SECTION 317:40-1-1. Home and Community-Based Services (HCBS) Waivers for persons with intellectual disabilities or certain persons with related conditions

(a)   Applicability. This Section applies to services funded through Medicaid HCBS Waivers per Oklahoma Administrative Code (OAC) 317:35-9-5 and Section 1915(c) of the Social Security Act. Specific Waivers are the In-Home Supports Waiver (IHSW) for Adults, IHSW for Children, Community Waiver, and Homeward Bound Waiver.

(b)   Program provisions. Each individual requesting services provided through an HCBS Waiver and his or her family or guardian, are responsible for:

(1)   accessing, with Oklahoma Department of Human Services (DHS) staff assistance, all benefits available under Oklahoma's Medicaid State Plan or other payment sources prior to accessing funding for those same services under an HCBS Waiver program;

(2)   cooperating in the determination of medical and financial eligibility including prompt reporting of changes in income or resources;

(3)   choosing between services provided through an HCBS Waiver or institutional care; and

(4)   reporting any changes in address or other contact information to DHS within 30-calendar days.

(c)   Waiver eligibility. To be eligible for Waiver services, an applicant must meet the criteria established in (1) of this Subsection and the criteria for one of the Waivers established in (1) through (8) of this Subsection.

(1)   HCBS Waiver services. Services provided through an HCBS Waiver are available to Oklahoma residents meeting SoonerCare eligibility requirements established by law, regulatory authority, and policy within funding available through State or Federal resources. To be eligible and receive services funded through any of the Waivers listed in (a) of this Section, an applicant must meet conditions per OAC 317:35-9-5. The applicant:

(A)   must be determined financially eligible for SoonerCare per OAC 317:35-9-68;

(B)   may not simultaneously be enrolled in any other Medicaid Waiver program or receiving services in an institution including a hospital, rehabilitation facility, mental health facility, nursing facility, or residential care home per Section 1-820 of Title 63 of the Oklahoma Statutes (O.S. 63-1-820), or Intermediate Care facility for individuals with intellectual disabilities (ICF/IID);

(C)   may not be receiving Developmental Disabilities Services (DDS) state-funded services, such as the Family Support Assistance Payment, Respite Voucher Program, sheltered workshop services, community integrated employment services, or assisted living without Waiver supports OAC 340:100-5-22.2; and

(D)   must also meet other Waiver-specific eligibility criteria.

(2)   In-Home Supports Waivers (IHSW). To be eligible for services funded through the IHSW, an applicant must:

(A)   meet all criteria listed in (c) of this Section; and

(B)   be determined by the Social Security Administration (SSA) to have a disability and a diagnosis of intellectual disability; or

(C)   be determined to have a disability and a diagnosis of intellectual disability as defined in the Diagnostic and Statistical Manual of Mental Disorders by the Oklahoma Health Care Authority (OHCA) Level of Care Evaluation Unit (LOCEU);

(D)   be 3 years of age or older;

(E)   be determined by the OHCA LOCEU to meet the ICF/IID Institutional Level of Care requirements per OAC 317:30-5-122;

(F)   reside in:

(i)   the home of a family member or friend;

(ii)   his or her own home;

(iii)   a DHS Child Welfare Services (CWS) foster home; or

(iv)   a CWS group home; and

(vii)   have critical support needs that can be met through a combination of non-paid, non-Waiver, and SoonerCare resources available to the individual and HCBS Waiver resources within the annual per capita Waiver limit agreed on between the State of Oklahoma and the Centers for Medicare and Medicaid Services (CMS).

(3)   Community Waiver. To be eligible for services funded through the Community Waiver, the applicant must:

(A)   meet all criteria listed in (c) of this Section;

(B)   be determined by the SSA to have a disability and a diagnosis of intellectual disability; or

(C)   have an intellectual disability as defined in the Diagnostic and Statistical Manual of Mental Disorders or a related condition by DDS and be covered under the State's alternative disposition plan adopted under Section 1919(e)(7)(E) of the Social Security Act; or

(D)   be determined to have a disability and a diagnosis of intellectual disability as defined in the Diagnostic and Statistical Manual of Mental Disorders or the OHCA LOCEU; and

(E)   be 3 years of age or older; and

(F)   be determined by the OHCA LOCEU, to meet ICF/IID Institutional Level of Care requirements per OAC 317:30-5-122; and

(G)   have critical support needs that can be met by the Community Waiver and cannot be met by IHSW services or other service alternatives, as determined by the DDS director or designee.

