RULES AND REGULATIONS
Title 55—PUBLIC WELFARE
DEPARTMENT OF PUBLIC WELFARE
[ 55 PA. CODE CH. 51 ]
Office of Developmental Programs Home and Community-Based Services
[42 Pa.B. 3230]
[Saturday, June 9, 2012]The Department of Public Welfare (Department) adds Chapter 51 (relating to Office of Developmental Programs home and community-based services) to read as set forth in Annex A under the authority of sections 201(2), 403(b) and 403.1 of the Public Welfare Code (code) (62 P. S. §§ 201(2), 403(b) and 403.1), as amended by the act of June 30, 2011 (P. L. 89, No. 22) (Act 22).
Omission of Proposed Rulemaking
On July 1, 2011, the General Assembly enacted Act 22, which amended the code. Act 22 added several new provisions to the code, including section 403.1. Section 403.1(a)(4) and (6), (c) and (d) of the code authorizes the Department to promulgate final-omitted regulations under section 204(1)(iv) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(1)(v)), known as the Commonwealth Documents Law (CDL), to establish or revise provider payment rates or fee schedules, reimbursement models and payment methodologies for particular services and to establish provider qualifications. Section 204(1)(iv) of the CDL authorizes an agency to omit or modify notice of proposed rulemaking when a regulation relates to Commonwealth grants and benefits. The Medical Assistance (MA) Program is a Commonwealth grant program through which eligible recipients receive coverage of certain health care benefits. In addition, to ensure the Department's expenditures for State Fiscal Year (FY) 2011-2012 do not exceed the aggregate amount appropriated by the General Assembly, section 403.1 of the code expressly exempts these regulations from the Regulatory Review Act (71 P. S. §§ 745.1—745.12), section 205 of the CDL (45 P. S. § 1205) and section 204(b) of the Commonwealth Attorneys Act (71 P. S. § 732-204(b)).
The Department is adding Chapter 51 in accordance with section 403.1 of the code because this final-omitted rulemaking establishes payment rates, fee schedules, pay- ment methodologies and provider qualifications. This final-omitted rulemaking applies to providers participating in the Adult Autism, Consolidated and Person/Family Directed Support Home and Community-Based Services (HCBS) waiver programs, as well as providers of targeted services management.
Purpose
The purpose of this final-omitted rulemaking is to help bring expenditures for State FY 2011-2012 within the aggregate amount appropriated for HCBS programs by the General Appropriations Act of 2011.
Background
The Secretary of the United States Department of Health and Human Services is authorized under 42 CFR 441.302 (relating to state assurances) to waive certain Medicaid statutory requirements. These waivers enable states to cover a broad array of HCBS for targeted populations as an alternative to institutionalization. The Office of Developmental Programs (ODP) operates three HCBS waiver programs: Adult Autism; Consolidated; and Person/Family Directed Support. These waiver programs have grown 141% in the past 11 years. The cost of these programs has also increased from $752 million in FY 2000 to $1.81 billion in FY 2011.
Beginning in 2009, the Department began implementation of a Statewide rate-setting system for ODP-administered waiver programs to establish provider payment rates consistently across this Commonwealth, ensure program integrity and further promote efficient use of Federal and State resources. To further provide clarity regarding program requirements and to improve the cost-effectiveness of these programs, the Department is promulgating this final-omitted rulemaking. The promulgation of this final-omitted rulemaking will enable the Commonwealth to efficiently use Federal funding for HCBS programs and will ensure that the Department's expenditures for State FY 2011-2012 do not exceed the aggregate amount appropriated by the General Assembly.
This final-omitted rulemaking focuses on establishing payment methodologies for HCBS that are efficient and economical and establishes provider qualifications to ensure the quality of care being rendered by providers applying for and rendering MA HCBS and providers of targeted services management. This chapter supersedes Chapters 4300 and 6200 (relating to county mental health and mental retardation fiscal manual; and room and board charges) when a provider provides an HCBS to both waiver and base-funded participants from a waiver service location.
Requirements
The following is a summary of the major provisions of the final-omitted rulemaking.
§ 51.4. Incorporation by reference
This section incorporates by reference the approved applicable waivers, including future approved waiver amendments. The approved applicable Consolidated and Person/Family Directed Support Federal waivers can be found on the Department's web site at http://www.dpw.state.pa.us/dpworganization/officeofdevelop mentalprograms/index.htm.
The approved applicable Adult Autism Waiver can be found on the Department's web site at http://www. dpw.state.pa.us/ucmprd/groups/webcontent/documents/document/p_011923.pdf.
§ 51.11. Prerequisites for participation
This section provides provider enrollment requirements to verify providers are qualified to provide a service. A provider is required to complete an MA application and sign an MA provider agreement and an HCBS waiver provider agreement. A provider is also required to complete the provider enrollment application and submit supporting qualification documents to the Department or the Department's designee. In addition, a provider is required to comply with the approved applicable waiver, including future approved waiver amendments.
§ 51.13. Ongoing responsibilities of providers
This section provides the ongoing requirements for providers, including qualification and training requirements. A provider is required to be qualified at least every 2 years or more frequently as required by the approved waiver. A provider that fails to submit qualification documentation is precluded from receiving payment under the MA Program.
§ 51.15. Provider records
This section establishes standards for certification that the services or items for which the provider claims payment were provided and that information submitted in support of the claim is accurate and complete.
§ 51.23. Provider training
This section requires a provider to ensure that employees providing HCBS have met the training requirements based on participant needs as specified in a participant's Individual Service Plan (ISP). In addition, providers are required to implement a standard annual training on various topics, including meeting each participant's needs related to communication, mobility, behavior interventions, prevention of abuse, reporting and investigating incidents, participant grievance resolution, and billing and documentation of service delivery.
§ 51.25. Quality management
This section requires a provider to create, implement and update a quality management plan as required by the approved applicable waiver. The plan must detail how the provider will measure, remediate and improve its performance in accordance with criteria to be established by the Department.
§ 51.31. Transition of participants
This section requires a provider to send written notification to each participant, the Department, a licensing or certifying entity and the Supports Coordinator 30 calendar days prior to transitioning a participant to another provider when the provider is no longer willing to provide an HCBS. A provider is also required to send the Department a copy of the notification sent to a participant.
§ 51.32. Back-up plans
This section requires a provider to have a back-up plan as required by the approved applicable waiver. The back-up plan is necessary for HCBS to be implemented as authorized in a participant's ISP.
§ 51.43. Department rates and HCBS classification
§ 51.44. Payment policies
Section 51.43 provides that an HCBS will be paid under one of four categories: (1) the MA fee schedule; (2) a vendor good and service charge; (3) a cost-based rate; or (4) a Department-established fee. Section 51.44 provides the Department's payment policies regarding HCBS. The Department will only pay for compensable HCBS in the amount, duration and frequency listed on a participant's approved ISP.
§ 51.46. Audit requirements
This section requires a provider to comply with audit standards and to retain books, records and documents for audit and inspection.
§ 51.52. Fee schedule rate
§ 51.53. Fee schedule rate reimbursement
§ 51.62. Vendor goods and services reimbursement
§ 51.72. Cost-based rate assignment
§ 51.131. Department-established fees
These sections identify the services and payment methodology for which HCBS will be reimbursed. The MA fee schedule reimbursement payment methodology includes a review of the HCBS service definitions and a determination of allowable cost components which reflect costs that are reasonable, necessary and related to the delivery of the service. The Department will publish the fee schedule rates under the MA Program fee schedule as a notice in the Pennsylvania Bulletin.
