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Title 922 | Chapter 001 | Regulation 360

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CABINET FOR HEALTH AND FAMILY SERVICES
Department for Community Based Services
Division of Protection and Permanency
(Amended After Comments)

922 KAR 1:360.Private child care placement, levels of care, and payment.

RELATES TO:

KRS 199.011, 199.640-199.680, 199.801, 600.020(25), 605.090(1)(b), (d), 610.110, 42 U.S.C. 622, 672, 675

STATUTORY AUTHORITY:

KRS 194A.050(1), 199.641(4), 605.090(1)(d), 605.150(1)

NECESSITY, FUNCTION, AND CONFORMITY:

KRS 194A.050(1) requires the secretary of the Cabinet for Health and Family Services to promulgate administrative regulations necessary to operate programs and fulfill the responsibilities vested in the cabinet. KRS 199.641(4) and 605.090(1)(d) authorize the cabinet to establish by administrative regulation the rate setting methodology and the rate of payment for child-caring facilities and child-placing agencies, consistent with the level and quality of service provided. KRS 605.090(1)(d) authorizes the cabinet to promulgate administrative regulations establishing conditions under which the cabinet may place a child committed to the Department of Juvenile Justice or the cabinet, in a child-caring facility or a child-placing agency operated by a local governmental unit or private organization willing to receive the child, upon the conditions established by the cabinet. KRS 605.150(1) authorizes the cabinet to promulgate administrative regulations to implement the provisions of KRS Chapter 605. This administrative regulation establishes: (a) five (5) levels of care based upon the needs of a child for whom the cabinet has legal responsibility; (b) a payment rate for each level and placement setting; (c) gatekeeper responsibilities; (d) provider requirements; (e) procedures for classification at the appropriate level of care and placement setting; and (f) procedures for determination of components of the model program cost analysis.

Section 1.

Definitions.

(1)

"Cabinet" is defined by KRS 199.011(3).

(2)

"Child-caring facility" or "facility" is defined by KRS 199.011(5).

(3)

"Child-placing agency" or "agency" is defined by KRS 199.011(6).

(4)

"Department" is defined by KRS 199.011(7) and 199.641(1)(b).

(5)

"Emergency shelter" is defined by KRS 600.020(25).

(6)

"Gatekeeper" means the department or agent responsible for:

(a)

Making a clinical determination of the level of care necessary to meet a child's treatment and service needs; and

(b)

Other administrative duties in the areas of:

1.

Assessment;

2.

Placement;

3.

Performance measurement; and

4.

Consultation regarding children and their needs.

(7)

"Index factor" means a specific number derived from time-study data, used to determine payment for each level of care.

(8)

"Initial level of care" means a level of care:

(a)

Assigned by the gatekeeper to a child at the point of entry into the level of care system; and

(b)

That is time-limited and effective for the first six (6) months of a child's placement.

(9)

"Level of care" means the standard one (1) of five (5) standards representing the treatment and service needs of a child placed by the cabinet in out-of-home care.

(10)

"Level of care packet" means an assessment conducted by designated cabinet staff and a collection of forms required for submission to the gatekeeper for the purpose of determining the appropriate level of care and placement setting in accordance with Section 2(2) of this administrative regulation.

(11)

"Medically complex" means a child who is determined to have a medical condition as defined by 922 KAR 1:495 and further described in 922 KAR 1:350, Section 4.

(12)

"Model program cost analysis" is defined by KRS 199.641(1)(c).

(13)(12)

"Placement coordinator" means an individual whose responsibilities are established in KRS 199.801.

(14)(13)

"Reassigned level of care" means a level of care that is:

(a)

Determined by the gatekeeper after a child's level of care expires; and

(b)

Authorized for a specific period of time.

(15)(14)

"Time study" is defined by KRS 199.641(1)(d).

(16)(15)

"Utilization review" means a gatekeeper's examination, during a child's placement in a child-caring facility or child-placing agency, of the child's case record and existing documentation for the purpose of:

(a)

Identifying the child's current level of functioning, treatment, service, and supervision needs; and

(b)

Assigning the appropriate level of care.

Section 2.

Referral Process for Level of Care System Placement.

