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Title 907 | Chapter 012 | Regulation 020E

907 KAR 12:020REG
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STATEMENT OF EMERGENCY
907 KAR 12:020E

This emergency amendment to an existing administrative regulation is being promulgated to implement reimbursement methodology that reflects the approval by the U.S. Centers for Medicare and Medicaid Services of new federal waivers issued pursuant to 42 U.S.C. Ch. 7, Sec. 1396n(c), also called "1915(c) waivers", effective January 1, 2025. The approval allows for higher reimbursement for providers and this administrative regulation is being updated to reflect the higher reimbursement. This emergency amendment to an existing administrative regulation is being filed pursuant to KRS 13A.190(1)(a)2., to preserve state and federal funding and ensure the most efficient use of funds, and also pursuant to KRS 13A.190(1)(a)1. to preserve the welfare of Medicaid recipients who qualify for a federal waiver issued pursuant to 42 U.S.C. Ch. 7, Sec. 1396n(c).

This emergency amendment will be filed with an ordinary amendment that is identical to this emergency amendment.

ANDY BESHEAR, Governor
ERIC C. FRIEDLANDER, Secretary
CABINET FOR HEALTH AND FAMILY SERVICES
Department for Medicaid Services
Division of Fiscal Management
(Emergency Amendment)

907 KAR 12:020E.Reimbursement for New Supports for Community Living Waiver Services.

RELATES TO:

KRS 205.520, 42 C.F.R. 441, Subpart G, 447.272, 42 U.S.C. 1396a, b, d, n

STATUTORY AUTHORITY:

KRS 142.363, 194A.030(3), 194A.050(1), 205.520(3), 205.6317

NECESSITY, FUNCTION, AND CONFORMITY:

The Cabinet for Health and Family Services, Department for Medicaid Services, is required to administer the Medicaid Program. KRS 205.520(3) authorizes the cabinet, by administrative regulation, to comply with any requirement that may be imposed, or opportunity presented, by federal law to qualify for federal Medicaid funds. This administrative regulation establishes the reimbursement policies for SCL waiver services provided to individuals pursuant to the new Supports for Community Living (SCL) waiver program established by 907 KAR 12:010.

Section 1.

Definitions.

(1)

"DBHDID" means the Department for Behavioral Health, Developmental and Intellectual Disabilities.

(2)

"Department" means the Department for Medicaid Services or its designee.

(3)

"Developmental disability" means a disability that:

(a)

Is manifested prior to the age of twenty-two (22);

(b)

Constitutes a substantial disability to the affected individual; and

(c)

Is attributable either to an intellectual disability or a condition related to an intellectual disability that:

1.

Results in an impairment of general intellectual functioning and adaptive behavior similar to that of a person with an intellectual disability; and

2.

Is a direct result of, or is influenced by, the person's cognitive deficits.

(4)

"Exceptional support" means a service:

(a)

Requested by a participant and the participant's team; and

(b)

That due to an extraordinary circumstance related to a participant's physical health, psychiatric issue, or behavioral health issue is necessary to:

1.

Be provided in excess of the upper payment limit for the service for a specified amount of time; and

2.

Meet the assessed needs of the participant.

(5)

"Immediate family member" is defined by KRS 205.8451(3).

(6)

"Intellectual disability" or "ID" means:

(a)

A demonstration:

1.

Of significantly sub-average intellectual functioning and an intelligence quotient (IQ) of seventy (70) plus or minus five (5); and

2.

Of concurrent deficits or impairments in present adaptive functioning in at least two (2) of the following areas:

a.

Communication;

b.

Self-care;

c.

Home living;

d.

Social or interpersonal skills;

e.

Use of community resources;

f.

Self-direction;

g.

Functional academic skills;

h.

Work;

i.

Leisure; or

j.

Health and safety; and

(b)

An intellectual disability that had an onset before eighteen (18) years of age.

(7)

"Legally responsible individual" means an individual who has a duty under state law to care for another person and includes:

(a)

A parent (biological, adoptive, or foster) who provides care to the parent's minor child;

(b)

A guardian who provides care to the guardian's minor child; or

(c)

A spouse of a participant.

(8)

"Participant" means a Medicaid recipient who:

(a)

Meets patient status criteria for an intermediate care facility for individuals with intellectual disabilities as established in 907 KAR 1:022;

(b)

Is authorized by the department to receive SCL waiver services; and

(c)

Utilizes SCL waiver services and supports in accordance with a person-centered service plan.