A limited number of goods and services are reimbursed at the actual cost. The Department will publish the list of these vendor goods and services as a notice in the Pennsylvania Bulletin.
The cost-based rate methodology is based on cost report data submitted by providers and approved in a desk review process. The Department will identify changes in HCBS being classified as a cost-based service by publishing a notice in the Pennsylvania Bulletin.
Under § 51.131, the Department will establish a fee for the portion of payment for residential habilitation HCBS which is ineligible for Federal reimbursement. The Department uses State-only funds to make this fee payment. The Department will publish the fee as a notice in the Pennsylvania Bulletin.
§ 51.81. Allowable costs
This section sets forth the parameters that must be met prior to a cost being considered an allowable cost under the cost-based rate-setting methodology. Costs must be documented, conform to the limitations in the approved applicable waiver and relate to the provision of an HCBS.
§ 51.152. Termination of provider agreement
§ 51.153. Sanctions
These sections set forth provider sanctions in the event of noncompliance with the regulations. Sanctions include the following: withholding or disallowing all or a portion of future payments; suspending payment or future payment pending compliance; and recouping payments for services the provider cannot verify as being provided in the amount, duration and frequency billed.
Affected Individuals and Organizations
The final-omitted rulemaking affects providers who deliver HCBS through the Adult Autism, Consolidated and Person/Family Directed Support HCBS programs. This final-omitted rulemaking also applies to providers of targeted services management.
Accomplishments and Benefits
The Department is implementing cost savings to ensure that the expenditures for State FY 2011-2012 for assistance programs administered by the Department do not exceed the aggregate amount appropriated for the program by the General Appropriations Act of 2011. This final-omitted rulemaking also provides the Department with authority to enforce provisions of its HCBS programs, specifies the payment provisions for waiver services and establishes provider qualifications and monitoring requirements.
Fiscal Impact
The Commonwealth will realize an estimated savings of $ 8.028 million in State funds in FY 2011-2012 with implementation of this final-omitted rulemaking.
Paperwork Requirements
There are new paperwork requirements under the final-omitted rulemaking. However, there is not a reasonable alternative to this increased paperwork. The final-omitted rulemaking contains the paperwork requirements for providers to apply for enrollment in the MA Program to deliver a waiver service. In addition, providers who do not meet the provisions of the regulations are required to create a corrective action plan to demonstrate how the provider will remediate the areas of noncompliance.
Public Process
The Department published advance notice at 42 Pa.B. 1006 (February 18, 2012) announcing its intent to adopt regulations regarding HCBS provider payment rates, fee schedules, reimbursement models, payment methodologies and provider qualifications. The Department invited interested persons to comment. In addition, the Department discussed the payment rates and methodologies with the Medical Assistance Advisory Committee at the February 23, 2012, meeting.
The Department also posted a draft regulation on the Department's web site on February 24, 2012, with a 15-day comment period. The Department again invited interested persons to submit written comments regarding the regulations to the Department. The Department received over 1,000 individual comments from 260 commentators. The Department also discussed the Act 22 regulations and responded to questions at the House Health Committee hearing on March 8, 2012.
The Department carefully considered the comments received in response to the draft regulations.
Discussion of Comments
Following is a summary of the major comments received within the public comment period and the Department's response to the comments.
Comment
Several commentators stated that the Department did not allow sufficient time for review and comment on the regulations. In addition, commentators requested the public comment period be extended an additional 30 days due to the policy changes and the volume of regulations.
Response
The Department engaged in a transparent public process through which the Department solicited and received numerous comments and input from stakeholders and other interested parties.
As previously mentioned, the Department published advance public notice at 42 Pa.B. 1006 announcing its intent to adopt regulations regarding HCBS provider payment rates, fee schedules, reimbursement models, payment methodologies and provider qualifications. The Department invited interested persons to comment. The Department also posted the draft regulations on the Department's web site on February 24, 2012. The Department again invited interested persons to submit written comments, on or before March 9, 2012, regarding the regulations to the Department. As a final-omitted rulemaking under Act 22, the Department was not required to have a public comment process. However, to encourage transparency and public input, the Department provided an opportunity for comment by publishing the notice and posting the draft regulations on the Department's web site. This public comment process provided sufficient opportunity for interested parties to submit comments, as supported by the number of comments that were submitted.
§ 51.14. Residential habilitation service providers
Comment
Several commentators objected to these new provider qualification requirements on the basis that changes in existing residential habilitation service locations and the establishment of new residential habilitation service locations will require a provider to receive prior approval from the Department.
Response
The Department is not revising the language in this section as the requirement is based on standards provided in the approved applicable waivers.
§ 51.20. Criminal history checks
Comment
Commentators suggested that criminal history checks for ''contracted'' personnel would be a new requirement, is overly burdensome and should be revised to apply to staff who work directly with participants.
Response
The Department concurs and revised the regulation accordingly.
§ 51.23. Provider training
Comment
Eighteen commentators suggested that the standard list of required staff training in this section is a new and overly burdensome requirement for every staff and contractor to complete. The commentators suggested that the training should only apply to staff and contracted personnel who work directly with participants.
Response
The Department agrees that § 51.23 should be revised to apply to staff and contracted personnel who work directly with participants. Therefore, the Department revised the definition of ''staff'' in § 51.3 (relating to definitions) to include employees and contracted personnel when they have direct contact with a participant for the provision of an HCBS.
§ 51.25. Quality management
Comment
Eighteen commentators suggested that the Quality Management (QM) plan criteria in the regulation will require additional resources currently not available in the system.
Response
The Department did not make revisions to the language requiring providers to develop a QM plan. The QM plan is an essential element for the Department and the providers to fulfill the assurances in the approved applicable waiver and provide quality services to participants.
§ 51.27. Misuse and abuse of funds and damage of participant's property
Comment
Sixteen commentators suggested that the language which requires the provider to be responsible to replace a participant's personal property be revised to state that the provider is only responsible to replace or compensate for property that was lost or damaged by the provider while providing HCBS to the participant.
Response
The Department concurs and has revised this section so it is clear that the provider is only responsible to replace or compensate for property that was lost or damaged by the provider while providing HCBS to a participant.
§ 51.28. SCO requirements for Consolidated and P/FDS Waiver
Comment
Several commentators suggested that the residential habilitation service criteria which the supports coordinator shall review prior to that service being added to an ISP would preclude many participants from receiving residential habilitation services in a family home environment.
Response
The Department concurs and deleted the language that the commentators found objectionable.
§ 51.32. Back-up plans
Comment
Eighteen commentators suggested the Department delete the requirement for a provider to have a back-up plan for the provision of HCBS. The commentators stated that they do not understand the difference between a back-up plan and the ISP.
Response
The Department did not delete the requirement for a provider to develop a back-up plan. The Department did, however, revise the language to explain that a back-up plan assures that HCBS is provided at the frequency and duration established in the participant's ISP. Detailed information on the back-up plan for each HCBS the provider renders for a participant is then added to the ISP.
§ 51.83. Bidding and procurement
Comment
Twelve commentators opposed this section. They contended it is not practical or cost-efficient for providers to obtain bids for the supplies they purchase.
Response
The Department concurs and revised the language in this section to require competitive bidding for supplies and HCBS over $5,000.
§ 51.92. Rental of administrative, residential and nonresidential buildings
Comment
Eleven commentators suggested the language should be clarified with regard to real estate tax since the regulation does not allow the lessee to obtain a profit.
