. Operations

OAC 340:100-3-25 [AMENDED]

OAC 340:100-3-27.2 [AMENDED]

OAC 340:100-3-27.5 [AMENDED]

OAC 340:100-3-34 [AMENDED]

OAC 340:100-3-39 [AMENDED]

Subchapter 5. Client Services

Part 3. Service Provisions

OAC 340:100-5-20 [AMENDED]

OAC 340:100-5-22.2 [AMENDED]

OAC 340:100-5-26 [AMENDED]

Subchapter 6. Group Home Regulations

Part 11. Program Standards

OAC 340:100-6-55 [AMENDED]

(Reference WF 14-03)

SUMMARY:The proposed revisions are to update and clarify DDS rules in accordance with state and federal laws and regulations, and to provide staff with clear guidance in implementation procedures to:(1) provide improved services that meet or exceed customer expectations; (2) address needs identified in the DDS annual review of rules; and (3) update legal authorities and citations.

OAC 340:100-1-2 is amended to clarify the meaning of certain terms used in DDS rules such as:(1) ICF/MR was revised to ICF/IID which reflects the current use of the term; (2) a definition of individual provider was added; (3) intellectual disability was defined and mental retardation (MR) was removed from the definitions; (4) the definition of intrusive procedure was clarified to remove the use of oral medications as an intrusive procedure; (5) the definition of mechanical restraint was added; (6) a definition of punishment was added; (7) a definition of punitive was added; (8) QMRP was revised to QIDP which reflects the current use of the term; and (9) the definition of restrictive procedure was clarified.

OAC 340:100-3-5.1 is amended to clarify nepotism prohibitions.

OAC 340:100-3-25 is amended to remove references to the Commission for Human Services as the commission was dissolved by a vote of the people in November 2012.

OAC 340:100-3-27.2 is amended to:(1) provide a time line for appeal of decisions of the Performance Review Committee; and (2) clarify the application of sanctions for deficiencies in pre-employment screening requirements of criminal background checks and community services worker registry checks.

OAC 340:100-3-27.5 is amended to increase the amount a provider agency may receive per fiscal year for the delivery of supports funded through DHS or Home and Community-Based Services Waivers and not be required to conduct an independent financial audit.

OAC 340:100-3-34 is amended to clarify time frames for:(1) incident report notification requirements; and (2) case management staff to review incident reports and document on the action taken portion of the report.

OAC 340:100-3-39 is amended to clarify documentation provider agencies submit to DDS when requesting a waiver to hire an individual with a criminal background.

340:100-5-20 is amended to clarify:(1) eligibility requirements for caregivers seeking to access respite vouchers and to assure services are not duplicated; and (2) the procedures for the issuance of respite vouchers.

OAC 340:100-5-22.2 is amended to include that assisted living provider agencies ensure individuals have identified back up plans should the home become uninhabitable.

OAC 340:100-5-26 is amended to promulgate rules for use of Form 06HM073E, Referral Form for Psychiatric Treatment or Examination.

OAC 340:100-6-55 is amended to clarify nepotism prohibitions.

PERMANENT APPROVAL:Permanent rulemaking is requested.

LEGAL AUTHORITY:Director of Human Services; Section 162 of Title 56 of the Oklahoma Statues (56 O.S. § 162); 10 O.S. §§ 1408, 1411.2, 1412; 30 O.S. § 3-104; 56 O.S. §§ 1020, 1025.1, 1025.2, 1025.3; and Sections 435.1010, 440.180, 441.302, and 483.430 of Title 42 of the Code of Federal Regulations.

Rule Impact Statement

To:Programs administrator

Office of Intergovernmental Relations and Policy

From:Joanne Goin, Director

Developmental Disabilities Services

Date:January 16, 2015

Re:CHAPTER100. DEVELOPMENTAL DISABILITIES SERVICES

Subchapter 1. General Provisions

OAC 340:100-1-2. [AMENDED]

Subchapter 3. Administration

Part 1. General Administration

OAC 340:100-3-5.1 [AMENDED]

Part 3. Operations

OAC 340:100-3-25 [AMENDED]

OAC 340:100-3-27.2 [AMENDED]

OAC 340:100-3-27.5 [AMENDED]

OAC 340:100-3-34 [AMENDED]

OAC 340:100-3-39 [AMENDED]

Subchapter 5. Client Services

Part 3. Service Provisions

OAC 340:100-5-20 [AMENDED]

OAC 340:100-5-22.2 [AMENDED]

OAC 340:100-5-26 [AMENDED]

Subchapter 6. Group Home Regulations

Part 11. Program Standards

OAC 340:100-6-55 [AMENDED]

(Reference APA WF 14-03)

Contact:Ray Hester, Programs Manager 405-522-8094

A.Brief description of the purpose of the proposed rule:

The proposed revisions to Chapter 100 Subchapter 1, 3, 5, and 6 amend rules to implement rule changes recommended during the annual Developmental Disabilities Services (DDS) rule review process.

Strategic Plan Impact. The proposed amendments support the Department of Human Services (DHS) DDS goals of improving the quality of life of vulnerable Oklahomans by increasing people's ability to lead safer, healthier, more independent and productive lives and providing services that support, strengthen and protect vulnerable Oklahomans.The proposed rules comply with federal requirements, and positions DDS to improve services.

Substantive changes.

OAC 340:100-1-2 is amended to clarify the meaning of certain terms used in DDS rules such as:(1) ICF/MR was revised to ICF/IID which reflects the current use of the term; (2) a definition of individual provider was added; (3) intellectual disability was defined and MR was removed from the definitions; (4) the definition of intrusive procedure was clarified to remove the use of oral medications as an intrusive procedure; (5) the definition of mechanical restraint was added; (6) a definition of punishment was added; (7) a definition of punitive was added; (8) QMRP was revised to QIDP which reflects the current use of the term; and (9) the definition of restrictive procedure was clarified.

OAC 340:100-3-5.1 is amended to clarify nepotism prohibitions.

OAC 340:100-3-25 is amended to remove references to the Commission for Human Services as the commission was dissolved by a vote of the people in November 2012.

OAC 340:100-3-39 is amended to clarify documentation provider agencies submit to DDS when requesting a waiver to hire an individual with a criminal background.

OAC 340:100-5-22.2 is amended to include that assisted living provider agencies ensure individuals have identified back up plans should the home become uninhabitable.

OAC 340:100-5-26 is amended to promulgate rules for use of Form 06HM073E, Referral Form for Psychiatric Treatment or Examination.

OAC 340:100-6-55 is amended to clarify nepotism prohibitions.

Reasons. The proposed revisions are to update and clarify DDS rules in accordance with state and federal laws and regulations, and to provide staff with clear guidance in implementation procedures to:(1) provide improved services that meet or exceed customer expectations; (2) address needs identified in the DDS annual review of rules; and (3) update legal authorities and citations.

Repercussions.The proposed rules contribute to the health and safety of vulnerable Oklahomans.

Legal authority.Director of Human Services; Section 162 of Title 56 of the Oklahoma Statues (56 O.S. § 162); 10 O.S. §§ 1408, 1411.2, 1412; 30 O.S. § 3-104; 56 O.S. §§ 1020, 1025.1, 1025.2, 1025.3; and Sections 435.1010, 440.180, 441.302, and 483.430 of Title 42 of the Code of Federal Regulations.

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 affected by the proposed rule changes are individuals receiving DDS, who bear no costs associated with the implementation of the rule.

C.A description of the classes of persons who will benefit from the proposed rule: The classes of persons who benefit are individuals receiving Developmental Disabilities 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 fee change:No economic impact on individuals who receive Developmental Disabilities Services.

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 DHS cost includes the cost of printing and distributing the rules, estimated to be less than $20.

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 rules do not have an impact on any political subdivisions or require their cooperation in enforcing the rules.

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:The proposed rules do not have an adverse effect 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 nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule:The proposed rules do not increase compliance costs.There are no less costly or non-regulatory methods or less intrusive methods.

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:The proposed revisions bring the rules into compliance with state and federal law, thereby increasing program effectiveness positively impacting the health, safety, and well-being of affected persons.

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 revisions are not implemented, rules will not be in compliance with federal and state law.The proposals are intended to comply with federal and state law, thereby contributing to the health, safety and well-being of vulnerable Oklahomans.

K.The date the rule impact statement was prepared and, if modified, the date modified: Prepared 5/02/2014; modified January 16, 2015.

SUBCHAPTER 1. GENERAL PROVISIONS

340:100-1-2. Definitions

Revised ~~6-1-10~~9-1-15

The following words and terms, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise:

"Active treatment" means aggressive and consistent implementation of a program of specialized and generic training, treatment, and health services directed toward the service recipient's acquisition of skills necessary, in order to function as independently as possible.

"Advisory Committee on Services to Persons with Developmental Disabilities" means the committee appointed by the Director of ~~Oklahoma Department of~~ Human Services ~~(OKDHS)~~ (Director) to review and make recommendations on rules and programs of Developmental Disabilities Services ~~Division (DDSD)~~ (DDS) ~~to the Director~~ ~~and Oklahoma Commission for Human Services~~.

"Advocate" means a person who speaks for or on behalf of a service recipient, especially when individual rights or interests are at risk.

"Alternative appropriate setting" means a setting, other than a nursing facility, in which needed habilitation services are provided, including an intermediate care facility for ~~the mentally retarded(ICF/MR)~~ individuals with intellectual disabilities (ICF/IID) or Home and Community-Based Services (HCBS).

"Assessment" means one or more processes ~~that are~~ used to obtain information about a service recipient, including his or her condition, personal goals and preferences, functional limitations, health status, or other factors relevant to the authorization or provision of services.Assessment information supports the determination that an individual requires services as well as the development of the Individual Plan.

"Back-up-plan" means provision for alternative arrangements for the delivery of services ~~that are~~ critical to the service recipient's well-being in the event the provider responsible for furnishing the service fails, is unable to deliver the services, or the home where the person lives is no longer available.

"Capacity to give informed consent" means the ability to make and express voluntary decisions, given correct and sufficient information about the nature, purpose, risks, and benefits of a proposed service or action, and ~~has~~ was not ~~been~~ adjudicated incapacitated by a court for purposes of the decision.

"Case manager" means an ~~OKDHS DDSD~~ Oklahoma Department of Human Services (DHS) DDS professional who is responsible for assisting a service recipient ~~gain~~ in gaining access to needed medical, social, educational, or other services per Oklahoma Administrative Code (OAC) 317:30-5-1010.1.Case management activities may include assessment, plan development, plan implementation and monitoring, as well as assistance in accessing services and other resources.

"Challenging behavior" means a behavior that, by its frequency or degree of intensity:

(A) places a service recipient's physical safety, environment, relationships, or participation in the community at risk; or

(B) creates a risk of involvement in civil or criminal processes.

"Client Contact Manager (CCM)" means a computer software system used by ~~DDSD~~ DDS case managers to collect and monitor case management data for ~~all~~ service recipients.

"Community Integrated Employment (CIE)" means a service program that provides placement, job training, and short-term or long-term supports to assist service recipients in achieving and maintaining employment within the community.

"Confidential information" means:

(A) information related to a service recipient generated by ~~OKDHS~~ DHS or contract providers; and

(B) observations of and discussions concerning service recipients, their families, guardians, or friends.

"Consumer" means a person who is a direct recipient or beneficiary of service planning and delivery and is synonymous with client, service recipient, individual, and member, in Oklahoma Health Care Authority (OHCA) policy.

"Contract provider or agency" means an agency ~~or person~~ rendering services to persons with developmental disabilities under a contractual agreement with ~~OKDHS~~ DHS or ~~Oklahoma Health Care Authority (~~OHCA).

