Or. Admin. Code § 411-031-0040

Current through Register Vol. 63, No. 10, October 1, 2024

Section 411-031-0040 - Consumer-Employed Provider Program

The Consumer-Employed Provider Program contains systems and payment structure for consumers to employ care providers to meet their assessed ADL and IADL needs. The structure assumes a provider is required for ADLs and IADLs during specific periods of time. Except as indicated, the criteria in this rule apply to workers called Homecare Workers:

(1) EMPLOYMENT RELATIONSHIP. The relationship between a provider and a consumer-employer is that of employee and employer. A homecare worker is not permitted to be a representative (see OAR 411-031-0020) or make service plan related decisions for a consumer-employer for whom the homecare worker currently provides paid services.

(2) HOMECARE WORKER JOB DESCRIPTIONS. A consumer-employer or consumer-employer's representative is responsible for creating and maintaining a job description for a potential provider consistent with the services authorized by the consumer's case manager. Only service needs and tasks authorized by the Department shall be paid. The Department does not pay for natural support.

(3) HOMECARE WORKER BENEFITS. Benefits are determined and offered by an outside trust. The Department does not provide benefits directly to homecare workers. Homecare workers are not state employees.

(4) CONSUMER-EMPLOYER ABSENCES. Services from a homecare worker must be prior authorized when a consumer-employer is hospitalized. Services from a homecare worker are not authorized when a consumer-employer is receiving treatment in a mental health, substance abuse treatment facility or any licensed 24-hour care setting. Services from a homecare worker are not authorized for payment when a consumer-employer is incarcerated.

(5) SELECTION OF HOMECARE WORKER. A consumer-employer or consumer-employer's representative carries primary responsibility for locating, interviewing, screening, and hiring their own employees. Subject to Case Manager approval, the consumer-employer or consumer-employer's representative has the right to employ any person who successfully meets the provider enrollment standards described in section (8) of this rule. The Department or AAA office determines whether a potential homecare worker may be enrolled and paid for by the Department.

(6) EMPLOYMENT AGREEMENT. A consumer-employer or consumer-employer's representative establishes an employer-employee relationship with a person at any time after the homecare workers Employment Eligibility Verification form (Form I-9) from the Department of Homeland Security, U.S. Citizenship and Immigration Services have been completed, identification photocopied, and the homecare worker has received authorization to work from the Department. A homecare worker cannot start work and will not receive payment for services performed until after the Department has verified that a person meets the provider enrollment standards described in section (8) of this rule, has an active provider enrollment number and the Department has notified both the employer and homecare worker in writing that payment by the Department is authorized.

(7) TERMS OF EMPLOYMENT. A consumer-employer or consumer-employer's representative must establish terms of an employment relationship with an employee at the time of hire. The terms of employment may include work scheduling, absence reporting, and the specific tasks authorized on the employee's task list. Termination of the employment relationship and the grounds for termination of employment are determined by a consumer-employer or consumer-employer's representative. A consumer-employer or consumer-employer's representative has the right to terminate an employment relationship with a homecare worker at any time and for any reason.

(8) PROVIDER ENROLLMENT.

(a) ENROLLMENT STANDARDS. A homecare worker must meet all of the following standards to be enrolled with the Department's Consumer-Employed Provider Program and may not work, or claim payment for service unless they meet the following criteria:

(A) Agree to maintain a drug-free workplace;

(B) Complete the background check process described in OAR 407-007-0200 to 407-007-0370 with an outcome of approved or approved with restrictions;

(C) Demonstrate the skills, knowledge, and ability to perform, or to learn to perform, the required work;

(D) Possess current U.S. employment authorization that has been verified by the Department or AAA;

(E) Be 18 years of age or older;

(F) Complete an orientation and pass a competency evaluation per OAR 418-020-0035(6);

(G) Complete Core Training and pass a competency evaluation per OAR 418-020-0035(6);

(H) Complete continuing education training requirements as established by the Oregon Home Care Commission and participate in trainings by deadlines established per OAR 418-020-0035;

