TITLE 8 SOCIAL
SERVICES
CHAPTER 314 LONG TERM CARE SERVICES - WAIVERS
PART 5 DEVELOPMENTAL
DISABILITIES HOME AND COMMUNITY-BASED SERVICES WAIVER
8.314.5.1 ISSUING AGENCY: New
Mexico Health Care Authority.
[8.314.5.1 NMAC -
Rp, 8.314.5.1 NMAC, 12/1/2018; A, 7/1/2024]
8.314.5.2 SCOPE: The
rule applies to the general public.
[8.314.5.2 NMAC -
Rp, 8.314.5.2 NMAC, 12/1/2018]
8.314.5.3 STATUTORY AUTHORITY: The
New Mexico medicaid program is administered pursuant
to regulations promulgated by the federal department of health and human
services under Title XIX of the Social Security Act, as amended and by the
state health care authority pursuant to state statute. See Section 27-2-12 et seq. NMSA 1978. Section 9-8-1
et seq. NMSA 1978 establishes the health care authority (HCA) as a single,
unified department to administer laws and exercise functions relating to health
care facility licensure and health care purchasing and regulation.
[8.314.5.3 NMAC -
Rp, 8.314.5.3 NMAC, 12/1/2018; A, 7/1/2024]
8.314.5.4 DURATION:
Permanent.
[8.314.5.4 NMAC -
Rp, 8.314.5.4 NMAC, 12/1/2018]
8.314.5.5 EFFECTIVE DATE: December
1, 2018, unless a later date is cited at the end of a section.
[8.314.5.5 NMAC -
Rp, 8.314.5.5 NMAC, 12/1/2018]
8.314.5.6 OBJECTIVE: The
objective of this rule is to provide instruction for the service portion of the
New Mexico medical assistance programs (MAP).
[8.314.5.6 NMAC -
Rp, 8.314.5.6 NMAC, 12/1/2018]
8.314.5.7 DEFINITIONS:
A. Activities of daily living (ADLs): Basic personal everyday activities
that include bathing, dressing, transferring (e.g., from bed to chair),
toileting, oral care, mobility and eating.
B. Adult: An individual who is 18 years of age or older.
C. Authorized
representative: An individual
designated by the eligible recipient or their guardian, if applicable, to
represent the eligible recipient and act on their behalf. The authorized representative must provide
formal documentation authorizing them to access the identified case information
for this specific purpose. An authorized
representative may be, but need not be, the eligible recipient’s guardian or
attorney.
D. Child:
An individual under the age of 18.
For purpose of early periodic screening, diagnosis
and treatment (EPSDT) services eligibility, “child” is defined as an individual
under the age of 21.
E. Clinical
Documentation: Sufficient
information and documentation that demonstrates the request for initial
and ongoing developmental disabilities
waiver (DDW) services is necessary and appropriate based on the service
specific DDW clinical criteria established by the department of health (DOH)
developmental disabilities support division (DDSD) for adult recipients
excluding class members of Walter Stephen Jackson, et al vs. Fort Stanton
Hospital and Training School et. al, (757 F. Supp. 1243 DNM 1990). Examples of clinical documentation include but
are not limited to: the DDW therapy
documentation form (TDF), intensive medical living supports (IMLS) and adult
nursing services parameter tools, electronic comprehensive health assessment
tool (e-Chat), all other assessments, clinical notes, progress notes,
interdisciplinary team (IDT) meeting minutes, letters or reports from
physicians or ancillary service providers that provide sufficient clinical
information that demonstrates the need for requested services, etc. Any relevant supporting information and
documentation is acceptable and will be considered by the outside reviewer.
F. Clinical
justification: Information and
documentation that justifies the need for services based on the eligible
recipient’s assessed need and the DDW clinical criteria. Based on assessed need, the justification
must:
(1) meet
the eligible recipient’s clinical, functional, physical, behavioral or
habilitative needs;
(2) promote and afford support to the eligible recipient for their greater
independence and to maintain current level of function or minimize risk of
further decline; or
(3) contribute
to and support the eligible recipient’s efforts to remain in the community; to
contribute and be engaged in their community, and to reduce their risk of
institutionalization; and
(4) address
the eligible recipient’s physical health, behavioral, and social support needs
(not including financial support) that arise as a result of
their functional limitations or conditions, such as: self-care, receptive and
expressive language, learning, mobility, self-direction, capacity for
independent living, and economic self-sufficiency; and
(5) relate to an outcome in the eligible recipient’s individual
service plan (ISP).
G. DDW clinical criteria: A set of criteria established by the DOH/DDSD
that is applied by an outside reviewer to each DDW service when a DDW service
is requested for recipients excluding class members of Walter Stephen Jackson,
et al vs. Fort Stanton Hospital and
Training School et. al, (757 F. Supp. 1243 DNM 1990).
H. Electronic visit verification (EVV): A telephone
and computer-based system that electronically verifies the occurrence of
selected services, as required by the 21st Century CURES Act. The EVV system verifies the occurrence of
authorized service visits electronically by documenting the precise time and
location where service delivery visit begins and
ends. EVV is implemented according to
federal requirements and timelines. The
21st Century CURES Act requires EVV for personal care services (PCS), defined
as services that provide assistance with activities of daily living (ADLs) or
instrumental activities for daily living (IADLs) effective January 1, 2020 and for home health services effective January 1, 2023.
I. Individual service
plan (ISP): A person-centered plan
for an eligible recipient that includes their needs, functional levels,
intermediate and long-range outcomes for achieving their goals and specifies
responsibilities for the eligible recipient’s support needs. The ISP enables and assists the recipient to
identify and access a personalized mix of paid waiver and non-paid services and
supports that assists them to achieve personally defined outcomes in the
community.
J. Outside reviewer: An
independent third-party assessor who has a contract with the DOH to conduct clinical reviews of all requested DDW
services. The outside reviewer will make
a written determination on whether the requested supports are clinically
justified and will recommend whether the eligible recipient’s requested ISP and
budget should be approved or denied. The
decision of the outside reviewer to approve any requested service is binding on
the state. However, the state may agree
to overturn a decision to deny requested services.
K. Person centered planning (PCP): Person centered planning is a process that places a person at the center of planning their life and supports. It is an ongoing process that is the foundation for all aspects of the DDW program and DDW service provider’s work with individuals with I/DD. The process is designed to identify the strengths, capacities, preferences, needs, and desired outcomes of the recipient. The process may include other persons, freely chosen by the individual, who are able to serve as important contributors to the process. It involves person centered thinking, person centered service planning and person- centered practice.
L. Waiver:
Permission from the centers for medicaid and medicare services (CMS) to cover supports for a particular
population or service not ordinarily allowed.
M. Young Adult: An individual between the ages of 18 through
20 years of age who is allocated to the DDW and is receiving specific services
as identified in the DOH/DDSD standards.
An individual under age 21 is eligible for medical services funded by their
medicaid providers under EPSDT. Upon the individual’s 21st
birthday, they are considered to be an adult recipient
of DDW services.
[8.314.5.7 NMAC - Rp.
8.314.5.7 NMAC, 12/1/2018; A, 4/1/2022]
8.314.5.8 SAFEGUARDS CONCERNING RESTRAINTS,
RESTRICTIONS AND SECLUSION:
A. Seclusion and isolation is
prohibited during waiver services.
B. Use of
restraints or restrictions is only permitted during the
course of delivery of waiver services under strict limitations and
oversight.
(1) Certain specific interventions are
considered ethically unacceptable for application and, as such, are
unequivocally prohibited. Interventions
that are prohibited include but are not limited to:
(a) contingent electrical aversion
procedures;
(b) seclusion and isolation;
(c) use of time out (for an adult);
(d) use of mechanical or chemical
restraints;
(e) use of manual application of any
physical restraint, except in emergent situations involving imminent risk of
harm to self or others (personal restraints);
(f) overcorrection;
(g) forced physical guidance;
(h) forced exercise;
(i) withholding
food, water, or sleep;
(j) public or private humiliation;
(k) privacy violations;
(l) restricting exit from home with locks
on windows or doors;
(m) application of water mist; and
(n) application of noxious taste, smell,
or skin agents; etc.
(2) Use of restrictive interventions
must be documented in the individual’s positive behavior support plan or behavioral
crisis intervention plan or risk management plan and must be reviewed by the human
rights committee prior to implementation.
(3) Chemical
restraint is defined as the administration of medication at a dose or frequency
to intentionally and exclusively preclude behavior without identifying an
underlying anxiety, fear or severe emotional distress or other symptoms of
psychiatric/emotional disturbance to be eased, managed or treated. The administration may be regularly scheduled or
on a pro re nata (PRN), or “as needed” basis. The use of chemical restraints is prohibited.
(4) The administration of PRN psychotropic
medication is allowed when prescribed in advance by the prescribing
professional. A PRN psychotropic medication
plan is a collaborative document that outlines the behavioral indications for
using the medication. A human rights committee
must approve use of PRN psychotropic medication prior to its implementation and
the procedures that DSP must use to gain approval for its implementation.
(5) Mechanical restraints are defined as
the use of a physical device to restrict the individual’s capacity for desired
or intended movement including movement or normal function of a portion of their
body. The use of mechanical restraints
is prohibited.
(6) Use of any emergency physical
restraints must be written into a behavioral crisis intervention plan only and
approved by a human rights committee prior to its use. Personal restraints (i.e. emergency physical
restraints) are used as a last resort, only when other less intrusive
alternatives have failed and under limited circumstances that include
protecting an individual or others from imminent, serious physical harm, or to
prevent or minimize any physical or emotional harm to the individual. Staff must be trained in both nonphysical and
physical interventions.
(7) Any individual for whom the use of
emergency physical restraints or PRN psychotropic medications is allowed is
required to have a positive behavioral supports assessment, positive behavior support
plan, and a behavioral crisis intervention plan or PRN psychotropic medication plan
completed by a behavior support consultant in conjunction with the individual’s
agency nurse and interdisciplinary team.
