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907 KAR 13:010.Private duty nursing service coverage provisions and requirements.

RELATES TO:

KRS 205.520, 205.622, 369.101-369.120, 42 C.F.R. 431.17, 45 C.F.R. Part 164

STATUTORY AUTHORITY:

KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 440.80, 440.330, 42 U.S.C. 1396u-7

NECESSITY, FUNCTION, AND CONFORMITY:

The Cabinet for Health and Family Services, Department for Medicaid Services, has a responsibility 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 Medicaid Program coverage provisions and requirements regarding private duty nursing services.

Section 1.

Provider Participation.

(1)

To be eligible to provide services under this administrative regulation, a provider shall be:

(a)

Currently enrolled in the Kentucky Medicaid Program in accordance with 907 KAR 1:672;

(b)

Except as established in subsection (2) of this section, currently participating in the Kentucky Medicaid Program in accordance with 907 KAR 1:671; and

(c)

1.

A private duty nursing agency; or

2.

A licensed home health agency.

(2)

In accordance with 907 KAR 17:015, Section 3(3), a provider of a service to an enrollee shall not be required to be currently participating in the fee-for-service Medicaid Program.

Section 2.

Coverage and Limit.

(1)

The department shall reimburse for a private duty nursing service or supply if the service or supply is:

(a)

Provided:

1.

By a:

a.

Registered nurse employed by a:

(i)

Private duty nursing agency that meets the requirements established in Section 1 of this administrative regulation; or

(ii)

Home health agency that meets the requirements established in Section 1 of this administrative regulation; or

b.

Licensed practical nurse employed by a:

(i)

Private duty nursing agency that meets the requirements established in Section 1 of this administrative regulation; or

(ii)

Home health agency that meets the requirements established in Section 1 of this administrative regulation;

2.

To a recipient in the recipient's home, except as provided in subsection (2) of this section; and

3.

Under the direction of the recipient's physician in accordance with 42 C.F.R. 440.80;

(b)

1.

Prescribed for the recipient by a physician; and

2.

Stated in the recipient's plan of treatment developed by the prescribing physician;

(c)

Established as being needed for the recipient in the recipient's home;

(d)

Prior authorized; and

(e)

Medically necessary.

(2)

A private duty nursing service may be covered in a setting other than in the recipient's home, if the service is provided during a normal life activity of the recipient that requires the recipient to be out of his or her home.

Section 3.

No Duplication of Service. The department shall not reimburse for any of the following services provided during the same time that a private duty nursing service is provided to a recipient:

(1)

A personal care service;

(2)

A skilled nursing service or visit; or

(3)

A home health aide service.

Section 4.

Conflict of Interest. The department shall not reimburse for a private duty nursing service provided to a recipient if the individual providing the service is:

(1)

An immediate family member of the recipient; or

(2)

A legally responsible individual who maintains his or her primary residence with the recipient.

Section 5.

Records Maintenance, Protection, and Security.

(1)

(a)

A provider shall maintain a current health record for each recipient.

(b)

1.

A health record shall document each service provided to the recipient including the date of the service and the signature of the individual who provided the service.

2.

The individual who provided the service shall date and sign the health record on the date that the individual provided the service.

(2)

(a)

A provider shall maintain a health record regarding a recipient for at least five (5) years from the date of the service.

(b)

If the United States Department of Health and Human Services secretary requires a longer document retention period than the period referenced in paragraph (a) of this subsection, pursuant to 42 C.F.R. 431.17, the period established by the secretary shall be the required period.

(3)

A provider shall comply with 45 C.F.R. Part 164.

Section 6.

Medicaid Program Participation Compliance.

(1)

A provider shall comply with:

(a)

907 KAR 1:671;

(b)

907 KAR 1:672; and

(c)

All applicable state and federal laws.

(2)

(a)

If a provider receives any duplicate payment or overpayment from the department, regardless of reason, the provider shall return the payment to the department.

(b)

Failure to return a payment to the department in accordance with paragraph (a) of this subsection may be:

1.

Interpreted to be fraud or abuse; and

2.

Prosecuted in accordance with applicable federal or state law.

Section 7.

Third Party Liability. A provider shall comply with KRS 205.622.