"Convalescent care" means nursing facility care:

(A) following a person's release from an acute care hospital that is part of a medically prescribed period of recovery; and

(B) ~~that is~~ not expected to exceed an established number of days.

~~"DDSD"~~ "DDS" means DHS Developmental Disabilities Services ~~Division of~~ ~~OKDHS~~.

"Developmental disability" means a severe chronic disability of a person that:

(A) is attributable to a mental or physical impairment or combination of mental and physical impairments;

(B) is manifested before the person attains ~~age~~ 22 years of age;

(D) results in substantial functional limitations in three or more of the areas of major life activity that are:

(i) self-care;

(ii) receptive and expressive language;

(iii) learning;

(iv) mobility;

(v) self-direction;

(vi) capacity for independent living; and

(vii) economic self-sufficiency; and

(E) reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated.

"Family homes" means residences maintained by persons biologically related to a person receiving services.

"Family training" means activities designed to equip family members, significant others, and persons with developmental disabilities with knowledge and skills, that allow a family member with developmental disabilities to remain in, or return to, his or her home.

"Goals" means long-term categorical statements that describe what the service recipient is expected to achieve in a given time frame and are used synonymously with outcomes.

"Guardian" means a person appointed by a court as general or limited guardian of the person, general or limited guardian of property, special guardian, or temporary guardian as provided by state statutes to ensure the essential requirements for the health and safety of the ward are met, to manage the estate or financial resources of the ward, or both.

"Guardian ad litem" means a person appointed by a court to represent the interests of a person in a legal action.

"Habilitation services" means goal-directed services and therapy activities:

(A) designed to assist a service recipient to acquire a variety of skills, including self-help, socialization, adaptive skills, and ~~prevent~~ prevention of loss of skills; and

(B) based on the service recipient's capacity to increase the level of physical, mental, and social functioning.

."Human Rights Committee" means the committee charged with the responsibility for external monitoring and advocacy to address protection of individual rights.

~~"ICF/MR"~~ "ICF/IID" means an intermediate care facility for ~~the mentally retarded~~ individuals with intellectual disabilities that is:

(A) a residential facility licensed in accordance with Oklahoma law; and

(B) certified by the federal government as a provider of Medicaid services to persons who have ~~mental retardation (MR)~~ intellectual disabilities (ID) or related conditions.

"Incapacitated" means a determination made by the court that a person is unable to provide for and make decisions for the person's own needs and safety.

"Individual Plan (Plan)" means a written document developed by the Personal Support Team (Team) based upon assessment of need.The Plan:

(A) specifies outcomes ~~being~~ pursued on behalf of the service recipient, steps ~~being~~ taken to achieve outcomes~~, and all services and supports necessary to achieve outcomes~~; and

(B) is a single, comprehensive plan that encompasses all relevant components of the service recipient's life.Various aspects of the Plan are assigned to those persons or agencies designated by the Team to provide services.

"Individual provider" means a person rendering services to persons with intellectual disabilities under a contractual agreement with DHS or OHCA.

"Intake" means the process by which a person gains access to ~~DDSD~~ DDS services.Intake staff:

(A) provides answers to specific service inquiries;

(B) assists in the identification of needs in times of crisis;

(D) provides assistance as necessary in service application; and

(E) facilitates eligibility determination.

"Intellectual Disability (ID)" means a person, per Section 1408 of Title 10 of the Oklahoma Statutes who:

(A) has significantly sub average functioning, an intelligence quotient (IQ) of less than 70 that manifests before 18 years of age; and

(B) exists concurrently with related limitations in two or more of the applicable adaptive skill areas that are:

(i) communication;

(ii) self-care;

(iii) home living;

(iv) social skills;

(v) use of community resources;

(vi) self-direction;

(vii) health and safety;

(viii) functional academics;

(ix) leisure; and

(x) work.

"Integrated employment site" means a location or activity that provides regular interaction for service recipients with persons without disabilities, excluding service providers, to the same extent that a worker without disabilities, in a comparable position, interacts with others.

"Intrusive procedure" means a procedure that impinges upon the bodily integrity of the service recipient, per OAC 340:100-5-57 and OAC 340:100-5-58.Intrusive procedures include, but are not limited to:

(A) ~~use of injections or oral medications administered for the sole purpose of controlling behavior~~ p.r.n. psychotropic medications used for behavioral control;

(B) physical management or physical restraint; and

"Job coach" means a person who holds ~~an OKDHS~~ a DHS approved job coach certification and provides ongoing support services to service recipients in supported employment placements.Services directly support the service recipient's work activity, including:

(A) marketing and job development;

(B) job and work site assessment;

(D) job matching procedures;

(E) developing co-worker supports; and

(F) teaching job skills.

"Least restrictive" means services and supports that maximize the service recipient's independence and freedom and are provided in a manner that is the least restrictive and intrusive possible to meet the service recipient's needs.

"Long-term resident" means ~~any~~ a resident of a nursing facility with ~~mental retardation~~ ID or related conditions who has continuously resided in a nursing facility for at least 30 consecutive months prior to the date of the first preadmission screening and resident review (PASRR) disposition.

"Mechanical Restraint" means any device used to hinder, forcibly confine, or control an individual's freedom of bodily movement.

~~"Mental retardation (MR)"~~ ~~means a condition, per Diagnostic and Statistical Manual of Mental Disorders (DSM), that:~~

~~(A) refers to substantial limitations in present functioning;~~

~~(B) manifests before age 18; and~~

~~(C) is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the applicable adaptive skill areas of:~~

~~(i) communication;~~

~~(ii) self-care;~~

~~(iii) home living;~~

~~(iv) social skills;~~

~~(v) use of community resources;~~

~~(vi) self-direction;~~

~~(vii) health and safety;~~

~~(viii) functional academics;~~

~~(ix) leisure; and~~

~~(x) work.~~

"Monitoring" means the ongoing observation and analysis of the provision of services to determine whether ~~they~~ the services are furnished ~~according to the plan~~ per the Plan and effectively meet the service recipient's needs, including whether services adequately protect ~~their~~ his or her health and welfare.Monitoring activities may include, but are not limited to, telephone contact, observations, and interviewing the service recipient, family, or service provider.

"Natural supports" means assistance provided by a person, such as a service recipient's family, friend, co-worker, or neighbor, or member of a service recipient's club, church, or interest group, or others in the service recipient's community, who:

(A) is are not paid specifically to provide assistance to the service recipient; and

(B) ~~provides~~ provide voluntary assistance ~~voluntarily~~.

"Non-prescription medication" means a pharmacological drug ~~that is~~ sold without a prescription, prepackaged for use by the service recipient, and labeled ~~in accordance with requirements of~~ per state and federal statutes and regulations.

"Nursing facility" means an Oklahoma Medicaid-certified institution providing skilled nursing and related services, excluding a facility certified as ~~ICF/MR~~ ICF/IID.

"Personal Support Team (Team)" means the participants in the service recipient's assessment and planning process and includes:

(A) the service recipient; and

(B) service recipient's:

(i) case manager;

(ii) legal guardian; and

(iii) when applicable, advocate, who may be a parent, family member, friend, or ~~another~~ other person who knows the service recipient well; and

(C) others, including service providers, whose participation is necessary to achieve the ~~outcomes desired by the~~ service ~~recipient~~ recipient's, desired outcomes.

"Physical management" means an intrusive procedure involving any physical guidance of a service recipient to overcome resistance or a brief upper body hold to ensure safety per OAC 340:100-5-57.

"Physical restraint" means an intrusive procedure in which the service recipient is physically held to restrict movement.

~~"Physical Status Review"~~ means Form 06HM007E, Physical Status Review, that is a written assessment identifying a service recipient's ability to attend to activities of daily living based on past and present health history and current treatment modalities.Completed Form 06HM007E assists the service recipient and Team in identifying the:

~~(A) service recipient's health care level;~~

~~(B) staff training requirements;~~

~~(C) health care coordination needs; and~~

~~(D) in-depth assessment needs~~.

"Plan of Care (POC)" means a summary listing of services requested as a result of needs identified within the Plan that indicates the amount, duration, and cost of each service recommended for funding through ~~DDSD~~ DDS HCBS Waivers.

"Preadmission screening and resident review (PASRR)" means the process of evaluating, reviewing, and establishing the need for nursing facility services in contrast to other services for persons with MR ID and related conditions.

"Prescription medication" means any drug ordered by a practitioner of medicine, such as dentistry, osteopathy, optometry, or podiatry, who is licensed by law to prescribe a drug, intended to be filled, compounded, or dispensed by a pharmacist.

"p.r.n." means to take or administer a medication as needed.

"Program coordinator" means a person employed by a ~~DDSD~~ DDS residential or group home contract provider agency ~~who is~~ responsible for the supervision, coordination, and monitoring of services provided by the contract agency to a service recipient.

"Program manager" means a person employed by a ~~DDSD~~ DDS employment contract provider agency ~~who is~~ responsible for the supervision, coordination, and monitoring of services provided by the contract agency to a service recipient.

"Psychotropic medication" means a pharmacological drug used to treat a mental disorder, or any drug prescribed to stabilize or improve mood, mental status, or behavior.

"Punishment" means the intentional application of something undesirable or unpleasant or the removal of something desirable or pleasant in response to a behavior deemed unacceptable.

"Punitive" means inflicting or involving punishment.

"~~QMRP~~" "QIDP" means a qualified ~~mental retardation~~ ID professional who meets ~~ICF/MR~~ ICF/IID regulations ~~specified in~~ per Section ~~483.~~42 483.430 of Title 42 of the Code of Federal Regulations ~~(42 CFR § 483.4230)~~ (42 CFR § 483.430).A ~~QMRP~~ QIDP must have a baccalaureate degree in a human services field, in addition to one year of experience serving persons with MR ID.

"Related condition" means a severe chronic disability, per ~~42 CFR § 435.1009~~ 42 CFR § 435.1010 that:

(A) is attributable to:

(i) cerebral palsy;

(ii) epilepsy; or

(iii) ~~any~~ other condition~~, including autism.Any other condition excludes~~ except mental illness (MI) that is closely related to MR ID as it results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with MR ID and requires treatment or services similar to those required for persons with MR ID;

(B) is manifested before the person reaches ~~age 21~~ 22 years of age;

(D) results in substantial functional limitations in three or more areas of major life activity, including:

(i) self-care;

(ii) understanding and use of language;

(iii) learning;

(iv) mobility;

(v) self-direction; and

(vi) independent living.

"Restrictive procedure" or "restriction" means a procedure that results in the limitation of the service recipient's rights, per OAC 340:100-5-57 and OAC 340:100-5-58, and includes:

(A) limiting communication or association with others;

(B) any limitation of access to:

(i) leisure activities;

(ii) the service recipient's own money or, personal property, or items purchased with the individual’s money; and

(iii) ~~goods or services beyond normal budgetary considerations~~ food or beverages;

(D) ~~any direct observation procedures, specified as a result of challenging behavior, such as continuous one-to-one staffing~~ visual or electronic supervision during times or places that would otherwise be considered private; or

(E) the use of a response cost procedure that is the removal of a reinforcer valued by the individual as a consequence of a behavior with the intent of reducing the frequency of the behavior.

"Sheltered employment" means a service that:

(A) assists service recipients toward achieving their vocational potential through a controlled work environment;

(B) provides worker reimbursement in accordance with individual production and Fair Labor Standards Act (FLSA); and

"Sheltered workshop" means a facility that contracts with ~~DDSD~~ DDS to provide employment training and sheltered employment services for workers with disabilities.

"Short-term resident" means any resident with MR ID or related conditions who ~~has~~ resided in a nursing facility for less than 30 months prior to the date of the first PASRR disposition.