(8) Ethical, medical or behavioral
concerns, use of live or recorded video monitoring/observational systems, and
resolution of plans contested on the individual team or provider agency level
in local human rights committees are heard and resolved in a statewide and
state coordinated super human rights committee.
[8.314.5.8 NMAC - N,
4/1/2022]
8.314.5.9 DEVELOPMENTAL DISABILITIES HOME
AND COMMUNITY-BASED SERVICES WAIVER: The New Mexico
medical assistance division (MAD) has obtained a waiver from certain medicaid payment and benefit statutes (42 CFR 441.300) to
provide home and community-based services (HCBS) to eligible recipients as an
alternative to institutionalization. DDW
services are intended to enhance, not replace, existing natural supports and
other available community resources.
Services will emphasize and promote the use of natural and generic
supports to address the eligible recipient’s assessed needs in addition to paid
supports. Provider agencies are required to
ensure the settings in which they provide services meet the below
requirements. All providers have a
responsibility to monitor settings for compliance; monitor that waiver
recipients are given choices; and, ensure rights are
respected. DDW services must be provided in a
setting that:
A. is
integrated
in and facilitates full access to the greater community;
B. ensures the individual receives services in the community
to the same degree of access as individuals not receiving medicaid
HCBS;
C. maximizes independence in making life choices;
D. is chosen by the individual (in consultation with the
guardian if applicable) from among residential and day options, including
non-disability specific settings;
E. ensures the right to privacy, dignity, respect and freedom
from coercion and restraint;
F. supports health and safety based upon the individual’s
needs, decisions or desires;
G. optimizes
individual initiative, autonomy and independence in making life choices;
H. provides an opportunity to seek
competitive employment;
I. provides individuals an option to
choose a private unit in a residential setting; and
J. facilitates choice of services
and who provides them.
[8.314.5.9 NMAC -
Rp, 8.314.5.9 NMAC, 12/1/2018; A, 4/1/2022]
8.314.5.10 Eligible
Providers:
A. Health
care to eligible recipients is furnished by a variety of providers and provider
groups. The reimbursement and billing
for these services is administered by MAD.
Upon approval of a New Mexico MAD provider participation agreement (PPA)
by MAD or its designee, licensed practitioners, facilities, and other providers
of services that meet applicable requirements are eligible to be reimbursed for
furnishing covered services to eligible recipients. A provider must be enrolled before submitting
a claim for payment to the MAD claims processing contractors. MAD makes available on the HSD/MAD website,
on other program-specific websites, or in hard copy format, information
necessary to participate in health care programs administered by HSD or its
authorized agents, including New Mexico administrative code (NMAC) rules,
billing instructions, utilization review instructions, EVV requirements and
instructions, service definitions and service standards and other pertinent
materials. When enrolled, a provider receives
instruction on how to access these documents. It is the provider’s responsibility to access
these instructions, to understand the information provided and to comply with
the requirements. The provider must
contact HSD or its authorized agents to obtain answers to questions related to
the material or not covered by the material.
To be eligible for reimbursement, a provider must adhere to the provisions
of the MAD PPA and all applicable statutes, regulations, and executive
orders. MAD or its selected claims
processing contractor issues payments to a provider using electronic funds
transfer (EFT) only.
B. All
DDW eligible providers must be approved by DOH or its designee and have an
approved MAD PPA and a DOH provider agreement.
C. MAD
through its designee, DOH/DDSD, follows a subcontractor model for certain DDW
services. The agency, following the DOH/DDSD
model, must ensure that its subcontractors or employees meet all required
qualifications. The agency must provide oversight
of subcontractors and supervision of employees to ensure that all required MAD
and DOH/DDSD qualifications and service standards are met. In addition, the agency must provide
oversight and supervision of subcontractors and employees to ensure that
services are delivered in accordance with all requirements set forth by the DOH/DDSD
DDW service definition, all requirements outlined in the DDW services
standards, applicable NMAC rules, MAD supplements, and as applicable, their New
Mexico licensing board’s scope of practice and licensure. Pursuant to federal regulations, an agency
may not employ or subcontract with the spouse of an eligible recipient or the
parent of an eligible recipient under 18 years of age to provide direct care
services to the eligible recipient.
D. Qualifications
of case management provider agency: A case management provider agency, its
case managers, whether subcontractors or employees must comply with 8.314.5.10
NMAC. In addition, case management
provider agency must ensure that a case manager meets the following
qualifications:
(1) one
year of clinical experience, related to the target population; and
(2) one or more of the following:
(a) hold
a current social worker license as defined by the New Mexico regulation and
licensing department (RLD); or
(b) hold
a current registered nurse (RN) license as defined by the New Mexico board of
nursing; or
(c) hold
a bachelor’s or master’s degree in social work, psychology, sociology,
counseling, nursing, special education, or a closely related field or have a
minimum of six years of direct experience related to the delivery of social
services to people with disabilities; and
(3) comply
with all training requirements as specified by DOH/DDSD; and
(4) have received written notification from DOH that they do not have a
disqualifying conviction after submitting to the caregiver criminal history
screening (CCHS);
(5) does
not provide any direct waiver services through the same 1915 (c) HCBS waiver
program; and
(6) any
exception to the above must be approved by DOH/DDSD.
E. Qualifications of respite provider agency: A respite provider agency must comply and
ensure that all direct support personnel, whether subcontractors or employees,
comply with 8.314.5.10 NMAC. In
addition, respite provider agencies and direct support personnel must:
(1) comply
with all training requirements as specified by DOH;
(2) have
and maintain documentation of current cardiopulmonary resuscitation (CPR) and
first aid certification;
(3) have
written notification from DOH that they do not have a disqualifying conviction
after submitting to the CCHS; and
(4) comply with all EVV requirements as
defined by the 21st Century CURES Act and implemented by MAD
including but not limited to documenting service provision using the approved EVV system.
F. Qualifications of
adult nursing provider agencies:
Adult nursing provider agencies must ensure all subcontractors or
employees, including nurses, comply with DOH DDW service definitions, DDW
service standards, applicable NMAC rules, MAD billing instructions, utilization
review instructions, and supplements, and applicable federal and state laws,
rules and statutes. Direct nursing
services shall be provided by a New Mexico licensed RN or licensed practical
nurse (LPN), have a minimum of one year experience as a licensed nurse, and
must comply with all aspects of the New Mexico Nursing Practice Act, including supervision
and delegation requirements of specific nursing function and 8.314.5.10 NMAC.
G. Qualifications of therapy provider agency: A therapy provider agency must comply and
ensure that each of its therapists including physical therapists (PT),
occupational therapists (OT), and speech therapists (SLP), physical therapy
assistants (PTA), and certified occupational therapy assistants (COTA), whether
a subcontractor or employee complies with 8.314.5.10 NMAC.
H. Qualifications for living supports provider
agency: Living supports
consist of family living, supported living, and intensive medical living
supports. A living supports provider
agency must comply with the accreditation policy and all requirements set forth
by the DOH, DDW service definitions, all requirements outlined in the DDW
service standards and the applicable NMAC rules. A living supports provider agency must ensure
that all direct support personnel meet all qualifications set forth by DOH, DDW
service standards, and applicable NMAC rules.
(1) A
living supports provider agency and direct support personnel must:
(a) comply
with all training requirements as specified by DOH;
(b) have
and maintain documentation of current CPR and first aid certification; and
(c) have
written notification from DOH that they do not have a disqualifying conviction
after submitting to the CCHS.
(2) A
family living provider agency must ensure that all direct support personnel,
whether a subcontractor or employee, meet all qualifications set forth by DOH
and the DDW service standards and the applicable NMAC rules. Legal guardians who are also natural or
adoptive family members who meet the DOH/DDSD requirements and are approved to
provide family living services may be paid for providing services.
A family living
provider agency must employ or subcontract with at least one registered or
licensed dietician or licensed nutritionist.
A family living provider agency must also be an adult nursing services
provider and must employ or subcontract with at least one licensed RN; employ
or subcontract with at least one additional nurse for on call services and
comply with the New Mexico Nurse Practice Act, including supervision and
delegation requirements of specific nursing functions. The number of nurses (RNs and LPNs) must be
sufficient to meet the routine and on call health care needs of the
individuals. Both the direct support
personnel employed by or subcontracting with the provider agency and the
physical home setting must be approved through a home study completed prior to
the initiation of services, revised with any change in family composition, move
to a new home, or other significant event and periodically thereafter as
required of the provider agency.
(3) A
supported living provider agency must ensure that all direct support personnel
meet all qualifications set forth by DOH and the applicable NMAC rules and the
DDW service standards. A supported
living provider agency must employ or subcontract with at least one registered
or licensed dietician or licensed nutritionist. The number of RD/LDs employed
or under contract must be sufficient to meet the routine nutritional needs of
the individuals. They must employ or subcontract with at least one licensed RN,
employ or subcontract with at least one additional nurse for on call and
services, and comply with the New Mexico Nurse Practice Act, including supervision
and delegation requirements of specific nursing functions. The number of nurses
(RNs and LPNs) must be sufficient to meet the routine and on call health care
needs of the individuals.
(4) An
intensive medical living supports provider agency must employ or subcontract
with at least one registered or licensed dietician or licensed
nutritionist. The number of RD/LDs
employed or under contract must be sufficient to meet the routine nutritional
needs of the individuals. They must
employ or subcontract with at least one New Mexico licensed RN who must have a
minimum of one year of nursing experience employ or subcontract with at least
one additional nurse for on call services and comply with the New Mexico
Nursing Practice Act including supervision and delegation requirements of
specific nursing functions. The number
of nurses (RNs and LPNs) must be sufficient to meet the routine and on call
health care needs of the individuals.
I. Qualifications of a customized community
supports provider agency: A
customized community supports provider agency must comply with and ensure that
all direct support personnel comply with 8.314.5.10 NMAC. A customized community supports provider
agency and direct support personnel must:
(1) comply
with all training requirements as specified by DOH;
(2) have
and maintain documentation of current CPR and first aid certification; and
(3) have
written notification from DOH that they do not have a disqualifying conviction
after submitting to the CCHS.