(9)

"Participant-directed service" means an option established by KRS 205.5606 within the 1915(c) home and community based service waiver programs that allows recipients to receive non-medical services in which the individual:

(a)

Assists with the design of the program;

(b)

Chooses the providers of services; and

(c)

Directs the delivery of services to meet his or her needs.

(10)

"State plan" is defined by 42 C.F.R. 430.10.

(11)

"Supports for community living services" or "SCL services" means community-based waiver services for a participant who has an intellectual or developmental disability.

Section 2.

Coverage.

(1)

The department shall reimburse a participating SCL provider for a covered service provided to a participant.

(2)

In order to be reimbursable by the department, a service shall be:

(a)

Provided in accordance with the terms and conditions specified in 907 KAR 12:010; and

(b)

Prior authorized by the department.

(3)

Funding for the SCL waiver program shall be associated with and generated through SCL waiver program participants rather than SCL waiver service providers.

Section 3.

SCL Reimbursement and Limits.

(1)

Except as established in Section 4 of this administrative regulation, the department shall reimburse for an SCL service provided in accordance with 907 KAR 12:010 to a participant an amount:

(a)

Equal to the charge billed by the provider; and

(b)

Not to exceed the fixed upper payment limit for the service.

(2)

The unit amounts and base payment rate listed in the following table shall apply:
ServiceUnitBase Rate Effective January 1,2025
Case ManagementPer Month$425.92
Community Access, Individual15-minute$10.65
Community Access, Individual - PDS15-minute$10.65
Community Access, Group15-minute$5.32
Community Access, Group - PDS15-minute$5.32
Community Guide15-minute$10.65
Community Guide - PDS15-minute$10.65
Community TransitionPer TransitionUp to $2,420
Consultative Clinical and Therapeutic Services (Behavioral)15-minute$29.95
Consultative Clinical and Therapeutic Services (Dietary)15-minute$29.95
Consultative Clinical and Therapeutic Services (Psychological)15-minute$29.95
Consultative Clinical and Therapeutic Services (Functional analysis)15-minute$29.95
Day Training15-minute$3.62
Day Training - PDS15-minute$3.62
Day Training at an ADHC15-minute$3.99
Environmental Accessibility Adaptation ServicesLifetimeUp to $9,680
Environmental Accessibility Adaptation Services - PDSLifetimeUp to $9,680
Financial Management ServicesPer month$121.00
Goods and ServicesPer YearUp to $2,178
Goods and Service - PDSPer YearUp to $2,178
Natural Supports TrainingPer YearUp to $1,210
Natural Supports Training - PDSPer YearUp to $1,210
Person-Centered Coaching15-minute$7.66
Personal Assistance15-minute$7.37
Personal Assistance - PDS15-minute$7.37
Positive Behavior Support PlanPer Plan$885.12
Residential Support Level I - 3 residents or fewerPer Day$284.57
Residential Support Level I - 4 to 8 residentsPer Day$215.09
Residential Support Level IIPer Day$129.91
Residential Support Level II - 12+ hours of supervisionPer Day$198.70
Respite15-minute$5.92
Respite - PDS15-minute$5.92
Shared LivingPer Day$726.00
Supported Employment15-minute$13.65
Supported Employment - PDS15-minute$13.65
Technology Assisted ResidentialPer Day$105.15
TransportationPer Month$320.65
Vehicle AdaptationsEvery Five YearsUp to $7,260

(3)

Any combination of day training, community access, personal assistance, or any hours of paid community employment or on-site supported employment service shall not exceed sixteen (16) hours per day.

(4)

Community access services shall not exceed 160 units per week.

(5)

Community guide services shall not exceed 576 units per one (1) year authorized person-centered service plan period.

(6)

Community transition shall be based on prior authorized cost not to exceed $2,420 per approved transition.

(7)

Consultative clinical and therapeutic services shall not exceed 160 units per one (1) year authorized person-centered service plan period.

(8)

Day training alone or in combination with any hours of paid community employment or on-site supported employment service shall not exceed 160 units per week.

(9)

An environmental accessibility adaptation service shall be:

(a)

Based on a prior authorized, estimated cost; and

(b)

Limited to an $9,680 lifetime maximum.

