Mo. Code Regs. tit. 9 § 45-3.080

Current through Register Vol. 49, No. 21, November 1, 2024.

Section 9 CSR 45-3.080 - Self-Directed Supports

PURPOSE: This rule establishes the scope of and requirements for the use of Self-Directed Supports, a service delivery option available under Home and Community Based waivers as created by section 1915(c) of the Social Security Act.

(1) Definitions.

(A) Agency-based supports-supports provided by a public or private agency, including independent contractors, under contract with the Department of Mental Health and enrolled with the MO HealthNet Division to serve participants of any home and community-based waivers operated by the department.

(B) Back-up plan-an emergency plan developed to address situations when the employee providing essential supports is unavailable. The individual support plan for all individuals receiving self- and family-directed supports must provide information about the back-up plan.

(C) Budget authority-the right and responsibility of the employer to exercise control and management of a yearly budget allocation.

(D) Designated representative (DR) - a parent, relative, or other person designated by an adult individual or a guardian, who shall act in the best interest of the individual and serves at the discretion of the individual.

(E) Employer-individual receiving services through self-directed supports and/or person with the power to act on such individual's behalf, such as: a designated representative; guardian; or parent, if the individual is a minor. The employer maintains the Federal Employer Identification Number and employs persons to provide services to the individual.

(F) Employment authority-the right and responsibility of the employer to recruit, hire, train, manage, supervise, fire, and establish the wages for employees within the limits described in section (16) of this rule.

(G) Family member-a parent, stepparent, sibling, child, grandchild, or grandparent related by blood, adoption, or marriage, or a spouse.

(H) Fiscal management service (FMS) - a service to assist the employer with payroll-related functions. The FMS ensures the selfdirected supports program meets federal, state, and local employment tax, labor and workers' compensation insurance rules, and other requirements that apply when the individual or his/her designee functions as the employer of workers. The FMS makes financial transactions on behalf of the individual.

(I) Home and community-based waivers (HCB waivers)-a set of long term community-based supports and services authorized by the Centers for Medicare and Medicaid Services which are provided as an alternative to care in institutions such as nursing facilities and intermediate care facilities for individuals with intellectual disabilities. The specific services provided under a home and community-based waiver is referred to as home and community-based services.

(J) Improvement plan-a corrective action plan to address issues of non-compliance with program requirements. The goal of the improvement plan is to focus on needed supports to ensure the employer succeeds when using self-directed supports.

(K) Individual-person receiving supports through a home and community-based waiver.

(L) Individual Support Plan (ISP)-a document that results from the person-centered planning process, which identifies the strengths, capacities, preferences, needs, and personal outcomes of the individual. The ISP includes a personalized mix of paid and non-paid services and supports that will assist the person to achieve personally defined outcomes.

(M) Individual Support Plan team (ISP team)-the individual, the individual's designated representative(s), and the support coordinator. Providers of waiver-funded services may also participate in the support plan team if such participation is requested by the individual or guardian.

(N) Natural supports-unpaid support provided through relationships that occur in everyday life. Natural supports typically involve family members, friends, co-workers, neighbors, acquaintances, and community resources.

(O) Self-directed supports (SDS)-a service delivery option available under the home and community-based waivers for persons with intellectual and developmental disabilities and who wish to exercise more choice, control, and authority over their supports.

(2) Eligibility Criteria. Every individual who is receiving services through an HCB waiver shall have the opportunity to utilize SDS as his/her own employer as long as-

(A) The individual; designated representative; guardian; or a parent, if the individual is a minor, is willing and able to act as the employer, assuming both budget and employment responsibilities while receiving HCB waiver services from the Division of Developmental Disabilities (DD); and

(B) The Division of DD does not find good cause to deny the use of this service model under the criteria stated in section (11) of this rule.

(3) Designated Representative. An individual who is eighteen (18) years or older, a guardian, or a parent (if the individual is a minor), may identify a designated representative for purposes of utilizing SDS. Designated representatives must demonstrate a history of knowledge of the individual's preferences, values, needs, and other relevant information. The individual, his or her planning team, and regional office are responsible to ensure that this representative is able to perform all the employer-related responsibilities and complies with requirements associated with representing the individual in directing services and supports.

(A) The following individuals may be designated as a representative:

1. Spouse, unless a formal legal action for divorce is pending;

2. An adult child of the individual;

3. A parent;

4. An adult brother or sister;

5. Another adult relative of the individual;

6. A legal guardian; and

7. Any other adult chosen by the individual with approval of the ISP team consistent with the requirements of this section.

(4) Employer Rights and Responsibilities.

(A) The employer must manage the employees' day-to-day activities ensuring supports are provided as written in the ISP.

(B) The employer may choose to hire eligible persons in accordance with the HCB waiver services requirements and with the following exceptions:

1. A spouse;

2. A parent or stepparent of an individual under age eighteen (18);

3. A legal guardian;

4. A designated representative; or

5. A person who is disqualified from employment under section 630.170, RSMo.

(C) The employer shall complete all forms required by the state's FMS contractor, including Internal Revenue Service (IRS) and Missouri state tax forms.