J. Qualifications of a community integrated
employment provider agency: A
community integrated employment provider agency must comply with and ensure
that all direct support personnel comply with 8.314.5.10 NMAC. A community integrated employment provider
agency and direct support personnel must:
(1) comply
with all training requirements as specified by DOH;
(2) have
and maintain documentation of current CPR and first aid certification; and
(3) have
written notification from DOH that they do not have a disqualifying conviction
after submitting to the CCHS.
K. Qualifications of a behavioral support
consultation provider agency: A
behavioral support consultation provider agency must comply with and ensure
that all behavioral support consultants, whether subcontractors or employees,
comply with 8.314.5.10 NMAC.
(1) A
provider of behavioral support consultation services must be currently licensed
in one of the following professions and maintain that licensure with the
appropriate RLD board or licensing authority:
(a) a
licensed clinical mental health counselor (LMHC), or
(b) a
licensed psychologist; or
(c) a
licensed psychologist associate, (masters or Ph.D.
level); or
(d) a
licensed independent social worker (LISW) or a licensed clinical social worker
(LCSW); or
(e) a
licensed master social worker (LMSW); or
(f) a
licensed professional clinical mental health counselor (LPCC); or
(g) a
licensed marriage and family therapist (LMFT); or
(h) a
licensed professional art therapist (LPAT); or
(i) Other
related licenses and qualifications may be considered with DOH’s prior written
approval.
(2) Providers
of behavioral support consultation services must have a minimum of one year of
experience working with individuals with intellectual or developmental
disabilities.
(3) Behavioral
support consultation providers must participate in training in accordance with
the DOH/DDSD training policy.
L. Qualifications
of a nutritional counseling provider agency: A nutritional counseling provider agency must
comply with and ensure that all nutritional counseling providers, whether
subcontractors or employees comply with 8.314.5.10 NMAC. In addition, a nutritional counseling
provider must be registered as a dietitian or a licensed nutritionist by the
commission on dietetic registration of the American dietetic association and be
licensed by RLD as a nutrition counselor.
M. Qualifications of an environmental
modification provider agency: An
environmental modification contractor and their subcontractors and employees
must be bonded, licensed by RLD, and authorized by DOH to complete the
specified project. An environmental
modification provider agency must comply with 8.314.5.10 NMAC. All services shall be provided in accordance
with applicable federal, state and local building codes.
N. Qualifications of a crisis supports provider agency: A crisis supports provider agency must comply
with and must ensure that direct support personnel, whether subcontractors or
employees, comply with 8.314.5.10 NMAC.
In addition, a crisis supports provider agency and direct support
personnel must:
(1) comply
with all training requirements as specified by DOH;
(2) have
and maintain documentation of current CPR and first aid certification; and
(3) have
written notification from DOH that they do not have a disqualifying conviction
after submitting to the CCHS.
O. Qualifications for a non-medical transportation provider
agency: A non-medical transportation
provider agency must comply with 8.314.5.10 NMAC. In addition, a non-medical transportation
provider must have a business license and drivers must have a valid driver’s
license and not have a disqualifying conviction after submitting to the CCHS. Must have written notification from DOH that they
do not have a disqualifying conviction after submitting to the CCHS.
P. Qualifications of an assistive technology provider agency: An assistive technology purchasing agent
provider and agency must comply with 8.314.5.10 NMAC, demonstrate fiscal
solvency when functioning as a payee for this service. Assistive technology providers may also be
the direct vendors of approved technology.
Q. Qualifications of an independent living transition service
provider agency: An independent
living transition service provider agency must comply with 8.314.5.10 NMAC,
demonstrate fiscal solvency and function as a payee for this service.
R. Qualifications of a remote personal support technology
provider agency: Remote personal
support technology provider agencies must comply with 8.314.5.10 NMAC. This includes having a current business
license and must demonstrate fiscal solvency and function as a payee of
services. In addition, remote personal
support technology provider agencies must comply with all laws, rules, and
regulations of the federal communications commission (FCC) for
telecommunications.
S. Qualifications of a preliminary risk screening and
consultation (PRSC) related to inappropriate sexual behavior provider agency: A PRSC provider agency must comply with
8.314.5.10 NMAC and all training requirements as specified by DOH. Additionally, the PRSC provider agency must
subcontract with or employ the evaluator, who at a minimum must be:
(1) an
RLD independently licensed behavioral health practitioner, such as an LPCC,
LCSW, LMFT, LISW, or a psychologist; or
(2) a
practitioner who holds a master’s or doctoral degree in a behavior health
related field from an accredited college or university.
T. Qualifications of a
socialization and sexuality education provider agency: A socialization and sexuality education
provider agency must comply with 8.314.5.10 NMAC. A provider agency must be approved by the
DOH, bureau of behavioral support (BBS) as a socialization and sexuality
education provider and must meet training requirements as specified by
DOH. In addition, a socialization and
sexuality education provider agency must employ or contract with a provider who
has one of the following qualifications for rendering the service:
(1) a
master's degree or higher in psychology;
(2) a
master's degree or higher in counseling;
(3) a
master's degree or higher in special education;
(4) a
master's degree or higher in social work;
(5) a
master's degree or higher in a related field;
(6) a
RN or LPN;
(7) a
bachelor's degree in special education or a related field such as psychology or
social work;
(8) a
certification in special education;
(9) a New Mexico level three recreational
therapy instructional support provider license; or
(10) a certified therapeutic recreation
therapist (CTRS) obtained through the national council for therapeutic
recreation.
U. Qualifications of a customized in-home supports provider
agency: A customized in-home
supports provider agency must comply with and ensure that direct support
personnel, whether subcontractors or employees, comply with 8.314.5.10
NMAC. Legal guardians who are also
natural or adoptive family members, relatives, or natural family members that
meet the DOH/DDSD requirements and are approved to provide customized in-home supports may be paid for providing services. A customized in-home supports provider agency
and direct support personnel must:
(1) comply
with all training requirements as specified by DOH;
(2) have
and maintain documentation of current CPR and first aid certification; and
(3) have
written notification from DOH that they do not have a disqualifying conviction
after submitting to the CCHS.
(4) comply with all EVV requirements as
defined by the 21st Century CURES Act and implemented by MAD
including but not limited to documenting service provision using the approved EVV system.
V. Qualifications of a supplemental dental care provider
agency: A supplemental dental care provider agency
must comply with 8.314.5.10 NMAC. A
supplemental dental care provider must contract with a New Mexico licensed
dentist and dental hygienist who are licensed by RLD. The supplemental dental care provider will
ensure that a RLD licensed dentist provides the oral examination; ensure that a
RLD licensed dental hygienist provides all routine dental cleaning services;
demonstrate fiscal solvency; and function as a payee for the service.
[8.314.5.10 NMAC -
Rp, 8.314.5.10 NMAC, 12/1/2018; A, 4/1/2022]
8.314.5.11 Provider Responsibilities:
A. A
provider who furnishes services to an eligible recipient must comply with all
federal and state laws, regulations, rules, and executive orders relevant to
the provision of services as specified in the MAD provider participation
agreement and the DOH provider agreement.
A provider also must meet and adhere to all applicable NMAC rules and
instructions as specified in the MAD provider rules manual and its appendices,
DDW service standards, DDW service definitions, and program directions and
billing instructions, as updated. A
provider is also responsible for following coding manual guidelines and the
centers for medicare and medicaid
services (CMS) correct coding initiatives, including not improperly unbundling
or upcoding services.
B. A
provider must verify that an individual is eligible for a specific health care
program administered by the HSD and its authorized agents and must verify the
eligible recipient’s enrollment status at the time services are furnished. A provider must determine if an eligible
recipient has other health insurance. A
provider must maintain records that are sufficient to fully disclose the extent
and nature of the services provided to an eligible recipient.
C. Provider agencies must mitigate any conflict of interest issues by adhering to at least the following:
(1) Any individual who operates or is an employee of a DDW provider shall not serve as guardian for a person served by that agency, except when related by affinity or consanguinity Paragraph (1) of Subsection A of Section 45-5-31 NMSA 1978. Affinity which stems solely from the caregiver relationship is not sufficient to satisfy this requirement.
(2) DDW provider agencies may not employ or sub-contract with a direct support person who is an immediate family member to support the person in services, except when the person is in family living, respite, or customized in home supports (CIHS).
(3) DDW provider agencies may not employ or subcontract with the spouse of the participant to support the person in any DDW funded services.
D. Case management agencies are required to mitigate real or perceived conflict of interest issues by adhering to, at minimum the following requirements. Case managers who are contracted under the DDW are identified as agents who are responsible for the development of the ISP.
(1) Case management agency owners and individually employed or contracted case managers may not:
(a) be related by blood or affinity to the person supported, or to any paid caregiver of the individual supported. Following formal authorization from DDSD, a case manager may provide family living services or respite to their own family member;
(b) have material financial interest in any entity that is paid to provide DDW or mi via services. A material financial interest is defined as anyone who has, directly or indirectly, any actual or potential ownership, investment, or compensation arrangement;
(c) be empowered to make financial or health related decisions for individuals on their caseload;
(d) be related by blood or affinity to any
DDW service provider for individuals on their caseload. Providers are identified as providers of
living care arrangements, community inclusion services, mi via consultants, mi
via vendors, BSC’s and therapist.
(2) A case management provider agency may not:
(a) be a provider agency for any other DDW service;
(b) provide guardianship services to an individual receiving case management services from that same agency;
(3) A case manager or director of a case management provider agency may not:
(a) serve on the board of directors of any DDW provider agency;
(4) Case management provider agencies must disclose to both DDSD and the people supported by their agency any familial relationships between employees or subcontract case managers and providers of other DDW services.
(5) Case management provider agency staff and subcontractors must maintain independence and avoid all activity which could be perceived as a potential conflict of interest.
