(a) Applicability.  The rules in this Section apply to services funded through Medicaid HCBS Waivers per OAC 317:35-9-5, and as defined in Section 1915(c) of the Social Security Act.  The specific waivers are the In-Home Supports Waiver (IHSW) for Adults, the In-Home Supports Waiver (IHSW) for Children, the Community Waiver, and the Homeward Bound Waiver.

(b) Program provisions.  Each individual requesting services provided through a HCBS Waiver and his or her family or guardian are responsible for:

• (1) accessing, with the assistance of OKDHS staff, all benefits available under Oklahoma's Medicaid State Plan or other payment sources prior to accessing funding for those same services under a HCBS Waiver program;
• (2) cooperating in the determination of medical and financial eligibility, including prompt reporting of changes in income or resources; and
• (3) choosing between services provided through a HCBS Waiver and institutional care.

(c) Waiver Eligibility.  To be eligible for Waiver services, an applicant must meet the criteria established in paragraph (1) of this Subsection and the criteria for one of the Waivers established in Subparagraph (A), (B), or (C) of this Subsection.

• (1) Services provided through a HCBS Waiver are available to Oklahoma residents meeting SoonerCare eligibility requirements established by law, regulatory authority, and policy within funding available through State or Federal resources.  To be eligible for and receive services funded through any of the Waivers listed in subsection (a) of this Section, a person must meet conditions per OAC 317:35-9-5. The individual must be determined financially eligible for SoonerCare per OAC 317:35-9-68.  The SoonerCare eligible individual may not simultaneously be enrolled in any other Medicaid Waiver program or receiving services in an institution including a hospital, rehabilitation facility, mental health facility, nursing facility, residential care facility as described in Section 1-819 of Title 63 of Oklahoma Statutes, or Intermediate Care facility for persons with mental retardation (ICF/MR).  The individual may not be receiving DDSD state-funded services such as the Family Support Assistance Payment, Respite Voucher Program, sheltered workshop services, community integrated employment services, or assisted living without waiver supports per OAC 340:100-5-22.2.   The individual must also meet other Waiver-specific eligibility criteria.
  • (A) In-Home Supports Waivers.  To be eligible for services funded through the In-Home Supports Waiver (IHSW), a person must:
    • (i) meet all criteria given in subsection (c) of this Section; and
    • (ii) be determined to have a disability and a diagnosis of intellectual disability (mental retardation) by the Social Security Administration (SSA); or
    • (iii) be determined to have a disability, and a diagnosis of intellectual disability (mental retardation) as defined in the Diagnostic and Statistical Manual of Mental Disorders by the OHCA Level of Care Evaluation Unit (LOCEU);
    • (iv) be three years of age or older;
    • (v) be determined by the OHCA/LOCEU to meet the ICF/MR Institutional Level of Care requirements per OAC 317:30-5-122;
    • (vi)reside in:
      • (I) the home of a family member or friend;
      • (II) his or her own home;
      • (III) an OKDHS Children and Family Services Division (CFSD) foster home; or
      • (IV) a CFSD group home; and
    • (vii) have critical support needs that can be met through a combination of non-paid, non-Waiver, and SoonerCare resources available to the individual, and with HCBS Waiver resources that are within the annual per capita Waiver limit agreed between the State of Oklahoma and the Centers for Medicare and Medicaid Services (CMS).
  • (B) Community Waiver.  To be eligible for services funded through the Community Waiver, the person must:
    • (i) meet all criteria given in subsection (c) of this Section;
    • (ii) be determined to have a disability and a diagnosis of intellectual disability (mental retardation) by the SSA; or
    • (iii) have intellectual disability (mental retardation) as defined in the Diagnostic and Statistical Manual of Mental Disorders or a related condition per OAC 317:35-9-45 by the DDSD and to be covered under the State's alternative disposition plan adopted under Section 1919(e)(7)(E) of the Social Security Act; or
    • (iv) be determined to have a disability and a diagnosis of intellectual disability (mental retardation) as defined in the Diagnostic and Statistical Manual of Mental Disorders or the OHCA/LOCEU; and
    • (v) be three years of age or older; and
    • (vi) be determined by the OHCA/LOCEU, to meet the ICF/MR Institutional Level of Care requirements per OAC 317:30-5-122; and
    • (vii) have critical support needs that can be met by the Community Waiver  and cannot be met by IHSW services or other service alternatives, as determined by the DDSD Division Director or designee.
  • (C) Homeward Bound Waiver.  To be eligible for services funded through the Homeward Bound Waiver, the person must:
    • (i) be certified by the United States District Court for the Northern District of Oklahoma as a member of the plaintiff class in Homeward Bound et al. v. The Hissom Memorial Center, Case No. 85-C-437-E;
    • (ii) meet all criteria for HCBS Waiver services given in subsection (c) of this Section; and
    • (iii) be determined to have a disability and a diagnosis of intellectual disability (mental retardation) by SSA; or
    • (iv) have intellectual disability (mental retardation) as defined in the Diagnostic and Statistical Manual of Mental Disorders or a related condition per OAC 317:35-9-45 by DDSD and to be covered under the State's alternative disposition plan adopted under Section 1919(e)(7)(E) of the Social Security Act; or
    • (v) have a disability and a diagnosis of intellectual disability (mental retardation) as defined in the Diagnostic and Statistical Manual of Mental Disorders by the OHCA/LOCEU; and
    • (vi) meet the ICF/MR Institutional Level of Care requirements per OAC 317:30-5-122 by the OHCA/LOCEU. 
• (2) The person desiring services through any of the Waivers listed in subsection (a) of this Section participates in diagnostic evaluations and provides information necessary to determine HCBS Waiver services eligibility, including:
  • (A) a psychological evaluation by a licensed Psychologist or State staff supervised by a licensed Psychologist, current within 12 months of requested approval date, that includes:
    • (i) a full scale functional and/or adaptive assessment; and
    • (ii) a statement of age of onset of the disability; and
    • (iii) intelligence testing that yields a full scale intelligence quotient.
  • (B) a social service summary, current within 12 months of requested approval date, that includes a developmental history; and
  • (C) a medical evaluation current within 90 days of requested approval date; and
  • (D) a completed ICF/MR Level of Care Assessment form (LTC-300); and
  • (E) proof of disability according to SSA guidelines.  If a disability determination has not been made by SSA, the OHCA/ LOCEU may make a disability determination using the same guidelines as the SSA.
• (3) The OHCA reviews the diagnostic reports listed in paragraph (2) of this subsection and makes a determination of eligibility for DDSD HCBS Waivers.
• (4) For individuals who are determined to have intellectual disability (mental retardation) or a related condition by DDSD in accordance with the State's alternative disposition plan adopted under Section 1919(e)(7)(E) of the Social Security Act, DDSD reviews the diagnostic reports listed in paragraph (2) of this subsection and, on behalf of the OHCA, makes a determination of eligibility for DDSD HCBS Waiver services and ICF/MR level of care.
• (5) A determination of need for ICF/MR Institutional Level of Care does not limit the opportunities of the person receiving services to participate in community services.  Individuals are assured of the opportunity to exercise informed choice in the selection of services.