(1)

A level of care packet shall be completed by a cabinet staff person and submitted to the gatekeeper for a child at least forty-eight (48) months of age or a child who is medically complex regardless of age at the time:

(a)

The child is referred for placement with a child-caring facility or child-placing agencyenters the level of care system;

(b)

A child currently placed in a child-caring facility or a child-placing agency reaches forty-eight (48) months of age or is found to be medically complex; or

(c)

A child's level of care expires and assignment of a new level is necessary.

(2)

A level of care packet shall include the DPP-886, Private Child Care Client Inter-agency Referral Form, and the following child-specific information:

(a)

Identifying data;

(b)

Individual strengths and limitations;

(c)

Daily living skills;

(d)

Physical health needs, including:

1.

Any significant medical history;

2.

Current diagnoses, assessments, and treatment; and

3.

Documentation, documentation indicating the child's medically complex status if the child is medically complex;

(e)

Behavioral Mental health needs including:

1.

Screening tools utilized based upon the child's ageBehavioral health; and

2.

Current diagnoses, assessments, Diagnosis and treatment recommendations;

(f)

Medications;

(g)

History of substance abuse, high risk, or other significant behavior including:

1.

Sexual acting out; and

2.

Legal history, status, or other court involvementdelinquency behavior patterns;

(h)

Out-of-home care placement information including:

1.

Reason for entering out-of-home care;

2.

History of abuse, neglect, or dependency;

3.

Current custody status;

4.

Current and previous placements; and

5.

Permanency goal;

(i)

Social supports;

(j)

Educational functioning, grade level, and any special educational need; and

(k)

Religious background and practices; and

(l)

If a child has an IQ of seventy (70) or above:

1.

Child Behavior Checklist For Ages 1 1/2-5 (Achenbach);

2.

Child Behavior Checklist For Ages 6-18 (Achenbach); or

3.

Another tool pursuant to the Promoting Wellbeing and Adoption after Trauma Grant in accordance with 42 U.S.C. 622(b)(15).

(3)

 

(a)

If a child needs placement within a child-caring facility or a child-placing agency the level of care system, a cabinet staff person shall submit a copy of the completed level of care packet, including level assignment, to the placement coordinator.

(b)

The placement coordinator shall forward the level of care packet to potential child-caring facilities or child-placing agencies.

(4)

If a child-caring facility or child-placing agency accepts a child for out-of-home placement and the cabinet approves the placement in accordance with KRS 199.801 and 922 KAR 1:370, a cabinet staff person shall:

(a)

Complete the DPP-114T, Transitional Child Caring and Child Placing Level of Care Schedule, through January 31, 2023, or the DPP-114, Private Child Caring and Child Placing Level of Care Schedule, effective February 1, 2023, with the level of care payment rate for placement type:

1.

As assigned by the gatekeeper within the previous six (6) months; or

2.

If there is an emergency placement, within two (2) business days of the placement or receipt of the assigned level of care;

(b)

Arrange transportation for the child to the placement; and

(c)

Notify the placement coordinator of the selected placement.

(5)

If a child-caring facility or child-placing agency accepts an emergency placement requested by the cabinet outside of the gatekeeper's regular working hours, a cabinet staff person shall:

(a)

Submit a level of care packet to the gatekeeper for a child who does not have a current level of care assignment; and

(b)

Inform the placement coordinator of the location and date of placement.

(6)

The placement coordinator shall notify a child-caring facility or child-placing agency that was not chosen for placement upon provision of notification in accordance with subsection (4)(c) of this section.

Section 3.

Gatekeeper Responsibilities. The gatekeeper shall:

(1)

Evaluate a child referred by the cabinet or currently placed in a child-caring facility or child-placing agency for the purpose of establishing an initial or reassigned level of care. The child shall be:

(a)

Four (4) years of age or older; or

(b)

Determined to be medically complex by designated cabinet staffEvaluate a child forty-eight (48) months of age or older or any child designated as medically complex:

(a)

Who is referred by the department or currently placed in a child-caring facility or child-placing agency; and

(b)

For an initial or reassigned level of care;

(2)

Within three (3) working days of receipt of the level of care packet:

(a)

Determine the appropriate level of care according to an a needs assessment of the child's treatment, supervision, and service needs consistent with one (1) of the three (3) five (5) levels of care; and

(b)

Return the completed:

1.