Response
The Department finds that this provision promotes fiscal accountability. As a result, a change was not made to the regulation.
§ 51.94. Fixed assets
Comment
Several commentators objected to this section. They argued that the fixed asset is the property of the provider and the provider should be able to use it at its discretion.
Response
The Department is not revising this section. The goal of the Department is to maintain program assets which have been paid for with MA Program funds and to allow a provider to reinvest the proceeds of any sale of a program asset back into the MA Program.
§ 51.96. Capital assets—administrative and nonresidential buildings
Comment
Several commentators opposed the requirements for providers to receive prior written approval from the Department for a planned major renovation of an administrative or nonresidential building with a cost above 10% of the original cost of the building being renovated. The commentators stated that the providers should be able to use the property at their discretion and should not have to obtain prior approval from the Department to renovate a building. The commentators also objected to the provision on recoupment of funds.
Response
The Department revised the threshold percentage for required prior approval from 10% to 25% of the original cost of the building being renovated for a planned major renovation of an administrative or nonresidential building. The Department also added language that as an alternative to recoupment, with Department approval, the provider can reinvest the proceeds from the sale of a service location into any capital asset used in the MA Program.
§ 51.97. Capital assets—residential buildings
Comment
Several commentators suggested that the requirement to return funded equity in a property if it is sold is unreasonable and removes the flexibility that is essential for a provider to change service structures by eliminating the provider's capital base.
Response
The Department revised the threshold percentage for required prior approval from 10% to 25% of the original cost of the building being renovated for a planned major renovation of a residential building. The Department also added language that as an alternative to recoupment, with Department approval, the provider can reinvest the proceeds from the sale of the service location into a capital asset used in the MA Waiver Program.
§ 51.98. Residential habilitation vacancy
Comment
Several commentators recommended that the regulation should contain a provider-specific vacancy factor and the commentators expressed concern that the language included in the regulation needed to be managed at the participant level and not the provider level.
Response
The Department did not agree with the comments. The vacancy factor will remain a standard vacancy factor and not a provider-specific factor. In addition, the vacancy factor will be managed at the provider level. The Department added subsection (e) to further clarify the Department's intent to maintain the management of the vacancy factor at the provider level. Further, the vacancy factor will be established for all waiver residential habilitation services by publication as a notice in the Pennsylvania Bulletin.
Regulatory Review Act
Under section 403.1 of the code, this final-omitted rulemaking is not subject to the Regulatory Review Act.
Findings
The Department finds that:
(1) Notice of proposed rulemaking is omitted in accordance with section 204(1)(iv) of the CDL and 1 Pa. Code § 7.4(1)(iv) because the regulations relate to Commonwealth grants and benefits.
(2) The adoption of this final-omitted rulemaking in the manner provided by this order is necessary and appropriate for the administration and enforcement of the code.
Order
The Department, acting under the code, orders that:
(a) The regulations of the Department, 55 Pa. Code, are amended by adding §§ 51.1—51.4, 51.11—51.34, 51.41—51.48, 51.51—51.53, 51.61, 51.62, 51.71—51.75, 51.81—51.103, 51.111, 51.121—51.128, 51.131, 51.141 and 51.151—51.157 to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order and Annex A to the Office of General Counsel for approval as to legality and form as required by law.
(c) The Secretary of the Department shall certify and deposit this order and Annex A with the Legislative Reference Bureau as required by law.
(d) This order shall take effect July 1, 2011, in accordance with section 403.1(e) of the code. Sections 51.14(a) and (b), 51.28(d)—(h), 51.74(9) and (15), 51.75(3) and 51.98(d) shall take effect upon written notification that the Centers for Medicare and Medicaid Services has granted approval of the Consolidated and Person/Family Directed Support HCBS Waivers. Upon written notification of approval, the Department will publish a notice in the Pennsylvania Bulletin. Sections 51.73(e), 51.87, 51.92(a)(1), 51.94(f), 51.95(b)(1), 51.96(b) and (g), 51.97(4) and (5), 51.103(a), 51.111 and 51.131(b) and (c) shall take effect upon publication.
GARY D. ALEXANDER,
SecretaryFiscal Note: 14-533. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 55. PUBLIC WELFARE
PART I. DEPARTMENT OF PUBLIC WELFARE
Subpart E. HOME AND COMMUNITY-BASED SERVICES
CHAPTER 51. OFFICE OF DEVELOPMENTAL PROGRAMS HOME AND COMMUNITY-BASED SERVICES Subchap.
A. GENERAL PROVISIONS B. PROVIDER QUALIFICATIONS AND PARTICIPATION C. PAYMENTS FOR SERVICES D. CLOSURES AND TERMINATION
Subchapter A. GENERAL PROVISIONS Sec.
51.1. Purpose. 51.2. Scope. 51.3. Definitions. 51.4. Incorporation by reference. § 51.1. Purpose.
This chapter specifies the program and payment requirements for providers participating in the Adult Autism, Consolidated and P/FDS Waivers.
§ 51.2. Scope.
This chapter applies to providers applying for and rendering MA waiver HCBS and providers of targeted services management. This chapter supersedes Chapters 4300 and 6200 (relating to county mental health and mental retardation fiscal manual; and room and board charges) when a provider provides an HCBS to both waiver and base-funded participants from a waiver service location.
§ 51.3. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
AWC/FMS—Agency with choice/financial management service provider—A type of financial management service provider.
Abuse—The allegation or actual occurrence of the infliction of injury, unreasonable confinement, intimidation, punishment, mental anguish, sexual abuse or exploitation.
Additional individualized staffing—Additional staffing as part of the licensed waiver residential habilitation services to meet the long-term needs of a participant when those needs cannot be met as a part of the usual residential habilitation staffing pattern.
Adult Autism Waiver—A Federally-approved 1915(c) waiver under section 1915(c) of the Social Security Act (42 U.S.C.A. § 1396n(c)) designed to help participants with Autism Spectrum Disorder who are 21 years of age and older to live more independently in their homes and communities.
Agency provider—An entity that employs staff to provide an HCBS.
Annual review ISP—The document that outlines the results of the annual review meeting.
Applicant—An individual provider, SSW or agency provider in the process of enrolling as an HCBS provider with the Department.
Approved program capacity—The maximum number of participants who are authorized by the Department to receive services in a waiver residential habilitation service location.
Assessed need—A documented need of a participant.
Assessment—Instruments and documents used by the ISP team and the Department to identify a participant's specific needs for HCBS.
Back-up plan—
(i) A strategy developed by a provider to ensure the HCBS the provider is authorized to provide is delivered in the amount, frequency and duration as specified in the participant's ISP.
(ii) The term is referred to as a contingency plan in the Adult Autism Waiver.
Base-funded services—A State-funded HCBS.
Behavioral specialist HCBS—Support to a participant that demonstrates behavioral challenges through specialized interventions that assist a participant to increase adaptive behaviors to replace or modify challenging behaviors that prevent or interfere with the participant's inclusion in the community.
Behavioral support plan—A set of interventions to be used by people coming into regular contact with the participant to increase and improve the participant's adaptive behaviors, consistent with the outcomes identified in the participant's ISP.
CAP—Corrective Action Plan—
(i) A plan developed by a provider to resolve noncompliance and avoid recurrence of noncompliance.
(ii) The term is referred to as a Plan of Correction in the Adult Autism Waiver.
Chemical restraint—A drug used to control acute, episodic behavior that restricts the movement or function of a participant.