[8.314.5.11 NMAC - Rp, 8.314.5.11 NMAC, 12/1/2018;
A, 4/1/2022]
8.314.5.12 ELIGIBLE
RECIPIENTS: The MAP category of eligibility criteria for
DDW services is found in 8.290.400 NMAC.
[8.314.5.12 NMAC -
Rp, 8.314.5.12 NMAC, 12/1/2018]
8.314.5.13 [RESERVED]
[8.314.5.13 NMAC -
Rp, 8.314.5.13 NMAC, 12/1/2018]
8.314.5.14 DDW Covered Waiver Services for identified
population under 18 years of age: The
DDW program is limited to the number of federally authorized unduplicated
eligible recipient (UDR) positions and program funding. All DDW covered services in an ISP must be
authorized. DDW services must be
provided in accordance with all requirements set forth by DDW service
definitions, all requirements outlined in the DDW service standards, and the
applicable NMAC rules, supplements and guidance. The DDW covers the following services for a
specified and limited number of waiver eligible recipients as a cost effective
alternative to institutionalization in an intermediate care facilities for
individuals with intellectual disabilities (ICF-IID).
A. Eligible recipients age birth to 18: Services funded within this age category must
be coordinated with and shall not duplicate other services such as the medicaid school-based services program, the MAD early
periodic screening diagnosis and treatment (EPSDT) program, services offered
through the New Mexico public education department (PED), or the early childhood
education and care department (ECECD) family infant toddler (FIT) program.
B. Service options available include:
(1) environmental modifications;
(2) assistive technology;
(3) remote personal support technology;
(4) preliminary risk screening and
consultation;
(5) socialization and sexuality education;
(6) behavioral support consultation;
(7) customized community support;
(8) respite;
(9) non-medical transportation;
(10) case management; and
(11) nutritional counseling.
[8.314.5.14 NMAC -
Rp, 8.314.5.14 NMAC, 12/1/2018; A, 4/1/2022]
8.314.5.15 DDW Covered Waiver
Services: The DDW program is limited to the number of federally authorized
unduplicated eligible recipient (UDR) positions and program funding. All DDW covered services in an ISP must be
authorized by DOH. DDW services must be
provided in accordance with all requirements set forth by DOH DDW service
definition, all requirements outlined in the DDW service standards, and the
applicable NMAC rules, supplements and guidance. Services
for individuals under the age of 21 must be coordinated with and shall not
duplicate other services such as the medicaid
school-based services program, the MAD early periodic screening diagnosis and
treatment (EPSDT) program, or the early childhood education and care department
(ECECD) family infant toddler (FIT) program.
Services offered through the New Mexico public education department
(PED), the Individuals with Disabilities Education Act (IDEA), the New Mexico division
of vocational rehabilitation (DVR), the Rehabilitation Act, the Workforce
Innovation and Opportunities Act (WIOA), the New Mexico department of workforce
solutions (DWS) must be utilized prior to accessing funding from the DDW. DDW covers the following services for a
specified and limited number of waiver eligible recipients as a cost effective
alternative to institutionalization in an ICF-IID.
A. There
are seven proposed budget levels (PBL) which the IDT use for person centered planning. They encompass descriptions and
characteristics of seven levels of typical support needs designed to meet the
needs of most individuals. Each PBL has
a corresponding suggested budget dollar amount based on the type of living care
arrangement, typical service options, intensity of staffing needs, and support
needs in each level. The case manager
guides the IDT in the person-centered planning process. The IDT makes a
determination of which proposed budget level the person falls based on history,
current assessments, and support needs, using both the PBL and suggested dollar
amount as a tool or guide in the person-centered planning process and in budget
development. The OR approves services
based on clinical justification. Approvals
may be over or under the suggested amount.
The OR does not verify or approve the IDT’s determination of a PBL, nor
does a PBL limit the request for services or require that the budget be
developed within a set amount.
B. Exception authorization
process, formerly known as the H authorization process
is the process that allows individuals on the DDW, who have extenuating
circumstances, including extremely complex clinical needs to receive services
beyond what is authorized in their current ISP/budget level or to allow
individual exceptions to DDW service standards. Exception authorization process includes:
(1) an
eligible recipient who is included in the class established in the matter of
Walter Stephen Jackson, et al vs. Fort Stanton Hospital and Training School et.
al, (757 F. Supp. 1243 DNM 1990) is to receive a permanent NM DDW exception authorization
approval. A Jackson class member may
receive service types and amounts consistent with those approved in their ISP.
(2) Exception
authorization packet includes: the completed individual supports
needs review form with all attachments indicated on the form as relevant to the
nature/type of exception authorization process request submitted.
C. When
determining what services the eligible recipient needs, the IDT should consider
the individual’s proposed budget level and service options with the
understanding that the focus must always be on the individual’s DDW support
needs that can be clinically justified. Services
available:
(1) Case
management services: Case management
services assist an eligible recipient to access MAD covered services. A case manager also links the eligible
recipient to needed medical, social, educational and other services, regardless
of funding source. DDW services are
intended to enhance, not replace existing natural supports and other available
community resources. Services will
emphasize and promote the use of natural and community supports
to address the eligible recipient's assessed needs in addition to paid
supports. Case managers facilitate and
assist in assessment activities, as appropriate. Case management services are person-centered
and intended to advocate for and support an eligible recipient in pursuing their
desired life outcomes while gaining independence, and access to services and
supports. Case management is a set of
interrelated activities that are implemented in a collaborative manner
involving the active participation of the eligible recipient, their authorized
representative, and the entire IDT. The
case manager is an advocate for the eligible recipient they serve, is
responsible for developing the ISP and for ongoing monitoring of the provision
of services included in the ISP. Case
management services include but are not limited to activities such as:
(a) assessing
needs;
(b) assisting
in the submission process of the application for assistance and yearly
recertification to the local income support division (ISD) office;
(c) directing
the person-centered planning process;
(d) advocating
on behalf of the eligible recipient;
(e) coordinating
waiver and state plan service delivery and collaborating with managed care
organization care coordinators;
(f) assuring
services are delivered as described in the ISP;
(g) maintaining
a complete current central eligible recipient record (e.g. ISP, ISP budget,
level of care documentation, assessments);
(h) health
care coordination;
(i) assuring cost containment by
preventing the expense of DDW services from exceeding a maximum cost
established by DOH and by exploring other options to address expressed needs.
(j) Case
managers must:
(i) evaluate and monitor direct service
through face-to-face visits with the eligible recipient to ensure the health
and welfare of the eligible recipient, and to monitor the implementation of the
ISP;
(ii) support
informed choice;
(iii) support
participant self-advocacy;
(iv) allow
participants to lead their own meetings, program and plan development;
(v) increase
an individual’s experiences with other paid, unpaid, publicly-funded and
community support options;
(vi) increase
self-determination;
(vii) demonstrate
that the approved budget is not replacing other natural or non- disability
specific resources available; and
(viii) document
efforts demonstrating choice of non-waiver and non-disability specific options
in the ISP, IDT meeting minutes or companion documents when an individual has
only DDW funded supports.
(2) Respite
services: Respite services are a
flexible family support service for an eligible recipient. The primary purpose of respite services is to
provide support to the eligible recipient and give the
primary, unpaid caregiver relief and time away from their duties. Respite services include assistance with
routine activities of daily living (e.g., bathing, toileting, preparing or
assisting with meal preparation and eating), enhancing self-help skills and
providing opportunities for play and other recreational activities; community
and social awareness; providing opportunities for community and neighborhood
integration and involvement; and providing opportunities for the eligible
recipient to make their own choices with regard to
daily activities. Respite services will
be scheduled as determined by the primary caregiver. An eligible recipient receiving living supports or customized in-home supports (when an eligible
recipient is not living with a family member), may not access respite
services. Respite services may be provided
in the eligible recipient’s own home, in a provider's home, or in a community
setting of the eligible recipient family’s choice. Respite services must be provided in
accordance with 8.314.5.10 NMAC.
(3) Adult nursing services: Adult nursing services (ANS) are provided by
a licensed RN or LPN under the direct supervision of the RN to an eligible
adult recipient. Adult nursing services
are intended to support the highest practicable level of health, functioning
and independence for an eligible recipient.
This includes the direct nursing services and activities related to the assessment,
planning, training and nursing oversight of unrelated direct support staff when
assisting with a variety of health related needs in specific settings. Nursing services may be delivered in person
and via remote or telehealth services. Nursing
services include an array of supports including efforts to support aspiration risk
management (ARM). Nursing services may
be delivered in person and via remote or telehealth services. Individuals and their health care decision
makers will be informed of telehealth service and technology as part of the ISP
process.
(a) ANS
is available to individuals ages 21 and over who reside in family living; those
who receive customized in home supports and those who
do not receive any living supports. It
is available to any eligible recipient who has health related needs that
require at least one of the following: nursing training, delegation or
oversight of direct support staff during participation in customized community
supports (individual or small group) or community integrated employment even if
living supports or CCS-group are also provided.
(b) ANS
is available to individuals ages 18-20 who reside in family living and who are
at aspiration risk and desire to have aspiration risk management services. It is also available to individuals who have
health related needs that require nursing training, delegation or the oversight
of non-related direct support staff during substitute care; customized
community supports (individual or small group); community integrated employment
or customized in home supports.
(c) There
are two categories of adult nursing services:
(i) assessment and consultation services
which includes a comprehensive health assessment (including assessment for
medication delivery needs and aspiration risk) and consultation regarding
available or mandatory services which requires only budgeting; and
(ii) ongoing
services, which requires clinical justification and
are tied to the eligible recipient's specific health needs revealed in the
comprehensive health assessment and prior authorization process.