DPP-886, Private Child Care Client Inter-agency Referral Form, to the department; or

2.

CRP-6, Children's Review Program Notice of Level of Care Payment Authorization Assignment Reassignment, to the department and the child-caring facility or the child-placing agency;

(3)

Assess a child placed in a child-caring facility in accordance with 42 U.S.C, 675a(c) within the first thirty (30) days of placement;

(4)(3)

Conduct a utilization review for a child:

(a)

Six (6) months from the initial placement or reassignment and placement in a child-caring facility and child-placing agency; and

(b)

 

1.

Every three (3) months thereafter if the child is in a private child-caring facility care residential placement; or

2.

Every six (6) months thereafter if the child is in a foster care placement or therapeutic foster care;

(5)(4)

Reassign a child's level of care after the previous level has expired;

(6)(5)

Monitor each child-caring facility and child-placing agency;

(7)(6)

Maintain a confidential information system for each child served that shall include:

(a)

Placement history;

(b)

Level of care assignments;

(c)

Length of treatment; and

(d)

Discharge outcomes; and

(8)(7)

For a utilization review, return the completed CRP-2, Children's Review Program Notice of Level of Care Payment Authorization, to the private child-caring facility or private child-placing agency and the cabinet after a level is conducted or reassigned.

Section 4.

Levels of Care. A level of care shall be assigned in accordance with this section.

(1)

A Level I child shall be a child who requires a routine home environment that:

(a)

Provides for the basic needs of the childmaintenance;

(b)

Provides guidance and nurturing;

(c)

Provides supervision to meet the needs of the child; and

(d)

Provides educational support;

(e)

Provides access to routine medical care; and

(f)

Ensures the emotional and physical well-being of the child.

(2)

A Level II child shall be a child who:

(a)

Requires a routine home environment that meets the requirements of subsection (1) of this section;

(b)

Has identified treatment needs based on available behavioral health screening and assessment information, current treatment recommendations, or has been determined to be medically complex, as defined by 922 KAR 1:495 and further described in 922 KAR 1:350, Section 4;

(c)

Has a history of complex trauma related to maltreatment;

(d)

May engage in nonviolent antisocial acts, but be capable of meaningful interpersonal relationships; and

(b)

Requires supervision in a structured supportive setting with:

1.

Counseling available from professional or paraprofessional staff;

2.

Educational support; and

3.

Services designed to improve physical and behavioral health and wellbeing;

(e)

development of normalized social skills.

(3)

A Level III child shall be a child who:

(a)

May engage in an occasional violent act

(b)

May have superficial or fragile interpersonal relationships

(c)

Requires supervision in a structured, supportive environment where the level of supervision and support may vary from low to moderate, proportional to the child's ability to handle reduced structure;

(d)

May occasionally require intense levels of intervention to maintain the least restrictive environment; and

(f)(e)

Requires a program flexible enough to allow increased:

1.

Independence Extended trials of independence if the child is capable; or

2.

Structure during temporary periods of regressionA period of corrective and protective structure relapse; and

3.

Counseling available from professional or paraprofessional staff.

(3)(4)

A Level III IV child shall be a child who:

(a)

Has significant treatment needs as indicated by:

1.

Available behavioral health screening and assessment information or current treatment recommendations that require specialized or frequent treatment services;

2.

A determination by designated cabinet staff that the child has a high degree of medical complexity that requires specialized medical care;

3.

The presence of both significant behavioral health needs requiring treatment and a determination of medical complexity by designated cabinet staff; or

4.

A severe impairment or disability that requires a caregiver to attend to all care needs of the childbehavioral and physical, mental, or social needs that may present a moderate risk of causing harm to himself or others; and

(b)

Requires a highly structured supportive setting with:

1.

With frequent therapy or therapeutic services provided Therapeutic counseling available by a qualified mental health professional or other treatment professional allowed pursuant to 922 KAR 1:300 within a treatment program designed to improve social, emotional, and educational adaptive behaviorprofessional staff; and

2.