Common law employer—The person under the vendor fiscal/employer agent FMS option who is the legal employer.
Conflict of interest—A situation in which a person, corporation or entity has a personal or professional relationship which is able to be exploited by that person, corporation or entity for personal, professional or financial benefit or gain.
Consolidated Waiver—A Federally-approved 1915(c) waiver under section 1915(c) of the Social Security Act designed to help participants with an intellectual disability 3 years of age and older to live more independently in their homes and communities.
DCAP—Directed Corrective Action Plan—A document developed or approved by the Department or the Department's designee to resolve noncompliance.
Department—The Department of Public Welfare of the Commonwealth.
Department designee—An entity designated by the Department to perform specific administrative functions on behalf of the Department.
EPLS—Excluded Parties List System—A database maintained by the United States General Services Administration that provides information about parties that are excluded from receiving Federal contracts, certain subcontractors and certain Federal financial and nonfinancial assistance and benefits.
FMS—Financial management service—An entity that fulfills specific employer or employer agent responsibilities for a participant that has elected to self-direct some or all of their HCBS.
Finding—An identified violation of this chapter, Chapter 1101 (relating to general provisions) or other Federal or State standards.
Grievance—The formal expression of dissatisfaction with the provision of a waiver service or a provider's delivery of a waiver service.
HCBS—Home and Community-Based Services—An array of medical, financial and social services or goods not covered by third-party medical resources or other funding sources that are necessary and paid for by the Department to assist a participant to live in the community.
HCSIS—Home and Community Services Information System—A secure web-enabled information system which manages information regarding participants and providers of waiver services.
ISP—Individual support plan—The comprehensive plan for each participant that includes HCBS, risks and mitigation of risks and individual outcomes for a participant.
ISP team—A group of people designated by the participant or required to participate in supporting the participant's outcomes.
Incident—An occurrence or allegation of an action or situation that may negatively affect a participant's health, welfare, safety or rights.
Incident investigation—The process of identifying, collecting and assessing facts from a reportable incident in a systemic manner by a person certified by the Department's approved Certified Investigation Training Program.
Incident target—The person who may have caused the incident to occur.
Individual outcome—
(i) The level of achievement the participant is working towards.
(ii) The term is referred to as goal in the Adult Autism Waiver.
Individual provider—A person who is not employed by an agency and who directly provides the HCBS, including an individual practitioner, independent contractor or SSW provider.
Integrated and dispersed in the community in noncontiguous locations—Waiver residential habilitation service locations that are located throughout the community, surrounded by individuals and businesses that are not funded by the Office of Developmental Programs, are not next to each other, side-by-side or back-to-back. Locations that share one common party wall are not considered contiguous.
Intellectual disability—Documented subaverage general intellectual functioning that occurs prior to the participant's 22nd birthday and is accompanied by significant limitations in adaptive functioning in at least two areas.
Invoice—A bill for an HCBS rendered that is submitted through the Department's designated MMIS billing system.
LEIE—List of Excluded Individuals/Entities—A database maintained by the United States Department of Health and Human Services, Office of Inspector General, for use by health care providers, the public and the government which provides information relating to parties excluded from participation in Medicare, Medicaid or other Federal health care programs.
MA—Medical Assistance.
MMIS—Medicaid Management Information System—The Department's claims processing system.
Managing employer—The person who enters into a joint employment arrangement with the AWC/FMS.
Mechanical restraint—A device used to control acute, episodic behavior that restricts the movement or function of a participant or portion of a participant's body. Examples include anklets, wristlets, camisoles, helmets with fasteners, muffs and mitts with fasteners, poseys, waist straps, head straps, restraining sheets and similar devices.
Medicheck—A Departmental list identifying providers, individuals and other entities precluded from participation in the MA Program.
Natural supports—Supports provided by friends, family, spiritual organizations, neighbors, local businesses and civic organizations that are not funded under the waivers.
ODP—The Office of Developmental Programs.
OHCDS—Organized Health Care Delivery System—An arrangement in which a provider that renders at least one direct MA waiver service also chooses to offer a different vendor HCBS by subcontracting with a vendor to facilitate the delivery of vendor goods or services to a participant.
Outcomes—Levels of achievement as described in the ISP.
P/FDS—Person/Family Directed Support—A Federally-approved 1915(c) waiver under section 1915(c) of the Social Security Act designed to support participants with an intellectual disability 3 years of age and older to live more independently in their homes and communities.
Participant—A person receiving HCBS.
Participant-directed services—A service managed by an eligible participant who has elected to self-direct through one of the FMS options.
Performance measure—Data results collected systematically over time to indicate provider performance.
Preventable incident—An event that may have been avoided if preventive measures were designed and implemented to reduce the likelihood of an incident occurring.
Preventive measures—Strategies or actions designed to reduce the likelihood of known factors that can result in an adverse event or outcome for a participant.
Private home—A home that is not agency owned, leased or operated and is leased or owned by a participant.
Prone position manual restraint—A method used to control acute, episodic behavior by holding the participant so that the front of the body is turned toward the supporting surface.
Provider—An individual or agency that provides HCBS.
Provider monitoring—A scheduled or unscheduled review conducted by the Department, or the Department's designee, to determine a provider's compliance with regulations and the MA and waiver provider agreements.
Provider performance review data—Performance data that may be used by the provider to devise QM plans while at the same time giving the provider an early indication of performance below Statewide averages.
QM plan—Quality Management plan—A written document describing how the provider will measure and remediate its performance to provide quality services and comply with the approved applicable waiver, including approved waiver amendments and this chapter.
Qualification documentation—Documentation that supports that a provider or applicant meets the provider qualification requirements for each service as prescribed in the approved applicable waiver, including approved waiver amendments.
Quarterly summary report—Information from providers of HCBS that provide services to a particular participant during the previous 3 months that detail the participant's progress towards goals and objectives included in the participant's ISP.
Remediation—Actions that are taken to correct deficiencies as a result of an incident or finding.
Residential habilitation enhanced staffing—An enhancement to the licensed residential habilitation service which can be residential habilitation services provided by a licensed nurse, supplemental habilitation staffing or additional individualized staffing. A licensed nurse can also provide residential enhanced staffing in an unlicensed residential habilitation service location.
Residential habilitation service—Support in the general areas of self-care, communication, fine and gross motor skills, mobility, socialization and use of community resources for participants that reside in a residential habilitation service location.
Respite care—Supervision and support to a participant on a short-term basis due to the absence or need for relief of those persons normally providing care to the participant.
Risk—The likelihood of some undesirable event or negative outcome occurring to a participant.
Risk factors—Attributes, behaviors, health conditions, features of the environment, actions, events or other determinants that increase the probability of an incident or negative outcome for a participant.
Risk mitigation strategies—Proactive action steps to avoid an incident.
SC—Supports coordinator—A person providing supports coordination services to a participant.
SCA—Supports coordination agency—A provider that delivers supports coordination services under the Adult Autism Waiver.
SCO—Supports coordination organization—A provider that delivers:
(i) Supports coordination services under the Consolidated and P/FDS Waivers.
(ii) Targeted services management and base-funded supports coordination.
SCO monitoring—Ongoing oversight of the participant's services to ensure services are implemented as specified in a participant's ISP.
SSW—Support service worker—An individual provider hired by a participant who is self-directing HCBS through the vendor fiscal/employer agent FMS option.
SSW agreement—The standard agreement that the SSW signs prior to delivering HCBS to a self-directing participant in the vendor fiscal/employer agent FMS option.