(d) Request list.  When State DDSD resources are unavailable for new persons to be added to services funded through a HCBS Waiver, persons are placed on a statewide Request for Waiver Services List.

• (1) The Request for Waiver Services List is maintained in chronological order based on the date of receipt of a written request for services.
• (2) The Request for Waiver Services List for persons requesting services provided through a HCBS Waiver is administered by DDSD uniformly throughout the state.
• (3) An individual is removed from the Request for Waiver Services List if the individual:
  • (A) is found to be ineligible for services;
  • (B) cannot be located by OKDHS;
  • (C) does not provide required information to OKDHS;
  • (D) is not a resident of the state of Oklahoma at the time of requested Waiver approval date; or
  • (E) declines an offer of Waiver services.

(e) Applications.  When resources are sufficient for initiation of HCBS Waiver services, DDSD ensures action regarding a request for services occurs within 45 days.  If action is not taken within the required 45 days, the applicant may seek resolution as described in OAC 340:2-5.

• (1) Applicants are allowed 60 days to provide information requested by DDSD to determine eligibility for services.
• (2) If requested information is not provided within 60 days, the applicant is notified that the request has been denied, and the individual is removed from the Request for Waiver Services List.

(f) Admission protocol.  Initiation of services funded through a HCBS Waiver occurs in chronological order from the Request for Waiver Services List in accordance with subsection (d) of this Section based on the date of DDSD receipt of a completed request for services, as a result of the informed choice of the person requesting services or his or her legal guardian, and upon determination of eligibility, in accordance with subsection (c) of this Section.  Exceptions to the chronological requirement may be made when:

• (1) an emergency situation exists in which the health or safety of the person needing services, or of others, is endangered, and there is no other resolution to the emergency.  An emergency exists when:
  • (A) the person is unable to care for himself or herself and:
    • (i) the person's caretaker, as defined in Section 10-103 of Title 43A of the Oklahoma Statutes:
      • (I) is hospitalized;
      • (II) has moved into a nursing facility;
      • (III) is permanently incapacitated; or
      • (IV) has died; and
    • (ii) there is no caretaker to provide needed care to the individual; or
    • (iii) an eligible person is living at a homeless shelter or on the street;
  • (B) the OKDHS finds that the person needs protective services due to experiencing ongoing physical, sexual, or emotional abuse or neglect in his or her present living situation, resulting in serious jeopardy to the person's health or safety;
  • (C) the behavior or condition of the person needing services is such that others in the home are at risk of being seriously harmed by the person.  For example, the person is routinely physically assaultive to the caretaker or others living in the home and sufficient supervision cannot be provided to ensure the safety of those in the home or community; or
  • (D) the person's medical, psychiatric, or behavioral challenges are such that the person is seriously injuring or harming himself or herself, or is in imminent danger of doing so.
• (2) the Legislature has appropriated special funds with which to serve a specific group or a specific class of individuals under the provisions of a HCBS Waiver;
• (3) Waiver services are required for people who transition to the community from a public or ICF/MR who are children in the State's custody receiving services from OKDHS. Under some circumstances Waiver services related to accessibility may be authorized in advance of transition, but may not be billed until the day the member leaves the ICF/MR and enters the Waiver;
• (4) individuals subject to the provisions of Public Law 100-203 residing in nursing facilities for at least 30 continuous months prior to January 1, 1989, and who are determined by Preadmission Screening and Resident Review (PASRR) evaluation conducted pursuant to the provisions of 42 CFR 483.100 et seq to have intellectual disability (mental retardation) or a related condition, who are covered under the State's alternative disposition plan adopted under Section 1919(e)(7)(E) of the Social Security Act, choose to receive services funded through the Community or Homeward Bound Waiver.

