DAR File No. 43688

Health, Health Care Financing, Coverage and Reimbursement Policy

Rule R414-510

Intermediate Care Facility for Persons with Intellectual Disabilities Transition Program

Notice of Proposed Rule

(Amendment)

DAR File No.: 43688
Filed: 05/01/2019 03:51:39 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to update the process that will be used to transition interested individuals from Intermediate Care Facilities (ICFs) to home and community based services (HCBS). The amendment also provides additional information regarding how education about HCBS will be provided to both individuals residing in ICFs and those considering admission to ICFs.

Summary of the rule or change:

This amendment spells out criteria and procedures to admit individuals into the ICF Transition Program. Specifically, it lists the priority of admission for individuals who are both over and under 22 years of age, and outlines provisions of education for individuals who reside in ICFs and may want to receive HCBS, and for those considering admission to ICFs.

Statutory or constitutional authorization for this rule:

• Section 26-1-5
• Section 26-18-3

Anticipated cost or savings to:

the state budget:

By fiscal year (FY) 2024, there is an annual cost of $22,501,000 to implement the new ICF/Transition Program requirements.

local governments:

There is no impact to local governments because they do not participate in the operation of the ICF Transition Program.

small businesses:

Small businesses that provide HCBS may see an increase of $29,955,000 in revenue by FY 2024 as more individuals gain access to HCBS, but small businesses that own ICFs will experience decreased revenue as individuals move out of ICFs and into HCBS. The loss in revenue is estimated to be approximately $8,065,000 by FY 2024.

persons other than small businesses, businesses, or local governmental entities:

Medicaid providers that provide HCBS may see a portion of $29,955,000 in revenue by FY 2024 as more individuals gain access to HCBS, but businesses that own ICFs will experience decreased revenue as individuals move out of ICFs and into HCBS. The loss in revenue is estimated to be approximately $8,065,000 by FY 2024.

Compliance costs for affected persons:

A single entity that provides ICF services will experience decreased revenue as individuals move out of ICFs and into HCBS. The loss in revenue depends on the number of individuals who move out, and is estimated to be a portion of $8,065,000.

Comments by the department head on the fiscal impact the rule may have on businesses:

Some businesses may see an increase in revenue as more individuals have access to HCBS, while others will experience decreased revenue as individuals move from ICFs into HCBS.

Joseph K. Miner, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Health
Health Care Financing, Coverage and Reimbursement Policy
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Craig Devashrayee at the above address, by phone at 801-538-6641, by FAX at 801-538-6099, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/14/2019

This rule may become effective on:

07/01/2019

Authorized by:

Joseph Miner, Executive Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2020	FY 2021	FY 2022
State Government	$22,501,000	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Costs:	$22 , 501 ,000	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$7,296,600	$0	$0
Non-Small Businesses	$7,296,800	$0	$0
Other Persons	$7,296,600	$0	$0
Total Fiscal Benefits:	$21 , 890 ,000	$0	$0
Net Fiscal Benefits:	-$611,000	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

About 164 non-small business providers of home and community based services (HCBS) may see a share of $29,955,000 in annual revenue. Conversely, about 17 non-small business providers that own intermediate care facilities (ICFs) may share in a loss of revenue that totals $8,065,000, as individuals move from ICFs into HCBS. The net impact of $29,955,000 minus $8,065,000 equals $21,890,000, which is reported as the total fiscal benefit in Appendix 1.

 

 

R414. Health, Health Care Financing, Coverage and Reimbursement Policy.

R414-510. Intermediate Care Facility for Persons with Intellectual Disabilities Transition Program and Education.

R414-510-1. Introduction and Authority.

(1) This rule implements the Intermediate Care Facility for Persons with Intellectual Disabilities (ICF[/ID]) Transition Program, and the education process required for individuals currently residing in ICFs and those considering ICF admission. ICF Transition Program participation is voluntary and allows an individual to transition from a[n]privately-owned ICF[/ID] to the Community Supports Waiver for Individuals with Intellectual Disabilities and Other Related Conditions.

(2) This rule is authorized by Section 26-18-3. Waiver services are optional and provided in accordance with 42 CFR 440.225.

 

R414-510-2. Definitions.

(1) "Departments" means the Utah Department of Health and the Utah Department of Human Services.

([1]2) "Division of Services for People with Disabilities (DSPD)" means the entity within the Department of Human Services that has responsibility to plan and deliver an appropriate array of services and supports to persons with disabilities in accordance with Section 62a-5-102.