Satisfaction survey—A survey designed to measure a participant's approval of HCBS.
Seclusion—Placing a participant in a locked room with any type of locking device, such as a key lock, spring lock, bolt lock, foot pressure lock or physically holding the door shut.
Self-direction—A participant's management of some or all of the participant's approved and authorized services using the assistance of the vendor fiscal/employer agent FMS or agency with choice FMS.
Service location—The address identified in HCSIS by an HCBS provider where HCBS are provided or managed.
Staff—Employees, contractors or consultants that provide an HCBS through direct contact with a participant, or are responsible for the provision of an HCBS.
Supplemental habilitation staffing—Additional staffing as part of the licensed residential habilitation service to meet the temporary medical or behavioral needs of a participant.
Supports coordination—A service that includes locating, coordinating and monitoring needed HCBS and other supports for a participant.
Surrogate—A person identified under State law to make decisions for a participant who is incompetent or incapacitated or a person designated by a participant that is self-directing HCBS in one of the FMS options.
TSM—Targeted services management—Supports coordination services funded through the MA State Plan for individuals receiving MA who are not enrolled in a Medicaid waiver.
Target objective—The level of performance a provider desires to achieve within a specified period of time.
Third-party medical resource—MA, Medicare, CHAMPUS, workers' compensation, for-profit and nonprofit health care coverage and insurance policies, and other forms of insurances that are required to cover a participant's HCBS.
Vendor fiscal/employer agent FMS—A nongovernmental entity that is a fiscal agent for a participant who is self-directing using the vendor fiscal/employer agent FMS option.
Waiver—The Adult Autism, Consolidated and Person/Family Directed Support Home and Community-Based Waivers approved by the Centers for Medicare and Medicaid Services under section 1915(c) of the Social Security Act.
§ 51.4. Incorporation by reference.
The approved applicable waiver, including approved waiver amendments, is incorporated by reference herein. The Consolidated, Person/Family Directed Support and Adult Autism Federal waivers can be found on the Department's web site.
Subchapter B. PROVIDER QUALIFICATIONS AND PARTICIPATION Sec.
51.11. Prerequisites for participation. 51.12. SSW provider enrollment. 51.13. Ongoing responsibilities of providers. 51.14. Residential habilitation service providers. 51.15. Provider records. 51.16. Progress notes. 51.17. Incident management. 51.18. Risk management. 51.19. Certified investigations. 51.20. Criminal history checks. 51.21. Child abuse clearances. 51.22. Provisional hiring. 51.23. Provider training. 51.24. Provider monitoring. 51.25. Quality management. 51.26. Grievance procedures. 51.27. Misuse and abuse of funds and damage of participant's property. 51.28. SCO requirements for Consolidated and P/FDS Waiver. 51.29. SCA requirements for Adult Autism Waiver. 51.30. AWC/FMS requirements. 51.31. Transition of participants. 51.32. Back-up plans. 51.33. Conflict of interest. 51.34. Waiver of a provision of this chapter. § 51.11. Prerequisites for participation.
(a) In addition to the requirements under Chapter 1101 (relating to general provisions) to become an enrolled provider, the provider shall:
(1) Complete the provider enrollment application on a form prescribed by the Department.
(2) Sign an MA provider agreement and an HCBS waiver provider agreement.
(3) Submit supporting qualification documents identified on the Department's web site to the Department or the Department's designee.
(4) Comply with the approved applicable waiver, including approved waiver amendments, and any other applicable licensing requirements as identified in § 51.4 (relating to incorporation by reference).
(5) Send a complete enrollment package to the Department or the Department's designee.
(b) New providers shall complete and submit the provider monitoring documentation designated for new providers before being authorized to provide HCBS.
(c) A provider shall be qualified by the Department for each HCBS the provider intends to provide prior to rendering the HCBS.
(d) The provider shall submit any missing supporting qualification documentation materials requested by the Department or Department's designee within 30 days of notification by the Department.
(e) If missing supporting qualification documentation is not submitted within 30 days of notification, the enrollment application will be considered withdrawn by the Department and will not be processed.
(f) A provider may submit a new enrollment application after the previous enrollment application is withdrawn by the Department.
(g) A provider will not be paid until the provider is qualified and authorized by the Department or the Department's designee to provide an HCBS.
(h) A provider shall comply with the training requirements as specified in § 51.23 (relating to provider training).
(i) A provider may not influence a participant's freedom of choice in selecting a new provider.
(j) Subsection (b) does not apply to a provider of HCBS in the Adult Autism Waiver.
(k) This section does not apply to an SSW provider.
§ 51.12. SSW provider enrollment.
(a) An SSW provider hired by a common law employer under the vendor fiscal/employer agent FMS option shall:
(1) Enroll with the vendor fiscal/employer agent FMS and complete the State and Federal required paperwork.
(2) Complete the required criminal history background checks and child abuse checks under §§ 51.20 and 51.21 (relating to criminal history checks; and child abuse clearances).
(b) This section does not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.13. Ongoing responsibilities of providers.
(a) A provider shall be qualified for each HCBS the provider continues to render by meeting the requirements under this subchapter.
(b) A provider shall be qualified for an HCBS the provider will render at the interval specified in the approved applicable waiver, including approved waiver amendments.
(c) A provider may be required to be qualified for each HCBS the provider shall render more frequently than the interval specified in the approved applicable waiver, including approved waiver amendments due to the following:
(1) Transition to a new interval established by the Department as specified in the approved applicable waiver, including approved waiver amendments.
(2) Noncompliance with a provider's CAP.
(3) Findings as a result of provider monitoring.
(4) Receipt of a provisional license.
(5) Receipt of a DCAP.
(6) A circumstance resulting in a review of the provider by the Department or the Department's designee.
(d) A provider shall submit qualification documentation by the due date specified by the Department in a written notification and no later than 61 days prior to the provider's expiration of its qualification.
(e) A provider that fails to submit qualification documentation by the due date specified by the Department in a written notification shall participate in transition planning for the participants currently receiving HCBS from the provider under § 51.31 (relating to transition of participants).
(f) A provider that fails to submit qualification documentation by the expiration date of the provider's qualification:
(1) Will not receive payment for HCBS rendered beyond the provider's expiration qualification date.
(2) Will no longer be qualified to provide that HCBS and have its name removed from the list of qualified providers of that HCBS.
(g) A provider shall update information within HCSIS and the Department's MMIS system to maintain that it is current.
(h) A provider shall contact the Department under the following circumstances:
(1) The provider is willing to continue to provide an HCBS to current participants, but no longer willing to provide that HCBS to a new participant.
(2) The provider intends to discontinue an HCBS.
(3) The provider intends to add an HCBS.
(4) The provider intends to change a service location.
(i) A provider shall comply with Chapter 1101 (relating to general provisions).
(j) A provider shall have a QM plan in accordance with the approved applicable waiver, including approved waiver amendments and this chapter.
(k) A provider shall implement a training curriculum in compliance with § 51.23 (relating to provider training) and applicable HCBS requirements in this chapter.
(l) A provider shall report and investigate incidents as required under § 51.17 (relating to incident management).
(m) A provider shall complete and comply with any CAP or DCAP as required by the Department, the Department's designee or Federal or other State agency as required under § 51.24 (relating to provider monitoring).
(n) A provider shall comply with the terms of the MA provider agreement and HCBS waiver provider agreement or SSW agreement.
(o) A provider shall ensure that the provider and staff possess valid Social Security Numbers.