(I) Must be free of CMS or OIG exclusions;

(J) Maintain an active Provider Enrollment Application and Agreement;

(K) Is not an employee of Aging and People with Disabilities, Area Agency on Aging, the Office of Administrative Hearings, Oregon Health Authority Health Systems Division, Oregon Department of Human Services Background Check Unit, Oregon Eligibility Partnership (OEP), Oregon Department of Human Services Self Sufficiency Program (SSP), the Oregon Home Care Commission, or a provider to a participant of the independent choices program, as defined in OAR 411-030-0100.

(L) Have a social security number or tax identification number that matches the homecare worker's legal name, as verified by the Internal Revenue Service or Social Security Administration.

(b) DENIAL OF INITITAL APPLICATION OF PROVIDER ENROLLMENT. The Department or AAA may deny an application for provider enrollment in the Consumer-Employed Provider Program when the applicant --

(A) Has violated the requirement to maintain a drug-free workplace;

(B) Has an unacceptable background check;

(C) Does not possess the skills, knowledge and ability to adequately or safely perform the required work;

(D) Was substantiated for committing any form of abuse to include but not limited to child abuse, elder abuse and abuse of a person with a disability;

(E) Commits fiscal improprieties;

(F) Fails to provide the required services in a consumer-employers service plan;

(G) Lacks the ability or willingness to maintain consumer-employer confidentiality;

(H) Introduces an unwelcome nuisance to the workplace;

(I) Fails to adhere to an established work schedule;

(J) Has been sanctioned or convicted of a criminal offense related to a public assistance program;

(K) Fails to perform the duties of a mandatory reporter per ORS 419B.005(s);

(L) Has been excluded by the Health and Human Services, Office of Inspector General, from participation in Medicaid, Medicare, and all other Federal Health Care Programs;

(M) Fails to provide a tax identification number or social security number that matches the homecare worker's legal name, as verified by the Internal Revenue Service or Social Security Administration;

(N) Exerts undue influence over a consumer-employer;

(O) Previously had a provider number terminated by the Oregon Department of Human Services; Oregon Health Authority or similar agencies of another state within the United States;

(P) Has been excluded by Centers for Medicaid Services to work as a Medicaid provider;

(Q) Fails to meet the orientation and competency evaluation requirements described in chapter 418, division 20 rules; or

(R) Fails to meet the Provider Enrollment Standards in OAR 411-031-0040(8)(a) (A-L).

(c) INACTIVATED PROVIDER. An Inactivated homecare worker must re-apply to become activated as a homecare worker. This new application means that the homecare worker must complete all initial steps to become a homecare worker. A homecare worker may become inactive when -

(A) The homecare worker has not provided any paid services to any APD or AAA consumer in the last 12 months;

(B) More than two years have passed since the signature date on the most recent Provider Enrollment Application and Agreement for a homecare worker; or

(C) The homecare worker has requested to be placed on an inactive status.

(d) BACKGROUND CHECKS.

(A) When a homecare worker is approved without restrictions following a background check fitness determination, the approval must meet the homecare worker provider enrollment requirement statewide whether the qualified entity is a state-operated Department office or an AAA operated by a county, council of governments, or a non-profit organization.

(B) Background check approval is effective for two years unless:

(i) Based on possible criminal activity or other allegations against a homecare worker, a new fitness determination is conducted resulting in a change in approval status; or

(ii) Approval has ended because the Department has inactivated or terminated a homecare worker's provider enrollment for one or more reasons described in this rule or OAR 411-031-0050.

(C) Prior background check approval for another Department provider type is inadequate to meet background check requirements for homecare worker enrollment.

(D) Background rechecks are conducted at least every other year from the date a homecare worker is enrolled. The Department or AAA may conduct a recheck more frequently based on additional information discovered about a homecare worker, such as possible criminal activity, abuse allegations or other allegations.