(4) Therapy services: Therapy services are to be
delivered consistent with the participatory approach philosophy and two models
of therapy services (collaborative-consultative and direct treatment). These models support and emphasize increased
participation, independence and community inclusion in combination with health
and safety. DDW therapy services are
intended to improve, maintain or minimize the decline in functional ability and
skills. Therapy services are designed to
support achievement of ISP outcomes and prioritized areas of need identified
through therapeutic assessment. PT, OT
and SLP are skilled therapies that are recommended by an eligible recipient's
IDT members and a clinical assessment that demonstrates the need for therapy
services. Therapy services may be
delivered in an integrated setting, clinical setting, or through telehealth as
appropriate and will support the use of assistive or remote personal support
technology as needed. Upon
recommendation for therapy assessment by the IDT members all three therapy
disciplines: PT, OT, and SLP will be
available to all DDW recipients if the therapy assessment indicates that
services are needed. Individuals and
their health care decision makers will be informed of telehealth service and
technology as part of the ISP process.
Therapy services for an eligible adult recipient require a prior
authorization except for their initial assessment. A RLD licensed practitioner, as specified by
applicable state laws and standards, provides the skilled
therapy services. Therapy services for
eligible adult recipients must comply with 8.314.5.10 NMAC. All medically necessary therapy services for
children under 21 years of age, are covered under the state plan through the
early periodic screening, diagnostic and treatment (EPSDT) and must comply with
8.320.2 NMAC. To the extent that any
listed services are covered under the state plan, the services under the waiver
are additional services not otherwise covered under the state plan, and consistent
with DDW objectives to support the recipient to remain in the community
and prevent institutionalization. The
exception is aspiration risk management supports for
persons between age 18 and 21.
(a) Physical therapy (PT): PT is a skilled, RLD licensed therapy service
involving the diagnosis and management of movement dysfunction and the
enhancement of physical and functional abilities. Physical therapy addresses the restoration,
maintenance, and promotion of optimal physical function, wellness and quality
of life related to movement and health.
Physical therapy prevents the onset, symptoms and progression of
impairments, functional limitations, and disability that may result from
diseases, disorders, conditions or injuries. PT supports access, mobility and independence
in all environments. A RLD licensed
physical therapy assistant (PTA) may perform physical therapy procedures and
related tasks pursuant to a plan of care/therapy intervention plan written by
the supervising physical therapist.
Therapy services for eligible recipients must comply with 8.314.5.10
NMAC.
(b) Occupational therapy (OT): OT is a skilled, RLD licensed therapy service
involving the use of everyday life activities (occupations) for the purpose of
evaluation, treatment, and management of functional limitations. Therapy services for eligible recipients must
comply with 8.314.5.10 NMAC.
Occupational therapy addresses physical, cognitive, psychosocial,
sensory, and other aspects of performance in a variety of contexts to support
engagement, performance and access to work and life activities that affect
health, well-being and quality of life. A
RLD certified occupational therapy assistant (COTA) may perform occupational
therapy procedures and related tasks pursuant to a therapy intervention plan
written by the supervising OT as allowed by RLD licensure.
(c) Speech-language pathology (SLP): SLP service, also known as speech therapy, is
a skilled therapy service, provided by a speech-language pathologist that
involves the non-medical application of principles, methods and procedures for
the diagnosis, counseling, and instruction related to the development of and
disorders of communication including speech, fluency, voice, verbal and written
language, auditory comprehension, cognition, swallowing dysfunction and
sensory-motor competencies. Therapy
services for eligible recipients must comply with 8.314.5.10 NMAC. Speech-language pathology services are also
used when an eligible recipient requires the use of assistive technology or an
augmentative communication device. For
example, SLP services are intended to improve, maintain or minimize the loss of
communication skills; treat a specific condition clinically related to an
intellectual developmental disability of the eligible recipient; or improve or
maintain the eligible recipient's ability to safely eat food, drink liquids or
manage oral secretions while minimizing the risk of aspiration or other
potential injuries or illness related to swallowing disorders.
(5) Living supports: Living supports are residential habilitation
services, available up to 24 hours a day, that are individually tailored to
assist an eligible recipient 18 year and older who is assessed to need daily
support or supervision with the acquisition, retention, or improvement of
skills related to living in the community to prevent institutionalization. Living supports include
residential-type instruction intended to increase and promote independence and
to support an eligible recipient to live as independently as possible in the
community in a setting of their own choice.
Living support services assist and encourage an eligible recipient to
grow and develop, to gain autonomy, self-direct and pursue their own interests
and goals. Living supports includes
support to individuals to access: healthcare, dietary, nursing, therapy and
behavior supports through telehealth and in person appointments; generic and
natural supports, standard utilities including internet services, assistive and
remote technology, transportation, employment, and opportunities to establish
or maintain meaningful relationships throughout the community. Living supports providers are also required to
coordinate and collaborate with nursing, behavior support consultants,
dieticians, therapists and therapy assistants to implement plans including aspiration
risk management plans. Living supports providers are also required
to coordinate and collaborate with behavior support consultants to implement
positive behavior support plans. Living
support providers take positive steps to protect and promote the dignity,
privacy, legal rights, autonomy and individuality of each eligible recipient
who receives services. Services promote
inclusion in the community and an eligible recipient is afforded the
opportunity to be involved in the community and actively participate using the
same resources and doing the same activities as other community members. Living supports providers are responsible for
providing an appropriate level of services and supports
up to 24 hours per day, seven days per week.
Room and board costs are reimbursed through the eligible recipient's
social security insurance (SSI) or other personal accounts and cannot be paid
through the DDW. Living support services
for eligible recipients must comply with 8.314.5.10 NMAC. Living supports
consists of family living, supported living, and intensive medical living as
follows.
(a) Family living (FL): Family living is intended for an eligible
recipient who is assessed to need residential habilitation to ensure health and
safety while providing the opportunity to live in a typical family
setting. Family living is a residential
habilitation service that is intended to increase and promote independence and
to provide the skills necessary to prepare an eligible recipient to live on their
own in a non-residential setting. Family
living services are designed to address assessed needs and identified
individual eligible recipient outcomes.
Family living is direct support and assistance that is provided to no
more than two eligible recipients with intellectual or developmental
disabilities at a time furnished by a natural or host family member, or
companion who meets the requirements and is approved to provide family living
services in the eligible recipient's home or the home of the family living
direct support personnel. The eligible
recipient lives with the paid direct support
personnel. The FL provider agency is
responsible for providing nutritional services from a registered dietician or
licensed nutritionist. All FL providers
must be adult nursing services (ANS) providers and deliver budgeted nursing
services including nursing assessment and on call. The provider agency is responsible for up to
750 hours of substitute coverage for the primary direct support personnel to
receive sick leave and time off as needed. An exception may be granted by DOH if three
eligible recipients are in the residence, but only two of the three are on the
DDW and the arrangement is approved by DOH based on the home study documenting
the ability of the family living provider to serve more than two eligible
recipients in the residence; or there is documentation that identifies the
eligible recipients as siblings or there is documentation of the longevity of a
relationship (e.g., copies of birth certificates or social history
summary). Documentation shall include a
statement of justification from a social worker, psychologist, and any other
pertinent professionals working with the eligible recipients. Family living services cannot be provided in
conjunction with any other living supports service, respite, or additional nutritional
counseling accessed through the person’s budget. Family living provider
must arrange transportation for all medical appointments, household functions
and activities, and to-and-from day services and other meaningful community
options. The family living services
provider agency shall complete all DOH requirements for approval of each direct
support personnel, including completion of an approved home study and training
prior to placement. After the initial
home study, an updated home study shall be completed annually. The home study must
also be updated each time there is a change in family composition or when the
family moves to a new home or other significant event. The content and procedures used by the
provider agency to conduct home studies shall be approved by DOH and must
include assessment of environmental safety.
(b) Supported living (SL): Supported living is intended for an eligible
recipient who is assessed to need residential-type habilitation support to
ensure health and safety. Supported
living is a living habilitation support service that is intended to increase
and promote independence and to provide the skills necessary to prepare an
eligible recipient to live on their own in a non-residential setting. Supported living services are designed to
address assessed needs and identified individual
eligible recipient outcomes. The service
is provided to two to four eligible recipients in a community residence. Prior authorization is required from DOH for
an eligible recipient to receive this service when living alone. The SL provider agency is responsible for
providing nutritional services from a registered dietician or licensed
nutritionist based on the person’s needs. All SL providers must provide needed nursing
services including on call based on the person’s needs. The SL provider must arrange transportation to
all medical appointments, household functions and activities, and to-and-from
day services and other meaningful community options. Supported living services cannot be provided
in conjunction with any other living supports service, respite, or additional nutritional
counseling assessed through the person’s budget.
(c) Intensive medical living supports: An intensive medical living supports agency provides residential-type
supports for an eligible recipient in a supported living environment who
requires daily direct skilled nursing, in conjunction with community living
supports that promote health and assist the eligible recipient to acquire,
retain or improve skills necessary to live in the community and prevent
institutionalization, consistent with their ISP. An eligible recipient must meet criteria for
intensive medical living supports according to DDW service definitions and DDW
standards for this service and they require nursing care, ongoing assessment,
clinical oversight and health management that must be provided directly by a
MAD recognized RN or LPN, see 8.314.5.10 NMAC.
(i) These
medical needs include: skilled nursing
interventions; delivery of treatment; monitoring for change of condition; and
adjustment of interventions and revision of services and plans based on
assessed clinical needs.
(ii) In
addition to providing support to an eligible recipient with chronic health
conditions, intensive medical living supports are available to an eligible
recipient who meets a high level of medical acuity and require short-term
transitional support due to recent illness or hospitalization. This service will afford the core living
support provider the time to update health status information and health care
plans, train staff on new or exacerbated conditions and assure that the home
environment is appropriate to meet the needs of the eligible recipient. Short-term stay in this model may also be
utilized by an eligible recipient who meets the criteria that is living in a
family setting when the family needs a substantial break from providing direct
service. Both types of short-term
placements require prior approval from DOH. In order to
accommodate referrals for short-term stays, each approved intensive medical
living supports provider must maintain at least one bed available for such
short-term placements. If the short-term
stay bed is occupied, additional requests for short-term stay will be referred
to other providers of this service.
(iii) The intensive medical living supports provider will be responsible for
providing the appropriate level of supports, 24 hours
per day seven days a week, including necessary levels of skilled nursing based
on assessed need of the eligible recipient.