Section 8.

Use of Electronic Signatures.

(1)

The creation, transmission, storage, and other use of electronic signatures and documents shall comply with the requirements established in KRS 369.101 to 369.120.

(2)

A provider that chooses to use electronic signatures shall:

(a)

Develop and implement a written security policy that shall:

1.

Be adhered to by each of the provider's employees, officers, agents, or contractors;

2.

Identify each electronic signature for which an individual has access; and

3.

Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b)

Develop a consent form that shall:

1.

Be completed and executed by each individual using an electronic signature;

2.

Attest to the signature's authenticity; and

3.

Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

(c)

Provide the department, immediately upon request, with:

1.

A copy of the provider's electronic signature policy;

2.

The signed consent form; and

3.

The original filed signature.

Section 9.

Auditing Authority. The department shall have the authority to audit any claim, medical record, or documentation associated with any claim or medical record.

Section 10.

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

(1)

Receipt of federal financial participation for the coverage; and

(2)

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

Section 11.

Appeal Rights.

(1)

An appeal of an adverse action by the department regarding a service and a recipient who is not enrolled with a managed care organization shall be in accordance with 907 KAR 1:563.

(2)

An appeal of an adverse action by a managed care organization regarding a service and an enrollee shall be in accordance with 907 KAR 17:010.

HISTORY: (40 Ky.R. 2058; 2560; 2776; eff. 7-7-2014; Cert eff. 12-6-2019; 50 Ky.R.1793; eff. 6-18-2024.)

FILED WITH LRC: April 9, 2024

CONTACT PERSON: Krista Quarles, Policy Specialist, 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.

907 KAR 13:010.Private duty nursing service coverage provisions and requirements.

RELATES TO:

KRS 205.520, 205.622, 369.101-369.120, 42 C.F.R. 431.17, 45 C.F.R. Part 164

STATUTORY AUTHORITY:

KRS 194A.030(2), 194A.050(1), 205.520(3), 42 C.F.R. 440.80, 440.330, 42 U.S.C. 1396u-7

NECESSITY, FUNCTION, AND CONFORMITY:

Section 1.

Provider Participation.

(1)

To be eligible to provide services under this administrative regulation, a provider shall be:

(a)

Currently enrolled in the Kentucky Medicaid Program in accordance with 907 KAR 1:672;

(b)

Except as established in subsection (2) of this section, currently participating in the Kentucky Medicaid Program in accordance with 907 KAR 1:671; and

(c)

1.

A private duty nursing agency; or

2.

A licensed home health agency.

(2)

In accordance with 907 KAR 17:015, Section 3(3), a provider of a service to an enrollee shall not be required to be currently participating in the fee-for-service Medicaid Program.

Section 2.

Coverage and Limit.

(1)

The department shall reimburse for a private duty nursing service or supply if the service or supply is:

(a)

Provided:

1.

By a:

a.

Registered nurse employed by a:

(i)

Private duty nursing agency that meets the requirements established in Section 1 of this administrative regulation; or

(ii)

Home health agency that meets the requirements established in Section 1 of this administrative regulation; or

b.

Licensed practical nurse employed by a:

(i)

Private duty nursing agency that meets the requirements established in Section 1 of this administrative regulation; or

(ii)

Home health agency that meets the requirements established in Section 1 of this administrative regulation;

2.

To a recipient in the recipient's home, except as provided in subsection (2) of this section; and

3.

Under the direction of the recipient's physician in accordance with 42 C.F.R. 440.80;

(b)

1.

Prescribed for the recipient by a physician; and

2.

Stated in the recipient's plan of treatment developed by the prescribing physician;

(c)

Established as being needed for the recipient in the recipient's home;

(d)

Prior authorized; and

(e)

Medically necessary.

(2)

(3)

(a)

~~There shall be a limit of private duty nursing services per recipient of 2,000 hours per twelve (12) consecutive month period.~~

(b)

~~The limit established in paragraph (a) of this subsection may be exceeded if services in excess of the limit are determined to be medically necessary.~~

Section 3.

No Duplication of Service. The department shall not reimburse for any of the following services provided during the same time that a private duty nursing service is provided to a recipient:

(1)

A personal care service;

(2)

A skilled nursing service or visit; or

(3)

A home health aide service.