(p) A provider shall only deliver and provide an HCBS after the provider is qualified and authorized to provide the HCBS.
(q) A provider shall implement the HCBS it is qualified and authorized to provide in accordance with the requirements outlined in the approved applicable waiver, including approved waiver amendments, and the authorized ISP.
(r) A provider shall only render HCBS to a participant who is authorized to receive a service from that provider.
(s) A provider that renders HCBS to a participant, who is not qualified and authorized when the HCBS is provided, will not be reimbursed by the Department for the HCBS during the period the provider was not qualified and authorized.
(t) A provider shall implement the outcomes of a participant to meet the assessed needs of a participant.
(u) A provider shall meet and maintain the applicable licensure and certification requirements for each HCBS the provider renders.
(v) A provider may not submit a claim until an authorized HCBS has been rendered.
(w) A provider may not use the following:
(1) Seclusion.
(2) Chemical restraint.
(3) Mechanical restraint.
(4) Prone position manual restraint.
(5) Manual restraint that:
(i) Inhibits the respiratory and digestive system.
(ii) Inflicts pain.
(iii) Causes hypertension of joints and pressure on the chest or joints.
(iv) Uses a technique in which the participant is not supported and allows for free fall as the participant moves to the floor.
(x) A provider rendering HCBS to a participant shall participate in the assessment of the participant when the participant is identified to receive a Department assessment in accordance with the approved applicable waiver, including waiver amendments.
(y) Subsection (k) does not apply to an SSW provider.
(z) Subsections (g), (j) and (k) do not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.14. Residential habilitation service providers.
(a) A residential habilitation service provider authorized or identified to provide residential habilitation to a participant shall submit a written request to the Department or the Department's designee to:
(1) Open a new residential habilitation service location.
(2) Close an existing residential habilitation service location and to establish a new residential habilitation service location.
(3) Combine more than one residential habilitation service location.
(4) Change the approved program capacity of a residential habilitation service location.
(b) To receive prior written approval from the Department or the Department's designee to open a new residential habilitation service location, to close an existing residential habilitation service location and open a new residential habilitation service location, or to combine residential habilitation service locations, the provider shall submit the following in writing:
(1) A description of the circumstances surrounding the need for the new residential habilitation service location, closure of existing residential habilitation service location and opening a new residential habilitation service location, or to combine residential habilitation service locations.
(2) A description of how the new residential habilitation service location, closure of existing residential habilitation service location and opening a new residential habilitation service location or combining residential habilitation service locations will meet the setting size, staffing patterns, and assessed needs and outcomes of the participants identified to reside in that residential habilitation service location.
(3) A description of the residential habilitation service location including properties surrounding the location.
(i) The provider shall affirm that the property meets the definition of ''integrated and dispersed in the community in noncontiguous locations'' in § 51.3 (relating to definitions).
(ii) The property may not be located on a campus setting.
(iii) The property must be surrounded by individuals and businesses that are not funded through the ODP.
(c) A provider licensed under Chapters 3800, 5310, 6400 and 6500 shall receive prior authorization to provide residential habilitation enhanced staffing through the use of supplemental habilitation or additional individualized staffing due to a change in the participant's needs.
(1) The provider shall initiate the prior authorization request process by completing the provider portion of the supplemental habilitation and additional individualized staffing checklist or any approved revisions which can be found on the Department's web site.
(2) A provider who renders residential habilitation enhanced staffing through supplemental habilitation or additional individualized staffing without authorization longer than 30 days from the date the Department receives the request will not receive payment.
(d) A residential habilitation service provider that does not comply with subsections (a)—(c) will not receive payment until Department approval is obtained.
(e) A residential habilitation service provider shall ensure staff providing the residential habilitation service to a participant meets the staff qualifications included in the approved applicable waiver, including approved waiver amendments.
(f) A residential habilitation provider shall participate in the 6-month review of the residential habilitation service the provider renders under § 51.28(h) (relating to SCO requirements for Consolidated and P/FDS Waiver).
(g) This section does not apply to a provider of HCBS in the Adult Autism Waiver and an SSW provider.
§ 51.15. Provider records.
(a) In addition to the requirements under § 1101.51 (relating to ongoing responsibilities of providers), a provider shall:
(1) Document that the HCBS for which it claims payment were provided to the participant and that information submitted in support of the payment is true, accurate and complete.
(2) Maintain records verifying compliance with this chapter for a minimum of 5 years.
(b) A provider shall keep participant records confidential.
(c) A provider may not make participant records accessible to anyone without the written consent of the participant, the person holding the participant's power of attorney for health care or health care proxy, or if a court orders disclosure other than the following:
(1) The participant.
(2) A provider's staff for the purpose of providing HCBS to the participant.
(3) The Department or the Department's designee.
(4) An entity that is permitted to access records under law.
(d) A provider shall provide records, as requested, to the Department regarding HCBS delivered and payments received for HCBS.
(e) A provider may use electronic record documentation under the following conditions:
(1) The electronic record must be readable.
(2) The electronic format conforms to the requirements of Federal and State laws.
(3) The medium used to produce the electronic record accurately reproduces the paper original records.
(4) The medium used is not subject to subsequent deletion, change or manipulation.
(5) The electronic record constitutes a duplicate or substitute copy of the original paper record and has not been altered or if altered shows the original and altered versions, dates of creation and creator.
(6) The electronic record can be converted back into legible paper copies and assessed by an auditing agency.
(7) Providers shall have a back-up system for electronic records.
(f) A provider shall have records management policies in place to comply with this section.
(g) A provider shall document in the participant's record when the participant voluntarily chooses to use the participant's personal funds to purchase items and a description of the item purchased in accordance with the ISP.
(h) Subsections (a)(2), (e) and (f), do not apply to an SSW provider.
§ 51.16. Progress notes.
(a) A provider shall complete a monthly progress note that substantiates the claim for the provision of an HCBS it provides at least monthly. A provider shall maintain the progress notes in a participant's record.
(b) A provider shall complete a progress note each time the HCBS is provided if the HCBS is occurring on a less than monthly frequency.
(c) A provider may complete progress notes for multiple HCBS rendered to the same participant on the same form when the HCBS are rendered by the same provider from the same waiver HCBS location. Progress notes that are completed for multiple HCBS must include progress for each HCBS included on the form.
(d) Progress notes must include the following:
(1) The name of the participant receiving the HCBS.
(2) The name of the provider.
(3) The name, title, signature and date of the person completing the progress note.
(4) The name of the HCBS.
(5) The amount, frequency and duration of the authorized and delivered HCBS.
(6) The outcome of the HCBS.
(7) A description of what occurred during the delivery of the HCBS.
(e) A provider shall complete a progress note if there is a recommended change to the HCBS rendered that requires discussion with the ISP team due to lack of progress in achieving an outcome as documented on the ISP.
(f) A provider may use technology that allows staff to submit progress notes as required throughout a work shift.
(g) Subsection (f) does not apply to an SSW provider.
(h) This section does not apply to an SCO provider. For SCO service note requirements, see § 51.28(l) (relating to SCO requirements for Consolidated and P/FDS Waiver).
(i) This section does not apply to an SCA provider under the Adult Autism Waiver.
§ 51.17. Incident management.
(a) In accordance with Chapter 6000, Subchapter Q (relating to incident management) and the Department's Certified Investigator Manual on the Department's web site, a provider shall report incidents to the Department and ensure that a certified investigation is conducted.