([2]3) "Guardian" means an individual, who is legally authorized to make decisions on an individual's behalf.

([3]4) "Interested individual" means an individual who meets eligibility requirements and expresses interest, either directly or through a guardian, in participating in the Transition Program.

(5) "Intermediate Care Facilities" means privately-owned intermediate care facilities for individuals with intellectual disabilities.

([4]6) "Length of stay" means the length of time an individual has continuously resided in ICFs in the state of Utah. The Departments consider[s] a continuous stay to include a stay in which an individual has a temporary break in stay of no more than 31 days due to inpatient hospitalization, admission to a nursing facility, or a temporary leave of absence.

([5]7) "Representative" means an individual, who is not a guardian, and does not have decision-making authority, but is identified as an individual who assists a potential Transition Program participant.

([6]8) "State staff" means employees of the Division of Medicaid and Health Financing or the Division of Services for People with Disabilities.

([7]9) "Transition Program" means the Intermediate Care Facility for Persons with Intellectual Disabilities Transition Program.

([8]10) "Waiver" means the Community Supports Waiver for Individuals with Intellectual Disabilities and Other Related Conditions (CSW).

 

R414-510-3. Eligibility Requirements for the Transition Program.

Waiver services are potentially available to an individual who:

(1) receives ICF[/ID] benefits under the Medicaid State Plan;

(2) has been diagnosed with an intellectual disability or a related condition;

(3) meets ICF[/ID] level of care criteria defined in Section R414-502-8;

(4) meets state funding eligibility criteria for the Division of Services for People with Disabilities (DSPD) found in Subsection 62A-5-102(4); and

(5) has at least a 12-month length of stay in any Medicaid-certified, privately-owned ICF[/ID] located in Utah.

 

R414-510-4. Transition Program Access.

(1) Each state fiscal year, [the Utah Department of Health (Department)shall determine if there are sufficient funds available to initiate the Transition Program and identify the amount of funds available for the Transition Program]the Departments shall identify the number of people projected to participate in the Transition Program.

(2) Based on the funds available for the Transition Program in a given state fiscal year, the Departments shall enroll individuals into the [CSW]Waiver through the Transition Program until available funds are exhausted.

(3) In a given state fiscal year, if the funds available for the Transition Program are sufficient to enroll all individuals who have expressed interest in participating in the Transition Program, and meet the requirements in Section R414-510-3, the Departments shall enroll all identified individuals. The Departments shall prioritize community transition to all individuals under 22 years of age.

(4) In a given state fiscal year, if the funds available for the Transition Program are not sufficient to allow transition of all individuals who express interest and who meet the requirements in Section R414-510-3, the Departments shall:

(a) Prioritize community transition to all individuals under 22 years of age;

(b) For individuals over 22 years of age, each interested individual will receive a weighted-score, and be ranked based on that score, from highest to lowest score. Scores shall be based on:

(i) The number of years the person has expressed interest in participating in the Transition Program since State Fiscal Year 2013;

(ii) Whether the applicant has applied for home and community based services and is currently on the DSPD waiting list;

(iii) Length of consecutive stay in an ICF in the state of Utah; and

(iv) If there are multiple individuals with the same weighted-score, the Departments shall rank individuals based on greatest length of stay.

(c) If an individual is selected for the Transition Program and has a spouse who also resides in a Utah ICF and who meets the eligibility criteria in Section R414-510-3, the Departments shall include the spouse in the Transition Program that same year.

(5) Individuals or their guardians will be informed that they can express interest in participating in the Transition Program at any time in writing, or by any other means through which a reasonable person would believe that the individual is interested in living in the community. Interest can be expressed at any time prior to or after state staff make direct contact with the individual or their guardian and the individual retains the right to amend his or her choice at any time.

(6) In cases where an individual does not initially express a choice to transition to the community or to remain in the ICF, the Departments will identify the individual as "undecided." For individuals identified as "undecided," the Departments will engage in additional in-reach and education to build relationships with the individual, the guardian or representative;

(a) After engaging in additional education, the Departments will re-determine whether individuals are interested in moving to the community or continuing to reside in ICFs; and

(b) For remaining individuals who are incapable of expressing choice, the Departments will identify the individuals as "undetermined";

(7) In cases where an individual has been identified as "undetermined," the Departments will utilize a formal assisted decision-making process to support the individual and their guardian to make an informed choice.