That includes A physical, environmental, and treatment program designed to improve social, emotional, and educational adaptive behavior.

(5)

A Level V child shall be a child who:

(a)

Has a severe impairment, disability, or need;

(b)

Is consistently unable or unwilling to cooperate in his own care;

(c)

Presents a severe risk of causing harm to himself or others; and

(d)

Requires Level IV services and a:

1.

Highly structured program with twenty-four (24) hour supervision; or

3.2.

Specialized setting That provides safe and effective care for a severe, chronic medical condition, behavioral health issue, or other highly specialized needsdisorder, or emotional disturbance.

Section 5.

Payment Methodology and Rates.

(1)

Payment Methodology.

(a)

The cabinet shall base a per diem rate for the care of a child placed by the cabinet in a private child-caring facility, upon the "model program cost analysis" defined by KRS 199.641(1)(c).

(b)

Each private child- caring facility and child-placing agency shall report to the cabinet annually, on the DPP-888, Kentucky Cabinet for Health and Family Services Annual Audited Cost Report and Time Study and Instructions for Completing the Annual Cost Report and Time Study for Child Caring and Child Placing Programs and Facilities.

(2)

The cabinet shall establish an index factor for payment on behalf of a child for whom a level of care has been determined.

(a)

The factor shall be determined:

1.

Based on the amount of treatment provided at each level of care; and

2.

By determining the median of:

a.

Number of daily treatment hours, derived from time study data, provided to children served by private child-caring facilities and child-placing agencies; and

b.

Level of care of children served by private child-caring facilities and child-placing agencies that contract with the cabinet.

(b)

 

1.

For children whose level is determined, the median level of care shall be represented by an index factor of one (1).

2.

For children whose level is not determined, the median level of care shall be represented by an index factor that is proportionate to the amount of treatment provided to the children in the median level pursuant to subparagraph 1 of this paragraph.

(3)

A statewide median cost, including board, care, and treatment components, for each level of care shall be calculated by using a utilization factor of ninety (90) percent for residential treatment and seventy-five (75) percent for a group home.

(4)

The payment rate for each level of care shall be calculated by multiplying the median cost by the index factor specific to that level of care. The rate for each level of care shall be adjusted by the Consumer Price Index during each intervening period between the fiscal year used for the cost analysis and calculation of the rate.

(5)

Statewide median cost shall be calculated:

(a)

Using a utilization factor of eighty (80) percent:

1.

For an emergency shelter with a treatment license:

a.

Board;

b.

Care; and

c.

Treatment components; or

2.

For an emergency shelter without a treatment license:

a.

Board; and

b.

Care components; and

(b)

Adjusting for each level of care by the Consumer Price Index during each intervening period between the fiscal year used for the cost analysis and calculation of the rate.

(6)

 

(a)

To the extent funds are available, an incentive payment for a private child-caring facility that participates in a per diem rate contract with the cabinet shall be determined by evaluating the performance of the child-caring facility, in accordance with KRS 199.641(2)(a). Measurable performance outcomes shall include:

1.

Child safety while in the care of a private child-caring facility or child-placing agency;

2.

Child safety after reunification with the child's family;

3.

Adequate educational support;

4.

Reduced time spent in out-of-home care without an increase in the rate of out-of-home care reentry;

5.

Increased placement stability during the service period;

6.

Increased achievement of permanency goals; and

7.

Increased stability in less restrictive or permanentpermanency placement following planned discharge.

(b)

The cabinet's contract with a private child-caring facility shall specify the:

1.

Indicators used to measure the performance outcomes established in paragraph (a) of this subsection; and

2.

Target percentages used as performance goals.

(c)

Each child in the custody of the cabinet who is placed in a private child-caring facility during the contract period shall be included in the percentage of children for whom the cabinet expects achievement of an outcome.

(d)

At the time the contract period expires, each private child-caring facility shall be ranked based on the percentage of children for whom the facility achieved an outcome. To the extent funds are available, a payment incentive shall be distributed to a private child-caring facility that performed in the top one-third (1/3) of the facilities.

