participant directed services: legally responsible …...providers or pds employees are not willing...

Participant Directed Services:

Legally Responsible Individuals as EmployeesCommonwealth of Kentucky

Cabinet for Health and Family Services

September 19, 2019

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Who will benefit from this webinar?1

Who is a Legally Responsible Individual (LRI)?2

Why does an LRI need to be approved?3

How is an LRI approved to be a PDS employee? 4

Questions answered by this Webinar:

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WHO WILL BENEFIT FROM

THIS WEBINAR?

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WHO WILL BENFIT FROM THIS WEBINAR?

Webinar Purpose:

Inform participants and their families on DMS policies and

procedures for employing a legally responsible individual

(LRI) as a PDS employee. Outlined policies will go into

effect following redesign regulation approval.

This webinar will explain:

• Who legally responsible individuals are;

• Who must go through the approval process;

• Why the approval process is in place; and

• How to apply for approval.

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WHO WILL BENFIT FROM THIS WEBINAR?

Legally responsible individuals who wish to become

Participant Directed Services (PDS) employees must be

approved by the Kentucky Department for Medicaid

Services (DMS). Following redesign regulation

approval, each waiver type that utilizes PDS must meet

the new LRI approval criteria.

Who should view the webinar:

• Participants using participant directed services in

Medicaid 1915(c) waivers;

• Legally responsible individuals of the waiver

participant;

• Families of the participant;

• Friends of the participant.

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WHO IS A LEGALLY

RESPONSIBLE INDIVIDUAL?

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WHO IS A LEGALLY RESPONSIBLE INDIVIDUAL?

CMS Definition of a Legally Responsible Individual: A

person who has a legal obligation under the provisions of

state law to care for another person. Legal responsibility is

defined by State law, and generally includes parents

(natural or adoptive) of minor children, legally-assigned

caretaker relatives of minor children, and sometimes

spouses.

Source: Centers for Medicare and Medicaid Services, Application for a 1915(c) Home and Community-Based Waiver.

Instructions, Technical Guide and Review Criteria. January 2019. page 108

https://www.medicaid.gov/medicaid-chip-program-information/by-topics/waivers/downloads/technical-guidance.pdf

https://www.medicaid.gov/medicaid-chip-program-information/by-topics/waivers/downloads/technical-guidance.pdf

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LRI for a Minor Child (Younger than Age 18)

LRI for an Adult(Age 18 or older)

• Parent

• Stepparent

• Adoptive parent

• A Kentucky Court Appointed

Legal Guardian

• Spouse

• A Kentucky Court Appointed

Legal Guardian

Kentucky Medicaid defines the following people as legally responsible

individuals:

Source: Appendix C-2, proposed 1915(c) Home and Community Based Services Waivers

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Legally Responsible Individual

• Has authority to make legal decisions for the participant;

• Speaks on behalf of the participant in legal matters;

• Has a responsibility to provide some care to the participant.

PDS Representative (if appointed)

• Speaks on behalf of the participant ONLY for PDS matters;

• Attends PDS meetings with the participant or on their behalf;

• May provide unpaid care to the participant but can never be paid to provide care;

• Signs timesheets.

Differences between the LRI and PDS Representative

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WHO IS NOT A LEGALLY RESPONSIBLE INDIVIDUAL?

The following individuals are NOT considered legally

responsible individuals by the Department:

Other Immediate Family Members

(such as siblings, grandparents, cousins,

etc.*)

Powers of Attorney

Social Security Representative

Payee

PDS Representative**

1 2

3 4

*Excludes legally responsible individuals described previously

**PDS Representatives may not be paid to provide care to the Participant

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Putting the Pieces Together: What it all Means

• CMS allows states to define who is

considered a legally responsible

individual;

• Kentucky chose a definition for legally

responsible individual based on who has

legal authority for the participant;

• Kentucky does not ask other natural

supports to go through an approval process*.

* PDS Representatives can never be a paid PDS employee for the participant.

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WHY DOES AN LRI NEED TO

BE APPROVED?

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WHY DOES AN LRI NEED TO BE APPROVED?

The Centers for Medicare and Medicaid Services

(CMS) provides federal rules, regulations, and

guidance to state Medicaid programs.

States follow CMS rules

and regulations in

exchange for federal funds.

States use these federal

funds to help provide

services, like those in a

1915(c) HCBS waiver.

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Kentucky Medicaid allows

participants to hire legally

responsible individuals as

participant directed employees.

CMS allows states to choose if a legally

responsible individual can be paid as a

participant directed services employee.