[(3) If the Department has initiated the Transition Program in a given year, the Department shall make direct contact with potentially eligible ICF/ID residents by phone or in person to determine interest in participating in the Transition Program.

(4) If the Department has initiated the Transition Program in a given year, the Department shall publicize the availability of the Transition Program in the following manner:

(a) The Department shall provide a letter to each potentially eligible ICF/ID resident (or to the guardian or other identified representative, if the individual has a guardian or other identified representative). The letter shall, at a minimum:

(i) describe the purpose and operation of the Transition Program, including the availability of funding;

(ii) identify the enrollment method to be used for the Transition Program in the given year;

(iii) state that Transition Program participation is voluntary; and

(iv) provide the phone number and other contact information for state staff who are available to answer questions about the Transition Program.

(b) The Department shall notify the administrator of each privately-owned ICF/ID.

(c) The Department shall post information about the Transition Program on the Utah Medicaid website and the DSPD website.

(5) To introduce and provide general education about the Transition Program in a given year, state staff shall hold at least one meeting at each private ICF/ID. The Department will send notice of the meeting via letter to each eligible ICF/ID resident (or to the guardian or other identified representative, if the individual has a guardian or other identified representative). The Department shall notify the administrator of each privately-owned ICF/ID of the date and time of the meeting. The meeting shall provide detailed education about the Transition Program to allow the individual or their guardian, the freedom to make an informed choice regarding the setting for receiving services. Meeting elements shall include:

(a) a description of the purpose of the Transition Program;

(b) a provision of materials and detailed information regarding how individuals' needs can be met in home and community based services or in the ICF/ID where the individual currently resides;

(c) a description of how the Transition Program operates with available funds;

(d) a description of how residents or guardians can express interest in participating in the Transition Program;

(e) a time period for questions and answers;

(f) the opportunity for state staff to schedule more detailed individual meetings with interested individuals, and their guardians or representatives; and

(g) the phone number and other contact information for state staff who are available to answer questions about the Transition Program.

(6) At the time of the meeting, individuals or their guardians may inform state staff of their choice regarding participation in the Transition Program.

(7) For individuals who express a choice at this time, state staff will document the choice in writing.

(8) Using a method described below in Subsection R414-510-4(8)(a) or (b), the Department will place the name of each potentially interested individual on both a weighted-score list and a random list.

(a) On the weighted-score list, the Department will rank each individual, from highest to lowest score. Scores shall be based on:

(i) the number of times the person has applied to participate in the Transition Program since Fiscal Year 2013;

(ii) whether the applicant has applied for home and community based services and is currently on the DSPD waiting list; and

(iii) length of consecutive stay in an ICF/ID in the state of Utah.

(A) If there are multiple individuals on the weighted-score list with the same score, the Department will rank individuals based on greatest length of stay.

(b) On the random list, the Department ranks each interested individual based on a computerized random selection.

(c) At least 70 percent of the individuals selected to participate in the Transition Program in a given year will be selected based on their ranking in the weighted-score list.

(9) Except for individuals who have made their preferences known as per Subsection R414-510-4(6) and (7), state staff will contact individuals on the two lists to provide detailed education about the Transition Program in order to allow the individual or their guardian the freedom to make an informed choice regarding the setting to receive services. The contact will also be used to determine if additional education is needed or wanted.

(a) For individuals without guardians, state staff will contact the individual and will provide Transition Program education. Upon completion of the education process, state staff will ask the individual to express their preference regarding whether they want to participate in the Transition Program. State staff will document and act upon the individual's decision.

(b) For individuals with guardians, state staff will contact the guardian and will rely on the decision rendered by the guardian regarding whether they want additional Transition Program education.

(i) If more in-depth, individualized training is requested by the guardian, state staff will schedule the training, and will document the guardian's choice regarding an individual's participation in the Transition Program.

(ii) If additional, training is not requested, state staff will document and act upon the guardian's decision.

(10) For individuals who express a desire to participate in the Transition Program, state staff will:

(a) work with the individual or their guardian, if the individual has a guardian, to schedule a meeting to conduct a service needs assessment and develop the individual's support plan and a timeline for anticipated transition;

(b) inform the ICF/ID administration of the individual's intent to transition, including information about the likely transition timeline;

(c) facilitate collaboration between the ICF/ID and home and community-based services providers to assist the individual in a safe and orderly transition.

(11) If an individual is selected for the Transition Program and has a spouse who also resides in a Utah ICF/ID and who meets the eligibility criteria in Section R414-510-3, the Department shall include the spouse in the Transition Program.