"Specialized services" means individualized services specified in PASRR evaluations completed by ~~DDSD~~ DDS that, combined with services provided by the nursing facility or other service providers, results in a treatment regimen leading to the continued and ongoing enhancement of independence.

"Supplemental Security Income (SSI)" means a federal income subsidy program administered by Social Security Administration.

"Supported employment" means competitive work in an integrated work setting with ongoing support services for service recipients with severe disabilities for whom competitive employment has not traditionally occurred or has been interrupted or intermittent as a result of severe disabilities.

"Terminal illness" means, as certified by a physician, a person ~~has~~ with a medical prognosis of life expectancy of six months or less, if when the illness runs its natural course.

"Transition" means the planned movement of a service recipient from one service setting to another, occurring as a result of a Team recommendation and informed consent of the service recipient.

"Treatment team for specialized services" means the team whose purpose is to develop a prescribed plan of specialized services for each service recipient.The team:

(A) is composed of the service recipient, guardian or advocate, nursing home representative, and other professionals and paraprofessionals as needed to develop a comprehensive plan of services; and

(B) may include a psychologist, physical therapist, speech pathologist, physician, and nurse's aide among others.

"Vocational assessment" means the employment service evaluation, whether standardized procedures are employed, that:

(A) identifies unique preferences, strengths, and needs of the service recipient;

(B) evaluates work skills and work behaviors;

(D) incorporates information that addresses the service recipient's:

(i) medical;

(ii) physical;

(iii) psychological;

(iv) social;

(v) cultural;

(vi) educational goals and objectives; and

(vii) present and future employment options.

"Volunteer guardian" means a person unrelated to the service recipient who:

(A) serves as guardian for the service recipient and is trained and certified by the volunteer guardianship agency; and

(B) is appointed by and responsible to the court to ensure essential requirements for the health and safety of the service recipient are met.

"Ward" means a person for whom a guardian is appointed by the court.

SUBCHAPTER 3. ADMINISTRATION

PART 1. GENERAL ADMINISTRATION

340:100-3-5.1. Volunteer guardians and advocates

Revised ~~7-1-13~~9-1-15

(a) Purpose.Developmental Disabilities Services ~~Division (DDSD)~~ (DDS) contracts with an agency to maintain a system to recruit, screen, match, monitor, and support volunteer guardians and advocates for eligible service recipients.To be eligible, the service recipient must:

(1) be assigned a ~~DDSD~~ DDS case manager;

(2) have been determined through the capacity assessment process, per Oklahoma Administrative Code (OAC) 340:100-3-5, to need a guardian or volunteer advocate; and

(3) if volunteer guardianship is recommended; have no appropriate relative willing to serve as guardian.

(b) ~~DDSD~~ DDS responsibilities.

(1) When the need for a guardian or advocate is determined through the capacity assessment process, per OAC 340:100-3-5, the ~~DDSD~~ DDS case manager forwards Form 06MP032E, Capacity Assessment, with a recommendation for a volunteer guardian or advocate to the ~~DDSD~~ DDS case management supervisor.If When volunteer guardianship is recommended, documentation of attempts made to locate a guardian, among those who are eligible per OAC 340:100-3-5 must be included.

(2) The ~~DDSD~~ DDS case management supervisor reviews the documents, and if approved, forwards the documents to the guardianship coordinator.

(3) The guardianship coordinator reviews Form 06MP032E and, if approved, makes a referral to the volunteer guardianship agency to initiate the process to recruit a volunteer guardian or advocate.

(c) Volunteer guardianship eligibility requirements.In addition to requirements per OAC 340:100-3-5, eligibility criteria for volunteer guardians listed in subsections (1) through (6) apply.

(1) A corporate officer, member of the board of directors, owner, operator, administrator, or employee of a facility subject to provisions of Section 1-1901 et seq. of Title 63 of the Oklahoma Statutes (63 O.S. § 1-1901 et seq.) or 10 O.S. § 1430.1 et seq., or other ~~DDSD~~ DDS providers are ineligible to be appointed volunteer guardian of a person receiving services from that provider.

(A) An immediate family member, ~~spouse, parent, sibling, or adult child~~ such as a wife, husband, brother, sister, biological or adoptive child, biological or adoptive parent, stepparent, stepchild, adult biological or stepchild, of an ineligible person cannot serve as a volunteer guardian.

(B) An extended family member, such as a parent-in-law, grandchild, grandparent, brother-in-law, sister-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, or first cousin, of an ineligible person cannot serve as a volunteer guardian when there is evidence that financial interdependence exists.

(2) ~~Employees of DDSD~~ DDS employees cannot serve as volunteer guardians.

(A) An immediate family member ~~spouse, parent, sibling, or adult child~~ , including a wife, husband, brother, sister, biological or adoptive child, biological or adoptive parent, stepparent, stepchild, adult biological or stepchild, of the ~~DDSD~~ DDS employee cannot serve as a volunteer guardian~~, when the employee is a member of the service recipient's Personal Support Team (Team)~~.

(B) An extended family member including a parent-in-law, grandchild, grandparent, stepchild, brother-in- law, sister-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, or first cousin, of the ~~DDSD~~ DDS employee cannot serve as a volunteer ~~when there is evidence that financial interdependence exists, and the employee is a member of the service recipient's Team~~.

(3) Any exceptions to the selection of a volunteer guardian, per OAC 340:100-3-5.1(c)(1) and (2) must be approved by the ~~DDSD~~ DDS programs manager for guardianship.

(4) Employees of Oklahoma Department of Human Services ~~(OKDHS)~~ (DHS) cannot serve as volunteer guardians for residents of the Northern Oklahoma Resource Center of Enid (NORCE), the Southern Oklahoma Resource Center (SORC), or the Robert M. Greer Center (Greer), per 10 O.S. § 1415.

(5) Potential guardians must:

(A) consent to a background check per OAC 340:100-3-39 and ~~OKDHS~~ a DHS Community Services Worker Registry check;

(B) be willing and able to fulfill guardian responsibilities;

(D) approved by the Personal Support Team (Team).

(6) A volunteer guardian:

(A) supports philosophies and values consistent with the ~~DDSD~~ DDS mission statement per OAC 340:100-1-3.1; and

(B) may not act as a volunteer advocate or guardian for more than two service recipients unless approved in advance and in writing by the ~~DDSD~~ DDS programs manager for guardianship.

(d) Volunteer advocate eligibility requirements.~~DDSD~~ DDS supports the recruitment of volunteers from outside the service delivery system to avoid potential conflicts of interest.

(1) Non-~~DDSD OKDHS~~ DHS DDS employees, contract providers, and employees of contract providers may serve as volunteer advocates when:

(A) an ongoing relationship exists with the service recipient; and

(B) they are not providing direct services to the service recipient and are not employed by a provider agency or ~~OKDHS division~~ DHS program that provides services to the service recipient; and

(2) ~~DDSD~~ DDS employees may not serve as volunteer advocates.

(3) Any exceptions to the selection of a volunteer advocate, per OAC 340:100-3-5.1 must be approved in advance and in writing by the ~~DDSD~~ DDS programs manager for guardianship.

(e) Volunteer guardian responsibilities.Volunteer guardian responsibilities are outlined per OAC 340:100-3-5.

(f) Volunteer advocate responsibilities.A volunteer advocate assists the service recipient in making decisions, and supports the service recipient in preserving his or her rights and obtaining necessary services.Such ~~support~~ supports may include:

(1) advocating for the service recipient;

(2) assisting the service recipient in decision making;

(3) reviewing the quality of services provided to the service recipient;

(4) attending the Individual Plan ~~(IP)~~ meeting or other meeting(s);

(5) assisting the service recipient with finances;

(6) accompanying the service recipient to medical appointments; or

(7) assisting the service recipient in completing applications.

(g) Volunteer advocate responsibilities.Temporary advocate assistance is requested when a service recipient or Team seeks a guardianship dismissal in order to restore full decision making rights to the service recipient.Temporary volunteer advocate responsibilities include:

(1) filing a petition on behalf of the service recipient as an interested party so the request for restoration of capacity can be heard in court; and

(2) after capacity is restored, continuing to be available to the service recipient for support and guidance for a period of no more than six months.

(h) Guardianship voucher.After the volunteer guardianship agency certifies a prospective volunteer guardian the action is approved by the Team ~~approval~~, and if when able, the service recipient.The volunteer submits Form 06MP031E, Guardianship Voucher, per OAC 340:100-3-5.2, to pay the attorney fees necessary to file the guardianship petition.Court involvement is not required to establish volunteer advocacy, therefore the voucher is not available in such cases.

(i) Volunteer guardian and advocate monitoring.Volunteer guardian and advocate monitoring is provided by the volunteer guardianship agency per requirements in the ~~OKDHS~~ DHS and agency contract.

(j) Volunteer guardian and advocate training requirements.Volunteers must participate in training regarding understanding and defining advocacy, developing effective advocacy skills, working effectively with service recipients and Teams, community inclusion, Oklahoma's service delivery system, and confidentiality.Volunteer guardians must participate in additional training regarding guardianship responsibilities, duties, and limitations.

(1) Training is provided by the volunteer guardianship agency at no cost to the volunteer.

(2) Volunteers receive orientation from the volunteer guardianship agency regarding applicable ~~OKDHS~~ DHS rules and procedures ~~regarding volunteer programs~~.

(3) Volunteer guardians proceed with knowledge they are not covered by 51 O.S. § 151 et seq., The Governmental Tort Claims Act, as they are not authorized to act on behalf of ~~OKDHS~~ DHS, nor can they be so authorized without creating a conflict of interest in their roles as guardians.

(k) Volunteer guardianship agency responsibilities.Volunteer guardianship agency responsibilities include:

(1) recruiting volunteers to serve as guardians and advocates;

(2) obtaining background checks of potential volunteer guardians and advocates;

(3) contacting references.The volunteer guardianship agency contacts a minimum of three references.If responses are negative or if three references cannot be found, the volunteer is not considered;

(4) submitting proposed volunteers to the ~~Personal Support~~ Team for review and approval;

(5) arranging visits between potential volunteers and service recipients;

(6) providing training and orientation on ~~OKDHS~~ DHS rules and procedures, including 51 O.S. § 151 et seq.;

(7) monitoring per OAC 340:100-3-5.1; and

(8) providing technical assistance as requested by the volunteer or ~~DDSD~~ DDS case manager, including:

(A) attending any ~~team~~ Team meetings;

(B) accompanying the volunteer on home visits;

(D) providing due date reminders for annual court reports, and when needed, providing assistance completing reports.

PART 3. OPERATIONS

340:100-3-25. Advisory Committee on Services to Persons with Developmental Disabilities

Revised ~~5-5-98~~ 9-1-15

The Advisory Committee on Services to Persons with Developmental Disabilities ~~to the Commission for Human Services~~ (Advisory Committee) reviews ~~all~~ Developmental Disabilities Services policies ~~of the Developmental Disabilities Services Division~~ and makes recommendations to ~~the Commission and~~ the Director of Human Services (Director).

(1) The statutory authority of the Advisory Committee is Section 1412 of Title 10 of the Oklahoma Statutes (10 O.S. § 1412).

(2) Advisory Committee members are volunteers.

(3) The Director ~~of DHS~~ determines the size and constituency groups ~~to be~~ directly represented through Advisory Committee membership ~~within parameters established by Section 1412 of Title 10 of the Oklahoma Statutes~~ per 10 O.S. § 1412.

(4) The Advisory Committee is governed by bylaws approved by the ~~Commission~~ Director ~~for Human Services~~ and statutory requirements inclusive of the Open Meetings Act.

(5) The Advisory Committee meets on at least a quarterly ~~basis~~.