(10)

Goods and services shall not exceed $2,178 per one (1) year authorized person-centered service plan period.

(11)

Natural support training shall be based on a prior authorized, estimated cost not to exceed $1,210 per one (1) year authorized person-centered service plan period.

(12)

Person centered coaching shall not exceed 1,320 units per year.

(13)

Respite shall be limited to 3,320 units (830 hours) per one (1) year authorized person-centered service plan period.

(14)

Shared living shall be based on a prior authorized amount not to exceed $726 per month.

(15)

A vehicle adaptation shall be limited to $7,260 per five (5) years per participant.

(16)

Transportation shall be reimbursed:

(a)

 

1.

If provided as a participant directed service:

a.

Based on the mileage; and

b.

At two thirds of the rate established in 200 KAR 2:006, Section 8(2)(d), if provided by an individual. The rate shall be adjusted quarterly in accordance with 200 KAR 2:006, Section 8(2)(d); or

2.

If provided by a public transportation service provider, at the cost per trip as documented by the receipt for the specific trip; and

(b)

A maximum of $320.65 per calendar month.

(17)

An estimate for a supply item requested under specialized medical equipment or goods and services shall be based on the actual price to be charged to the provider, participant, or individual by a retailer or manufacturer.

(18)

Specialized medical equipment or goods and services shall not include equipment and supplies covered under the Kentucky Medicaid program's state plan including:

(a)

Durable medical equipment;

(b)

Early and Periodic Screening, Diagnosis, and Treatment Services;

(c)

Orthotics and prosthetics; or

(d)

Hearing services.

(19)

A participant shall not receive multiple SCL services during the same segment of time except in the case of the following collateral services that shall be allowed to overlap other SCL services:

(a)

Community guide services;

(b)

Consultative clinical and therapeutic services; or

(c)

Person centered coaching.

Section 4.

Exceptional Supports.

(1)

A service listed in subsection (2) or (3) of this section, regardless of delivery method, shall qualify as an exceptional support:

(a)

Based on the needs of the participant for whom the exceptional support is requested;

(b)

For a limited period of time not to exceed a full person-centered service plan year;

(c)

If the service meets the requirements for an exceptional support in accordance with the Kentucky Exceptional Supports Protocol; and

(d)

If approved by DBHDID to be an exceptional support.

(2)

 

(a)

The following shall qualify as an exceptional support and be reimbursed at a rate higher than the base payment rate established in Section 3 of this administrative regulation if meeting the criteria established in subsection (1) of this section:

1.

Community access services;

2.

Day training that is not provided in an adult day health care center;

3.

Personal assistance;

4.

Respite;

5.

Residential Level I – three (3) or fewer residents;

6.

Residential Level I – four (4) to eight (8) residents; or

7.

Residential Level II – twelve (12) or more hours.

(b)

A rate increase for a service authorized as an exceptional support shall:

1.

Be based on the actual cost of providing the service; and

2.

Not exceed twice the upper payment limit established for the service in Section 3 of this administrative regulation.

(3)

The following shall qualify as an exceptional support and be provided in excess of the unit limits established in Section 3 of this administrative regulation if meeting the criteria established in subsection (1) of this section:

(a)

Consultative clinical and therapeutic services;

(b)

Person centered coaching;

(c)

Personal assistance; or

(d)

Respite.

(4)

A service that qualifies as an exceptional support shall:

(a)

Either:

1.

Be authorized to be reimbursed at a rate higher than the base payment rate established for the service in Section 3 of this administrative regulation; or

2.

Be authorized to be provided in excess of the unit limit established for the service in Section 3 of this administrative regulation; and

(b)

Not be authorized to be reimbursed at both a higher rate than the base payment rate and in excess of the service limit established for the service in Section 3 of this administrative regulation.

Section 5.

Participant Directed Services.

(1)

A reimbursement rate for a participant directed service shall:

(a)

Not exceed the base payment rate established for the service in Section 3 of this administrative regulation unless the service qualifies as an exceptional support in accordance with Section 4(2)(a) of this administrative regulation; and

(b)

Include:

1.

All applicable local, state, and federal withholdings; and

2.

Any applicable employment related administrative costs, which shall be the responsibility of the participant who is directing the service.

(2)

An employee who provides a participant directed service shall not be approved to provide more than forty (40) hours of service per week unless authorized to do so by the department.

