New Mexico Register / Volume
XXIX, Issue 15 / August 14, 2018
NOTICE OF RULEMAKING
The Human Services
Department (the Department), through the Medical Assistance Division (MAD), is
proposing to amend NMAC policy: 8.314.5 NMAC, Developmental Disabilities
Home and Community-Based Services Waiver.
On June 21, 2017,
the Department received approval from the Centers for Medicare and Medicaid
Services (CMS) for a renewal of the 1915 (c) Home and Community-Based Services
(HCBS), Developmental Disabilities Waiver with an effective date of July 1,
2016. The program rule, 8.314.5 NMAC, is
being amended to align services and definitions with the approved Waiver
renewal and the CMS HCBS Settings Final Rule.
Section 9-8-6 NMSA
1978, authorizes the Department Secretary to
promulgate rules and regulations that may be necessary to carry out the duties
of the Department and its divisions.
Notice Date: August 14, 2018
Hearing Date: September 13, 2018
Adoption
Date: Proposed as December 1, 2018
Technical
Citations: 42 CFR 438 subparts A through
J
The Department proposes the following amendments to
the rule:
Section 7
Definition
language was updated throughout this section: clarification that activities of
daily living include bathing, dressing, transferring, toileting, mobility and
eating; description and clarification of person centered planning process; and
removal of the definition for the Supports Intensity Scale.
Section 8
The language in this section has been removed.
Section 9
This
section was updated to align with the CMS HCBS Settings Final Rule. Language has been added clarifying the
recipient’s right to privacy, dignity and respect and that the Developmental
Disabilities Waiver (DDW) services must be provided in a setting that: is
integrated in and facilitates full access to the greater community; ensures the individual receives services in
the community to the same degree of access as individuals not receiving
Medicaid Home and Community-Based services; maximizes independence in making
life choices; is chosen by the individual (in consultation with the guardian if
applicable) from among residential and day options, including non-disability
specific settings; ensures the right to privacy, dignity, respect and freedom
from coercion and restraint; optimizes individual initiative, autonomy and
independence in making life choices; provides an opportunity to seek
competitive employment; provides individuals an option to choose a private unit
in a residential setting; and facilitates choice of services and who provides
them.
Section 10
Subsection C- Clarifying language was added to provider agency
oversight and supervision of subcontractors and employees.
Subsection D- Clarifying language was added to the qualifications for
case management provider agencies.
Subsection F- Clarifying language was added to qualifications of
adult nursing provider agencies.
Subsection H- Clarifying language was added detailing when direct
support staff personnel employed by or subcontracting with the provider agency
must be approved through a home study; requirement for supported living
agencies to supervise specific nurse functions.
Subsection T- Inclusion of LCSW, LMFT and LISW under qualifications
for licensed behavioral health practitioners that can be employed by
preliminary risk screening and consultation (PRSC) related to inappropriate
sexual behavior agencies.
Subsection
U- Clarifying language
added to qualifications of socialization and sexual education providers.
Section 11
This section was
updated with language on conflict of interest, including the requirements for
provider agencies and case management agencies to mitigate real or perceived
conflicts of interest. This language is consistent with the DDW service
standards.
Subsection C - Language was added detailing conflict of interest
requirements and prohibitions for DDW providers with regard to guardians,
family members and spouses of eligible recipients.
Subsection D - Language was added detailing conflict of interest
requirements and prohibitions for case management agency owners and
individually employed or contracted case managers with regard to: relation by
blood or affinity to the eligible recipient or to any paid caregiver of the
eligible recipient; material financial interest in any entity that is paid to
provide DDW or Mi Via services; making financial or health related decisions
for eligible recipients on their caseload; relation by blood or affinity to any
DDW service provider for eligible recipients on their caseload; and holding
caseloads with DDW and Mi Via eligible recipients.
Language was added
detailing conflict of interest requirements and prohibitions for case
management provider agencies with regard to being a provider agency for any
other DDW service and providing guardianship services to an eligible recipient
receiving case management services from that same agency.
Language was added
detailing conflict of interest requirements and prohibitions for a case manager
or director of a case management provider agency with regard to serving on the
board of directors of any DDW provider agency and training staff of DDW
provider agencies.
Language was added
outlining requirements for case management provider agencies to disclose
familial relationships between employees/subcontract case managers and
providers of other DDW services.
Section 12
This section was
updated with language that notes the eligibility criteria for DDW services are
found in 8.290.400 NMAC.