Daily nursing visits are required; however, a RN or a
LPN under a RN’s supervision is not required to be present in the home during
periods of time when skilled nursing services are not required or when an
eligible recipient is out in the community.
An on-call RN or LPN, under the supervision of a RN must be available to
staff during periods when a RN or a LPN under a RN’s
supervision is not present. Intensive
medical living supports require supervision by a RN, and
must comply with 8.314.5.10 NMAC.
(iv) Direct
support personnel will provide services that include training and assistance
with ADLs such as bathing, dressing, grooming, oral care, eating, transferring,
mobility and toileting. These services
also include training and assistance with instrumental activities of daily
living (IADL) including housework, meal preparation, medication assistance,
medication administration, shopping, and money management.
(v) The
intensive medical living supports provider will be responsible for providing
access to customized community support and employment as outlined in the
eligible recipient's ISP. This includes
any skilled nursing needed by the eligible recipient to participate in
customized community support and development and employment services. The intensive medical living provider must
arrange transportation for all medical appointments, household functions and
activities, and to-and-from day services and other meaningful community
options.
(vi) Intensive
medical living supports providers must comply with 8.314.5.10 NMAC.
(6) Customized community supports
(CCS): CCS consists of
individualized services and supports that enable an eligible recipient to
acquire, maintain, and improve opportunities for independence, community
integration and employment. Customized
community supports services are designed around the preferences and choices of
each eligible recipient and offer skill training and supports to include: adaptive skill development; adult educational
supports; citizenship skills; communication; social skills, socially
appropriate behaviors; self-advocacy, informed choice; community integration
and relationship building. This service
provides the necessary support to develop social networks with community
organizations to increase the eligible recipient's opportunity to expand valued
social relationships and build connections within communities. This service helps to promote
self-determination, increases independence and enhances the eligible
recipient's ability to interact with and contribute to their community. Customized
community supports are intended to be provided in the
community to the fullest extent possible. Customized community supports must not
duplicate services available through the New Mexico public education department
or the Individuals with Disabilities Education Act (IDEA).
(a) Based
on assessed needs, customized community supports services may include personal
support, nursing oversight, medication assistance or administration, and
integration of strategies in the therapy and healthcare plans into the eligible
recipient's daily activities.
(b) The
customized community supports provider may provide fiscal management for the
payment of adult education opportunities as determined necessary for the
eligible recipient.
(c) Customized
community supports services may be provided regularly or intermittently based
on the needs of the eligible recipient and are provided during the day,
evenings and weekends. Customized community supports are
not limited to specific hours or days of the week and should be provided in
alignment with the persons desired outcomes.
(d) Customized
community supports may be provided in a variety of
settings to include the community, classroom, remotely and at site-based
locations, depending on the ISP and the particular type of
service chosen within CCS.
Services provided in any location are required to provide opportunities
that lead to participation and inclusion in the community or support the
eligible recipient to increase their growth and development.
(e) Pre-vocational
and vocational services are not covered under customized community supports.
(f) Customized
community supports services must be provided in accordance with 8.314.5.10 NMAC.
(7) Community integrated employment (CIE): Community integrated employment is intended
to provide supports that result in jobs in the community which increase
economic independence, self-reliance, social connections, and the ability to
grow within a career. CIE consists of
intensive, ongoing services that support individuals to achieve competitive
integrated employment or business ownership who, because of their disabilities,
might otherwise not be able to succeed without supports to perform in a
competitive work setting or own a business. Community integrated employment results in
employment alongside non-disabled coworkers within the general workforce or in
business ownership. This service may
also include small group employment including mobile work crews or enclaves. An eligible recipient is supported to explore
and seek opportunity for career advancement through
growth in wages, hours, experience or movement from group to individual
employment. Each of these activities is
reflected in individual career plans.
Community integrated employment services must not duplicate services offered
through the New Mexico public education department (PED), the Individuals with
Disabilities Education Act (IDEA), the New Mexico division of vocational rehabilitation
(DVR), the Rehabilitation Act, New Mexico department of workforce solutions
(DWS), or the Workforce Innovation and Opportunities Act (WIOA). Compensation shall comply with state and
federal laws including the Fair Labor Standards Act. DDW funds (e.g., the provider agency’s
reimbursement) may not be used to pay the eligible recipient for work. CIE services shall be provided based on the
interests of the person and desired outcomes listed in the ISP. Employment services are to be available 365
days a year, 24 hours a day. Community
integrated employment services must comply with 8.314.5.10 NMAC. Community integrated employment consists of
job development, self-employment, short term job coaching, job maintenance, job
aid, intensive community integrated employment and group community integrated
employment models.
(a) Job development services through the DDW can only be
accessed when services are not otherwise available to the beneficiary under
either special education and related services as defined in the Individuals
with Disabilities Education Act (IDEA) or vocational rehabilitation services
available to the individual through a program funded under section 110 of the
Rehabilitation Act of 1973 (29 U.S.C. 730). Job development may include but is not limited
to, activities to assist an individual to plan for,
accommodate, explore and obtain CIE.
(b) Short term job coaching services
through the DDW can only be accessed when services are not otherwise available
to the beneficiary under either special education and related services as
defined in the Individuals with Disabilities Education Act (IDEA) or vocational
rehabilitation services available to the individual through a program funded
under section 110 of the Rehabilitation Act of 1973 (29 U.S.C. 730). Short term job coaching services may include
but are not limited to, activities to assist an individual to learn,
accommodate and perform work duties, and maintain employment.
(c) Job
maintenance is intended to be used as the long-term supports
once all available funding and services through vocational rehabilitation or
the educational systems has been utilized. Job maintenance is provided on a one-to-one
ratio. Job maintenance services may
include, but are not limited to, activities to assist the individual to
accommodate, maintain employment and career advancement.
(d) Self-employment:
Services through the DDW can only be
accessed when services are not otherwise available to the beneficiary under
either special education and related services as defined in the Individuals
with Disabilities Education Act (IDEA) or vocational rehabilitation services
available to the individual through a program funded under section 110 of the
Rehabilitation Act of 1973 (29 U.S.C. 730). Self-employment services are intended to be
used as the long-term supports once all available
funding and services through vocational rehabilitation or the educational
systems have been utilized. Self-employment
does not preclude employment in the other models. Self-employment may include but is not
limited to development of a business plan, conducting market analysis, and
establishing and supporting the infrastructure for a successful business.
(e) Job
aid: One to one personal care services
in an individual, community integrated employment setting for people who
require assistance with activities of daily living (ADLs) during work hours to
maintain successful employment as job supports are reduced.
(f) Intensive
community integrated employment (ICIE): Services
for people who are working in an individual, community integrated employment
setting and require more than 40 hours of staff supports
per month to maintain their employment. ICIE
is the same scope of services as outlined in 8.314.5.10 NMAC.
(g) Group
community integrated employment: Group
community integrated employment is when more than one eligible recipient works
in an integrated setting with staff supports on
site. Regular and daily contact with
non-disabled coworkers or the public occurs.
Group community integrated employment services may include but are not
limited to activities to assist the individual to accommodate, maintain and
advance from group to individual employment.
(8) Behavioral
support consultation services: The behavior support consultation supports the person’s
successful achievement of vision-driven desired outcomes. Behavior support consultation services
identify behaviors that impact quality of life and provide specific prevention
and intervention strategies to manage and lessen the risks these behaviors
present. This service is provided by an
authorized behavior support consultant and includes a positive behavior supports
assessment and positive behavior support plan development; interdisciplinary
team (IDT) training and technical assistance; and monitoring of an individual’s
behavioral support services. Services
may be provided in person for training, evaluation or monitoring and remotely
via telehealth as needed. Annual
assessments require an in person interview or observation except when conducted
during declared state or national emergencies or pandemics. Behavioral support services include:
(a) Assessment of the person and their environment, including barriers to
independent functioning;
(b) Design
and testing of strategies to address concerns and build on strengths and skills
for independence;
(c) Writing
and training in the implementation of plans in a way that the person and direct
support personnel (DSP) can understand and implement them.
(d) Behavioral support consultation
services must comply with 8.314.5.10 NMAC.
(9) Nutritional
counseling services: Nutritional counseling services
include the assessment, evaluation, collaboration, planning, teaching,
consultation and implementation and monitoring of a nutritional plan and menu
services that supports the eligible recipient to attain or maintain the highest
practicable level of health. It may be
provided by a registered/licensed dietician (RD/LD) or licensed nutritionist (LN). This service may be delivered in person or
via telehealth. The RD/LD/LN is an
active member of the IDT and addresses overall nutritional needs, diet, tube
feeding, weight loss or gain, wounds and a variety
complex medical or behavioral conditions that have or may impact the persons
overall health. These nutritional
counseling services are in addition to those nutritional or dietary services
allowed in the eligible recipient's medicaid state
plan benefit, or other funding source.
This service does not include oral-motor skill development services,
such as those services provided by a speech pathologist. Nutritional counseling cannot be billed as a
separate service during the hours of living supports.
Nutritional counseling services must comply with 8.314.5.10 NMAC.
(10) Environmental modification services: Environmental modifications services include
the purchasing and installing of equipment or making physical adaptions to an
eligible recipient’s residence that are necessary to ensure the health, welfare
and safety of the eligible recipient or enhance their access to the home
environment and increase their ability to act independently.
(a) Adaptations,
installations and modifications include:
(i) heating and cooling adaptations;
(ii) fire
safety adaptations;
(iii) turnaround
space adaptations;
(iv) specialized
accessibility, safety adaptations or additions;
(v) installation
of specialized electric and plumbing systems to accommodate medical equipment
and supplies;
(vi) installation
of trapeze and mobility tracks for home ceilings;
(vii) installation
of ramps;
(viii) widening
of doorways or hallways;
(ix) modification
of bathroom facilities (roll-in showers, sink, bathtub and toilet modification,
water faucet controls, floor urinals and bidet adaptations and plumbing);
(x) purchase
or installation of air filtering devices;
(xi) purchase
or installation of lifts or elevators;
(xii) purchase
and installation of glass substitute for windows and doors;
(xiii) purchase
and installation of modified switches, outlets or environmental controls for
home devices; and
(xiv) purchase
and installation of alarm and alert systems or signaling devices.