Section 4.

Conflict of Interest. The department shall not reimburse for a private duty nursing service provided to a recipient if the individual providing the service is:

(1)

An immediate family member of the recipient; or

(2)

A legally responsible individual who maintains his or her primary residence with the recipient.

Section 5.

Records Maintenance, Protection, and Security.

(1)

(a)

A provider shall maintain a current health record for each recipient.

(b)

1.

A health record shall document each service provided to the recipient including the date of the service and the signature of the individual who provided the service.

2.

The individual who provided the service shall date and sign the health record on the date that the individual provided the service.

(2)

(a)

A provider shall maintain a health record regarding a recipient for at least five (5) years from the date of the service.

(b)

(3)

A provider shall comply with 45 C.F.R. Part 164.

Section 6.

Medicaid Program Participation Compliance.

(1)

A provider shall comply with:

(a)

907 KAR 1:671;

(b)

907 KAR 1:672; and

(c)

All applicable state and federal laws.

(2)

(a)

If a provider receives any duplicate payment or overpayment from the department, regardless of reason, the provider shall return the payment to the department.

(b)

Failure to return a payment to the department in accordance with paragraph (a) of this subsection may be:

1.

Interpreted to be fraud or abuse; and

2.

Prosecuted in accordance with applicable federal or state law.

Section 7.

Third Party Liability. A provider shall comply with KRS 205.622.

Section 8.

Use of Electronic Signatures.

(1)

The creation, transmission, storage, and other use of electronic signatures and documents shall comply with the requirements established in KRS 369.101 to 369.120.

(2)

A provider that chooses to use electronic signatures shall:

(a)

Develop and implement a written security policy that shall:

1.

Be adhered to by each of the provider's employees, officers, agents, or contractors;

2.

Identify each electronic signature for which an individual has access; and

3.

Ensure that each electronic signature is created, transmitted, and stored in a secure fashion;

(b)

Develop a consent form that shall:

1.

Be completed and executed by each individual using an electronic signature;

2.

Attest to the signature's authenticity; and

3.

Include a statement indicating that the individual has been notified of his or her responsibility in allowing the use of the electronic signature; and

(c)

Provide the department, immediately upon request, with:

1.

A copy of the provider's electronic signature policy;

2.

The signed consent form; and

3.

The original filed signature.

Section 9.

Auditing Authority. The department shall have the authority to audit any claim, medical record, or documentation associated with any claim or medical record.

Section 10.

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

(1)

Receipt of federal financial participation for the coverage; and

(2)

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

Section 11.

Appeal Rights.

(1)

An appeal of an adverse action by the department regarding a service and a recipient who is not enrolled with a managed care organization shall be in accordance with 907 KAR 1:563.

(2)

An appeal of an adverse action by a managed care organization regarding a service and an enrollee shall be in accordance with 907 KAR 17:010.

HISTORY: (40 Ky.R. 2058; 2560; 2776; eff. 7-7-2014; Cert eff. 12-6-2019; 50 Ky.R.1793; eff. 6-18-2024.)

FILED WITH LRC: April 9, 2024

Page Generated: 9/19/2024, 12:15:11 PM

Title 907 | Chapter 013 | Regulation 010

907 KAR 13:010.Private duty nursing service coverage provisions and requirements.

RELATES TO:

STATUTORY AUTHORITY:

NECESSITY, FUNCTION, AND CONFORMITY:

Section 1.

(1)

(a)

(b)

(c)

1.

2.

(2)

Section 2.

(1)

(a)

1.

a.

(i)

(ii)

b.

(i)

(ii)

2.

3.

(b)

1.

2.

(c)

(d)

(e)

(2)

Section 3.

(1)

(2)

(3)

Section 4.

(1)

(2)

Section 5.

(1)

(a)

(b)

1.

2.

(2)

(a)

(b)

(3)

Section 6.

(1)

(a)

(b)

(c)

(2)

(a)

(b)

1.

2.

Section 7.

Section 8.

(1)

(2)

(a)

1.

2.

3.

(b)

1.

2.

3.

(c)

1.

2.

3.

Section 9.

Section 10.

(1)

(2)

Section 11.