(e)

The amount of a payment incentive shall be determined according to the funding appropriated for this purpose in the biennial budget.

(7)

In addition to services provided on a per diem rate, the cabinet shall solicit proposals from private child-caring facilities or child-placing agencies to provide alternative services to children and their families. To the extent funds are available, the alternative services:

(a)

Shall be geared toward improved performance outcomes; and

(b)

May include case management responsibilities shared between the cabinet and the child-caring facility or child-placing agency.

(8)

Payment to child-caring facilities or child-placing agencies that provide alternative services according to subsection (7) of this section shall be based upon expectations agreed upon between the cabinet and the child-caring facility or child-placing agency such as:

(a)

Reduced length of stay in out-of-home placement;

(b)

Increased safety from child abuse or neglect;

(c)

Increased number of children moving into and remaining in permanent placement;

(d)

Increased number of children and their families cared for in close proximity to their home communities;

(e)

Increased number of children reunified with their families;

(f)

Increased accountability for success in after care; or

(g)

Decreased reentry into state custody.

Section 6.

Residential Care.

(1)

A child-caring facility that cares for children in the custody of the cabinetin the levels of care system shall be licensed pursuant tounder 922 KAR 1:305 and shall meet the standards for child-caring facilities established in 922 KAR 1:300.

(2)

The facility shall comply with 922 KAR 1:3001:390, Section 84, Residential Treatment Program, if providing treatment- oriented services.

(3)

Only a child assigned as Level III shall be placed in residential care.

(4)

The daily rate for residential care to a child-caring facility shall be:

(a)

$193.50 per child for a child-caring facility determined by designated cabinet staff to not meet the requirements of a specified setting for placement in accordance with 42 U.S.C. 672(k)(2); and

(b)

$298.50 per child for a child-caring facility determined by designated cabinet staff to meet the requirements of a specified setting for placement in accordance with 42 U.S.C. 672(k)(2).Level I - $51.19;

(b)

Level II - $61.52;

(c)

Level III - $109.71;

(d)

Level IV:

1.

$183.00; or

2.

$193.50 on or after August 1, 2018; and

(e)

Level V:

1.

$236.60; or

2.

$256.70 on or after August 1, 2018.

Section 7.

Emergency Shelter Care.

(1)

An emergency shelter child-caring facility shall meet the requirements of 922 KAR 1:380. The rate for emergency shelter care shall be:

(a)

$193.50 per child per day forFor a child-caring facility with a treatment license:

1.

$115.31 per day; or

2.

$126.80 per day on or after August 1, 2018; or

(b)

$145.12 per child per day forFor a child-caring facility without a treatment license:

1.

$101.41 per day; or

2.

$111.60 per day on or after August 1, 2018.

(2)

If a child with an assigned level of care enters an emergency shelter child-caring facility with a treatment license, the emergency shelter child-caring facility shall adhere:

(a)

Receive a rate consistent with the child's assigned level of care pending results of the next-scheduled utilization review;

(b)

If the child is Level II or lower, receive a rate not less than the rate for emergency shelter care in accordance with subsection (1) of this section per day; and

(c)

Adhere to the child's individual treatment plan.

(3)

 

(a)

If the department determines that a child without an assigned level of care shall remain in an emergency shelter child-caring facility longer than thirty (30) days, the department shall make a referral to the gatekeeper, by the 20th day of placement, for assignment to an appropriate level of care.

(b)

If a child remains in an emergency shelter longer than thirty (30) days, the emergency shelter child-caring facility with a treatment license shall:

1.

Receive the residential rate consistent with the assigned level of care for each day the child is in the facility beyond the 30th day;

2.

If the child is Level II or lower, receive a rate not less than the rate for emergency shelter care in accordance with subsection (1) of this section per day; and

3.

Adhere to the child's individual treatment plan.

Section 8.

Foster Care and Therapeutic Foster Care for a Child-Placing Agency.

(1)

The basic daily rate for foster care shall be $44.82.

(2)

If assessed on or after July 1, 2022, upon the next utilization review, the daily rate for foster care shall be $44.82 per child for:

(a)

A child under the age of four (4) who has not been assigned a level; and

(b)

A child over the age of four (4) with a level I assigned level of care.