~~(6) The Advisory Committee submits a report of activities, on at least an annual basis, to the DHS Commission for Human Services.~~

340:100-3-27.2. Performance Review Committee (PRC), sanctions, and emergency determinations

Revised ~~7-1-12~~9-1-15

(a) Findings of performance surveys, administrative inquiries, or focused re-surveys are reviewed by the ~~Performance Review Committee (~~PRC) when the:

(1) provider submits an appeal of any decision of the Quality Assurance (QA) administrator or designee within 14 calendar days from mailing of the preliminary determination;

(2) provider fails to correct all identified deficiencies by the approved resolution date or if new deficiencies are identified per ~~subparagraph (6)(E) of~~ Oklahoma Administrative Code (OAC) 340:100-3-27.1(6)(E); or

(3) QA administrator of or designee determines ~~that~~ sanctions may be required as a result of gross or perpetual violation of the contract.

(b) The PRC consists of representatives of major units of the division appointed by the Developmental Disabilities Services ~~Division (DDSD)~~ (DDS) director, except the QA administrator of does not serve as a voting member.

(1) acceptance, denial, or modification of an appeal;

(2) a determination that sanctions are not warranted;

(3) invocation of one or more sanctions including:

(A) a vendor hold that precludes the admission to the agency of any person whose services are ~~to be~~ funded by ~~DDSD~~ DDS or Waiver services.The agency may not provide services to a participant who was not being served before the vendor hold was issued;

(B) suspension of funding pending resolution of conditions violating terms of the contract;

(i) training ~~has~~ was not ~~been~~ completed per OAC 340:100-3-38; or

(ii) pre-employment screening does not comply with OAC 340:100-3-39;

(D) termination of contract with the Oklahoma Department of Human Services ~~(OKDHS)~~ (DHS);

(E) recommendation for termination of contract with the Oklahoma Health Care Authority (OHCA); and

(F) the requirement ~~that~~ the provider employ sufficient program coordination staff to provide one program coordinator for every ~~ten~~ 10 individuals receiving residential supports ~~as defined in~~ per OAC 340:100-5-22.1.

(i) The program coordination staff ratio may be invoked when a violation(s) of program coordination requirements in OAC 340:100-5-22.1 remains uncorrected for 60 calendar days following the provider's receipt of a written report of the findings.

(ii) The provider maintains the 1:15 program coordinator ratio for one year, unless the requirement is extended by the PRC based on subsequent deficiencies.

(iii) The provider must maintain the 1:15 program coordinator ratio for each caseload that includes a person receiving residential supports.

(d) Agencies are notified in writing of the determinations made by the PRC.The president of the agency's board of directors is provided a copy by mail when a sanction, as described ~~at subsection~~ in (c) of this Section, is authorized.

(e) ~~The DDSD director retains the authority to supersede the decisions of the QA administrator or the PRC.~~When DDS receives an appeal of any decision of the PRC in writing within 14 calendar days from the mailing of the determination, the DDS director retains the authority to supersede the decisions of the QA administrator or the PRC.

(f) Failure to comply with pre-employment screening requirements of criminal background checks and registry checks for community services workers per OAC 340:100-3-39 result in placement of agencies on immediate vendor hold.Per OAC 340:100-3-27.2, agencies have 60 calendar days to correct all deficiencies.Following the re-survey, if all deficiencies are not corrected, DDS pursues recoupment in those instances where services were delivered by an unqualified provider.

~~(f)~~(g) The ~~DDSD~~ DDS director or designee may issue an emergency determination independent of review by the PRC or written input by a provider agency when evidence is presented indicating risk of immediate and substantial jeopardy to the health or safety of a person receiving supports.

(1) The ~~DDSD~~ DDS director or designee may use any ~~OKDHS~~ DHS resource considered appropriate to further investigate such circumstance, but is not required to do so.

(2) Emergency determinations:

(A) include the scope of options defined in ~~subsection~~ (c) of this Section, waiving any stated time frame for implementation; and

(B) are not subject to appeal.

340:100-3-27.5. Provider agency quality assurance and fiscal controls

Revised ~~7-1-12~~9-1-15

(a) Each agency providing services funded through the Oklahoma Department of Human Services ~~(OKDHS)~~ (DHS) or the Oklahoma Health Care Authority (OHCA), through Home and Community-Based Services (HCBS) Waivers, to six or more service recipients implements an internal quality assurance system.The system identifies and corrects obstacles to agency compliance with rules governing its services or effectively addressing the needs and preferences of service recipients.Implementation is assessed on the basis of outcomes for service recipients and services.

(b) Provider agencies must have adequate fiscal controls, including internal management controls, systems to ensure accuracy and authorization of claims, and mechanisms to detect and resolve a threat to solvency.

(1) A provider agency is a corporation, partnership, association, or individual proprietorship that contracts with ~~OKDHS~~ DHS or OHCA, through HCBS Waivers, to provide residential, employment, or in-home paraprofessional supports to service recipients.

(2) Each provider agency receiving $~~50,000~~ 100,000 or more per fiscal year for the delivery of supports funded through ~~OKDHS~~ DHS or HCBS Waivers is required to conduct an independent financial audit.When a financial audit is required:

(A) the audit is performed by a certified public accountant:

(i) with a valid and current permit to practice public accountancy in Oklahoma; and

(ii) approved by the Oklahoma Accountancy Board to perform audits in accordance with Government Auditing Standards;

(B) ~~OKDHS~~ DHS reserves the right to approve the selection of the auditor or examine the work papers of the auditor; and

(C) the provider agency submits two copies of the audited financial statements, management letter, and plan to address all concerns noted by the auditor to ~~OKDHS~~ the DHS Office of Inspector General (OIG).

(i) The audited financial statements are submitted within four months after the end of the provider agency's fiscal year.

(ii) An extension of up to four months may be authorized by ~~DDSD~~ DDS or OIG, following the provider agency's submission of a request and explanation for delay.

(iii) No extension is granted to an agency that has not submitted the previous year's audit.

(iv) Failure to submit the audited financial statements may result in sanctions per Oklahoma Administrative Code (OAC) 340:100-3-27.2.

(3) Audited financial statements are examined by ~~DDSD~~ DDS and OIG staff.Problems noted in either the findings or substance of the audit may result in:

(A) acceptance of audited financial statements;

(B) correspondence with the provider agency or auditor to clarify and resolve issues in or with the audited financial statements;

(D) sanctions per OAC 340:100-3-27.2.

340:100-3-34. Incident reporting

Revised ~~7-1-12~~9-1-15

(a) Reporting requirement.Contract provider staff and Developmental Disabilities Services ~~Division (DDSD)~~ (DDS) staff must report critical and non-critical incidents involving the health and welfare of any person receiving ~~DDSD~~ DDS services, excluding Family Support Assistance Payment Program recipients per Oklahoma Administrative Code (OAC) 340:100-13.¢ 1

(b) Critical incidents.Critical incidents include:

(1) suspected maltreatment including abuse, verbal abuse, sexual abuse, neglect, financial neglect, exploitation, or sexual exploitation of a vulnerable adult per Section 10-103 of Title 43A of the Oklahoma Statutes (43A O.S. § 10-103) or abuse, neglect, sexual abuse, or sexual exploitation of children per 10A O.S. § 1-1-105;

(2) threatened or attempted suicide by a service recipient;

(3) death of a service recipient;

(4) an unplanned hospital admission of a service recipient;

(5) a medication event resulting in emergency medical treatment for a service recipient;

(6) law enforcement involvement in a situation concerning a service recipient;

(7) property loss of more than $500 involving a service recipient;

(8) a service recipient who is missing; and

(9) a highly restrictive procedure used on a service recipient, such as:

(A) p.r.n. medication for behavioral control; or

(B) physical hold.

(1) an injury or an unplanned health-related event involving a service recipient;

(2) physical aggression by a service recipient;

(3) fire setting by a service recipient;

(4) deliberate harm to an animal by a service recipient;

(5) property loss of less than $500 involving a service recipient;

(6) a vehicle accident involving a service recipient;

(7) the suspension, termination, or removal of a service recipient's program, including employment; and

(8) a medication event involving a service recipient, including:

(A) a dose at the wrong time;

(B) a missed dose;

(D) the wrong medicine;

(E) the wrong route;

(F) an incorrect medicine label or instructions;

(G) a medication refused by the service recipient;

(H) incorrect medication documentation; or

(I) any other significant occurrence involving medication.

(d) Incident notification requirements.

(1) For Waiver funded service recipients, contract provider staff:

(A) report incidents electronically via the ~~DDSD~~ DDS Provider Reporting System for all critical and non-critical incidents;¢ 2

(B) ~~notify the DDSD case manager~~ program coordination staff:

(i) ~~immediately, when there is a critical incident per OAC 340:100-3-34(b).If the incident occurs outside regular working hours, the DDSD case manager is notified the next working day~~ review and submit reports of all critical incidents per OAC 340:100-3-34(b) within one business day of the incident; and

(ii) ~~within 72 hours for non-critical incidents~~ review and submit reports of all non-critical incidents per OAC 340:100-3-34(c) within three business days of the occurrence.~~¢ 1~~

(D) notify other persons or entities as required by law or regulation, including:

(i) when a service recipient dies per OAC 340:100-3-35; and

(ii) investigative authorities immediately in cases of suspected maltreatment, including:

(I) Office of Client Advocacy per OAC 340:2-3-33;¢ 3

(II) Adult Protective Services per ~~Section 10-104 of Title 43A of the Oklahoma Statutes (~~43A O.S. § 10-104); or

(III) Child Protective Services per 10A O.S. § 1-1-105.

(2) For critical incidents involving state funded service recipients, contract provider staff submits Form 06MP046E, Incident Report, to ~~DDSD~~ DDS State Office within ~~72 hours~~ one business day of the incident.For non-critical incidents, contract provider staff maintains a copy of Form 06MP046E per OAC 340:100-3-40.

INSTRUCTIONS TO STAFF 340:100-3-34

Revised ~~7-1-12~~9-1-15

1.The ~~Developmental Disabilities Services Division (DDSD)~~ DDS case manager or local administrator notifies the Office of Client Advocacy when a member of the Homeward Bound class:

~~(A)~~(1) is admitted or is to be admitted to a psychiatric facility or other temporary placement;

~~(B)~~(2) is injured and requires emergency room treatment or hospitalization;

~~(C)~~(3) dies; or

~~(D)~~(4) when law enforcement is contacted or involved ~~in a situation regarding a class member~~.

2.When the provider program coordination staff submits the incident report, the DDS Provider Reporting System automatically sends the incident report to the assigned case manager.The case manager reviews the incident report and completes the DDS Action Taken portion of the report within five business days of receipt.

23.The ~~DDSD~~ DDS case manager forwards a copy of Form 06MP046E, Incident Report, to the Office of Client Advocacy for members of the Homeward Bound class.

340:100-3-39. Pre-employment screening for community services workers

Revised ~~7-1-11~~9-1-15

(a) Legal basis.Section 1025.1 et seq. of Title 56 of the Oklahoma Statutes (56 O.S. § 1025.1 et seq.) requires Oklahoma Department of Human Services ~~(OKDHS)~~ (DHS) to establish and maintain a registry listing the names of community services workers against whom a final investigative finding of maltreatment involving a service recipient, ~~has been~~ was made by ~~OKDHS~~ DHS or an administrative law judge.Providers of community services:

(1) are required to conduct a search of criminal history records and ~~OKDHS~~ the DHS Community Services Worker Registry (Registry) prior to permanent employment of any community services worker; and

(2) must not hire, contract with, or use as a volunteer, a person whose name is listed in the Registry or who has a criminal background ~~described in~~ per Oklahoma Administrative Code(OAC) 340:100-3-39~~(d)~~(e)(1)(G).