(b) A provider shall take prompt action to protect the participant's health, safety and rights when an incident has been discovered or has occurred. The Department will establish participant rights by Departmental guidelines.
(c) A provider shall report any of the following incidents in HCSIS within 24 hours of the discovery or occurrence of the incident:
(1) Death.
(2) Suicide attempt.
(3) Hospitalization.
(4) Psychiatric hospitalization.
(5) Emergency room visit.
(6) Abuse as follows:
(i) Physical abuse.
(ii) Psychological abuse.
(iii) Sexual abuse.
(iv) Verbal abuse.
(v) Improper or unauthorized use of restraint.
(7) Individual to individual abuse.
(8) Neglect.
(9) Missing person.
(10) Law enforcement.
(11) Injury requiring treatment beyond first aid.
(12) Disease reportable to the Department of Health.
(13) Fire.
(14) Misuse of funds.
(15) Participant rights violation.
(16) Emergency closure.
(17) Crisis event.
(18) Restraint.
(d) A provider shall report any of the following incidents in HCSIS within 72 hours of the discovery or occurrence of an incident:
(1) Medication administration error.
(2) Restraint unless the restraint falls into the definition of ''abuse'' in § 51.3 (relating to definitions).
(e) A provider shall fax or scan an incident report to the Department if HCSIS is not available within 24 hours or 72 hours depending on the incident type as described under subsections (a)—(c). When HCSIS becomes available, the provider shall immediately enter the incident into HCSIS.
(f) For incidents that are to be reported within 24 hours of the discovery or occurrence, a provider shall finalize the incident report in HCSIS by including additional information about the incident, results of a required investigation and corrective actions within 30 days of the discovery or occurrence of the incident, unless the deadline is extended in HCSIS.
(g) A provider shall provide a detailed description in HCSIS of the actions taken in response to an incident to include:
(1) The prompt action to protect the health and welfare of the participant.
(2) The results of the incident investigation.
(3) Corrective actions taken.
(4) The staff that is responsible for implementing the actions.
(5) The date the actions were implemented or are planned.
(6) Specific information regarding disciplinary actions taken with staff to assure the health and welfare of participants.
(h) A provider shall review and analyze incidents at least quarterly or more frequently as required by the Department. This quarterly review must contain information on the incident target.
(i) A provider shall submit reports regarding its review and analysis of incidents to the Department or the Department's designee, upon request.
(j) A provider shall identify and implement actions to assure a participant is safeguarded from risk so the number of preventable incidents is reduced.
(k) A provider shall assure that its staff receive annual incident management training on preventing, recognizing, reporting and responding to incidents and assuring a participant is safe as required under § 51.23 (relating to provider training).
(l) A provider shall provide additional training to the participant and staff as needed based on the incident circumstances.
(m) A provider shall analyze data on a participant to continuously improve HCBS delivery and to mitigate and manage risk factors.
(n) A provider shall respond to actions designated by the Department or the Department's designee as a result of the management review of an incident.
(o) An SSW provider is responsible to report incidents to the common law employer.
(p) Subsections (a)—(m) do not apply to an SSW provider.
(q) Subsections (d)(2), (h), (i), (k) and (m) do not apply to a provider of HCBS in the Adult Autism Waiver.
(r) Subsection (c)(17) and (18) does not apply to a provider of HCBS in the Consolidated and P/FDS Waiver.
§ 51.18. Risk management.
(a) A provider shall complete the following risk management activities:
(1) Remedy the cause of the incident.
(2) Complete an incident report and investigation as required under § 51.17 (relating to incident management).
(3) Conduct an analysis to determine the root cause of the incident and include corrective actions in the participant's incident report.
(4) Update strategies to address risk factors and risk levels.
(5) Work cooperatively with the SC to update the ISP, as needed, by integrating risk mitigation into the participant's ISP.
(b) A provider shall implement the following risk mitigation strategies to prevent, reduce and manage the severity of incidents during the delivery of the authorized HCBS and share the information with the SC for inclusion in the participant's ISP:
(1) Identify risk factors of the participant:
(i) Health status, family medical history and medical risks.
(ii) Medication history and current medication.
(iii) Behavioral history and behavior risks.
(iv) Incident history.
(v) Social environment needs.
(vi) Physical environment needs.
(vii) Personal safety.
(2) Identify strategies to reduce the frequency of incidents or reduce the severity of associated effects.
(3) Train the participant and staff on the risk factors and risk mitigation strategies.
(4) Implement preventive measures to reduce the level of risk of an incident or negative outcome from occurring.
(5) Monitor participant's risk mitigation strategies and update the strategies, as needed.
(c) This section does not apply to an SSW provider and a provider of HCBS in the Adult Autism Waiver.
§ 51.19. Certified investigations.
(a) A provider shall ensure that incidents requiring an investigation are conducted and completed by a certified investigator and analyzed by the provider.
(b) A provider shall ensure an individual completing an investigation on behalf of the provider is a trained certified investigator and has completed the training course offered by the Department.
(c) To be a certified investigator, the certified investigator shall:
(1) Have a high school diploma or general education diploma.
(2) Be 21 years of age or older.
(3) Meet the criminal history checks under § 51.20 (relating to criminal history checks) and, if applicable, the child abuse clearance provisions under § 51.21 (relating to child abuse clearances).
(4) Complete the Department web-based portion of the training within 3 months of enrolling in the course.
(5) Attend the certification training and pass the exam. A certified investigator shall be recertified every 3 years.
(d) To maintain certification, a certified investigator shall:
(1) Complete three certified investigations during the 3-year certification period.
(2) Attend a 1-day recertification class.
(e) If a certified investigator wishes to continue to conduct certified investigations and has done fewer than three investigations during the certification period, the investigator shall actively participate in a quarterly or semiannual review of the quality of investigations by serving as a member of a peer review committee or a risk management committee. Active participation includes reviewing at least three investigations and discussing the results with the committee.
(f) This section does not apply to an SSW provider.
§ 51.20. Criminal history checks.
(a) A provider shall ensure that a criminal history check is obtained for staff.
(b) The reporting requirements listed in this chapter are in addition to reporting requirements under Chapters 2380, 2390, 3800, 5310, 6400 and 6500, 6 Pa. Code Chapter 11 (relating to older adult daily living centers) and, when applicable, 28 Pa. Code Chapters 601 and 611 (relating to home health care agencies; and home care agencies and home care registries).
(c) A provider shall apply for a criminal history check for staff prior to hiring.
(d) A provider shall obtain a criminal history check in compliance with the following:
(1) A report of criminal history record information from the Pennsylvania State Police or a statement from the Pennsylvania State Police that the State Police Central Repository does not contain information relating to that person under 18 Pa.C.S. §§ 9101—9183 (relating to Criminal History Record Information Act) if staff has been a resident of this Commonwealth for at least 2 years.
(2) A report of Federal criminal history record information under the Federal Bureau of Investigation (FBI) appropriation of Title II of the act of October 25, 1972 (Pub. L. No. 92-544, 86 Stat. 1109) if staff has been a resident of this Commonwealth for less than 2 years or is currently a resident of another state.
(e) Criminal history checks shall be in accordance with the Older Adults Protective Services Act (35 P. S. §§ 10225.101—10225.5102) and 6 Pa. Code Chapter 15 (relating to protective services for older adults).
(f) The hiring policies shall be in accordance with the Department of Aging's Older Adult Protective Services Act policy as posted on the Department of Aging's web site at http://www.portal.state.pa.us/portal/server.pt?open= 514&objID=616725&mode=2.
