Or. Admin. R. 411-030-0071 - Exceptions to Maximum Hours of Service

(1) Eligibility for In-Home Exceptions to Maximum Hours of Service.
(a) If the Department determines the individual's assessed service needs will not be adequately met within the maximum number of hours for a specific ADL or specific IADL as set forth in OAR 411-030-0070, and the Department determines the individual meets all of the requirements in these rules and in OAR 411-027-0050, then the individual shall receive an exception to the maximum hours per ADL and IADL.
(b) If the Department determines the individual's assessed service needs will not be adequately met within the maximum number of hours to address cognitive impairments, and the individual meets the requirements in this rule, the individual shall receive an exception to the maximum hours in cognition and other affected ADLs as described in OAR 411-015-0006.
(c) The Department may deny an exception if the request is:
(A) Based solely on a desire for services outside of assessed service needs.
(B) Not medically appropriate.
(C) For assistance types not allowed by OAR 411-015-0006 and OAR 411-015-0007 for a particular ADL or IADL.
(D) For services not covered in the 1915(k) State Plan, OAR 411-015-0006, or OAR 411-015-0007.
(E) For tasks not identified in OAR 411-015-0006 and OAR 411-015-0007.
(F) Based solely on choice of the individual.
(2) Responsibility for Applying for an In-home Exception.
(a) An individual, or their representative, may make an initial exception request either orally or in writing if the individual believes their service plan is not meeting, or will not meet, their service needs.
(b) If the individual, or their representative, requests an exception or expresses concerns that their service needs are not being met, the case manager must help the individual apply for an exception, including completing required forms and gathering Department-required documentation.
(c) If the individual's case manager assesses, or is notified by others with knowledge of the individual's service needs, that the individual's needs exceed the maximum hours, the case manager must work with the individual to determine the appropriate number of hours and submit an exception application;
(d) If the number of hours the case manager approves or recommends is fewer than the number requested by the individual or their representative, the individual's requested exception shall be reviewed as presented by the individual, and a decision will be made on that request per the process defined in section (3) of this rule.
(e) In-home care providers may not submit requests for exceptions. They may notify the case manager of concerns and the case manager shall discuss the concerns with the individual or their representative and ask if the individual wants to apply for an exception.
(3) Exception Application Process.
(a) An individual may apply for an exception, described in section (2) of this rule, by:
(A) Completing an exception application form, available from the case manager, and providing any information that supports the request for additional hours; or
(B) Requesting that their case manager complete the SDS 514i on their behalf; or
(C) Expressing to their case manager that the authorized service hours are not sufficient to meet their needs.
(b) Prior to processing an application for an exception, the case manager must discuss alternate ways, resources, and service options, if any, to meet the individual's needs consistent with the individual's right to independence, choice, and responsibility to assist in developing the least costly plan as described in OAR 411-030-0050(2)(a).
(c) After discussing alternative ways to meet the individual's needs described in subsection (b) of this rule, if the individual continues to desire an exception, then the exception application shall be processed.
(d) The Exception Application Form, regardless of who completes the form, must be signed by the individual or their representative in order for the application to be reviewed unless criteria described in OAR 411-030-0071(5)(f) is met.
(e) The CA/PS assessment must have been completed within three months before the exception request, and it must represent the individual's current condition and functioning. If the individual's application for an exception is not within the timeframe noted in this subsection, a new assessment must be completed to document current needs. DHS Central Office may waive this requirement when criteria described in OAR 411-030-0071(5)(f) is met.
(f) If the wait for a new assessment threatens the health, safety, or welfare of the individual, as determined by the Department, the Department shall waive the three-month requirement in subsection (e) of this rule.
(g) The Exception Application Form must clearly describe:
(A) The frequency of the task that is needed, based on the number of times per day or week that assistance is needed.
(B) The duration of the task, based on the average amount of time a task takes to complete each time the task is performed or attempted and an explanation of why, if applicable, the tasks require more time than the maximum allowed hours described in OAR 411-030-0070.
(C) Service needs that occur on a regular but unpredictable schedule.
(D) The number of providers needed for each task and an explanation of why, if applicable, the tasks require more than one provider.
(E) The reasons why the current hours do not meet the need, and an explanation of why any less costly options discussed will not meet the need.