(4)   Homeward Bound Waiver. To be eligible for services funded through the Homeward Bound Waiver, the applicant must:

(A)   be certified by the United States District Court for the Northern District of Oklahoma as a member of the plaintiff class in Homeward Bound et al. v. The Hissom Memorial Center, Case No. 85-C-437-E;

(B)   meet all criteria for HCBS Waiver services listed in (c) of this Section; and

(C)   be determined by SSA to have a disability and a diagnosis of intellectual disability; or

(D)   have an intellectual disability as defined in the Diagnostic and Statistical Manual of Mental Disorders or a related condition per OAC 317:35-9-45 as determined by DDS, and to be covered under the State's alternative disposition plan adopted under Section 1919(e)(7)(E) of the Social Security Act; or

(E)   have a disability as defined in the Diagnostic and Statistical Manual of Mental Disorders by the OHCA/LOCEU; and

(F)   meet ICF/IID Institutional Level of Care requirements per OAC 317:30-5-122 as determined by the OHCA LOCEU.

(5)   Evaluations and information. Applicants desiring services through any of the Waivers listed in (a) of this Section participates in diagnostic evaluations and provides information necessary to determine HCBS Waiver services eligibility, including:

(A)   a psychological evaluation, by a licensed psychologist that includes:

(i)   a full-scale, functional and/or adaptive assessment; and

(ii)   a statement of age of onset of the disability; and

(iii)   intelligence testing that yields a full-scale, intelligence quotient.

(I)   Intelligence testing results obtained at 16 years of age and older are considered valid of the current status, provided they are compatible with current behavior. Intelligence testing results obtained between 7 to 16 years of age are considered current for four years when the full-scale intelligence quotient is less than 40, and for two years when the intelligence quotient is 40 or above.

(II)   DDS may require a current psychological evaluation when a significant change of condition, disability, or psychological status is noted;

(B)   a social service summary, current within 12 months of the requested approval date that includes a developmental history; and

(C)   a medical evaluation, current within 90-calendar days of the requested approval date; and

(D)   a completed Form LTC-300, ICF/IID Level of Care Assessment; and

(E)   proof of disability per SSA guidelines. When a disability determination is not made by SSA, OHCA LOCEU may make a disability determination using SSA guidelines.

(6)   Eligibility determination. OHCA reviews the diagnostic reports listed in (2) of this subsection and makes an eligibility determination for DDS HCBS Waivers.

(7)   State's alternative disposition plan. For individuals who are determined to have an intellectual disability or a related condition by DDS per the State's alternative disposition plan adopted under Section 1919(e)(7)(E) of the Social Security Act, DDS reviews the diagnostic reports listed in (2) of this subsection and, on behalf of OHCA, makes a determination of eligibility for DDS HCBS Waiver services and ICF/IID level of care.

(8)   Member's choice. A determination of need for ICF/IID Institutional Level of Care does not limit the opportunities of the person receiving services to participate in community services. Individuals are assured of the opportunity to exercise informed choice in the selection of services.

(d)   Request list. When state DDS resources are unavailable to add individuals to services funded through an HCBS Waiver, persons are placed on a statewide Request for Waiver Services List.

(1)   The Request for Waiver Services List is maintained in chronological order, based on the date of receipt of a written request for services on Form 06MP001E, Request for Developmental Disabilities Services. The applicant must submit the required documentation per Form 06MP001E, Request for Developmental Disabilities Services for initial consideration of potential eligibility. Active United States Armed Forces personnel, who have a pending HCBS Waiver application in another state for an immediate family member, may be placed on the list with the date they applied in the other state. The person's name is added to the list when he or she provides proof of application date from the other state.

(2)   The Request for Waiver Services List for persons requesting services provided through an HCBS Waiver is administered by DDS uniformly throughout the state.

(3)   An individual applicant is removed from the Request for Waiver Services List when he or she:

(A)   is found to be ineligible for services;

(B)   cannot be located by DHS;

(C)   does not provide DHS-requested information or fails to respond;

(D)   is not an Oklahoma resident at the requested Waiver approval date; or

(E)   declines an offer of Waiver services.