(E) Homecare workers must inform the Department and their consumer-employer within 14 days of being arrested, cited for, or convicted of any potentially disqualifying crimes under OAR 125-007-0270 and potentially disqualifying conditions under 407-007-0290.

(e) RESTRICTED PROVIDER ENROLLMENT.

(A) The Department or AAA may enroll an applicant as a restricted homecare worker. A restricted homecare worker may only provide services to one specific consumer.

(i) Unless disqualified under OAR 407-007-0275, the Department or AAA may approve a homecare worker with a prior criminal record under a restricted enrollment to provide services to a specific consumer who is a family member, neighbor, or friend after conducting a weighing test as described in OAR 407-007-0200 to 407-007-0370.

(ii) Based on an applicant's lack of skills, knowledge, or abilities, the Department or AAA may approve the applicant as a restricted homecare worker to provide services to a specific consumer who is a family member, neighbor, or friend.

(B) To remove restricted homecare worker status and be designated as a career homecare worker, the restricted homecare worker must complete a new application and background check and be approved by the Department or AAA.

(f) ENHANCED HOMECARE WORKER ELIGIBILITY. A homecare worker who is certified by the Oregon Home Care Commission to meet the enhanced homecare worker criteria in OAR 411-031-0020(22) may receive payment at the enhanced hourly rate for providing ADL and IADL services as set forth in the Collective Bargaining Agreement when:

(A) The homecare worker is employed by a consumer-employer whose service plan indicates the need for medically driven services and supports;

(B) The consumer-employer's service plan specifically authorizes the homecare worker to provide the medically driven services and supports;

(C) The homecare worker provides the medically driven services and supports as set forth in the service plan; and

(D) The homecare worker has successfully completed training requirements for enhanced homecare worker certification as outlined in the Collective Bargaining Agreement and OAR 418-020-0030(3)(c).

(g) EFFECTIVE DATE OF ENHANCED HOMECARE WORKER RATE PAYMENT. A homecare worker may receive the enhanced rate the beginning of the pay cycle after the Oregon Home Care Commission and Oregon Department of Human Services ensures all criteria is met which includes:

(A) Meeting the enhanced homecare worker certification criteria identified in section (8)(f)(A) through (D) of this rule, and

(B) Working for a consumer-employer who requires medically driven services and supports.

(h) EXCEPTIONAL HOMECARE WORKER ELIGIBLITY. A homecare worker who is certified by the Oregon Home Care Commission to meet the exceptional homecare worker criteria in OAR 411-031-0020(27) may receive payment at the exceptional hourly rate for providing ADL and IADL services as set forth in the Collective Bargaining Agreement when:

(A) The homecare worker is employed by a consumer-employer whose service plan indicates the need for services and supports defined in service rules, 411-015-0006 and 0007;

(B) The consumer-employer's service plan specifically authorizes the homecare worker to provide the necessary services and supports;

(C) The homecare worker provides the necessary services and supports as set forth in the service plan; and

(D) The homecare worker has successfully completed training requirements for exceptional homecare worker certification as outlined in the Collective Bargaining Agreement and OAR 418-020-0030(3)(c).

(i) EFFECTIVE DATE OF EXCEPTIONAL HOMECARE WORKER RATE PAYMENT. A homecare worker may receive the exceptional rate at the beginning of the pay cycle after the Oregon Home Care Commission and Oregon Department of Human Services ensures all criteria is met which includes:

(A) Meeting the exceptional homecare worker certification criteria identified in section (8)(f)(A) through (D) of this rule; and

(B) Working for a consumer-employer who requires the defined services and supports.

(9) TIME OFF.

(a) A homecare worker requesting time off must make a request to the consumer-employer or consumer-employer's representative.

(b) The decision to approve or deny a homecare worker's request to schedule time off is made by the homecare worker's consumer-employer or the consumer-employer's representative.

(c) A homecare worker who has been approved to take time off by the consumer-employer or consumer-employer's representative must notify the consumer-employer's APD or AAA case manager before taking time off.