(g) A copy of the final reports received from the Pennsylvania State Police and the FBI, if applicable, shall be kept in accordance with § 51.15 (relating to provider records).
(h) Subsections (b), (c), (f) and (g) do not apply to an SSW provider.
§ 51.21. Child abuse clearances.
(a) A provider shall assure that a child abuse clearance is obtained for each staff that provides an HCBS to a minor.
(b) If the provider serves a participant who is 17 years of age or younger, 23 Pa.C.S. §§ 6301—6386 (relating to Child Protective Services Law) is applicable.
(c) A copy of the final child abuse clearance shall be kept in accordance with § 51.15 (relating to provider records).
(d) Subsection (c) does not apply to an SSW provider.
§ 51.22. Provisional hiring.
(a) A provider may provisionally hire staff pending receipt of a criminal history check and child abuse clearance, as applicable, if the following conditions are met:
(1) A provisionally-hired staff person shall have applied for a criminal history check and child abuse clearance, as required under §§ 51.20 and 51.21 (relating to criminal history checks; and child abuse clearances), and give the provider a copy of the completed criminal history request form and child abuse clearance form.
(2) A provider may not hire a person provisionally if the provider has knowledge that the person would be disqualified for employment under 18 Pa.C.S. § 4911 (relating to tampering with public records or information).
(3) A provisionally-hired staff person shall swear or affirm in writing that he has not been disqualified from employment or referral under this chapter.
(4) A provider may not permit the provisionally-hired staff person awaiting a criminal history background check or child abuse clearance to work alone with a participant.
(5) A provider shall monitor a provisionally-hired staff person awaiting a criminal history check or child abuse clearance through random, direct observation and participant feedback. The results of monitoring shall be documented in the provisionally-hired staff person's file.
(6) The period of provisional hire of a staff person that is and has been for 2 years or more a resident of this Commonwealth may not exceed 30 days. The period of provisional hire of a staff person who has not been a resident of this Commonwealth for 2 years or more may not exceed 90 days.
(b) When subsection (a) conflicts with Chapter 2380, 2390, 3800, 5310, 6400 or 6500, 6 Pa. Code Chapter 11 (relating to older adult daily living centers) or 28 Pa. Code Chapters 601 and 611 (relating to home health care agencies; and home care agencies and home care registries), subsection (a) is not applicable.
(c) This section does not apply to an SSW provider.
§ 51.23. Provider training.
(a) A provider shall implement a standard annual training for the provider and staff. The standard annual training must contain at least the following:
(1) Department policy on intellectual disability principles and values.
(2) Training to meet the needs of a participant as identified in the ISP.
(3) QM plan.
(4) Identification and prevention of abuse, neglect and exploitation of a participant.
(5) Recognizing, reporting and investigating an incident.
(6) Participant grievance resolution.
(7) Department-issued policies or procedures.
(8) Accurate billing and documentation of HCBS delivery.
(b) Before providing an HCBS to a participant, a provider shall ensure that its staff have met any additional pre- and in-service training requirements as detailed in a participant's ISP.
(c) A provider shall retain documentation of completion of training for each staff.
(d) A provider shall update annual training to reflect the Department's current policies and procedures and emerging practices.
(e) This section does not apply to an SSW provider or to a provider of HCBS in the Adult Autism Waiver.
§ 51.24. Provider monitoring.
(a) The Department will monitor a provider at the frequency specified in the approved applicable waiver, including approved waiver amendments.
(b) A provider shall review and analyze performance data provided by the Department and take appropriate steps to improve its performance based on the results of performance data.
(c) A provider shall complete the Department-approved provider monitoring documents during the provider monitoring process for the provider and the participants identified by the Department or the Department's designee.
(d) A provider shall submit the completed provider monitoring documents electronically to the Department or the Department's designee.
(e) A provider shall cooperate with the Department or the Department's designee during a monitoring review.
(f) A provider shall ensure each finding discovered during a monitoring review is successfully remediated through a CAP.
(g) A provider shall include the following information on the CAP form:
(1) The specific action to correct each instance of noncompliance identified on the CAP form.
(2) The target date for the corrective action to occur.
(3) The corrective actions that will be employed to identify and prevent recurrence of the specific noncompliance.
(4) The name and title of the person responsible for preparing and submitting the CAP form to the Department's designee and the date the CAP form was submitted to the Department's designee.
(h) The provider shall return the CAP form within 15 days of receipt of request for a CAP.
(i) The provider shall respond to the Department or the Department's designee if a proposed CAP is rejected and revise the CAP form in accordance with subsection (k).
(j) The provider shall remediate noncompliance within 30 days of receiving the Department-approved CAP.
(k) A provider shall implement a DCAP in response to the statement of findings developed by the Department or the Department's designee.
(l) Failure to comply with a DCAP will result in sanctions as provided in § 51.153 (relating to sanctions).
(m) The provider shall cooperate with follow-up monitoring by the Department or the Department's designee.
(n) The provider shall provide the Department or the Department's designee with additional information needed to complete a provider monitoring.
(o) The provider shall cooperate with Federal or other State provider monitoring.
(p) Subsections (a)—(d), (f)—(l) and (n) do not apply to an SSW provider.
(q) Subsections (c) and (d) do not apply to a provider of HCBS in the Adult Autism Waiver.
§ 51.25. Quality management.
(a) A provider shall meet the QM plan criteria developed by the Department.
(b) The provider shall create and implement a QM plan.
(c) The provider shall evaluate the following when developing a QM plan:
(1) The manner in which the provider will meet the Department's QM plan criteria.
(2) The provider's quarterly performance review data and available reports in HCSIS.
(3) The results from provider monitoring and SCO monitoring.
(4) Compliance with the requirements in 42 CFR 441.302 (relating to state assurances).
(5) Incident management data, including data on the incident target under § 51.17 (relating to incident management).
(6) Results of satisfaction surveys and reviews of grievances.
(d) The provider shall include the following criteria when developing a QM plan:
(1) Goals of the QM plan, which include how the provider will meet Department priorities that are published as a notice in the Pennsylvania Bulletin.
(2) Target objectives that support each goal.
(3) Performance measures the provider will use to evaluate progress in achieving the target objectives.
(4) The data source for each performance measure.
(5) The person responsible for the QM plan.
(6) Actions to be taken to meet the target objectives.
(e) A provider shall update its QM plan at least every 2 years.
(f) The provider shall submit a copy of its QM plan and verification that the provider reviewed performance data to the Department or the Department's designee upon request.
(g) This section does not apply to an SSW provider and to a provider of HCBS in the Adult Autism Waiver.
§ 51.26. Grievance procedures.
(a) A provider shall develop grievance procedures to document, respond and resolve grievances including:
(1) Processes to resolve a grievance within 21 days.
(2) Instructions for participants and their families regarding grievance procedures, including how to seek help in filing a grievance.
(b) A provider shall provide a copy of its grievance procedures to the Department or the Department's designee upon request.
(c) A provider shall review and document the following information to resolve a participant grievance:
(1) The name of the participant filing or the name of the person filing the grievance on behalf of the participant.
(2) The nature of the grievance.
(3) The date of occurrence and date of filing of the grievance.
(4) The provider's actions to resolve the grievance.
(5) The resolution of the grievance as agreed by the provider, the participant or the person filing the grievance on behalf of the participant.
(6) The date the grievance was resolved.
(d) A provider shall review its grievance procedures at least annually to determine the number of grievances and their disposition.
(e) This section does not apply to an SSW provider.
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