(4)   An applicant removed from the Request for Waiver Services List, because he or she could not be located, may submit a written request to bereinstated to the list. The applicant is returned to the same chronological place on the Request for Waiver Services List, provided he or she was on the list prior to January 1, 2015.

(e)   Applications. When resources are sufficient for initiation of HCBS Waiver services, DDS ensures action regarding a request for services occurs within 45-calendar days. When action is not taken within the required 45-calendar days, the applicant may seek resolution per OAC 340:2-5-61.

(1)   Applicants are allowed 60-calendar days to provide information requested by DDS to determine eligibility for services.

(2)   When requested information is not provided within 60-calendar days, the applicant is notified that the request was denied, and he or she is removed from the Request for Waiver Services List.

(f)   Admission protocol. Initiation of services funded through an HCBS Waiver occurs in chronological order from the Request for Waiver Services List per (d) of this Section based on the date of DDS receipt of a completed request for services, as a result of the informed choice of the person requesting services or the individual acting on the member's behalf, and upon determination of eligibility, per (c) of this Section. Exceptions to the chronological requirement may be made, when:

(1)   an emergency situation exists in which the health or safety of the person needing services or of others is endangered and there is no other resolution to the emergency. An emergency exists, when:

(A)   the person is unable to care for himself or herself and:

(i)   the person's caretaker, per 43A O.S. § 10-103:

(I)   is hospitalized;

(II)   moved into a nursing facility;

(III)   is permanently incapacitated; or

(IV)   died; and

(ii)   there is no caretaker to provide needed care to the individual; or

(iii)   an eligible person is living at a homeless shelter or on the street;

(B)   DHS finds the person needs protective services due to ongoing physical, sexual, or emotional abuse or neglect in his or her present living situation, resulting in serious jeopardy to the person's health or safety;

(C)   the behavior or condition of the person needing services is such that others in the home are at risk of being seriously harmed by the person. For example, the person is routinely physically assaultive to the caretaker or others living in the home and sufficient supervision cannot be provided to ensure the safety of those in the home or community; or

(D)   the person's medical, psychiatric, or behavioral challenges are such that the person is seriously injuring or harming himself or herself, or is in imminent danger of doing so;

(2)   the Legislature appropriated special funds with which to serve a specific group or a specific class of individuals per HCBS Waiver provisions;

(3)   Waiver services may be required for people who transition to the community from a public ICF/IID or children in DHS custody receiving services from DHS. Under some circumstances Waiver services related to accessibility may be authorized in advance of transition, but may not be billed until the day the member leaves the ICF/IID and enters the Waiver;

(4)   individuals subject to the provisions of Public Law 100-203 residing in nursing facilities for at least 30-continuous months prior to January 1, 1989, and are determined by Preadmission Screening and Resident Review (PASRR) evaluation conducted per Title 42 Section 483.100 of the Federal Code of Regulations to have an intellectual disability or a related condition, who are covered under the State's alternative disposition plan adopted under Section 1919(e)(7)(E) of the Social Security Act, and choose to receive services funded through the Community or Homeward Bound Waiver.

(g)   Movement between DDS HCBS Waiver programs. A person's movement from services funded through one DDS-administered HCBS Waiver to services funded through another DDS-administered HCBS Waiver is explained in this subsection.

(1)   When a member receiving services funded through the IHSW for children becomes 18 years of age, services through the IHSW for adults becomes effective.

(2)   Change to services funded through the Community Waiver from services funded through the IHSW occurs only when:

(A)   a member has critical health and safety support needs that cannot be met by IHSW services, non-Waiver services, or other resources as determined by the DDS director or designee; and

(B)   funding is available per OAC 317:35-9-5.

(3)   Change to services funded through the IHSW from services funded through the Community Waiver may only occur when a member's history of annual service utilization was within the IHSW per capita allowance.

(4)   When a member served through the Community Waiver has support needs that can be met within the per capita Waiver allowance of the applicable IHSW and through a combination of non-Waiver resources, the individual may choose to receive services through the IHSW.

(h)   Continued eligibility for HCBS Waiver services. Eligibility for members receiving services provided through the HCBS Waiver is re-determined by the OHCA LOCEU when a determination of disability was not made by the Social Security Administration. The OHCA LOCEU determines categorical relationship to the SoonerCare disabled category according to Social Security Administration guidelines. OHCA LOCEU also approves the level of care per OAC 317:30-5-122 and confirms a diagnosis of intellectual disability per the Diagnostic and Statistical Manual of Mental Disorders.