(b) Excluded
are those adaptations or improvements to the home that are of general utility
and are not of direct medical or remedial benefit to the eligible
recipient. Adaptations that add to the
total square footage of the home are excluded from this benefit except when
necessary to complete an adaptation (e.g., in order to
improve entrance/egress to an eligible recipient’s residence or to configure a
bathroom to accommodate a wheelchair).
(c) Environmental
modification services must be provided in accordance with applicable federal,
state and local building codes.
(d) Environmental
modification services must comply with 8.314.5.10 NMAC.
(11) Crisis
supports: Crisis supports are services that provide
intensive supports by appropriately trained staff to an eligible recipient
experiencing a behavioral or medical crisis either within the eligible
recipient's present residence or in an alternate residential setting. Crisis support must comply with 8.314.5.10
NMAC.
(a) Crisis supports in the eligible
recipient's residence: These
services provide crisis response staff to assist in supporting and stabilizing
the eligible recipient while also training and mentoring staff or family
members, who normally support the eligible recipient, in
order to remediate the crisis and minimize or prevent recurrence.
(b) Crisis supports in an alternate
residential setting: These services
arrange an alternative residential setting and provide crisis response staff to
support the eligible recipient in that setting, to stabilize and prepare the
eligible recipient to return home or to move into another permanent
location. In addition, staff will
arrange to train and mentor staff or family members who will support the
eligible recipient long-term once the crisis has stabilized, in
order to minimize or prevent recurrence of the crisis.
(c) Crisis response staff will deliver
such support in a way that maintains the eligible recipient's normal routine to
the maximum extent possible. This
includes support during attendance at employment or customized community
supports services, which may be billed on the same dates and times of service
as crisis supports.
(d) This service requires prior written
approval and referral from the bureau of behavioral support (BBS). Crisis supports are designed to be a
short-term response (two to 90 calendar days).
(e) The timeline may exceed 90
calendar days under extraordinary circumstances, with approval from the BBS in
which case duration and intensity of the crisis intervention will be assessed
weekly by BBS staff.
(12) Non-medical transportation: Non-medical transportation services assists the eligible recipient in accessing other waiver
supports and non-waiver activities identified in their ISP. Non-medical transportation enables the
eligible recipient to gain physical access to non-medical community services
and resources promoting the eligible recipient opportunity and responsibility
in carrying out their ISP activities.
This service is to be considered only when transportation is not
available through the medicaid state plan or when
other arrangements cannot be made.
Non-medical transportation includes mileage reimbursement and funding to
purchase a pass for public transportation for the eligible recipient. Non-medical transportation provider services
must comply with 8.314.5.10 NMAC.
(13) Supplemental dental care: Supplemental
DDW dental care services are provided for an eligible recipient that requires
routine oral health care more frequently than the coverage provided under other
MAP benefit plans. Supplemental dental
care provides one oral examination and one cleaning once every ISP year to an
eligible recipient for the purpose of preserving or maintaining oral
health. The supplemental dental care
service must comply with 8.314.5.10 NMAC.
(14) Assistive technology: Assistive technology (AT) purchasing agent
service is intended to support the access of low tech devices that increase the
eligible recipient's physical and communicative participation in functional
activities at home and in the community.
Items purchased through the assistive technology service assist the
eligible recipient to meet outcomes outlined in their ISP, increase functional
participation in employment, community activities, activities of daily living,
personal interactions, or leisure activities, or increase the eligible
recipient's safety during participation of the functional or leisure activity.
(a) The assistive technology service allows an eligible recipient to
purchase or obtain needed items to develop low-tech augmentative communication, environmental access,
mobility systems and other functional assistive technology, not covered through
the eligible recipient's medicaid state plan
benefits.
(b) Assistive
technology may be accessed through an approved waiver provider acting as a
purchasing agent for technology vendors whose products meet definition and
needs or directly through an approved technology provider who is the direct
vendor of the service and approved DDW Provider.
(c) Assistive technology must comply with 8.314.5.10 NMAC.
(15) Independent living transition services: Independent living transition services are
one-time set-up expenses for an eligible recipient who transitions from a 24
hour living supports setting into a home or apartment of their own with
intermittent support that allows them to live more independently in the
community. The service covers expenses
associated with security deposits that are required to obtain a lease on an
apartment or home, set-up fees or deposits for utilities (telephone, internet, electricity,
heating, etc.), and furnishings to establish safe and healthy living
arrangements, such as a bed, chair, dining table and chairs, eating utensils
and food preparation items, and a cell phone. The service also covers services necessary for
the eligible recipient's health and safety such as initial or one-time fees
associated with the cost of paying for pest control, allergen control or
cleaning services prior to occupancy.
Independent living transition services must comply with 8.314.5.10 NMAC.
(16) Remote personal support technology: Remote personal support technology is an
electronic device or monitoring system that supports individuals to be
independent in the community or in their place of residence with limited
assistance or supervision of paid staff. This service provides up to 24-hour alert,
monitoring or remote personal emergency response capability, remote prompting
or in-home reminders, or environmental controls for independence through the use of technologies. The service is intended to promote
independence and quality of life, to offer opportunity to live safely and as
independently as possible in one’s home, and to ensure the health and safety of
the individual in services. Remote personal
support technology is available to individuals who may want to live
independently in their own homes, may have a demonstrated need for timely
response due to health or safety concerns, or may be afforded increased
independence from staff supervision in residential services. The use of technology should ease life
activities for individuals and their families. Remote personal support technology includes
development of individualized response plans with the installation of the
electronic device or sensors, monthly maintenance, rental or subscription fees.
This service is not intended to provide for paid, in-person on-site response. On-site response must be planned through
response plans that are developed using natural or other paid supports for
on-site response. Remote personal support
technology may be accessed through an approved waiver provider acting as a purchasing
agent for technology vendors whose products meet definition and needs or
directly through an approved technology provider who is the direct vendor of
the service and approved DDW provider.
(17) Preliminary risk screening and consultation
related to inappropriate sexual behavior (PRSC): PRSC is designed to assess continued risk
of sexually inappropriate or offending behavior in persons who exhibit or have
a history of exhibiting risk factors for these types of behaviors. This service is part of a variety of behavior
support services (including BSC and socialization & sexuality education)
that promotes community safety and reduces the impact of interfering behaviors
that compromise the person’s quality of life. PRSC is provided by a licensed mental health
professional who has been trained and approved as a risk evaluator by the BBS.
(a) The
key functions of PRSC are to:
(i) provide a structured screening of the
eligible recipient’s behaviors that may be sexually inappropriate;
(ii) develop
and document recommendations of the eligible recipient in the form of a report
or consultation notes;
(iii) develop
and periodically review risk management plans for the eligible recipient, when
recommended; and
(iv) provide
consultation regarding the management and reduction of the eligible recipient’s
sexually inappropriate behavioral incidents that may pose a health and safety
risk to the eligible recipient or others.
(b) Preliminary
risk screening and consultation related to inappropriate sexual behavioral
services must comply with 8.314.5.10 NMAC.
(18) Socialization and sexuality education
service: Socialization and sexuality
education in the form of the friends & relationships course (FRC) is a
comprehensive lifelong adult education program that teaches students knowledge
and skills to increase social networks with healthy, meaningful relationships
and to increase personal safety including decreasing interpersonal and intimate
violence in relationships, sexual victimization, exploitation and abuse. This enhances their ability to develop close
friendships and romantic relationships. The
FRC involves the person’s network of support (natural supports, paid supports,
teachers, nurses, family members, guardians, friends, advocates, or other
professionals) teaching them to support the social and sexual lives of persons
with I/DD, through participation in classes, and by using trained and paid
self-advocates as role models and peer mentors in classes. Socialization and sexuality education services
must comply with 8.314.5.10 NMAC.
(19) Customized
in-home supports: Customized in-home support
services is not a residential habilitation service and
is intended for an eligible recipient that does not require the level of
support provided under living supports services. Customized in-home supports
provide an eligible recipient the opportunity to design and manage the
supports needed to live in their own home or family home. Customized in-home supports
include a combination of instruction and personal support activities
provided intermittently to assist the eligible recipient with ADLs, meal
preparation, household services, and money management. The services and supports
are individually designed to instruct or enhance home living skills, community
skills and to address health and safety of the eligible recipient, as
needed. This service provides
assistance with the acquisition, improvement or retention of skills that
provides the necessary support to achieve personal outcomes that enhance the
eligible recipient's ability to live independently in the community. Services are delivered by a direct support
professional in the individuals own home or family home in the community. Services may be provided as part of on-site response plan with use of remote personal support technology.
This service is intended to provide
intermittent support and cannot be provided 24 hours a day/seven days a week. Customized in-home support services must
comply with 8.314.5.10 NMAC.
[8.314.5.15 NMAC -
Rp, 8.314.5.15 NMAC, 12/1/2018; A, 4/1/2022]
8.314.5.16 NON-Covered
Services: Only those services listed in the DDW benefit
package may be reimbursed through the DDW.
Room, board and ancillary services are not covered under DDW
services. An eligible recipient may
access, as medically necessary, all medicaid state
plan benefits in addition to their DDW services. If the eligible recipient is an enrolled
member of a HSD managed care organization (MCO), they
may access, as medically necessary, the benefits listed in 8.308.9 NMAC.
[8.314.5.16 NMAC -
Rp, 8.314.5.16 NMAC, 12/1/2018; A, 4/1/2022]
8.314.5.17 Individualized
Service plan (isp):
A. CMS requires a person-centered service plan for every individual receiving HCBS. The ISP must be developed annually through an ongoing person-centered planning process. The ISP development must:
(1) Involve those whom the participant wishes to attend and participate in developing the service plan and are provided adequate notice;
(2) Use assessed needs to identify services and supports;
(3) Include individually identified goals and preferences related to relationships, community participation, employment, income and savings, healthcare and wellness, education and others;
(4) Identify roles and responsibilities of IDT members responsible for implementing the plan;
(5) Include the timing of the plan and how and when it is updated, including response to changing circumstances and needs; and
(6) Outline how the individual is informed of available services funded by the DDW as well as other natural and community resources.