(F) Any other information that explains the need for the exception.
(h) The Exception Application Form shall include an attestation that all the information is accurate and truthful.
(i) The individual, or their representative, is responsible for ensuring that sufficient documentation is provided. A case manager shall assist the individual in collecting the requested documentation. If the requested documentation is not provided to the Department, DHS may issue an exception denial.
(4) Required Documentation.
(a) All Exception applications must include the Exception Application Form, SDS 514i. The form must be complete, signed by the individual, or their representative unless criteria described in OAR 411-030-0071(5)(f) is met, and accurate.
(b) To support the application, the Department may require the individual, or their representative, to provide further documentation during the Exception decision making process. This documentation, in addition to the Exception Application Form, may include, but is not limited to:
(A) An Exception Calculator, which will be provided by the Department, upon request;
(B) A caregiver time/task log detailing the performance of the ADL and IADL tasks as defined in OAR chapter 411, division 015 for three (3) consecutive 24-hour periods. The log shall include the name of the ADL/IADL task, the action performed and the duration that it took the provider to perform the task. The log must be complete and be acceptable to the Department to qualify; and
(C) Any relevant medical and mental health records to support the specific exception request.
(5) Exception Decision Making Authority.
(a) Local office management shall make final decisions on the exception application if the exception application does not exceed the total maximum hours, defined in OAR 411-030-0070:
(A) The ADL limit is 73 hours per service period; or
(B) The IADL limit is 35 hours per service period.
(b) DHS Central Office shall make final decisions on exceptions exceeding the maximum hour limits defined in (5)(a)(A) and (B) of this section.
(c) If the exception application meets the criteria defined in (5)(a) of this section, the local office manager must review the exception application, related documents, and the CA/PS assessment comments for accuracy, completeness, and justification of the request and either approve, partially approve, or deny the request in writing no more than 14 calendar days from the date of the exception request. The individual, or their representative, may appeal any unfavorable decision.
(d) If the exception application exceeds the authority defined in (5)(a) of this section, the local office management must submit the exception application to DHS Central Office within three business days of receipt of the application.
(e) Unless (5)(f) or 5(g) of this rule applies, DHS Central Office has no more than 30 calendar days from the date the exception application and any supporting documentation has been received to complete its review and make a determination.
(f) In emergency situations that threaten the health, welfare or safety of the individual, DHS Central Office will make a decision within two business days of receipt of the application. DHS Central Office may elect to make a decision without all of the required documentation; however, any approvals will only be made for no longer than the end of next service period.
(g) If DHS Central Office determines that it needs additional information, DHS Central Office will notify the case manager or local office manager in writing within three business days of receipt of the application. The case manager, or local office manager must notify the individual, or their representative, within two business days that additional information is needed.
(h) The individual, or their representative, or case manager must provide the requested information to DHS Central Office within 14 calendar days of the Department's request. The request for additional information will specify the due date and explain how to submit the required information.
(A) DHS Central Office has 14 calendar days from the date of receipt of the additional information to make a determination.
(B) If the individual fails to timely provide the requested information, DHS Central Office will complete the review based on the documentation in its possession. DHS Central Office has 14 calendar days from the date of the individual's deadline for additional information to complete the review.
(C) If the individual, or their representative, responds to the request for additional information after the exception application has been denied due to a failure to provide additional information, the individual's response will be considered a new request for an exception, with a new effective date.
(D) If the individual submits the required documentation after the 14-day timeframe, the individual may request an extension for good cause and request that the DHS Central Office issue a revised decision.
(E) The individual may request a good cause extension prior to the expiration of 14-day timeframe by requesting it via their case manager.
(F) Good cause exists when an action, delay, or failure to act arises from an excusable mistake or from factors beyond an individual's reasonable control.
(i) For each Exception Application:
(A) If the Department determines that the documentation supports the requested additional hours over the maximum for the specific ADLs or IADLs, the exception will be granted.