(b) Applicability.The requirements set forth in OAC 340:100-3-39 apply to all community services providers who contract with, or are licensed or funded by ~~OKDHS~~ DHS, or who contract with the Oklahoma Health Care Authority (OHCA) to provide residential or employment services to service recipients through Developmental Disabilities Services ~~Division (DDSD)~~ (DDS) Home and Community-Based Services (HCBS) Waivers.

(c) Definitions.The following words and terms when used in this Section shall have the following meanings, unless the context clearly indicates otherwise:

(1) "Community services provider" means a community-based program, corporation, or person who contracts with, or is licensed or funded by ~~OKDHS~~ DHS, or who contracts with OHCA to provide residential or employment services to a service recipient through ~~DDSD~~ DDS HCBS Waivers.

(2) "Community services worker" means any person who:

(A) contracts with ~~the~~ OHCA to provide specialized foster care, habilitation training specialist services, or homemaker services to persons with developmental disabilities; or

(B) is not a licensed health professional; and

(C) is employed by or under contract with a community services provider, for compensation or as a volunteer, to provide ~~for compensation or as a volunteer~~:

(i) health-related services;

(ii) training; or

(iii) supportive assistance.

(3) "Good cause" means the failure of a community services worker to make a timely response for reconsideration of a confirmed finding of maltreatment due to:

(A) a death within the community services worker's immediate family;

(B) hospitalization of the community services worker; or

(C) an equally meritorious reason, determined within the sound discretion of the administrative law judge or other ~~OKDHS~~ DHS staff authorized per OAC 340:100-3-39 to determine such cause.

(4) "Health related services" means assistance provided to a service recipient that includes, but is not limited to:

(A) personal hygiene;

(B) transferring;

(D) supervision or assistance in activities of daily living; or

(E) basic nursing care, such as:

(i) taking temperature, pulse, or respiration;

(ii) positioning;

(iii) incontinent care; or

(iv) identification of signs and symptoms of disease; and

(F) certain tasks that may be performed as basic nursing care by community services workers and require appropriate training provided or approved by ~~OKDHS~~ DHS, written agreement by the service recipient's ~~personal support team~~ Personal Support Team, and the primary care physician's acknowledgement and specific order related to the task.Under such circumstances, basic nursing care may include, but ~~need~~ is not be limited to:

(i) nutrition, including meals by gastrostomy tube or jejeunostomy tube;

(ii) blood glucose monitoring;

(iii) ostomy bag care;

(iv) oral suctioning; and

(v) administration of oral metered dose inhalers and nebulizers.

(5) "Supportive assistance" means ~~the~~ service rendered ~~that is~~ sufficient to enable the service recipient to meet an adequate level of daily living including, but not limited to:

(A) training;

(B) supervision;

(D) assistance in meal preparation; and

(E) assistance in personal care and activities of daily living necessary for the health and comfort of the service recipient.

(6) "Maltreatment" means abuse, verbal abuse, sexual abuse, neglect, financial neglect, exploitation, or sexual exploitation of vulnerable adults ~~as defined in~~ per Section 10-103 of Title 43A of the Oklahoma Statutes (43A O.S. § 10-103); or abuse, neglect, sexual abuse, or sexual exploitation of children ~~as defined in~~ ~~Section 7102 of Title 10 of the Oklahoma Statutes~~ per 10 O.S. § 7102.

(7) "Specialized foster care" means the home and community-based service as defined in the 1915(c) ~~waiver~~ Waiver approved by the Centers for Medicare and Medicaid Services.

(8) "Habilitation training specialist services" means the home and community-based service as defined in the 1915(c) ~~waiver~~ Waiver approved by the Centers for Medicare and Medicaid Services.

(9) "Homemaker services" means the home and community-based service as defined in the 1915(c) ~~waiver~~ Waiver approved by the Centers for Medicare and Medicaid Services.

(d) ~~Duties of OKDHS~~ DHS duties.When ~~the~~ OHCA contracts directly with a specialized foster care provider, habilitation training specialist services provider, or a homemaker services provider to provide services through ~~the DDSD~~ DDS HCBS ~~waivers~~ Waivers, ~~OKDHS~~ DHS follows the screening procedures required for community services providers.

(e) ~~Duties of community~~ Community services ~~providers~~ provider duties.

(1) Provider pre-employment responsibilities.Each community services provider conducts a search of criminal history records and the Registry for each potential employee who is not a licensed health professional and who will provide, for compensation or as a volunteer, on a full-~~time~~ or part-time basis, health-related services, training, or supportive assistance to a service recipient.This requirement also applies to applicants for supervisory, management, or administrative positions, when the applicant is to provide, on a full-~~time~~ or part-time basis, supportive assistance, health-related services, or training to a service recipient.The provider:

(A) uses Form 06PE039E, Employment Application Supplement, to formally advise each applicant of the:

(i) required search of criminal history records and the Registry;

(ii) potential consequences of background checks, including the provider's prohibition from hiring any person whose name appears in the Registry, or who has a prohibited criminal conviction, per OAC 340:100-3-39(e)(1)(G);

(iii) requirement that the community services worker's employment must be terminated if his or her name appears in the Registry, even though the applicant's name may not have appeared in the Registry at the time of application or hiring;

(iv) requirement to report all current and previous employers who provide services to children or to vulnerable adults; and

(v) fact that giving false information regarding current and previous employers results in termination of employment.;

(B) contacts all previous employers engaged in delivery of services to children or vulnerable adults, ~~defined in~~ per 43A O.S. § 10-103, requesting information on investigations or findings of maltreatment;

(C) when contacted by a potential employer, gives accurate information regarding investigations of maltreatment ~~that were~~ reported to Adult Protective Services (APS), Office of Client Advocacy (OCA), or Child Protective Services (CPS) and are pending or confirmed;

(D) requests a criminal history records search from the Oklahoma State Bureau of Investigation (OSBI) prior to employment of, or offer of employment to, any applicant, except as provided in OAC 340:100-3-39~~(d)~~(e)(1)(F) and (G).

(i) The provider must secure the criminal history records search and cannot accept documents provided by the applicant.

(ii) If When the provider uses a contractor to secure the criminal history records search, the contractor attaches the document received from OSBI to any report given to the provider;

(E) investigates discrepancies in the criminal record information received from OSBI.

(i) If discrepancies exist between criminal history information and information reported by the applicant, such as convictions not reported by the applicant, the provider secures from the applicant a written explanation of the discrepancy, that is then sent to ~~OKDHS if~~ DHS when the provider is requesting a waiver per OAC 340:100-3-39~~(e)~~(f).

(ii) If OSBI information reports inconclusive data, such as reporting the case was referred to another law enforcement agency, the provider secures documentary evidence of the outcome;

(F) may choose to make an offer of temporary employment to an applicant, pending the results of the OSBI criminal history records search.

(i) The provider submits a request for a criminal history records search to OSBI within 72 hours of the applicant's acceptance of any offer of temporary employment.

(ii) Temporary employment of any applicant does not extend longer than the time necessary to receive the results of the criminal history records search and registry review, not to exceed 30 calendar days.

(iii) During any period of temporary employment the temporary employee may not work alone nor work solely with other temporary employees; and

(G) when the OSBI search reveals ~~that~~ the applicant has been convicted, pled guilty, or ~~pled~~ nolo contendere to misdemeanor assault and battery or a felony, the provider does not hire or contract with the person and immediately cancels any temporary employment arrangement.If When a waiver is requested per OAC 340:100-3-39~~(e)~~(f), the community services worker is relieved of responsibilities working directly with service recipients until the provider receives a written DHS decision ~~by OKDHS~~.

(2) Provider duties during an investigation.Upon receiving notification of an investigation of an allegation of maltreatment involving an employee, the provider chief executive officer or designee:

(A) ensures protection and the health and safety for any and all persons receiving services from the provider;

(B) notifies the community services worker, in a face-to-face conference, of the upcoming investigation; and

(C) explains the rights of the community services worker, using Form 06PE059E, Rights and Responsibilities of Community Services Worker in an Investigation of Maltreatment, before the community services worker is interviewed by the investigator, including:

(i) ~~that~~ the notice of the outcome of the investigation is mailed to the community services worker's address ~~given~~ on Form 06PE059E; and

(ii) the community services worker's right to request due process ~~in accordance with~~ per procedures ~~given~~ provided in the notice mailed.

(3) Provider responsibilities regarding due process procedures.If When an employee of a provider is called as a witness in a hearing, the provider:

(A) directs the employee to attend the hearing to give testimony;

(B) accommodates his or her work ~~schedules~~ schedule; and

(C) when written records are required, submits the required records or certified copies.Failure to comply with these responsibilities may result in sanctions per OAC ~~340:100-3-27~~ 340:100-3-27.2.

(f) Waiver of requirement not to hire based on criminal history records search.If When the criminal history records search reveals a criminal background the provider believes will not place a service recipient at risk of harm and will not affect the quality of services provided by the applicant, the provider may request a waiver from ~~OKDHS~~ DHS.

(1) The provider sends a written request for a waiver to the ~~DDSD~~ DDS director.The request includes:

(A) the applicant's:

(i) full name;

(ii) Social Security number; and

(iii) date of birth;

(B) a legible copy of the criminal history records search that must be no more than 30 calendar days old; ~~and~~

(C) ~~an explanation of all factors or circumstances the provider believes must be considered~~ the criminal history record information request; and

(D) an explanation of all factors or circumstances the provider wants to be considered.

(2) A waiver is not granted, under any circumstance, for employment of an applicant who ~~has been~~ was convicted of, pled guilty, or ~~pled~~ nolo contendere to:

(A) a felony count of:

(i) aggravated assault and battery;

(ii) homicide;

(iii) murder;

(iv) attempted murder;

(v) rape;

(vi) incest; or

(vii) sodomy; or

(B) abuse, neglect, or exploitation of any person entrusted to the applicant's care.

(3) No waiver is granted for offenses resulting in a conviction, plea of guilty, or plea of nolo contendere to a felony that occurred less than five calendar years from the date of the request.

(4) Factors considered in the ~~OKDHS~~ DHS decision to grant or deny a waiver include:

(A) other convictions of the person;

(B) responsibility evidenced by the person since conviction;

(D) person's age upon conviction;

(E) nature and underlying circumstances of the person's offense;

(F) evidence of efforts made by the person toward rehabilitation, including job training or educational programs in which the person participated;

(G) person's prior employment record; and

(H) nature and location of the position the person seeks.

(5) ~~OKDHS~~ DHS:

(A) may grant a waiver for applicants who will provide services through ~~DDSD~~ DDS HCBS Waivers only upon concurrence by OHCA; and

(B) assumes no responsibility for the actions of a person employed by a provider subsequent to a waiver.The provider indemnifies and holds ~~OKDHS~~ DHS harmless for any damages or attorney fees resulting from a claim ~~that~~ an employee of the provider subsequently abused, neglected, exploited, or otherwise injured a service recipient.

(g) Rights of community services worker.During investigation of an allegation of maltreatment, any community services worker who is accused of maltreatment is entitled to:

(1) be advised of the nature of any allegation against such worker;

(2) be interviewed by the investigator and allowed to give his or her position in relation to the allegation;

(3) be advised of the substance of the evidence against him or her prior to making a statement to the investigator.The identity of persons reporting alleged maltreatment is not released during the investigation;

(4) refuse, without penalty, to take a polygraph examination;

(5) submit or supplement a written statement relating to the allegation;

(6) seek and receive advice concerning his or her rights and responsibilities in the investigation and review process; and

(7) receive DHS notice ~~from OKDHS~~ of the outcome of the investigation.The community services worker:

(A) provides a correct address to receive notice; and

(B) is responsible to notify CPS, APS, or OCA, as applicable, of any address change.