Section 13
This section was
updated to remove all language related to the Recipient Standardized Assessment
and Supports Intensity Scale (SIS).
Section 14
Subsection A - Supplemental Dental was removed as a covered service
for eligible recipients ages birth to 18 years as this service is covered under
the Early Periodic Screening Diagnosis and Treatment (EPSDT) program under the
state plan.
Subsection C - Preliminary risk screening and consultation was
added to the list of service options that are allowed outside of the Annual
Resource Allotment (ARA) for eligible recipients ages birth to 18 years.
Section 15
Subsection A - This section was updated with the removal of SIS
language. Language was added on the use of Proposed Budget Levels (PBL) and corresponding
suggested budget dollar amount based on the type of living care arrangement,
assumptions about types and amounts of services, intensity of staffing needs,
and support needs in each level.
Subsection B - The H Authorization language was removed and
replaced with the Exception Authorization Process. Clarifying language was added to outline the
requirements and process for the Exception Authorization Process. This process
allows DDW individuals who have extenuating circumstances, including extreme
complex clinical needs, to receive services beyond what is authorized in their
current ISP/budget level or to allow individual exceptions to the DDW service
standards.
Subsection C (1) - Clarifying language was added to the functions
required under case management services including the addition of health care coordination
and activities that support the person-centered planning process such as:
supporting informed choice and participant self-advocacy; allowing participants
to lead their own meetings, program and plan development; increasing an
individual’s experiences with other paid, unpaid, publicly-funded and community
support options; increasing self-determination; demonstrating that the approved
budget is not replacing other natural or non- disability specific resources
available; and documenting efforts demonstrating choice of non-waiver and
non-disability specific options in the Individual Support Plan (ISP),
Intermediate Disciplinary Team (IDT) meeting minutes or companion documents
when an individual has only DDW funded supports.
Subsection C (4) - Language was added to clarify that for all
medically necessary therapy services accessed under the state plan by eligible
recipients under 21 years of age, the services under the waiver are services
not otherwise covered under the state plan, and consistent with waiver
objectives to support the recipient to remain in the community and prevent
institutionalization.
Subsection C (5) - Clarifying language was added noting that Living
Support services are available up to 24 hours per day; the section on Family
Living service was reformatted.
Subsection C (6) - Clarifying
language was added for Customized Community Supports settings.
Subsection C (7) - This section was updated with additional
language describing the services available through the various Community
Integrated Employment models.
Section 17
This section was
updated with the addition of language on the person-centered planning process
and requirements as it pertains to the development of the ISP. Language on the SIS process was deleted.
Section 20
This section was
updated with clarifying language on agency review conferences and the fair
hearing process; language on the denial of services through H authorization was
replaced with exception authorization process.
This proposed rule
will be contained in 8.314.5 NMAC, Developmental Disabilities Home and
Community-Based Services Waiver. The
register and proposed rule language are available on the HSD website at: http://www.hsd.state.nm.us/LookingForInformation/registers.aspx and http://www.hsd.state.nm.us/public-notices-proposed-rule-and-waiver-changes-and-opportunities-to-comment.aspx. If
you do not have internet access, a copy of the proposed register and rule may
be requested by contacting MAD at 505-827-6252.
The Department proposes to implement this rule
effective December 1, 2018. A public hearing to receive
testimony on this proposed rule will be held in the Rio Grande Conference room,
Toney Anaya Building, 2550 Cerrillos Road, Santa Fe, New Mexico on September
13, 2018 from 11 a.m. to 12 p.m., Mountain Daylight Time (MDT).
Interested persons may address written or recorded
comments to: Human Services Department,
Office of the Secretary, ATTN: Medical Assistance Division Public Comments,
P.O. Box 2348, Santa Fe, New Mexico 87504-2348.
Recorded comments may be left at (505) 827-1337. Interested persons may also address comments
via electronic mail to: madrules@state.nm.us. Written mail, electronic mail and recorded
comments must be received no later than 5 p.m. MDT on September 14, 2018. Written and recorded comments will be given
the same consideration as oral testimony made at the public hearing.
If you are a person with a disability and you
require this information in an alternative format or require a special
accommodation to participate in the public hearing, please contact MAD in Santa
Fe at (505) 827-6252. The Department
requests at least 10 working days advance notice to provide requested
alternative formats and special accommodations.
Copies of all
comments will be made available by MAD upon request by providing copies
directly to a requestor or by making them available on the MAD website or at a
location within the county of the requestor.