(d) When a homecare worker schedules time off, the APD or AAA office will make reductions to the homecare worker's authorized hours commensurate with the number of hours the homecare worker plans to take as scheduled time off.

(e) It is the exclusive responsibility of the consumer-employer or their representative to ensure that services are provided during the homecare worker's scheduled time off.

(f) Under no circumstances will a homecare worker be required to secure an alternative homecare worker or ensure that services are provided to a consumer-employer during the homecare worker's scheduled time off.

(g) When a consumer employer or consumer-employer representative finds another homecare worker to provide services to cover another homecare worker's time off, the consumer-employer or the consumer-employer representative must contact the consumer-employer's APD or AAA case manager to arrange for the authorization prior to the homecare worker providing services for the scheduled hours. An alternative homecare worker should not work without authorization from the case manager.

(10) FISCAL ACCOUNTABILITY.

(a) DIRECT SERVICE PAYMENTS. The Department makes payment to a homecare worker on behalf of a consumer-employer for all in-home services. The payment is considered full payment for the services rendered. A homecare worker must not demand nor receive additional payment for any services from a consumer-employer or any other source. Additional payment to homecare workers for the same services covered by the Department is prohibited. Homecare workers will use Electronic Visit Verification (EVV) through the Oregon Provider Time Capture Direct Care Innovations (OR PTC DCI) system for real time recording of hours and tasks provided to a consumer-employer during the workday, workweek and service periods.

(b) TIMELY SUBMISSION OF CLAIMS. In accordance with federal Medicaid regulations and the Collective Bargaining Agreement, all claims for services must be submitted within 365 days from the first date of service listed on the claim. All claims must be compliant with EVV for real time recording of hours worked during the workday, workweek and service periods.

(c) A timely submission of a claim is one that is EVV compliant through these three methods:

(A) OR PTC DCI Mobile Application

(B) OR PTC DCI Landline

(C) OR PTC DCI FOB (fixed object)

(d) If a homecare worker needs to edit a time entry after it has been entered, the time entry is no longer considered EVV compliant.

(e) Entering time into the OR PTC DCI web portal, without a FOB token/code is not considered EVV compliant.

(f) ANCILLARY CONTRIBUTIONS.

(A) FEDERAL INSURANCE CONTRIBUTIONS ACT (FICA). Acting on behalf of a consumer-employer, the Department applies applicable FICA regulations and --

(i) Withholds a homecare worker-employee contribution from payments; and

(ii) Submits the consumer-employer contribution and the amounts withheld from the homecare worker-employee to the Social Security Administration.

(B) BENEFIT FUND ASSESSMENT. The Workers' Benefit Fund pays for programs that provide direct benefits to injured workers and the workers' beneficiaries and assist employers in helping injured workers return to work. The Department of Consumer and Business Services sets the Workers' Benefit Fund assessment rate for each calendar year. The Department calculates the hours rounded up to the nearest whole hour and deducts an amount rounded up to the nearest cent. Acting on behalf of the consumer-employer, the Department --

(i) Deducts a homecare worker-employees' share of the Benefit Fund assessment rate for each hour or partial hour worked by each paid homecare worker;

(ii) Collects the consumer-employer's share of the Benefit Fund assessment for each hour or partial hour of paid services received; and

(iii) Submits the consumer-employer's and homecare worker-employee's contributions to the Workers' Benefit Fund.

(C) The Department pays the consumer-employer's share of the unemployment tax.

(g) ANCILLARY WITHHOLDINGS. For the purpose of this subsection of the rule, "labor organization" means any organization that represents employees in employment relations.

(A) The Department deducts a specified amount from the homecare worker-employee's monthly salary or wages for payment to a labor organization.

(B) In order to receive payment, a labor organization must enter into a written agreement with the Department to pay the actual administrative costs of the deductions.

(C) The Department pays the deducted amount to the designated labor organization monthly.

(h) STATE AND FEDERAL INCOME TAX WITHHOLDING.