(h) Responsibilities of community services worker.Any community services worker who is involved, either as a witness or as an accused caretaker, in the investigation of alleged maltreatment has the responsibility to:

(1) prepare a written incident report;

(2) be available for scheduled interviews;

(3) respond fully and truthfully to the investigator's questions.A community services worker who believes that his or her answers to official inquiries concerning alleged maltreatment may incriminate ~~the worker~~ him or her in a criminal prosecution may discontinue the interview for that reason;

(4) refrain from any action that may interfere with the investigation, including any action that may intimidate, threaten, or harass any person who has or may provide information relating to alleged maltreatment; and

(5) appear at any hearing as requested by ~~OKDHS~~ DHS per OAC 340:100-3-39~~(h)(6)~~(i)(6)(D).

(i) Procedures for notice and due process.

(1) Determination not to place in Registry.At any time during the notice and due process, ~~OKDHS~~ DHS may determine the placement of a community services worker's name in the Registry is not warranted, despite a confirmed finding of maltreatment by APS, CPS, or OCA, as applicable.

(A) ~~OKDHS~~ DHS may determine that the community services worker's name will not be placed in the Registry when the wrongful conduct:

(i) does not warrant placement in the Registry using the clear and convincing evidence standard applicable at the administrative hearing;

(ii) did not result in, or create a substantial risk of, serious physical or emotional injury to a service recipient; or

(iii) is not the result of intentional, willful, or reckless disregard for the health or safety of a service recipient.

(B) When a determination is made that a community services worker's name is not to be placed in the Registry, ~~OKDHS~~ DHS sends a notice to the community services worker informing the worker that his or her name will not be placed in the Registry.A copy of the notice is sent to the community services provider who employed the community services worker at the time of the incident that resulted in the confirmed finding.

(2) ~~Notification of DDSD~~ DDS notification.~~OKDHS~~ DHS divisions responsible for investigating allegations of maltreatment, per OAC 340:2-3, OAC 340:5, or OAC 340:75-3, send reports of investigations to the ~~DDSD~~ DDS director or designee.

(3) Notification to provider. The ~~OKDHS division~~ DHS program responsible for the investigation notifies the provider, or appropriate ~~OKDHS~~ DHS representative, when the investigative report reveals systemic administrative issues regarding:

(A) protection or safety of the service recipient; or

(B) provider agency shortcomings.

(4) Notification to community services worker.~~OKDHS~~ DHS sends written notice of the results of the investigation to the community services worker alleged to have committed maltreatment.The name of the community services worker who has a confirmed finding of maltreatment is added to the Registry when ~~OKDHS~~ DHS has sent proper notice to the last known address of the community services worker, and the notice was returned as unclaimed or undeliverable.The notice:

(A) is sent within three ~~working~~ business days of receipt by OCA of the ~~OKDHS~~ DHS determination to proceed with the Registry process.If the allegation is ruled out, the provider is also notified;

(B) is sent by certified mail, return receipt requested, if the investigation resulted in a finding of maltreatment;

(D) specifies that, if the community services worker desires to contest the finding, he or she submits a detailed written statement with a request that ~~OKDHS~~ DHS issue a reconsideration decision reversing the finding;

(E) advises the community services worker that a reconsideration decision must be requested in writing, postmarked within ~~ten~~ 10 calendar days of receipt of the notice; and

(F) notifies the community services worker that failure, absent good cause, to request a reconsideration decision within ~~ten~~ 10 calendar days, as evidenced by the date of his or her signature on the United States (U.S.) Postal Service return receipt card:

(i) results in the finding becoming final;

(ii) waives the right to further administrative or judicial review; and

(iii) authorizes:

(I) entry of the community services worker's name in the Registry; and

(II) disclosure per OAC 340:100-3-39~~(I)~~(j) to any person requesting such information per OAC 340:100-3-39(j).

(5) Reconsideration decision.If the community services worker submits a timely request for a reconsideration decision, or if ~~OKDHS~~ DHS determines good cause for untimely filing, ~~OKDHS~~ DHS issues a reconsideration decision.

(A) The reconsideration decision:

(i) affirms the investigative report;

(ii) modifies the investigative report;

(iii) reverses the investigative report; or

(iv) remands the investigative report for further investigation; and

(v) is issued within ~~ten working~~ 10 business days of receipt of the request, or, if applicable, the date of any determination of good cause.

(I) If the decision is to remand for further investigation, the investigation is completed within 15 ~~working~~ business days of the decision to remand.

(II) Upon completion of the supplemental investigation, ~~OKDHS~~ DHS notifies the community services worker within three ~~working~~ business days;

(vi) states the basis for the determination including, but not limited to, any investigative report, ~~OKDHS~~ DHS records, or provider records deemed relevant;

(vii) specifically evaluates and comments upon the contents of the community services worker's written request; and

(viii) is mailed to the community services worker by certified mail, return receipt requested, postage prepaid.

(B) When the reconsideration decision affirms or modifies the investigative report, ~~OKDHS~~ DHS:

(i) if the community services worker is aggrieved by the decision, notifies the community services worker that he or she may request an administrative hearing;

(ii) states a written request for hearing must be submitted by the community services worker to ~~OKDHS~~ DHS at a specified address and postmarked within ~~ten~~ 10 calendar days of receipt of the reconsideration decision, unless good cause is established.Receipt is deemed to occur on the date the community services worker signs the U.S. Postal Service return receipt card; and

(iii) states failure to timely request a hearing, absent a finding of good cause by an administrative law judge:

(I) results in the reconsideration decision becoming final;

(II) waives any right to either an administrative hearing or judicial review; and

(III) authorizes entry of the community services worker's name in the Registry, and disclosure to any person requesting the information per OAC 340:100-3-39(j).

(6) Notice of hearing.When the community services worker submits a timely written request for hearing, or upon the administrative law judge finding of good cause for a request that was not timely, ~~OKDHS~~ DHS sends a notice of hearing by certified mail, return receipt requested, postage prepaid within ~~ten working~~ 10 business days of receipt of the request.The notice is dated and states:

(A) name of administrative law judge;

(B) time and date of hearing, that must be held no earlier than 15 calendar days and no later than 60 calendar days after the date of mailing of the notice;

(D) failure of the community services worker to attend the hearing, absent a finding of good cause by an administrative law judge:

(i) results in the reconsideration decision becoming final;

(ii) waives any right to either an administrative hearing or judicial appeal; and

(iii) authorizes entry of the community services worker's name in the Registry, and disclosure to any person requesting the information per OAC 340:100-3-39(j);

(E) the community services worker may be represented by an attorney;

(F) requests by the community services worker or his or her attorney for witnesses, records, or both, relevant to the proceeding must be directed to ~~OKDHS~~ DHS.~~OKDHS~~ DHS sends requests to the relevant provider, per OAC 340:100‑3‑39~~(d)(3)~~(e), persons, and appropriate ~~OKDHS divisions~~ DHS programs;

(G) a final proposed list of witnesses and summary of anticipated testimony must be submitted to the administrative law judge designated on the notice of hearing at least ~~ten~~ 10 calendar days prior to any hearing;

(H) any final decision on the specific persons allowed to testify, the scope of direct testimony and cross-examination, and admissibility of exhibits will be within the sound discretion of the administrative law judge, except all ~~OKDHS~~ DHS and provider records pertaining to a finding of confirmed maltreatment are admissible;

(I) the community services worker or his or her attorney is allowed to cross examine witnesses called by the ~~OKDHS~~ DHS attorney, who is allowed to cross examine any witnesses called by the community services worker or his or her attorney; and

(J) although the formal rules of evidence and procedure under Oklahoma law are not controlling, the burden of persuasion and initially coming forward with evidence is on ~~OKDHS~~ DHS through its attorney, and the standard of proof is clear and convincing evidence.

(7) Hearing.

(A) The hearing is:

(i) closed and all information presented therein is confidential; and

(ii) tape recorded.

(B) The administrative law judge affirms, modifies, or reverses the reconsideration decision, or determines the name of the community services worker, who has been confirmed as having engaged in maltreatment, must not be added to the Registry when the act or omission that is the basis for the confirmed finding:

(i) did not result in, or create a substantial risk of, serious physical or emotional injury to a service recipient; or

(ii) was not the result of intentional, willful, or reckless disregard for the health or safety of a service recipient.

(C) A written decision by the administrative law judge affirming, modifying, or reversing the reconsideration decision, or determining, per OAC 340:100-3-39~~(h)(7)(B)~~, the community services worker's name is not to be placed in the Registry:

(i) is issued within 30 calendar days of the hearing;

(ii) is mailed to the community services worker by certified mail, return receipt requested, no later than the first ~~working~~ business day following the date the decision is signed by the administrative law judge;

(iii) contains findings of fact and conclusions of law;

(iv) notifies the community services worker that, if he or she is aggrieved by the decision, a judicial appeal, solely on the administrative record, may be initiated by filing a petition in the Oklahoma district court with jurisdiction within 30 calendar days from the date the decision is signed by the administrative law judge, pursuant to 56 O.S. § 1025.3 and 75 O.S. § 318; and

(v) states a copy of any petition and summons filed in district court must be served on ~~OKDHS~~ DHS Legal ~~Division~~ Services.

(j) Disclosure requirements for Registry.

(1) The Registry information includes, but is not limited to:

(A) community services worker's:

(i) full name;

(ii) Social Security number; and

(iii) date of birth;

(B) date the community services worker's name was placed in the Registry; and

(C) information on the final investigative finding or administrative law judge finding regarding the community services worker.

(2) The information disclosed includes only whether the person is listed in the Registry.No other information related to the allegation, investigation, or evidence is disclosed.

(3) The provider requesting Registry information on an applicant or employing a community services worker alleged to have committed maltreatment is notified when the community services worker's or applicant's name is entered in the Registry.If When more than one community services worker is named as an accused caretaker, a separate letter is sent to the provider for each community services worker.

(k) Public access to Registry.Access to the Registry is available to the public ~~through the OKDHS Web site:~~ at www.OKDHS.org.

SUBCHAPTER 5. CLIENT SERVICES

PART 3. SERVICE PROVISIONS

340:100-5-20 Respite Voucher Program

Revised ~~7-1-12~~9-1-15

(a) Applicability.The rules in this Section apply to the respite voucher program operated by the Oklahoma Department of Human Services ~~(OKDHS)~~ DHS Developmental Disabilities Services ~~Division (DDSD)~~ (DDS).When funding resources are sufficient, ~~DDSD~~ DDS may use funds for the provision of respite vouchers.For the purpose of this Section, respite is defined as temporary relief for ~~caregivers and families~~ a caregiver who ~~are~~ is caring for a person with a developmental disability, ~~or developmental delay~~ known as the care recipient.

(b) Eligibility.