(1)   DDS may require a new psychological evaluation and re-determination of eligibility at any time when a significant change of condition, disability, or psychological status is noted.

(2)   Annual review of eligibility requires a medical evaluation that is current within one year of the requested approval date. The medical evaluation must be submitted by the member or the individual acting on his or her behalf 30-calendar days prior to the Plan of Care expiration.

(i)   HCBS Waiver services case closure. Services provided through an HCBS Waiver are terminated, when:

(1)   a member or the individual acting on the member's behalf chooses to no longer receive Waiver services;

(2)   a member is incarcerated;

(3)   a member is financially ineligible to receive Waiver services;

(4)   a member is determined by SSA to no longer have a disability qualifying the individual for services under these Waivers;

(5)   a member is determined by the OHCA LOCEU to no longer be eligible;

(6)   a member moves out of state or the custodial parent or guardian of a member who is a minor moves out of state;

(7)   a member is admitted to a nursing facility, ICF/IID, residential care facility, hospital, rehabilitation facility, or mental health facility for more than 30-consecutive calendar days;

(8)   the guardian of a member who is a minor or adjudicated adult fails to cooperate during the annual review process per OAC 340:100-5-50 through 340:100-5-58;

(9)   the guardian of a member who is a minor or adjudicated adult fails to cooperate in the implementation of DHS policy or service delivery in a manner that places the health or welfare of the member at risk, after efforts to remedy the situation through Adult Protective Services or Child Protective Services were not effective;

(10)   the member is determined to no longer be SoonerCare eligible;

(11)   there is sufficient evidence the member or the individual acting on the member's behalf engaged in fraud or misrepresentation, failed to use resources as agreed on in the Individual Plan, or knowingly misused public funds associated with these services;

(12)   the member or the individual acting on the member's behalf either cannot be located, did not respond, or did not allow case management to complete plan development or monitoring activities as required per OAC 340:100-3-27 and the member or the individual acting on the member's behalf:

(A)   does not respond to the notice of intent to terminate; or

(B)   the response prohibits the case manager from being able to complete plan development or monitoring activities as required per OAC 340:100-3-27;

(13)   the member or the individual acting on the member's behalf fails to cooperate with the case manager to implement a Fair Hearing decision;

(14)   it is determined services provided through an HCBS Waiver are no longer necessary to meet the member's needs and professional documentation provides assurance the member's health, safety, and welfare can be maintained without Waiver supports;

(15)   the member or the individual acting on the member's behalf fails to cooperate with service delivery;

(16)   a family member, the individual acting on the member's behalf, other individual in the member's household, or persons who routinely visit, pose a threat of harm or injury to provider staff or official DHS representatives; or

(17)   a member no longer receives a minimum of one Waiver service per month and DDS is unable to monitor the member on a monthly basis.

(j)   Reinstatement of services. Waiver services are reinstated when:

(1)   the situation resulting in case closure of a Hissom class member is resolved;

(2)   a member is incarcerated for 90-calendar days or less;

(3)   a member is admitted to a nursing facility, ICF/IID, residential care facility, hospital, rehabilitation facility, or mental health facility for 90-calendar days or less; or

(4)   a member's SoonerCare eligibility is re-established within 90-calendar days of the SoonerCare ineligibility date.

[Source: Added at 18 Ok Reg 285, eff 11-21-00 (emergency); Added at 18 Ok Reg 1168, eff 5-11-01; Amended at 21 Ok Reg 512, eff 1-1-04 (emergency); Amended at 21 Ok Reg 2276, eff 6-25-04; Amended at 22 Ok Reg 2531, eff 7-11-05; Amended at 26 Ok Reg 2151, eff 6-25-09; Amended at 28 Ok Reg 1550, eff 6-25-11; Amended at 29 Ok Reg 1194, eff 6-25-12; Amended at 32 Ok Reg 544, eff 1-20-15 (emergency); Amended at 32 Ok Reg 1158, eff 8-27-15; Amended at 33 Ok Reg 912, eff 9-1-16; Amended at 34 Ok Reg 746, eff 9-1-17]