(A) The Department withholds state and federal income taxes on all payments to homecare workers, as indicated in the Collective Bargaining Agreement.

(B) A homecare worker must complete and return a current Internal Revenue Service W-4 form to the Department or AAA's local office. The Department applies standard income tax withholding practices in accordance with 26 CFR 31.

(C) The Department cannot provide advice or guidance on any tax related issue.

(11) REIMBURSEMENT FOR COMMUNITY TRANSPORTATION.

(a) A homecare worker is reimbursed at the mileage reimbursement rate established in the Collective Bargaining Agreement when the homecare worker uses his or her own personal motor vehicle for transportation that is prior-authorized in a consumer-employer's service plan. If unscheduled transportation needs arise during non-office hours, the homecare worker must explain the need for the transportation to the consumer-employer's case manager, and the transportation must be approved by the consumer-employer's case manager before reimbursement. The homecare worker must possess a valid license to drive and current, valid motor vehicle insurance and meet all homecare worker duties under Article 15 Section 6 of the Collective Bargaining Agreement.

(b) Medical transportation through the Oregon Health Authority (OHA), volunteer transportation, and other transportation services included in a consumer-employer's service plan is considered a prior resource.

(c) The Department is not responsible for vehicle damage or personal injury sustained when a homecare worker uses his or her own personal motor vehicle for OHA or community transportation, except as may be covered by workers' compensation.

(d) Except as set forth in (a) of this section, homecare workers shall not receive any mileage reimbursement.

(e) Time performing community transportation services are part of the authorized hours and must be claimed in the EVV system.

(12) PAYMENT FOR TRAVEL TIME.

(a) A homecare worker who travels directly between the home or care setting of one consumer-employer and the home or care setting of another consumer-employer will be paid at the base pay rate for the time spent traveling directly between the homes or care settings. For the purposes of this rule, "Travel Directly" means a homecare worker's travel from one consumer-employer's home or care setting to another consumer-employer's home or care setting is not interrupted other than brief stops to:

(A) Purchase fuel for the vehicle being used for the travel;

(B) Use a restroom; or

(C) Change buses, trains or other modes of public transit.

(b) The total time spent traveling directly between all of a homecare worker's consumer-employers may not exceed 10 percent of the total work time the homecare worker claims during a pay period.

(c) When a homecare worker uses the homecare worker's own vehicle to travel directly between two consumer-employers the Department shall determine the time needed for a homecare worker to travel directly based on a time estimate published in a common, publicly-available, web-based mapping program. The homecare worker must possess and provide proof of a valid license to drive and current, valid motor vehicle insurance.

(d) When a homecare worker uses public transportation to travel directly between two consumer-employers, payment for travel time shall be based on the homecare workers actual time in transit or the public transportation providers' scheduled pick-up and drop-off times for the stops nearest the consumer-employers' homes or care settings.

(e) When a homecare worker uses non-motorized transportation to travel directly, payment for travel time shall be based on a time estimate published in a common, publicly-available, web-based mapping program.

(f) Claims for travel time exceeding the Department's time estimates may require a written explanation from the homecare worker before the Department pays the claim. Time claimed in excess of the Department's time estimate may not be paid.

(g) A homecare worker shall not be paid for time spent in transit to or from the homecare worker's own residence.

(h) The Department is not responsible for vehicle damage or personal injury sustained when a homecare worker uses his or her own personal motor vehicle to travel between the homes or care settings of consumer-employers, except as may be covered by workers' compensation.

(i) Homecare workers shall not receive any mileage reimbursement for traveling between the homes or care settings of consumer-employers.

(13) WORKERS' COMPENSATION AND UNEMPLOYMENT INSURANCE. Workers' compensation and unemployment are available to eligible homecare workers as described in the Collective Bargaining Agreement. In order to receive homecare worker workers' compensation, a consumer-employer must consent and provide written authorization to the Department for the provision of workers' compensation insurance for the consumer-employer's employee.