(3)

A legally responsible individual or immediate family member shall not be authorized to be reimbursed for more than forty (40) hours of participant directed services per week.

Section 6.

Auditing and Reporting. An SCL provider shall maintain fiscal records and incident reports in accordance with the requirements established in 907 KAR 12:010.

Section 7.

Appeal Rights. A provider may appeal a department decision regarding the application of this administrative regulation in accordance with 907 KAR 1:671.

Section 8.

Federal Approval and Federal Financial Participation. The department's reimbursement of services pursuant to this administrative regulation shall be contingent upon:

(1)

Receipt of federal financial participation for the reimbursement; and

(2)

Centers for Medicare and Medicaid Services' approval for the reimbursement.

Section 9.

Incorporation by Reference.

(1)

The "Kentucky Exceptional Supports Protocol", April 2016, is incorporated by reference.

(2)

This material may be inspected, copied, or obtained, subject to applicable copyright law:

(a)

At the Department for Medicaid Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.; or

(b)

Online at the department's Web site at: https://www.chfs.ky.gov/agencies/dms/dca/Pages/scl-waiver.aspx.
LISA D. LEE, Commissioner
ERIC C. FRIEDLANDER, Secretary
APPROVED BY AGENCY: December 20, 2024
FILED WITH LRC: December 23, 2024 at 12:15 p.m.
PUBLIC HEARING AND COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on February 24, 2025, at 9:00 a.m. using the CHFS Office of Legislative and Regulatory Affairs Zoom meeting room. The Zoom invitation will be emailed to each requestor the week prior to the scheduled hearing. Individuals interested in attending this virtual hearing shall notify this agency in writing by February 17, 2025, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who attends virtually will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on this proposed administrative regulation until February 28, 2025. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to the contact person. Pursuant to KRS 13A.280(8), copies of the statement of consideration and, if applicable, the amended after comments version of the administrative regulation shall be made available upon request.
CONTACT PERSON: Krista Quarles, Policy Analyst, Office of Legislative and Regulatory Affairs, 275 East Main Street 5 W-A, Frankfort, Kentucky 40621; phone 502-564-7476; fax 502-564-7091; email CHFSregs@ky.gov.
REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact Person:
Jonathan Scott or Krista Quarles
(1) Provide a brief summary of:
(a) What this administrative regulation does:
This administrative regulation establishes the reimbursement policies for SCL waiver services provided to individuals pursuant to the new Supports for Community Living (SCL) waiver program established by 907 KAR 12:010.
(b) The necessity of this administrative regulation:
This administrative regulation is necessary to establish the reimbursement policies for SCL waiver services provided to individuals pursuant to the new Supports for Community Living (SCL) waiver program established by 907 KAR 12:010.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
This administrative regulation conforms to the content of the authorizing statutes by establishing the reimbursement policies for SCL waiver services provided to individuals pursuant to the new Supports for Community Living (SCL) waiver program established by 907 KAR 12:010.
(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:
This administrative regulation assists in the effective administration of the statutes by establishing the reimbursement policies for SCL waiver services provided to individuals pursuant to the new Supports for Community Living (SCL) waiver program established by 907 KAR 12:010.
(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:
(a) How the amendment will change this existing administrative regulation:
The amendments delete and update the reimbursement methodology to reflect the approval of new federal 1915(c) waivers. The approvals allow for higher reimbursement for providers and this administrative regulation is being updated to reflect the higher reimbursement.
(b) The necessity of the amendment to this administrative regulation:
This amendment is necessary to update reimbursement methodology to new, higher rates approved by the federal government.
(c) How the amendment conforms to the content of the authorizing statutes:
This amendment conforms to the content of the authorizing statutes by implementing a federally approved rate increase.
(d) How the amendment will assist in the effective administration of the statutes:
This amendment assists with the affective administration of the statutes by establishing a process to update increased federal reimbursement.
(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation:
DMS anticipates about 5,200 recipients will utilize the services available under this waiver.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment:
No action is required, regulated entities will be able to bill and receive a higher reimbursement.
(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):
Regulated entities will experience no new costs in complying with this administrative regulation.
(c) As a result of compliance, what benefits will accrue to the entities identified in question (3):
Recipients will be able to participate in the expanded reimbursement now available for this waiver.
(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:
(a) Initially:
DMS anticipates no additional costs beyond those budgeted in 2024 Regular Session HB 6.
(b) On a continuing basis:
DMS anticipates no additional costs beyond those budgeted in 2024 Regular Session HB 6.
(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation:
Sources of funding to be used for the implementation and enforcement of this administrative regulation are federal funds authorized under Title XIX and Title XXI of the Social Security Act, and state matching funds of general and agency appropriations.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment:
Neither an increase in fees nor funding will be necessary to implement the amendments.
(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees:
The amendment does not establish or increase any fees.
(9) TIERING: Is tiering applied?
Tiering was not appropriate in this administrative regulation because the administrative regulation applies equally to all those individuals or entities regulated by it.
FISCAL IMPACT STATEMENT
(1) Identify each state statute, federal statute, or federal regulation that requires or authorizes the action taken by the administrative regulation.
KRS 194A.030(2), 194A.050(1), 205.520(3).
(2) Identify the promulgating agency and any other affected state units, parts, or divisions:
Department for Medicaid Services is the promulgating agency, other agencies have not been identified.
(a) Estimate the following for the first year:
Expenditures:
DMS anticipates no additional costs beyond those budgeted in 2024 Regular Session HB 6.
Revenues:
The Department does not anticipate revenues as a result of this administrative regulation.
Cost Savings:
The Department does not anticipate cost savings as a result of this administrative regulation.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
DMS anticipates no additional costs beyond those budgeted in 2024 Regular Session HB 6.
(3) Identify affected local entities (for example: cities, counties, fire departments, school districts):
N/A
(a) Estimate the following for the first year:
Expenditures:
DMS anticipates no additional costs beyond those budgeted in 2024 Regular Session HB 6.
Revenues:
The department does not anticipate revenues as a result of this administrative regulation.
Cost Savings:
The department does not anticipate cost savings as a result of this administrative regulation.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
DMS does not expect additional expenditures, revenues, or cost savings for local entities as a result of this regulation.
(4) Identify additional regulated entities not listed in questions (2) or (3):
Enrolled providers providing supports for community living waiver services.
(a) Estimate the following for the first year:
Expenditures:
DMS does not anticipate additional expenditures for regulated entities.
Revenues:
Participating providers will benefit from increased reimbursement.
Cost Savings:
The department does not anticipate cost savings as a result of this administrative regulation.
(b) How will expenditures, revenues, or cost savings differ in subsequent years?
DMS anticipates no additional costs beyond those budgeted in 2024 Regular Session HB 6. Future slots and increases will be dependent on the state budgeting process and federal reimbursement requirements. Revenues: Participating providers will benefit from increased reimbursement. Cost Savings: The department does not anticipate cost savings as a result of this administrative regulation.
(5) Provide a narrative to explain the:
(a) Fiscal impact of this administrative regulation:
DMS anticipates no additional costs beyond those budgeted in 2024 Regular Session HB 6. Future slots and increases will be dependent on the state budgeting process and federal reimbursement requirements.
(b) Methodology and resources used to determine the fiscal impact:
The department worked with interested parties to gain input and perspectives as well as completed a multiyear process working with a contracted third party to re-design the 1915(c) waivers and reimbursement.
(6) Explain:
(a) Whether this administrative regulation will have an overall negative or adverse major economic impact to the entities identified in questions (2) - (4). ($500,000 or more, in aggregate)
The administrative regulation will not have a major economic impact – as defined by KRS 13A.010 – on regulated entities.
(b) The methodology and resources used to reach this conclusion:
This administrative regulation will provide additional reimbursement for all 1915(c) providers.
FEDERAL MANDATE ANALYSIS COMPARISON
(1) Federal statute or regulation constituting the federal mandate.
42 C.F.R. 441.305(b).
(2) State compliance standards.
KRS 205.520(3) states, "Further, it is the policy of the Commonwealth to take advantage of all federal funds that may be available for medical assistance. To qualify for federal funds the secretary for health and family services may by regulation comply with any requirement that may be imposed or opportunity that may be presented by federal law. Nothing in KRS 205.510 to 205.630 is intended to limit the secretary's power in this respect."
(3) Minimum or uniform standards contained in the federal mandate.
Federal approval is for a limited number of waiver slots.
(4) Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate?
The amendment will not impose stricter than federal requirements.
(5) Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements.
The amendment will not impose stricter than federal requirements.

7-Year Expiration: 5/9/2030

Last Updated: 12/23/2024

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