(g) Movement between DDSD HCBS Waiver programs.  A person's movement from services funded through one HCBS Waiver to services funded through another DDSD-administered HCBS Waiver is explained in this subsection.

• (1) When a member receiving services funded through the IHSW for children becomes 18 years of age, services through the IHSW for adults become effective.
• (2) Change to services funded through the Community Waiver from services funded through the IHSW occurs only when:
  • (A) a member has critical support needs that cannot be met by IHSW services, non-Waiver services, or other resources as determined by the DDSD Director or designee; and
  • (B) funding is available per OAC 317:35-9-5.
• (3) Change to services funded through the IHSW from services funded through the Community Waiver may only occur when a member's history of annual service utilization has been within the per capita allowance of the IHSW.
• (4) When a member served through the Community Waiver has support needs that can be met within the per capita Waiver allowance of the applicable IHSW and through a combination of non-Waiver resources, the individual may choose to receive services through the IHSW.

(h) Continued eligibility for HCBS Waiver services.  Eligibility for members receiving services provided through the HCBS Waiver is re-determined by the OHCA/LOCEU when a determination of disability has not been made by the Social Security Administration. The OHCA/LOCEU determines categorical relationship to the  SoonerCare disabled category according to Social Security Administration guidelines.  OHCA/LOCEU also approves level of care per OAC 317:30-5-122 and confirms a diagnosis of intellectual disability (mental retardation) as defined in the Diagnostic and Statistical Manual of Mental Disorders.  DDSD may require a new diagnostic evaluation in accordance with paragraph (c) (2) of this subsection and re-determination of eligibility at any time when a significant change of condition, disability, or psychological status determined under paragraph (c) (2) of this Section has been noted.

(i) HCBS Waiver services case closure.  Services provided through a HCBS Waiver are terminated:

• (1) when a member or the member's legal guardian chooses to no longer receive Waiver services;
• (2) when a member is incarcerated;
• (3) when a member is financially ineligible to receive Waiver services;
• (4) when a member is determined by the Social Security Administration to no longer have a disability qualifying the individual for services under these Waivers;
• (5) when a member is determined by the OHCA/LOCEU to no longer be eligible;
• (6) when a member moves out of state, or the custodial parent or guardian of a member who is a minor moves out of state;
• (7) when a member is admitted to a nursing facility, ICF/MR, residential care facility, hospital, rehabilitation facility, or mental health facility for more than 30 consecutive days;
• (8) when the guardian of a member who is a minor or adjudicated adult fails to cooperate during the annual review process as described in OAC 340:100-5-50 through 340:100-5-58;
• (9) when the guardian of a member who is a minor or adjudicated adult fails to cooperate in the implementation of OKDHS policy or service delivery in a manner that places the health or welfare of the member at risk, after efforts to remedy the situation through Adult Protective Services or Child Protective Services have not been effective;
• (10) when the member is determined to no longer be SoonerCare eligible; or
• (11) when there is sufficient evidence that the member or his/her legal representative has engaged in fraud or misrepresentation, failed to use resources as agreed on in the Individual Plan, or knowingly misused public funds associated with these services;
• (12) when the member or his/her legal representative either cannot be located, has not responded to, or has not allowed case management to complete plan development or monitoring activities as required by policy and the member or his/her legal representative:
  • (A) does not respond to the notice of intent to terminate; or
  • (B) the response prohibits case management (the case manager) from being able to complete plan development or monitoring activities as required by policy;
• (13) when the member or his/her legal representative fails to cooperate with the case manager to implement a Fair Hearing decision;
• (14) when it is determined that services provided through a HCBS Waiver are no longer necessary to meet the member's needs and professional documentation provides assurance that the member's health, safety, and welfare can be maintained without Waiver supports;
• (15) when the member or his/her legal representative fails to cooperate with service delivery;
• (16) when a family member, authorized representative, other individual in the member's household or persons who routinely visit, pose a threat of harm or injury to provider staff or official representatives of OKDHS; or
• (17) when a member no longer receives a minimum of one Waiver service per month and DDSD is unable to monitor member on a monthly basis.

(j) Reinstatement of services.  Waiver services are reinstated when:

• (1) the situation resulting in case closure of a Hissom class member is resolved;
• (2) a member is incarcerated for 90 days or less;
• (3) a member is admitted to a nursing facility, ICF/MR, residential care facility, hospital, rehabilitation facility, or mental health facility for 90 days or less; or
• (4) a member's SoonerCare eligibility is re-established within 90 days of the date of SoonerCare ineligibility.