(1) Respite vouchers may be issued ~~for~~ to caregivers of ~~persons~~ a care recipient who ~~have developmental disabilities; and do not~~:

(A)~~receive: services through a Home and Community-Based Services (HCBS) Waiver~~ has a developmental disability per Section 1408 of Title 10 of the Oklahoma Statutes;

(B) ~~receive the Family Support Assistance Payment~~ is a United States citizen or a qualified alien;

(D) ~~live in an assisted living facility~~ is in DHS custody and placed in kinship foster family care per OAC 340:75-7-2;

(E) ~~live independently~~ receives less than 20 hours per week of state funded services, such as:

(i) Sheltered Workshop;

(ii) Community Integrated Employment; or

(iii) Adult Day;

(F) ~~receive Advantage Waiver services~~ does not receive:

(i) services through a DDS Home and Community-Based Services (HCBS) Waiver;

(ii) services through the Advantage Waiver;

(iii) respite services funded through any other state or federal program or service; or

(iv) the Family Support Assistance Payment; and

(G) ~~receive a foster care payment or are in OKDHS custody~~ does not live:

(i) in an assisted living facility;

(ii) independently; or

(iii) in a drug or alcohol treatment facility;

~~(H)~~ ~~receive state funded services such as:~~

~~(i) Sheltered Workshop;~~

~~(ii) Community Integrated Employment; or~~

~~(iii) Adult Day;~~

~~(I) reside in a drug or alcohol treatment facility; or~~

~~(J) receive OKDHS Child Care Subsidy.~~

(2) The ~~voucher applicant is the~~ caregiver is the voucher applicant and ~~must~~:

(A) ~~be an~~ must live in Oklahoma ~~resident~~;

(B) must reside with and provide at least eight hours per day of care to an eligible care recipient; full-time care for an eligible person with a developmental disability or developmental delay with an assessment or evaluation date within 12 months of the date of application, demonstrated by (i) through (v) of this paragraph:

~~(i) doctor’s statement or diagnosis;~~

~~(ii) SoonerStart developmental evaluation documenting scores indicating:~~

~~(I) a 50% delay in one domain; or~~

~~(ll) a 25% delay in two or more domains;~~

~~(iii) school test scores;~~

~~(iv) psychological evaluations; or~~

~~(v) statement from a licensed therapist indicating a condition related to a developmental delay or developmental disability; and~~

(C) must not receive respite services funded through any other state or federal program or service on behalf of an eligible care recipient;

(D) may receive a DHS Child Care Subsidy per OAC 340:40-7-1 on behalf of an eligible care recipient;

(E) may receive an adoption subsidy on behalf of an eligible care recipient; and

~~(C)~~(F) ~~have~~ has an adjusted gross income of ~~$60,000 or~~ less than $75,000 from the most recent federal tax return.

(1) Applications for respite vouchers are available through ~~DDSD~~ DDS area offices.

(2) A completed application must include: a copy of the most recent federal income tax return.When an applicant receives Supplemental Security Income, Temporary Assistance for Needy Families, or SoonerCare the federal income tax return is not required.

(A) a signed copy of the caregiver's most recent federal income tax return.When married and filing separately, send returns for the caregiver and the caregiver's spouse;

(B) when the caregiver is employed and did not complete a tax return, a statement from the employer indicating the average number of hours worked per week, the hourly rate, and usual schedule worked each week;

(D) a copy of the caregiver’s Social Security card; and

(E) a copy of the documentation that verifies the care receiver’s disability, that includes, but is not limited to:

(i) a psychological evaluation;

(ii) the portion of an Interdisciplinary Education Plan titled, Multidisciplinary Evaluation and Eligibility Group Summary, also known as “MEEGS” or "MEETS";

(iii) the portion of an Interdisciplinary Education Plan titled, Review of Existing Data also known as the "RED";

(iv) an evaluation from a licensed therapist indicating a condition related to a developmental disability; or

(v) a copy of the SoonerStart developmental evaluation documenting scores indicating:

(I) a 50 percent delay in one domain; or

(II) a 25 percent delay in two or more domains.

(3) Incomplete applications are returned to the applicant for correction.

(4) Respite voucher applications are considered in chronological order of receipt, of a completed application.~~DDSD~~ DDS provides a written determination to the applicant within 30 60 calendar days.

(d) Issuance of respite voucher.~~Respite voucher applications are valid for the state fiscal year (July-June).~~ Authorization for the respite voucher program is valid for one calendar year from the date the application or annual review is approved.Issuance of a respite voucher is subject to the continued availability of funding.When an application or annual review is approved, respite vouchers are issued: ~~is issued to the caregiver applicant for use from the date of issuance and is valid for 90 days.~~

(1) to the caregiver applicant and are valid for 90 calendar days from the date of issuance;

(2) in sets of three.The applicant must submit to the DDS State Office Respite Voucher program staff staff Form 06RP002E, Request for Additional Respite Vouchers, to request additional vouchers;

(3) in the amount of:

(i) $500 when the caregiver’s adjusted gross income is $0 through $59,999.99;

(ii) $400 when the caregiver’s adjusted gross income is $60,000.00 through $74,999.99;

(iii) $100 for each additional eligible care recipient with a maximum payment of $800 per 90 calendar-day period when the caregiver’s adjusted gross income is $0 through $59,999.99; or

(iv) $100 for each additional eligible care recipient with a maximum payment of $700 per 90 calendar-day period when the caregiver’s adjusted gross income is $60,000.00 through $74,999.99.

(e) Caregiver responsibilities.Caregivers are responsible for:

(1) interviewing and selecting the respite provider;

(2) setting an hourly rate;

(3) training the provider;

(4) ensuring proper payment for services; and

(5) tracking the ~~number of respite hours used and~~ total amount claimed against the voucher.

(f) Submitting voucher for payment.The caregiver and the respite care provider complete and sign the respite voucher and submit it to ~~OKDHS Finance~~ ~~Division~~ DHS Financial Services for payment.

(g) Fair hearing.Any person who has been denied a voucher;, except for denials based on insufficient funding, may request a hearing per OAC 340:2-5.

340:100-5-22.2. Assisted Living without Waiver supports

Revised 9-1-15

(a) General information.Assisted Living without Waiver supports:

(1) is provided to individuals with ~~mental retardation~~ intellectual disabilities who:

(A) do not receive Home-and Community-Based Waiver services; and

(B) require minimal staff supports to live safely in their own homes; and

(2) includes, but is not limited to, service coordination, advocacy, linking with generic resources, assistance with transportation, and emergency response.

(b) Requirements.Access by service recipients to Assisted Living supports is contingent upon:

(1) availability of sufficient resources;

(2) a determination of eligibility ~~in accordance with~~ per Oklahoma Administrative Code (OAC) 340:100-3-1; and

(3) a determination by the provider agency of the person's appropriateness for Assisted Living supports ~~in accordance with subsection~~ per (c) of this Section.

(c) Pre-placement requirements.Prior to service initiation, the provider agency assesses the consumer's ability to live safely with minimal staff supports.

(1) In determining an individual's ability to participate in the Assisted Living program, all potential resources are considered to ensure the individual can financially maintain his or her home.

(A) Availability of financial resources, such as food ~~stamps~~ benefits, rental subsidy, income from employment, and public assistance is considered.

(B) The provider agency assesses sources of transportation and leisure activities, such as family, friends, and public transportation.

(C) The provider agency assists the individual to the extent necessary to establish and maintain an affordable household budget based on the individual's earned and unearned income.The provider agency considers living expenses ~~which~~ that provide adequate housing, food, and clothing.

(2) The provider agency documents efforts to ensure ~~that~~ housing occupied by the individual:

(A) meets local building codes;

(B) remains in safe and sanitary condition;

(D) has at least two means of exit;

(E) is equipped with a:

(i) telephone;

(ii) flashlight;

(iii) first aid kit;

(iv) smoke detector; and

(v) carbon monoxide detector.

(3) The provider agency ensures ~~that~~ the individual has the ability to:

(A) safely self-administer any necessary medication; and

(B) to reorder medications with available assistance.

(4) The provider agency ensures ~~that~~ the individual is competent in basic home safety skills, such as locking doors, asking identification of persons desiring admittance, use of appliances, and use of toxic cleaning substances.

(5) The provider agency ensures ~~that~~ the individual has:

(A) the ability to contact appropriate persons in case of fire, burglary, illness, or other emergency; ~~and~~

(B) necessary emergency contact numbers available by the telephone.; and

(6) The provider agency determines ~~that~~ the individual possesses basic food preparation skills.

(d) Governing principles.Services provided through Assisted Living without Waiver supports are developed around the needs and desires of the person receiving supports and conform to the principles listed in this subsection.

(1) Assisted Living supports do not include funding for rent and food expenses.Each individual is responsible for his or her room and board expenses, as well as all daily living expenses, recreational activities, clothing, furnishing, and other services or supports not authorized and funded through ~~DDSD~~ DDS.

(2) No more than four persons receiving services may share a home.

(3) Family members and guardians are allowed announced and unannounced visits, in accordance with the rights and wishes of the person receiving services.

(4) The Oklahoma Department of Human Services (DHS) provides ongoing monitoring through visits with at least a 30 ~~minutes~~ minute notice by ~~DDSD~~ DDS staff as well as others deemed appropriate by ~~the Department~~ DHS.

(5) Services promote and use age-appropriate, natural, and informal community supports including family, friends, and other non-paid citizens.

(6) The provider agency provides necessary assistance to the individual in ~~all of the areas listed in (A) - (K) of this paragraph.Assistance is provided in~~:

(A) identifying as many natural and informal supports and resources as are available to the individual.;

(B) obtaining transportation to and from community activities, vocational activities, and needed community services including, but not limited to, the grocery store, bank, medical clinic, and department store.

(i) If When the provider agency transports the individual, drivers hold applicable Oklahoma licenses and appropriate insurance.

(ii) The provider agency ensures ~~that~~ any vehicle used to transport a person receiving services:

(I) is licensed and operated ~~in accordance with~~ per local, state, and federal laws, regulations, and ordinances; and

(II) is maintained in a safe condition.;

(C) securing the supports necessary for the individual to participate in regular recreational and leisure activities at home and in the community.;

(D) maintaining an adequate supply of food, medication(s), clothing, personal grooming materials, linens, and furnishings.;

(E) obtaining medical coverage through private insurance, Medicaid, or employer's group plan.;

(F) establishing and maintaining a checking account, savings account, or both, with a bank convenient to the person receiving services.;

(G) locating a relative or friend to act as the individual's advocate as needed.;

(H) practicing the basic principles of financial management, such as budgeting, making purchases, and discretion in releasing financial information.If When the provider is the person's payee, the provider adheres to all rules in per OAC 340:100-3-4~~.1.~~;

(I) making and keeping appointments for any needed supports or services.;

(J) maintaining the person's residence ~~in accordance with paragraph~~ per (c)(2) of this Section.; and

(K) maintaining utility service.

(7) The provider agency maintains records for each person receiving services ~~which~~ that contain:

(A) demographic information including, but not limited to, ~~birthdate~~ date of birth, ~~social security~~ Social Security number, finding address, phone number, landlord's address and phone, emergency contact, and family phone number(s);

(B) names and contact information of relatives, friends, staff, and legal guardian, if when the person has a guardian;

(C) name, address, and telephone number of the person's doctor or clinic, dentist, and the hospital of the individual's choice;

(D) updated medical information, including allergies and current medication;

(E) appropriate assessments;

(F) current Individual Plan and implementation strategies; and

(G) documentation of service delivery, including the date, time, and summary of support provided.

(8) When the consumer leases or subleases a home from the provider agency or an individual associated with the provider agency, the guidelines in this paragraph are followed.

(A) The provider agency ensures ~~that~~ the individual has choice in selecting a home to rent, including providing support necessary for the person receiving services to consider homes not owned or leased by the provider agency or an individual associated with the provider agency.

(B) The provider agency and the person receiving services or legal guardian enter into a written lease agreement.

(C) The provider agency ensures the home is leased at fair market value or below, and is affordable for the person receiving services.

(D) If financially able to do so, the individual is free to:

(i) move from the house leased from the provider:

(I) for health and safety concerns; or

(II) ~~in accordance with~~ per Section 102 et seq. of Title 41 of the Oklahoma Statutes; or

(ii) renew the lease.

(E) The provider agency ensures the home owned by the provider or an individual associated with the provider agency meets all guidelines ~~given~~ provided in this Section.

(F) The provider cannot condition receipt of Assisted Living Services on leasing, or continuing to lease, the provider's home.

(9) If the provider determines ~~that~~ the person needs additional services or supports and the need(s) can no longer be met through Assisted Living Services, the provider assists the individual to find other appropriate services.

