Or. Admin. Code § 411-030-0100

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

Section 411-030-0100 - Independent Choices Program

(1) The Independent Choices Program (ICP) is an In-Home Services Program that empowers participants to self-direct their own service plans and purchase goods and services that enhance independence, dignity, choice, and well-being.

(2) The Department may not change the ICP Participation Agreement without posting the changes for public notice on the Department's website.

(3) INITIAL ELIGIBILITY REQUIREMENTS.

(a) To be eligible for the ICP an individual must:

(A) Meet all requirements for in-home services as described in these rules.

(B) Develop a service plan and budget to meet the needs identified in his or her CA/PS assessment.

(C) Sign the ICP Participation Agreement. Eligibility for the ICP cash benefit may not be backdated prior to the date that the signed ICP Participation Agreement is received in the local office.

(D) Have or be able to establish a checking account.

(E) Provide evidence of a stable living situation for the past three months.

(F) Demonstrate the ability to manage money as evidenced by timely and current utility and housing payments for the past three months or previous history before hospitalization, community-based care, or nursing facility stays.

(G) Demonstrate the ability to manage and honor the employee provider responsibilities as outlined in the ICP Participation Agreement.

(H) Complete enrollment with a Department contracted Fiscal Intermediary to provide the required Electronic Visit Verification (EVV) services when available and required by the department.

(I) Not have a history of misuse of the ICP cash benefit.

(b) If a participant is unable to direct and purchase their own in-home services, the participant must have a representative to act on the participant's behalf. The "representative" is the person assigned by the participant to act as the participant's decision maker in matters pertaining to the ICP service plan and service budget. A representative must:

(A) Complete a background check pursuant to OAR chapter 407, division 007 and receive a final fitness determination of approval; and

(B) Sign and adhere to the "ICP Representative Agreement" on behalf of the participant.

(c) If a participant is unable to manage the ICP cash payment accounting, tax, or payroll responsibilities and does not have a representative, the participant must arrange and purchase the ongoing services of a fiscal intermediary, such as an accountant, bookkeeper, or equivalent financial services.

(A) A participant, or the participant's representative who has met the eligibility criteria in subsection (b) of this section, may also choose to use a fiscal intermediary.

(B) The participant is responsible for any fees or payment to the fiscal intermediary and may allocate the fees or payment from discretionary or other non-ICP funds.

(4) DISENROLLMENT CRITERIA. Participants may be disenrolled from the ICP voluntarily or involuntarily. Participants who are disenrolled from the ICP may not reapply for six months. After the six-month disenrollment period, an individual may re-enroll and must meet all ICP eligibility requirements.

(a) VOLUNTARY DISENROLLMENT. Participants or representatives must provide notice to the Department of intent to discontinue participation in the ICP. The participant or the representative must meet with the Department to reconcile remaining ICP cash payment either within 30 calendar days of the date of disenrollment or before the termination date, whichever is sooner.

(b) INVOLUNTARY DISENROLLMENT. The participant may be involuntarily disenrolled from the ICP when the participant, representative, or employee provider does not adequately meet the participant's service needs or carry out any of the following ICP responsibilities:

(A) Non-payment of employee's wages, as stated in the service budget.

(B) Failure to maintain the participant's health and well-being by obtaining personal care as evidenced by:

(i) Decline in functional status due to the failure to meet the participant's needs; or

(ii) Substantiated complaints of self-neglect, neglect, or other abuse on the part of the employee provider or representative.

(C) Failure to purchase services and goods according to the participant's service plan.

(D) Failure to comply with the legal or financial obligations as an employer.

(E) Failure to maintain a separate ICP checking account or commingling ICP cash benefit with other assets.

(F) Inability to manage the cash benefit as evidenced by two or more incidents of overdrafts of the participant's ICP checking account during the last cash benefit review period.

(G) Failure to maintain an individualized back-up plan (as part of the participant's service plan) resulting in a negative consequence.

(H) Failure to sign or follow the ICP Participation Agreement.

(I) Failure to designate a representative within 30 calendar days if a participant needs a representative, as determined by the Department, and does not have one.

(J) Failure to abide by all state and federal labor laws.

(K) Failure to meet requirement for EVV federal compliance.

(L) Failure to complete enrollment with the State contracted EVV provider.

(M) Failure to provide any required forms necessary to establish and maintain eligibility for ICP.

(N) The participant is required to request or demand that an ICP provider return any of the funds to the recipient when the services paid for were not delivered.

(O) Misuse of the ICP cash funds.

(5) INTERRUPTION OF SERVICES. The ICP cash benefit is terminated when a participant is absent from the home for longer than 30 calendar days due to illness or medical treatment. The cash benefit may resume upon the participant's return to the home, providing ICP eligibility criteria is met.

(6) SELECTION OF EMPLOYEE PROVIDERS.

(a) The participant or representative carries full responsibility for locating, screening, interviewing, hiring, training, paying, and terminating employee providers. The participant or representative must comply with Immigration and Customs Enforcement laws and policies.

(b) The participant or representative must assure the employee provider's ability to perform or assist with ADL and IADL service needs.

(c) Employee providers must complete a background check pursuant to OAR chapter 407, division 007. If a record of a potentially disqualifying crime is revealed, the participant or representative may employ the provider at the participant's or representative's discretion.

(d) A representative may not be an employee provider regardless of relationship to the participant.

(e) A participant's relative may be employed as an employee provider.