(14) OVERPAYMENTS. An overpayment is any payment made to a homecare worker by the Department that is more than the homecare worker is authorized to receive.

(a) Overpayments are categorized as follows:

(A) ADMINISTRATIVE ERROR OVERPAYMENT. The Department failed to authorize, compute, or process the correct amount of in-home service hours or wage rate.

(B) PROVIDER ERROR OVERPAYMENT. The Department overpays the homecare worker due to a misunderstanding or unintentional error.

(C) FRAUD OVERPAYMENT. For this rule, "Fraud" means taking actions that may result in receiving a benefit in excess of the correct amount, whether by intentional deception, misrepresentation, or failure to account for payments or money received. "Fraud" also means spending payments or money the homecare worker was not entitled to and any act that constitutes fraud under applicable federal or state law (including 42 CFR 455.2). The Department determines, based on a preponderance of the evidence, when fraud has resulted in an overpayment. The Department of Justice, Medicaid Fraud Control Unit determines when to pursue a Medicaid fraud allegation for prosecution.

(b) Overpayments are recovered as follows:

(A) Overpayments are collected prior to garnishments, such as child support, Internal Revenue Service back taxes, or educational loans.

(B) Administrative or provider error overpayments are collected at no more than 5 percent of the homecare worker's gross wages.

(C) The Department determines when a fraud overpayment has occurred and the manner and amount to be recovered; or

(D) When a person is no longer employed as a homecare worker, any remaining overpayment is deducted from the person's final check. The person is responsible for repaying an overpayment in full when the person's final check is insufficient to cover the remaining overpayment.

Or. Admin. Code § 411-031-0040

SPD 17-2004, f. 5-28-04, cert.ef. 6-1-04; SPD 40-2004(Temp), f. 12-30-04, cert. ef. 1-1-05 thru 6-30-05; SPD 10-2005, f. & cert. ef. 7-1-05; SPD 15-2006, f. 4-26-06, cert. ef. 5-1-06; SPD 28-2006(Temp), f. 10-18-06, cert. ef. 10-23-06 thru 4-20-07; SPD 4-2007, f. 4-12-07, cert. ef. 4-17-07; SPD 18-2007(Temp), f. 10-30-07, cert. ef. 11-1-07 thru 4-29-08; SPD 6-2008, f. 4-28-08, cert. ef. 4-29-08; SPD 16-2009(Temp), f. & cert. ef. 12-1-09 thru 5-30-10; SPD 3-2010, f. 5-26-10, cert. ef. 5-30-10; SPD 4-2010(Temp), f. 6-23-10, cert. ef. 7-1-10 thru 12-28-10; SPD 26-2010, f. 11-29-10, cert. ef. 12-1-10; SPD 13-2012(Temp), f. & cert. ef. 9-26-12 thru 3-25-13; SPD 4-2013, f. 3-25-13, cert. ef. 3-26-13; SDP 18-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 47-2013, f. 12-13-13, cert. ef. 12-15-13; APD 2-2016(Temp), f. & cert. ef. 3-2-16 thru 8-28-16; APD 6-2016(Temp), f. & cert. ef. 3-23-16 thru 8-28-16; APD 31-2016, f. 8-24-16, cert. ef. 8/28/2016; APD 1-2018, temporary amend filed 01/26/2018, effective 02/01/2018 through 07/30/2018; APD 6-2018, temporary amend filed 02/28/2018, effective 02/28/2018 through 07/30/2018; APD 27-2018, amend filed 07/31/2018, effective 7/31/2018; APD 3-2023, amend filed 03/01/2023, effective 3/1/2023; APD 13-2023, temporary amend filed 08/22/2023, effective 8/25/2023 through 2/20/2024; APD 4-2024, amend filed 01/29/2024, effective 2/1/2024

Statutory/Other Authority: ORS 409.050, 410.070 & 410.090

Statutes/Other Implemented: ORS 410.010, 410.020, 410.070, 410.612 & 410.614