(B) If the Department determines that the documentation supports additional hours but not as many hours as requested or for the timeframe requested, the exception will be granted for only those additional hours supported by the documentation.
(C) If DHS Central Office determines that the documentation does not support any additional hours over the maximum, the exception application will be denied.
(D) If DHS Central Office denies any portion of an Exception Application, as described in (h)(B) and (h)(C) of this subsection, the individual, or their representative, may request a hearing.
(6) Exception Application Reviews and Decision Making.
(a) All exception applications must be for hours of services and supports provided by APD. This means that the need must meet the definitions in each ADL or IADL and match the tasks and assistance types described in OAR 411-015-0006 and OAR 411-015-0007.
(b) Exception approvals are effective no earlier than the date the Exception Application is requested by the individual and received by the case manager and the home care provider has been authorized to work. If these do not occur on the same date, the later date is the effective date.
(c) To justify the need for additional hours, the Department shall review any documentation available, including:
(A) Assessment Comments to ensure that the assessed need meets OAR definitions;
(B) Treatments that may drive care needs;
(C) Diagnosis that may drive care needs;
(D) Medical documentation that the way services are being provided is appropriate to the needs of the individual;
(E) Medical documentation, including those from the Long-Term Care Community Nurse or Behavior Support Specialists, that shows that the current level of services is not meeting the individual's needs;
(F) The reasons for increased duration and frequency; and
(G) Other information explaining or related to the need for additional hours.
(d) To determine the appropriate number of exception hours, the Department shall review:
(A) Frequency of the care needs that require additional time in the relevant ADLs and IADLs.
(B) Duration of the care needs that require additional time in the relevant ADLs and IADLs.
(C) The reasons for the increased duration and frequency.
(D) The number of individuals necessary to perform an assessed task.
(E) The complexity of the individual's care needs.
(F) Whether denying the exception would put the individual at risk of placement out of home if the individual prefers to live in their own home.
(G) Whether denying the exception would result in substantial unmet needs of the individual that may jeopardize the individual's health and safety.
(e) The Department may reduce the requested hours if the individual's needs and choices are already met by:
(A) The availability of natural supports as defined in OAR 411-030-0020(40);
(B) Durable Medical Equipment or assistive devices or technology;
(C) Emergency Response Systems;
(D) Home and Environmental Modifications;
(E) Home Delivered Meals;
(F) Other supports that replace the need for human assistance as determined on a case-by-case basis consistent with individual choice;
(f) The Department may reduce the requested hours if:
(A) Requested hours do not meet ADL and IADL definitions in 411-015-0006 and 411-015-0007; or
(B) The way tasks are being provided are not medically appropriate as determined by:
(i) Information from the individual's medical professionals;
(ii) APD's Long Term Care Community Nurses or other nurses familiar with the care of the individual; or
(iii) Documentation provided from recent hospitalizations or nursing facility stays.
(7) Notification.
(a) The Department shall notify the individual about the outcome of the exception request in the notice of hours authorization decision, or an amended notice, if appropriate.
(b) Notification shall include:
(A) The name of the person who applied for exceptional service hours.
(B) The date the request was approved or denied.
(C) For each ADL and IADL, the number of hours requested, compared to maximum hours and total approved hours.
(D) A reference to the attached 514 Exception Application Form.
(E) A summary of the reasons why the exceptional hours requested were approved or denied.
(F) The duration of the exception.
(G) Information on hearing rights and how to request a hearing.
(8) Duration. An exception is valid for the period defined in the notice, not to exceed the individual's service plan end date.
(9) Reassessments.
(a) If an individual has an existing exception, the exception application must be resubmitted after the reassessment and will be reviewed prior to the exception end date. If the individual requests the same or fewer exception hours, a decision to renew the exception may be made without the consumer's signature as defined in section (3)(d) of this rule The case manager may supply the required documentation as outlined in section (4) of this rule.
(b) Exceptions will be reviewed at reassessments, change of situations, or change of conditions.

Notes

Or. Admin. R. 411-030-0071
APD 11-2018, temporary adopt filed 05/23/2018, effective 05/23/2018 through 11/18/2018; APD 40-2018, adopt filed 11/15/2018, effective 11/18/2018; APD 3-2020, temporary amend filed 02/21/2020, effective 02/21/2020 through 08/18/2020; APD 32-2020, amend filed 07/23/2020, effective 8/1/2020

Statutory/Other Authority: ORS 409.050 & ORS 410.070

Statutes/Other Implemented: ORS 410.070

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