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Each state that allows participants to employ a legally responsible

individual must follow federal guidance to establish requirements

for ‘extraordinary care’.

CMS Definition of ‘Extraordinary Care’:

“By extraordinary, CMS means Care exceeding the range of

activities that a legally responsible individual would ordinarily

perform in the household on behalf of a person without a

disability or chronic illness of the same age; and

Which are necessary to assure the health and welfare of the

participant and avoid institutionalization.”

Source: Centers for Medicare and Medicaid Services, Application for a 1915(c) Home and Community-Based Waiver. Instructions, Technical Guide and Review Criteria.

January 2019. page 109

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Kentucky’s Definition of Extraordinary Care


Kentucky Department for Medicaid Services

(DMS) defines extraordinary care using a set of

criteria that a participant or the legally responsible

individual must meet. The criteria is explained in

detail in the next section.

CMS requires Kentucky (and all states) to create clear

conditions that describe when a participant requires

‘extraordinary care.’

If the participant meets those conditions, the legally

responsible individual may be paid to provide services.

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Explaining Conflict of Interest

LRI

Personal

Interest

Participant

InterestConflict of

Interest

Conflict of Interest: When a legally responsible individual is

authorized to make decisions on behalf of a participant and they have

an opportunity to prioritize payment for the services they deliver over

the participant’s best interests.

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Putting the Pieces Together: What it all Means

A participant requires extraordinary care when:

• They require care more often when compared to

someone of the same age who does not have a

disability;

• They require more care compared to someone of

the same age who does not have a disability;

• The care provided is necessary to maintain

health and safety;

• They are at risk of institutional placement

(nursing home, intermediate care facility, hospital,

etc.) without the caregiver.

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HOW IS AN LRI APPROVED TO

BE A PDS EMPLOYEE?

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HOW IS AN LRI APPROVED TO BE A PDS EMPLOYEE?

Kentucky’s Policy on Legally Responsible Individuals as PDS Employees

Kentucky policy allows legally responsible individuals

to become PDS employees if the participant meets

the criteria for ‘extraordinary care’. This allows

participants a choice in who provides their care.

Adults

Children

An adult participant (18 years old or older) must meet one of the

conditions in Category A to employ a legally responsible

individual.

A participant who is a minor child (17 years old or younger) must

meet one of the conditions in Category A AND one of the conditions

in Category B to employ a legally responsible individual.

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Category A: Criteria for ALL PDS participants

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Criteria: The participant’s care needs have reduced or eliminated the legally responsible individual’s ability to maintain paid employment in the past and there is not an alternative caregiver who is functionally able to provide care.

1

Caregiver must leave work often to provide care to the participant

(i.e. reducing hours of work);

Caregiver frequently takes leave of absence from work to provide

care to the participant (i.e. eliminating hours of work);

Scheduling job interviews is challenging because of the care

needs of the participant.

Examples of Employment Challenges for a Legally Responsible

Individual:

Category A

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Criteria: The legally responsible individual can demonstrate attempts within the first 30 days to recruit a qualified provider, but cannot secure one.*

2

There are no providers or PDS employees willing to travel to the

participant’s home or work during required timeframes (e.g. the

nearest provider is not willing to drive sixty miles to your home);

Providers or PDS employees are not willing to provide the type

of care the participant requires (such as transferring someone

who is large, providing toileting assistance, etc.);

Providers or PDS employees are not willing to work for the pay

rate.

Examples of Recruitment Challenges:

Category A

*In some instances, an individual electing the traditional option for delivery of services may not be able to secure a

qualified provider, allowing their LRI to be an employee under this criteria.

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Criteria: The participant has a communication barrier exceeding that of his or her age matched peers that impacts his or her ability to effectively communicate needs and wishes.

3

The participant uses sign language;

The participant’s speech is affected by their disability, making

them hard to understand by someone who does not know him/her;

The participant uses a combination of body language and

vocalizations which require interpretation;

The participant is non-verbal and would have difficulty

communicating if an employee made him or her uncomfortable or

afraid.

Examples of Communication Barriers:

Category A

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Criteria: The participant has a sincerely held religious belief and cannot secure a provider who is culturally competent or shares the same religion.*

4

The participant is unable to find a provider or PDS employee who can

prepare foods according to their religious beliefs;

The participant is unable to find a provider or PDS employee who

delivers care with respect for the participant’s cultural or religious

beliefs;

The household’s culture requires you to remove your shoes when

entering the home and you cannot find an employee willing to do that.