B. The
IDT must review the eligible recipient’s person-centered plan every 12 months
or more often if indicated.
C. The
IDT is responsible for compiling clinical documentation to justify the
requested services and budget to the OR for adult recipients excluding class
members of Walter Stephen Jackson, et al vs. Fort Stanton Hospital and Training
School et. al, (757 F. Supp. 1243 DNM 1990).
D. The
person-centered service plan must consist of the following:
(1) identifies risks and includes a plan to reduce any risks;
(2) incorporates other health concerns (e.g. mental health, chemical health, chronic medical conditions, etc.);
(3) is written in plain language;
(4) records the alternative HCBS that were considered by the person;
(5) includes natural supports and services;
(6) includes strategies for solving conflict or disagreement within the process, including any conflict of interest guidelines for planning participants;
(7) identifies who is responsible for monitoring implementation of the plan;
(8) includes the person’s strengths;
(9) describes goals or skills that are related to the person’s preferences;
(10) includes a global statement about the person’s self-determined goals and aspirations;
(11) details what is important to the person; and
(12) includes a method for the individual to request updates to the plan, as needed.
E. Upon completion
of the ISP by the IDT, the case manager shall develop a budget to be evaluated
in accordance with the outside reviewer (OR) process; see Subsection D of 8.314.5.18
NMAC.
F. Upon completion
of the ISP by the IDT, the case manager shall develop a budget to be evaluated
in accordance with the medicaid third party assessor
(TPA) review process for class members of Walter Stephen Jackson, et al vs.
Fort Stanton Hospital and Training School et. al, (757 F. Supp. 1243 DNM 1990).
G. All services must
be provided as specified in the ISP.
H. The case manager must conduct a pre ISP meeting annually
with the recipient to evaluate and plan for upcoming
ISP term. The CM is required to meet
with the DD Waiver participant and guardian prior to the ISP meeting. The CM reviews current assessment information,
prepares for the meeting, creates a plan with the person to facilitate or
co-facilitate the meeting if desired, discusses the budget, reviews the current
secondary freedom of choice forms, and facilitates greater informed
participation in ISP development by the person.
[8.314.5.17 NMAC -
Rp, 8.314.5.17 NMAC, 12/1/2018; A, 4/1/2022]
8.314.5.18 Prior
AUTHORIZATION and Utilization Review: All MAD services, including
services covered under the DDW, are subject to utilization review for medical
necessity and program compliance.
Reviews may be performed before services are furnished, after services
are furnished and before payment is made, or after payment is made; see 8.310.2
NMAC. Once enrolled, providers receive
instructions and documentation forms necessary for prior authorization and
claims processing.
A. MAD prior authorization: To
be eligible for DDW services, a MAD eligible recipient must require the level
of care (LOC) of services provided in an ICF-IID. LOC determinations are made by MAD or its designee. The
eligible recipient’s person centered ISP must specify the type, amount and
duration of services and meet clinical criteria. Certain procedures and services specified in
the ISP may require prior authorization from MAD or its designee. Services for which prior authorization was
obtained remain subject to utilization review at any point in the payment
process.
B. DOH prior authorization: Certain services are subject to utilization
review by DOH.
C. Eligibility determination: Prior authorization of services
does not guarantee that individuals are eligible for MAD services. Providers must verify that individuals are
eligible for MAD services, including DDW services or other health insurance
prior to the time services are furnished.
An eligible recipient may not be institutionalized, hospitalized, or
receive personal care option (PCO) services or other HCBS waiver services at
the time DDW services are provided, except for certain case management services
that are required to coordinate discharge plans or transition of services to
DDW services.
D. Outside review process: All
services for DDW recipients excluding class members of Walter Stephen Jackson,
et al vs. Fort Stanton Hospital and Training School et. al, (757 F. Supp. 1243
DNM 1990) will be reviewed by an OR contracted by DOH. The OR will adhere to deadlines set forth in
its contract with the DOH. The OR will
apply the DDW clinical criteria to make a clinical determination on whether the
requested services and service amounts are needed, and
will recommend whether the requested annual budget and ISP should be approved. If the OR approves in whole or part the
requested ISP and budget, the OR will send the approved portion of the budget
to the medicaid TPA for entry into the medicaid management information system and issue a prior
authorization to the case manager. If
there is a denial in part or whole, the OR decision must be in writing, identify
a list of all documents and input considered by the OR team during its review,
and state the reasons for any denial of requested services. The eligible recipient, case manager, and
guardian (if applicable) will be provided with this written determination and
notice of an opportunity to request a fair hearing as well as an agency review
conference.
(1) The
eligible recipient, case manager, and guardian (if applicable) may submit to
the OR additional information relating to support needs.
(2) The
decision of the OR approving services requested by the DDW participant is
binding on the State. However, the state
may agree to overturn a decision to deny services requested by the DDW
participant at a requested agency conference.
E. Reconsideration: Providers who disagree with the denial of a
prior authorization request or other review decisions may request a
reconsideration. See 8.350.2 NMAC, Reconsideration
of Utilization Review Decisions.
[8.314.5.18 NMAC -
Rp, 8.314.5.18 NMAC, 12/1/2018; A, 4/1/2022]
8.314.5.19 Reimbursement: DDW
service providers must submit claims for reimbursement to MAD’s fiscal
contractor for processing. A DDW
provider must follow 8.302.2 NMAC, MAD billing instructions, utilization review
instructions, and supplements.
Reimbursement to providers of waiver services is made at a predetermined
reimbursement rate.
[8.314.5.19 NMAC -
Rp, 8.314.5.19 NMAC, 12/1/2018]
8.314.5.20 RIGHT TO A HSD
ADMINISTRATIVE HEARING: An eligible recipient may request a HSD
administrative hearing to appeal a decision of MAD or its third party assessor
contractor, or the OR, that is an adverse action against the recipient. Prior to the fair hearing an eligible
recipient may be offered an agency review conference. An agency review conference (AC) means an
optional conference offered by the DOH to provide an opportunity to informally
resolve a dispute over the denial, suspension, reduction, termination or
modification of DDW benefits or services. An AC will be attended
by the recipient and their authorized representative if applicable, representatives
of the outside review, DOH and any other necessary parties. The recipient may also bring whomever they
wish to assist during the AC. The AC is
optional and shall in no way delay or replace the fair hearing process or
affect the deadline for a fair hearing request.
A. An authorized
representative means any individual designated by the eligible recipient or their
guardian, if applicable, to represent the recipient and act on their behalf. The authorized representative must provide
formal documentation authorizing them to access the identified case information for this specific purpose. An authorized representative may be, but need not be, the recipient’s guardian or attorney.
B. The DOH will issue written notification describing
the outcome of the AC and any agreements within seven business days of the AC to the recipient, recipient’s guardian if applicable, and case manager.
C. Unless the fair hearing request is withdrawn by the recipient or
recipient’s guardian or lawyer, any requested fair hearing will proceed. At the fair hearing the claimant may raise
any relevant issue and present any relevant information that they choose. See 8.352.2 NMAC for a description of a
claimant’s HSD administrative hearing rights and responsibilities.
D. In addition to
the requirements set forth in 8.352.2 NMAC, HSD and DOH shall take such actions
as are necessary to assure the presence at the hearing of all necessary
witnesses within DOH’s control, including, when relevant to a denial of
services or when requested by the claimant, a representative of the OR with
knowledge of the claimant’s case and the reason(s) for the denial, in whole or
in part, of any requested services.
E. Denials of
services through the exception authorization process or other actions during
this process adverse to the participant can also be appealed through a fair
hearing.
F. All HSD
administrative hearings are conducted in accordance with state and federal law.
G. No ex parte communications with an HSD administrative law judge
are permitted by any DDW participant or counsel regarding any pending case. The MAD director shall not have ex parte communications regarding any pending cases with any
DDW participant or counsel involved in that case. The MAD director’s decision shall be limited
to an on the record review.
[8.314.5.20 NMAC -
Rp, 8.314.5.20 NMAC, 12/1/2018; A, 4/1/2022]
8.314.5.21 CONTINUATION
OF BENEFITS PURSUANT TO A TIMELY APPEAL AND A HSD
ADMINISTRATIVE HEARING PROCEEDING: A continuation of an existing
DDW benefit or benefits is automatically provided to an eligible recipient
claimant pending the resolution of the outside review process and any
subsequent fair hearing. The
continuation of a benefit is only available to a claimant that is currently
receiving the appealed benefits. The
continuation of the benefits will be the same as the claimant’s current
allocation, budget or LOC unless a revision is agreed to in writing by the eligible
recipient (or authorized representative) and DOH.
[8.314.5.21 NMAC -
Rp, 8.314.5.21 NMAC, 12/1/2018]
HISTORY OF
8.314.5 NMAC:
Pre-NMAC
History: The material in this part was
derived from that previously filed with the Commission of Public Records -
State Records Center and Archives.
ISD-Rule 310.2000,
Coordinated Community In-Home Care Services, 3/19/1984.
History of
Repealed Material:
ISD-Rule 310.2000,
Coordinated Community In-Home Care Services, Repealed 1/18/1995.
8 NMAC 4.MAD.736.12
- Repealed 9/1/1998; and
8 NMAC 4.MAD.736.412
- Repealed 9/1/1998.
8.314.5 NMAC,
Developmental Disabilities Home and Community-Based Services Waiver, Repealed
3/1/2007.
8.314.5 NMAC,
Developmental Disabilities Home and Community-Based Services Waiver, filed
2/15/2007 - Repealed effective 11/1/2012.
8.314.5 NMAC,
Developmental Disabilities Home and Community-Based Services Waiver, filed 10/2/2012
- Repealed effective 3/1/2016.