(D) The employer shall obtain a Federal Employer Identification Number (FEIN) in the name of the individual (or parent/guardian if the individual is under the age of eighteen (18)), with the assistance of the FMS.

(E) The employer shall follow all federal and state employment laws and regulations including, but not limited to:

1. Recruiting, interviewing, checking references, hiring, training, scheduling work, managing and terminating employee(s). This includes directing the day-to-day care of the individual and addressing conflicts between employees;

2. Submitting all new employee paperwork to the FMS prior to the initiation of service. All required documents must be completed, submitted, and approved as a complete packet in order for them to be processed in a timely manner. Incomplete documents may delay an employee's start date;

3. Providing equal employment opportunities to all employees and interested employees without discrimination as to race, creed, color, national origin, gender, age, disability, marital status, sexual orientation, or any other legally protected status in all employment decisions, including recruitment, hiring, changing schedules and number of hours worked, layoffs, and terminations, and all other terms and conditions of employment. The employer accepts full and specific responsibility for following Equal Opportunity laws and requirements regarding employees. Each employee is to be treated fairly and consistently. For example, if the employer decides to check references on one (1) employee, it must be done for all employees;

4. An employee may not provide services while the individual is hospitalized or receiving any other direct care service reimbursed through the MO HealthNet Division (MHD);

5. Reviewing and approving time worked, which authorizes billing;

6. Submitting documentation of time worked in a timely manner in accordance with the FMS payroll schedule. The employer and employee signatures on/approval of the time sheet validates that the information submitted is accurate and true. If the employer signs/approves and the hours have not been worked, the employer will be held financially liable for payment for the time reported but not worked;

7. The employer is responsible for monitoring the monthly spending summary report provided by the FMS and for keeping all expenditures within the individual budget allocation as specified in the ISP. The employer agrees to reimburse the FMS for any payment of wages and expenses in excess of the amount in the individual budget allocation. Payment to the employee is limited to services actually delivered by the employee;

8. If the employer authorizes use of all funds/hours before the end of the period, the employer is responsible for other service arrangements; for example, use of non-paid natural supports. The employer is responsible for the payment of any wages and expenses in excess of the individual budget allocation. Employees must be paid for all hours worked;

9. Informing the FMS within one working day of any changes in the individual's status, including name, address, telephone number, hospitalization, and termination of program eligibility; and

10. Informing the FMS of the employee pay rate (wages), including timely notification of changes to the pay rate. Changes in pay rates must occur at the beginning of a pay period.

(F) The following must be reported immediately:

1. Any possible fraud, including MHD fraud to the FMS;

2. Abuse, neglect, misuse of property or funds, health risk, or other reportable event to the appropriate authorities. Reports of abuse, neglect, or exploitation of adults shall be made to the Department of Health and Senior Services, to the Division of DD, or to the individual's support coordinator; and

3. Employee changes, including name, address, contact number, and/or employment status.

(G) Appointment of a temporary representative if the employer is not capable or available to manage employees and contact made to the support coordinator to evaluate if a new representative must be appointed.

(H) Establishing a work schedule for employees. Time worked by employees in excess of forty (40) hours per week cannot be billed to MHD. Hours worked over forty (40) hours per week are the responsibility of the employer and must be paid through the FMS to ensure employee taxes are withheld.

(I) The employer shall not supplement wages to the employee outside of the fiscal management agreement.

(J) In accordance with the approved HCB waivers, payment for personal assistance services is not allowed for employee sleep time. If an employer schedules an employee to work a period of twenty-four (24) consecutive hours or more, the employer and employee may agree to exclude from hours worked up to eight (8) hours of sleep time when both of the following conditions are met:

1. The employer furnishes sleeping facilities; and

2. The employee can usually sleep uninterrupted.

(5) Combination of Supports. An individual receiving service through an HCB waiver may receive a combination of supports through SDS and agency-based supports so long as services from one (1) program do not duplicate services from the other.

(6) Exemption from Personal Assistance Services Training. The employer may exempt training for personal assistant services under the following circumstances documented in the ISP:

(A) Duties of the personal assistant will not require skills to be attained from the training requirement; or

(B) The personal assistant has adequate knowledge or experience as determined by the employer.

(7) Family Members Providing Services. The only service family members may provide is personal assistance services and only if he/she is not disqualified under section (4). When a family member provides personal assistance support, the ISP must reflect-

(A) The individual is not opposed to a family member providing the service;

(B) The services to be provided are solely to support the individual and not household tasks expected to be shared with people living in the family unit;

(C) The ISP team determines the paid family member will best meet the needs of the individual; and

(D) The family member cannot be paid for over forty (40) hours per week. Support in excess of forty (40) hours per week provided by a family member is considered a natural (unpaid) support.

(8) Parameter of Services. Services that may be self-directed are specified in each HCB waiver for people with developmental disabilities operated by the Division of DD and approved by the Centers for Medicare and Medicaid Services. Services included in the individual's ISP that may not be self-directed will be delivered through agency-based supports by a provider chosen by the individual.