(7) CASH BENEFIT.

(a) The cash benefit is determined based on the participant's CA/PS assessment of need, service plan, level of assistance standards in OAR 411-030-0070, and natural supports.

(b) The cash benefit is calculated by adding the ADL task hours and the IADL task hours that the participant is eligible for as determined in the CA/PS assessment, at the rates according to the Department's rate schedule.

(c) The following services, which are approved by the case manager and paid for by the Department, are excluded from the ICP cash benefit:

(A) Long-term care community nursing.

(B) Contracted community transportation.

(C) Medicaid home delivered meals.

(D) Emergency response systems.

(d) The cash benefit includes the employer's portion of required FICA, FUTA, and SUTA.

(e) The cash benefit is directly deposited into a participant's ICP designated checking account.

(f) The cash benefit may not be used to purchase services from an Adult Day Service provider or licensed care setting.

(g) The participant must establish an hourly rate of pay no less than the federal or state minimum wage, whichever is greater. This must be indicated on the required ICP Employee-Provider Information form for each employee-provider and may only pay the provider the agreed upon hourly rate of pay. The ICP cash benefit may not be used to pay an employee-provider a cash bonus.

(h) The participant must submit the required ICP Employee-Provider Information form each time an employee-provider:

(A) Is hired.

(B) Is fired.

(C) Quits.

(D) Is given an increase or a decrease in their agreed upon hourly rate of pay.

(E) Stops working for the participant for any reason not listed.

(8) SERVICE BUDGET.

(a) The service budget must identify the cash benefit, the discretionary and contingency funds if applicable, the reimbursement to an employee provider, and all other expenditures. The service budget may not exceed the total cash benefit including the sum of all costs listed on the ICP Budget Worksheet. The service budget must be initially approved by the Department or AAA case manager.

(b) The participant may amend the service budget as long as the amendments relate to meeting the participant's service needs and are within ICP program guidelines.

(c) A budget review to assure financial accountability and review service budget amendments must be completed at least every six months.

(9) CONTINGENCY FUND.

(a) The participant may establish a contingency fund in the service budget to purchase identified items that are not otherwise covered by Medicare, other Medicaid programs, other medical coverage, or the Supplemental Nutrition Assistance Program (SNAP) that substitute for personal assistance and allow for greater independence.

(b) The contingency fund must be approved by the case manager, identified in the service budget, and related to service plan needs.

(c) Contingency funds may accumulate in the ICP checking account until the item is purchased.

(10) DISCRETIONARY FUND.

(a) The participant may establish a monthly discretionary fund in the service budget to purchase items that directly relate to the health, safety, and independence of the participant and are not otherwise covered under Medicaid home and community-based services or delineated in the monthly service budget.

(b) The maximum amount of discretionary funds may be up to 10 percent of the participant's cash benefit not including employee taxes.

(c) The discretionary fund must be approved by the case manager, identified in the service budget, and related to service plan needs.

(d) Discretionary funds must be used by the end of the month.

(11) ISSUING BENEFITS.

(a) The service plan and service budget must be prior approved by the case manager before the first ICP cash benefit is paid.

(b) A cash benefit is considered issued and received by the participant when the direct deposit is made to the participant's ICP bank account, or a benefit check is received by the participant.

(c) The cash benefit is exempt from resource calculations for other Department programs only while in the ICP bank account and not commingled with other personal funds.

(d) The cash benefit is not subject to assignment, transfer, garnishment, or levy as long as the cash benefit is identified as a program benefit and is separate from other money in the participant's possession.

(12) CASE MANAGER RESPONSIBILITIES.

(a) The case manager is responsible to review and authorize service plans and service budgets that meet the ICP program criteria.

(b) If a participant is disenrolled, the case manager must review eligibility for other Medicaid long term care and community-based service options and offer other alternatives if the participant is eligible.

(c) At least every six months, a Department or AAA case manager must complete a service budget review to assure financial accountability and review service budget amendments.

(d) The case manager must assist ICP participants in enrolling with a Department contracted Fiscal Intermediary to provide the required Electronic Visit Verification (EVV) services.

(e) The Department must offer additional information, counseling, training (if available), or assistance from an ICP Representative, and have documentation that these steps have been taken, declined, or ineffective before imposing section (4)(b) of this rule.

(13) HEARING RIGHTS. ICP participants have contested case hearing rights as described in OAR chapter 461, division 025.

Or. Admin. Code § 411-030-0100

SPD 4-2008(Temp), f. & cert. ef. 4-1-08 thru 9-24-08; SPD 13-2008, f. & cert. ef. 9-24-08; SPD 15-2008, f. 12-26-08, cert. ef. 1-1-09; SPD 14-2013(Temp), f. & cert. ef. 7-1-13 thru 12-28-13; SPD 44-2013, f. 12-13-13, cert. ef. 12-15-13; APD 19-2015(Temp), f. & cert. ef. 9-21-15 thru 3-18-16; APD 5-2016, f. 3-15-16, cert. ef. 3/18/2016; APD 21-2017, temporary amend filed 09/29/2017, effective 10/01/2017 through 01/27/2018; APD 3-2018, amend filed 01/27/2018, effective 1/28/2018; APD 32-2020, amend filed 07/23/2020, effective 8/1/2020; APD 10-2023, amend filed 06/29/2023, effective 7/1/2023

Statutory/Other Authority: ORS 410.090

Statutes/Other Implemented: ORS 410.070