(3)

If assessed prior to July 1, 2022, the The daily rates for therapeutic or treatment foster care shall be as follows:

(a)

Levels I and II, if the child is stepped down from Level III or higher - $76.10 per child;

(b)

Level III - $83.16 per child;

(c)

Level IV - $101.23 per child; and

(d)

Level V - $139.96 per child.

(4)

If assessedFor a child assessed and assigned one of the following levels of care on or after July 1, 2022, upon the next utilization review, the daily rates for therapeutic or treatment foster care shall be:

(a)

Level II - $83.16 per child; and

(b)

Level III - $139.96 per child.

Section 9.

Pregnant and Parenting Teen Programs. A child-caring facility with a pregnant and parenting teen program shall receive:

(1)

A rate consistent with the assigned level of care for the adolescent parent; and

(2)

Inclusive of child care cost, the amount established in Section 8(1) of this administrative regulation for the committed child of an adolescent parent who is committed to the cabinet.

Section 10.

Independent Living Programs.

(1)

An independent living program shall be licensed pursuant to 922 KAR 1:3051:310 and shall meet the standards for independent living programs established in 922 KAR 1:310 and 922 KAR 1:340.

(2)

The daily rate for an independent living program shall be:

(a)

$83.16 per child for Level I or Level II; and

(b)

$139.96 per child for Level III.

(3)

A Level III child in an independent living setting shall require increased structure, supervision, case management, and treatment services.

Section 11.

Programs with Decoupled Rates.

(1)

A child-caring facility or child-placing agency providing highly specialized behavioral health services may be paid for board and treatment services separately through agreement with the:

(a)

Department for the cost of room, board, and watchful oversight; and

(b)

Department for Medicaid Services or its designee for behavioral health treatment services.

Section 12.

Provider Requirements.

(1)

A child-caring facility or child-placing agency shall:

(a)

Inform the department of the levels of care the facility or agency has the ability to serve;

(b)

Demonstrate its ability to provide services, either directly or by contract, appropriate to the assigned level for each child, including:

1.

Room, board, and other activity contributing to housing, food, clothing, school supplies, or personal incidentals;

2.

Clinical services including:

a.

The evaluation and treatment of behavioral health needsan emotional disorder, mental illness, or substance abuse problem; and

b.

Identification and alleviation of related trauma symptoms, disability, or distress, experienced by a child who follows a specific individual treatment plan targeted to identify a problem; and

3.

Support services that:

a.

Identify necessary resources and coordinate services provided by a range of agencies or professionals;

b.

Allow a child to cope with the trauma, disability, or distress;

c.

Provide access to improving the educational or vocational status of the child; and

d.

Provide essential elements of daily living;

(c)

Submit the following reports to the gatekeeper in time for the reports to be received by the gatekeeper within thirty (30) days prior to the utilization review due date:

1.

To the gatekeeper, a Child and Adolescent Needs and Strengths assessment report completed within the past six (6) months or another supplemental tool approved by the gatekeeper; and

2.

For a child who has an IQ seventy (70) or above, a behavior inventory appropriate to the child's developmental level consisting of completed forms established in Section 2(2)(l) of this administrative regulation; and

2.

For a child who has an IQ below seventy (70), a behavioral inventory appropriate to the child's development level:

a.

Consisting of:

(i)

A completed Reiss Scales for Children's Dual Diagnosis (Mental Retardation and Psychopathology); or

(ii)

Another completed tool identified and piloted pursuant to the Promoting Wellbeing and Adoption after Trauma Grant in accordance with 42 U.S.C. 622(b)(15); and

b.

By the first utilization review due date and every twelve (12) months thereafter; and

3.

To the gatekeeper and designated cabinet staff, a copy of the CRP-7, Children's Review Program Application for Level of Care Payment (ALP):

a.

On a quarterly basis, for a private child care residential placement; or

b.

On a semiannual basis for a foster care placement;

(d)

Provide outcomes data and information as requested by the gatekeeper; and

(e)

Obtain accreditation within two (2) years of initial licensure or within two (2) years of acquiring an agreement with the cabinet, whichever is later, from a nationally-recognized accreditation organization, such as:

1.