(9) Consumer-Directed Personal Assistance Program through the Department of Health and Senior Services. Individuals who receive services under the consumer-directed personal assistance program authorized in 19 CSR 15 Chapter 8 and administered by the Department of Health and Senior Services (DHSS) may not simultaneously use SDS under any HCB waiver operated by the Division of DD. Individuals eligible to self-direct supports under both the DHSS consumer-directed personal assistance program and under an HCB waiver operated by the Division of DD must choose which program to direct supports under and choose a qualified provider of agency-based supports for the other.

(10) Voluntary Termination. If an individual voluntarily requests to terminate SDS in order to receive services through an agency, the support coordinator will work with the individual, guardian, or designated representative to select a provider agency and transition services to agency-based supports by changing prior authorizations based on the individual's needs. When the self-directed services are voluntarily terminated, the same level of service is offered to the individual through agency-based supports.

(11) Denial and Mandatory Termination of SDS. The option of self-direction may be denied or terminated under any of the following conditions:

(A) The ISP team determines the health and safety of the individual is at risk;

(B) The employer is unable or unwilling to ensure employee records are accurately kept;

(C) The employer is unable or unwilling to supervise employees to receive services according to the plan;

(D) The employer is unable or unwilling to use adequate supports or unable or unwilling to stay within the budget allocation; or

(E) The employer has been the subject of a Medicaid audit resulting in sanctions for false or fraudulent claims under 13 CSR 70-3.030 Conditions of Provider Participation, Reimbursement, and Procedures of General Applicability, Sanctions for False or Fraudulent Claims for MHD.

(12) Improvement Plans.

(A) When an employer is found to be out of compliance with program requirements, an improvement plan shall be established. The improvement plan shall be jointly developed by the employer, individual, support broker, support coordinator, and other regional office staff, as needed.

(B) The plan shall include the specific issues of concern and shall include specific strategies and time frames for improvement.

(C) Failure to successfully meet the terms of the improvement plan within the established time frames shall result in termination of the option to use SDS.

(13) Termination of SDS for Non-Compliance. Except under circumstances described in section (11) of this rule, before terminating SDS, the support coordinator or appropriate staff of the regional office will first counsel the employer to assist in understanding the issues, inform the employer what corrective action is needed, and offer assistance in making changes. Counseling shall include the establishment of an improvement plan. If the employer refuses to cooperate, including failure to successfully carry out the terms of the improvement plan, the option of SDS shall be terminated.

(A) A letter shall be sent notifying the employer that the option of SDS will be terminated and a choice of agency-based providers offered.

(B) A choice of agency-based provider(s) must be made within fifteen (15) days.

(C) The employer may request a meeting with the regional director to discuss the unsuccessful completion of the improvement plan. The request for a meeting must be made within five (5) business days of the written notification that the option of SDS will be terminated.

(D) The regional director must schedule the meeting within ten (10) business days of the request.

(E) The regional director shall make a final decision within three (3) business days of the meeting. The decision of the regional director shall be final.

(14) Immediate Termination for Non-Compliance. When there is evidence of fraud or repeated patterns or trends of non-compliance with program requirements, counseling has been provided to the employer, an improvement plan has been established but has not been successfully completed within the agreed upon time frames, the regional director shall immediately terminate SDS and shall authorize agency-based services from a provider agency chosen by the individual.

(A) The regional office shall request repayment from the employer for any recoupments by the Department of Social Services Missouri Medicaid Audit and Compliance office from the DMH Division of DD.

(15) Service Level Requirements after SDS Termination. When the option for SDS is terminated, the same level of services must be made available to the individual through a qualified waiver provider. The individual shall have a choice of provider.

(16) Individual Budget Allocation, Employee Wages, and Reimbursement.

(A) The SDS individual budget allocation shall be based on the total number of hours needed for the span dates of the ISP multiplied by the statewide base rate for comparable agency-based supports.

(B) The SDS individual budget allocation shall be equal to but shall not exceed the level of support the individual would receive from a provider agency.

(C) Supports included in the SDS individual budget allocation to be paid through the HCB waiver shall not supplant or duplicate natural supports available to the individual.

(D) The Department of Social Services, MHD shall establish maximum allowable rates as recommended by DMH for all HCB supports.

(E) Once the individual receives their SDS individual budget allocation, the employer is responsible to set the wages of his/her employees. Wages shall not be less than minimum wage and not in excess of the MHD maximum allowable rate. The wage includes the net pay to the employee plus all related taxes, worker's compensation, and unemployment insurance.

(17) Fiscal management services (FMS).

(A) DMH shall select a FMS contractor through a competitive bid process.

(B) The FMS shall perform the following functions:

1. Managing and directing the distribution of funds contained in the individual budget allocation;

2. Facilitating the employment of staff by the employer by performing employer responsibilities such as processing payroll, withholding and filing federal state, and local taxes, and making tax payments to appropriate tax authorities;

3. Performing fiscal accounting and making expenditure reports to the employer and state authorities;

4. Collecting provider qualifications and training information;

5. Conducting background screens of potential employee candidates;

6. Collecting documentation of services provided; and

7. Collecting and processing employees' time sheets.

9 CSR 45-3.080

Amended by Missouri Register June 15, 2017/Volume 42, Number 12, effective 7/31/2017