Examples of Challenges with Cultural Competency:

Category A

*In some instances, an individual electing the traditional option for delivery of services may not be able to secure a

qualified provider, allowing their LRI to be an employee under this criteria.

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Category B: Criteria for minor child PDS

participants

1 Criteria from Category A

AND

1 Criteria from Category B

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Criteria: The child’s dependency in performing activities of daily living (ADLs) must be directly related to his or her disability and exceed that of his or her age matched peers.

1

Getting dressed

Brushing your teeth

Combing/styling your hair

Preparing a simple meal

Eating

Taking a shower or bath

Other activities included in your

“daily routine”

Examples of Activities of Daily Living:

Category B

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Criteria: The child demonstrates destructive or injurious behaviors exceeding that of his or her age matched peers and such behaviors represent a risk of serious injury or death to self or others.

2

The child strikes or hits furniture,

walls, or other parts of the

environment;

The child breaks toys, rips

clothing, or causes damage to

things within their reach.

Examples of Destructive

Behaviors:

The child strikes or hits a part of the

body against the environment;

The child strikes another in any way;

The child takes an action that could

cause immediate harm to

themselves or others, such as

running into the street.

Examples of Injurious

Behaviors:

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A parent, who is having trouble keeping a job, wants to go to work for

their child, a PDS participant.

Case study: Employing an LRI as a PDS Employee for a minor child

The parent of the child lost their job and cannot find another job because of the

care needs of the child. The participant meets the criteria for Category A,

Number 1.

The Department assesses the child and determines they have functional

needs. Now, the participant meets the criteria for Category B, Number 1.

The child has more functional needs than other children their age. And the

legally responsible individual can document the challenges in getting a job,

maintaining normal hours, or keeping a job.

The legally responsible individual is likely to be approved to work as a PDS

employee for the participant.

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Criteria Reduced

Employment

Provider

Recruitment

Communication

Barrier

Religious

Beliefs

Functional

Needs

Behavioral

Needs

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Criteria Reduced

Employment

Provider

Recruitment

Communica-

tion Barrier

Religious

Beliefs

Functional

Needs

Behavioral

Needs

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HOW IS AN LRI APPOVED TO BE A PDS EMPLOYEE?

How does a legally responsible individual apply to be a PDS employee?

Legally responsible individuals must apply and

be approved by the Kentucky Department for

Medicaid Services (DMS), or its designee.

The legally responsible individual works with the participant-

directed case manager (formerly the support broker or service

advisor) to begin the application process.

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Discuss with PDCM

• Why does LRI need to be PDS Employee?

• Any other trusted employee available?

• Can someone be taught?

Documents

• Functional Assessment;

• Proof of PDS employee recruiting attempts;

• Documents from past providers;

• Affidavit.

DMS or Its Designee

• Receive documents;

• Review case;

• Make determination.

What are the steps for a participant to hire a legally responsible individual

to be a PDS employee?

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What if DMS denies the application and the LRI disagrees?

If the legally responsible individual disagrees with the

DMS determination, they may request a reconsideration

and/or appeal the decision.

The legally responsible individual may work with the

participant-directed case manager to request a

reconsideration or appeal.

The process for appeal is outlined in Kentucky

Administrative Regulations (907 KAR 2:040).

The legally responsible individual does not need to hire

a lawyer or other legal counsel to appeal a DMS

decision; however, they may do so if they wish.

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Additional resources for participants and legally responsible individuals:

Participant Directed Case Manager

Participant Guide

DMS Participant Directed Services

Website

The Participant Directed Case

Manager can assist you with the

entire process.

Participants have access to a

written Participant Guide to help

you with step-by-step instructions.

The PDS website has

information, forms, and other

resources to help you.

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ADDITIONAL RESOURCES

Please visit the Division of Community Alternatives

website found at:

https://chfs.ky.gov/agencies/dms/dca/Pages/default.a

spx for general information on 1915 (c) HCBS Waiver

resources.

Specific information on PDS can be found at:

https://chfs.ky.gov/agencies/dms/dca/Pages/cdo.aspx

https://chfs.ky.gov/agencies/dms/dca/Documents/pdsonepager.pdf

More information on criteria required to hire an LRI:

https://chfs.ky.gov/agencies/dms/dca/Pages/default.aspx

https://chfs.ky.gov/agencies/dms/dca/Pages/cdo.aspx

https://chfs.ky.gov/agencies/dms/dca/Documents/pdsonepager.pdf

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THANK YOU FOR YOUR VALUABLE INPUT

AND CONTINUED PARTNERSHIP WITH DMS.

All questions and comments can be emailed to:

[email protected]

mailto:[email protected]