(12) Based on available funding, the Department shall continue to select eligible individuals through the aforementioned process until the Department exhausts the amount of funds committed to the Transition Program.]

 

R414-510-5. ICF Transition Program Education for Current ICF Residents.

(1) Education about the ICF Transition Program and home and community based services shall be provided by state staff to all individuals residing in ICFs. Education efforts shall be provided on an ongoing basis by state staff and will include, but are not limited to:

(a) Displaying Transition Program and state staff contact information in conspicuous locations within each ICF;

(b) Meeting with individuals living in ICFs, and with their guardians or representatives on a recurring basis;

(c) Providing opportunities for individuals living in ICFs, their guardians or representatives to visit home and community based services settings; and

(d) Providing opportunities for individuals living in ICFs, their guardians or representatives to receive support from peers who have experienced moving from an ICF to home and community based services.

(2) Education about the ICF Transition Program and home and community based services shall be provided in multiple ways and in a manner that is responsive to each person's method of communication. Examples include in-person, one-on-one or group discussions, interactions in community based settings, and communication over the telephone or through email. Educational materials will be provided in print or other mediums.

(3) As ongoing education about community based services is provided to individuals without guardians, state staff will work with the individual and anyone the individual invites to participate. At recurring intervals, state staff will work with the individual and anyone the individual invites to participate to express whether he or she wants to participate in the Transition Program. At each interval, state staff shall document and act upon the individual's decision;

(4) As ongoing education about community based services is provided to individuals with guardians, state staff will work with the guardian and anyone the guardian invites to participate. State staff will rely on the decision rendered by the guardian regarding whether the guardian wants the individual to participate in the Transition Program.

(5) Individuals or their guardians will be informed that they can express interest in participating in the Transition Program at any time in writing, or by any other means through which a reasonable person would believe that the individual is interested in living in the community. Interest can be expressed at any time prior to or after state staff make direct contact with the individual or their guardian, and the individual retains the right to amend his or her choice at any time.

 

R414-510-6. Education and Referral for Individuals Seeking ICF Services.

(1) Prior to admission to an ICF, an individual or guardian must contact state staff to receive education of and referral to local resources.

(a) For individuals under 22 years of age, the state agencies shall perform an additional evaluation of services to determine whether community based services are available to assure informed choice before admission to an ICF. The Director of the Division of Medicaid and Health Financing (or designee) and the Director of the Division of Services for People with Disabilities (or designee) shall authorize in writing all ICF admissions of individuals under 22 years of age.

(b) ICFs shall not admit an individual under 22 years of age, unless the admission has been authorized as stated in Subsection R414-510-6(1)(a) above. After admission, the ICF shall keep a copy of the written authorization in the individual's medical record. An individual who admits to an ICF, who meets the requirements described in Section R414-510-3, is eligible to participate in the Transition Program.

(c) Upon completing education and referral with state staff, individuals who are over 22 years of age and decide to move into an ICF, shall be given a written confirmation to demonstrate that the education process occurred prior to admission.

(d) ICFs shall not admit an individual who has not received the required state staff education and referral. After admission, the ICF shall keep a copy of the written confirmation form in the individual's medical record.

(2) Due to an urgent or emergency need, an individual may be admitted to an ICF immediately, and education and assistance with resources shall be provided after the placement.

(a) The ICF must:

(i) notify the Departments of the admission;

(ii) explain the reason the admission was considered urgent or emergency; and

(iii) provide contact information for the individual, guardian, or representative.

(3) Education shall be provided within 30 days of ICF admission unless an individual's health or other external factors make it necessary to provide the education at a later date.

(4) Once education has been provided, the Departments will provide the ICF with a written confirmation of education form, and the ICF will keep a copy of the form in the individual's medical record.

 

R414-510-[5]7. Service Coverage.

Services and limitations of the Transition Program may be found in the Waiver State Implementation Plan.

 

R414-510-[6]8. Reimbursement Methodology.

The Department of Human Services (DHS) contracts with the Department to set rates for waiver-covered services. The DHS rate-setting process is designed to comply with the requirements of Subsection 1915(c) of the Social Security Act and other applicable Medicaid rules. Medicaid requires that rates for services not exceed customary charges.

 

KEY: Medicaid

Date of Enactment or Last Substantive Amendment: [July 27, 2018]2019

Authorizing, and Implemented or Interpreted Law: 26-1-5; 26-18-3