340:100-5-26. Health and wellness

Revised ~~5-15-09~~9-1-15

(a) Purpose.Services and supports promote health and well-being.

(b) Scope and applicability.Oklahoma Administrative Code (OAC) 340:100-5-26 applies to service recipients receiving services funded by Developmental Disabilities Services ~~Division (DDSD)~~ (DDS) or Home and Community-Based Services (HCBS) Waivers.

(1) Oklahoma State Department of Health (OSDH) guidelines for universal precautions, and infection control practices are used to prevent the transmission of communicable diseases.

(2) ~~DDSD~~ DDS staff and contract providers implement procedures to promote the health and wellness of each service recipient, including procedures related to:

(A) accessing emergency medical intervention;

(B) initiating first aid and cardio pulmonary resuscitation (CPR);

(D) addressing issues associated with aging;

(E) medication administration per OAC 340:100-5-32;

(F) health related services per OAC 340.:100-5-26.3;

(G) assisting the service recipient to access medical and dental services when needed; and

(H) identifying and addressing service recipient needs per OAC 340:100-5-50 through 340:100-5-58.

(1) The right of a service recipient to refuse service is respected per OAC 340:100-3-11.However the:

(A) Personal Support Team (Team) meets to discuss the service recipient's decision;

(B) service recipient must cooperate with assessments and provide documents necessary to continue eligibility to receive HCBS ~~waiver~~ Waiver services;

(C) service recipient must cooperate with the case manager and provider to obtain necessary assessments and physician orders if assistance by a paid HCBS ~~waiver~~ Waiver provider is identified in the Individual Plan (Plan); and

(D) except as provided for in OAC 340:100-5-22.5;, the service recipient is responsible for health and medical costs including:

(i) over-the-counter medications, and other medications not covered by insurance;

(ii) health insurance co-payments;

(iii) dental treatments and appliances not covered by dental insurance or within the allowable annual limits of the HCBS ~~waiver~~ Waiver, if when eligible;

(iv) medical treatments not covered by health insurance;

(v) dietary supplements, including, but not limited to:

(I) vitamins; and

(II) herbal and dietary treatments;

(vi) treatment supplies not medically necessary for:

(I) nutrition;

(II) incontinence;

(III) respirator or ventilator care;

(IV) decubitis care;

(V) catheterization;

(VI) health conditions;

(VII) infection control; or

(VIII) not within the allowable limits of the HCBS ~~waiver~~ Waiver.

(2) The service recipient or his or her family ~~will assume~~ assumes the responsibility for making appointments when residing in his or her own home or family home.

(d) Assessment of needs.The ~~DDSD~~ DDS case manager ensures an individual assessment is completed for each service recipient per OAC 340:100-5-51.

(e) Planning and implementation requirements.

(1) Health and wellness support and services and the roles of various individuals are specifically noted in the service recipient's IP Plan per OAC 340:100-5-50 through 340:100-5-58.

(2) For a service recipient who receives minimal services to maintain residence in his or her own home, family home, or to maintain employment, the service recipient and his or her Team determines the appropriate roles for members of the Team per applicable policy.

(3) For a service recipient who receives residential, group home, or extensive health supports to remain in their own home, family home, or maintain employment, the team ~~will identify~~ identifies specific roles and protocols necessary to provide support as listed in (A) – (H) of this paragraph.

(A) The Team identifies desired health care outcomes through the Team process.

(B) Health issues identified through health care evaluations and assessments that impact the service recipient's life are incorporated and integrated by the Team into the Plan through goals and objectives.

(D) When assessing health care services or implementation strategies involving discipline-specific services, a representative from that discipline participates in at least a consulting role.

(E) Any invasive or intensive professional service or procedure is reviewed by the Team, including participation from any other service provider as appropriate.Consent is assessed per OAC 340:100-3-5.

(i) Team review of an invasive or intensive service or procedure includes discussion, prior to implementation, of the proposed service or procedure, and of possible alternatives.

(ii) Invasive procedures reviewed by the Team comprise both scheduled and emergency procedures, that include, but are not limited to:

(I) tracheotomy;

(II) orthopedics;

(III) gastrostomy;

(IV) jejunostomy;

(V) multiple dental extractions;

(VI) amputation; or

(VII) consideration of permanent sterilization.

(iii) An invasive or intensive professional service or procedure implemented on an emergency basis must be reviewed by the Team as soon as possible, ~~but~~ within five ~~working~~ business days.Emergency procedures subject to review include, but are not limited to emergency:

(I) surgery; or

(II) behavioral intervention, including mechanical or chemical restraints.

(F) The residential or group home provider has an obligation to assure health coordination activities are implemented.

(G) The Team identifies a health care coordinator (HCC) to ensure implementation and coordination of health care services for the service recipient.The HCC:

(i) is a person who has an understanding of the service recipient's health care needs and lifestyle, and may be the service recipient, service recipient's family member, foster parent, companion, residential provider staff, or other person who is familiar with the service recipient's needs;

(ii) receives ~~DDSD~~ DDS required training;

(iii) documents that health concerns are addressed, monitored, and communicated;

(iv) supports the person to directly communicate to the physician the reason for the medical consultation whenever possible, or communicate on the service recipient's behalf;

(v) keeps the physician advised of medical status and data regarding any target symptoms;

(vi) communicates physician orders to core Team members and other service providers as appropriate;

(vii) presents Form 06HM005E, Referral Form for Examination or Treatment, for HCBS Waiver recipients to the physician at the time of the visit.:

(I) ensuring Form 06HM005E is completed by the HCC prior to the visit.; and

(II) ~~The HCC requests~~ the physician ~~to complete~~ completes a short written summary of the findings.;

(viii) presents Form 06HM073E, Referral Form for Psychiatric Examination or Treatment, for HCBS Waiver recipients to the psychiatrist at the time of the visit.

(I) Form 06HM073E is completed by the HCC prior to the visit.

(II) The psychiatrist complete a short written summary of the findings;

~~(viii)~~(ix) ~~When~~ when employed by a contract provider, the employer develops and implements a procedure to ensure appropriate backup if the HCC is unable, for any reason, to perform these duties; and

~~(ix)~~(x) completes health status and medication reviews each month using Form 06HM006E, Health Status and Monthly Medication Review.

(H) For HCBS Waiver service recipients, the DDSD case manager makes a referral for a clinical pharmacy review by a clinical pharmacist or physician:

(i) upon request of a Team member or clinician participating with the Team;

(ii) when a review performed by the assigned DDSD case manager and nurse determines a referral to an independent clinical pharmacist or physician is indicated.The DDSD case manager submits a clinical pharmacy review annually or as needed when the service recipient:

(I) receives five or more medications;

(II) has an unusual physical sign or symptom during the month in review that is not resolved through other medical interventions;

(III) uses a p.r.n. medication routinely for more than three months with an average use of three per week or ten per month;

(IV) takes two or more psychotropic medications per OAC 340:100-5-26.1; or

(V) takes three or more anticonvulsant medications used for a seizure disorder.

(f) Implementation procedures for HCBS waiver skilled nursing services.

(1) Skilled nursing services are implemented per OAC 317:30-5-390 through ~~317:30-5-394~~ 317:30-5-393.

(2) Community service workers are trained and carry out implementation strategies addressing health care outcomes.

(3) Accurate and current medical and program information is maintained in the home record by the residential provider and available for review by authorized ~~OKDHS~~ DHS staff.

(g) Case management monitoring responsibilities for HCBS Waiver service recipients.

(1) The case manager monitors implementation of the plan per OAC 340:100-5-52 and 340:100-3-27.

(2) For the purpose of monitoring and evaluation, designated ~~DDSD~~ DDS staff ~~have~~ has access at all times to the service recipient's medical and programmatic information.

(3) The case manager monitors the service recipient's access to medical and dental services.

(4) The case manager may assist the service recipient in locating health care providers.

SUBCHAPTER 6. GROUP HOME REGULATIONS

PART 11. PROGRAM STANDARDS

340:100-6-55. Staffing requirements

Revised ~~7-1-11~~ 9-1-15

Group homes must employ sufficient staff who are appropriately qualified and trained to provide the essential services of the home.

(1) Sufficient staff.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.

(A) There must be at least one designated person in charge of the home and its operation available for each home when service recipients are present.Staff support and supervision must be provided as needed for each service recipient in the home.Staff must be physically able and mentally alert to carry out the duties of the job.

(B) In addition to direct support staff, each service recipient in a group home must have a staff person who serves as program coordinator.In addition to duties required by Oklahoma Administrative Code (OAC) 340:100-5-52, program coordination staff must:

(i) get to know the service recipient and the service recipient's needs;

(ii) make announced and unannounced visits to the group home that include a minimum of three monitoring visits per month, to monitor the needs of the service recipients and the need for supervision of staff.The visits should occur at times when it would reasonably be anticipated that the majority of the residents are home.Agency administration staff meeting the requirements of this Section may complete these visits in addition to program coordination staff.At least two of the visits must be unannounced, unless the:

(I) home has fully trained staff,;

(II) home has no turn-over for the past year,;

(III) the service recipients do not require restrictive or intrusive procedures,; and

(IV) there have been no medication errors for the previous year, in which case the unannounced visits may be reduced to one per month.Of the unannounced visits, at least one visit must occur each month:

~~(I)~~ on Saturday or Sunday; or

~~(II)~~ between 8:00 p.m. and 7:00 a.m. on a weekday;

(iii) provide support and assistance to any service recipient who is experiencing an emotional, behavioral, or medical crisis;

(iv) be accessible to direct support staff 24 hours per day and available to respond, in person if when necessary, to an emergency;

(v) supervise direct support staff to promote achievement of outcomes in the service recipient's Individual Plan (Plan);

(vi) ensure staffing levels meet the requirements of the service recipient's Plan, with staff trained per OAC 340:100-3-38;

(vii) ensure each service recipient's needs are always met, including, but not limited to:

(I) utilities and phone service;

(II) furniture;

(III) food supplies that meet the service recipient's nutritional needs;

(IV) linens;

(V) personal items;

(VI) adaptive equipment; and

(VII) prescription medications;

(viii) assist the Developmental Disabilities Services ~~Division (DDSD)~~ (DDS) case manager as requested to prepare for and implement the service recipient's Plan and its revisions per OAC 340:100-5-50 through 340:100-5-58;

(ix) ensure Oklahoma Department of Human Services and Oklahoma Health Care Authority rules are followed; and

(x) complete necessary training ~~specified in~~ per OAC 340:100-3-38.

(i) act as a consultant;

(ii) review medication issues and administration quarterly, or more often if when required; and

(iii) provide technical assistance upon request.Documentation of the use of the nurse consultant must be maintained by the group home provider.

(D) Service recipients do not supervise other service recipients.

(2) Staff qualifications.

(A) The group home has an administrator and program coordinator who must:

(i) be at least 21 years ~~old~~ of age; and

(ii) have a minimum of four years of any combination of college level course work 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~~ DDS director or designee.Both roles may be filled by the same person.

(B) All other staff must be at least 18 years of age.

(C) The provider agency is responsible for recruitment, screening, training, and supervision of staff or volunteers providing direct services, ensuring direct support staff is not supervised by a relative or person living in the staff's home.A relative includes a wife, husband, child, parent, stepparent, parent-in-law, grandchild, grandparent, brother, sister, stepchild, brother-in-law, sister-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, first cousin, or any such person with whom the employee shares a foster relationship.

~~(C)~~(D) The provider agency must comply with OAC 340:100-3-39 regarding pre-employment screening for community services workers.

(3) Staff training.To ensure all providers achieve and maintain a level of competency necessary to meet the needs of each service recipient in the group home, provider agency staff must complete training ~~specified in~~ per OAC 340:100-3-38.