The Council on Accreditation; or

2.

The Joint Commission on Accreditation for Healthcare Organizations.

(2)

Emergency shelters without a treatment license shall be exempt from the accreditation requirements specified in subsection (1)(e) of this section.

Section 13.Section 11.

Utilization Review and Authorization of Payment.

(1)

The child-caring facility or child-placing agency shall submit to the gatekeeper the reports established in Section 1210(1)(c) of this administrative regulation for the utilization review in time for the reports to be received by the gatekeeper within thirty (30) days prior to the utilization review due date.

(2)

If the child-caring facility or child-placing agency fails to submit the reports as established in Section 1210(1)(c) of this administrative regulation in time for the reports to be received by the gatekeeper within thirty (30) days prior to the utilization review due date, the cabinet shall:

(a)

Suspend payments until the necessary information has been submitted to the gatekeeper;

(b)

If a child's level is reduced after untimely reports are received by the gatekeeper, make an adjustment for overpayment retroactive to the first utilization review due date that was missed; or

(c)

If a child's level is increased as a result of delinquent reports, apply a higher rate beginning the day after the untimely reports are received by the gatekeeper.

(3)

If the child-caring facility makes timely submission of the reports, and if the:

(a)

Level of care remains unchanged, payments shall continue unchanged;

(b)

Level of care is reduced, and the:

1.

Child remains in the same placement, the lower level of care shall be effective on the 31st day following the utilization review due date; or

2.

Child is placed in another child-caring facility or child-placing agency after the utilization review due date, the rate for the lower level shall be effective on the day the child is placed; or

(c)

Level of care is increased, the rate for the higher level of care shall be effective the day after the utilization review due date.

(4)

If a child-caring facility, child-placing agency, or the department determines it to be in the best interest of a child to be transitioned from a residential program to another program and the required reports established in Section 10(1)(c) of this administrative regulation have been submitted on time, and if:

(a)

The program is not therapeutic foster care, the rate for the level resulting from the utilization review shall remain in effect until the next scheduled utilization review; or

(b)

The new program is therapeutic foster care, the residential rate for the level resulting from the utilization review shall remain in effect for thirty (30) days after the change in placement. On the 31st day, the therapeutic foster care rate for the assigned level shall apply.

(5)

If the child-caring facility, child-placing agency, or cabinet staff disagrees with the level of care assigned by the gatekeeper, the child-caring facility, child-placing agency, or cabinet staff may request a redetermination as established in Section 1412 of this administrative regulation.

Section 14.Section 12.

Redetermination.

(1)

If the child-caring facility, child-placing agency, or cabinet staff disagrees with the level of care assigned by the gatekeeper, the child-caring facility, child-placing agency, or cabinet staff may request a redetermination of the assigned level by providing to the gatekeeper:

(a)

New information that supports the request for a new level; and

(b)

Completion of the "request for redetermination" section of one (1) of the following forms:

1.

DPP-886, Private Child Care Client Inter-agency Referral Form, for an initial or reassigned level;

2.

CRP-2, Children's Review Program Notice of Level of Care Payment Authorization, for a utilization review;

2.3.

CRP-4, Children's Review Program Notice of Level of Care Redetermination;

3.4.

CRP-5, Children's Review Program DCBS Foster Care Utilization Review Notice of Level Assignment, for a utilization review; or

4.5.

CRP-6, Children's Review Program Notice of Level of Care Payment Authorization AssignmentReassignment, for a reassignment.

(2)

If the request for a redetermination is received by the gatekeeper within thirty (30) days after the most recent utilization review due date or admission, and if the gatekeeper assigns a higher level with a CRP-4, Children's Review Program Notice of Level of Care Redetermination, the increased payment shall be retroactive to the most recent of the following:

(a)

The date of the most recent utilization review due date if the complete utilization review materials were received on or before the utilization review due date; or

(b)

The date of admission.

(3)

If the request for redetermination is received by the gatekeeper more than thirty (30) days after the most recent utilization review due date or admission, and if a:

(a)

Higher level is assigned by the gatekeeper with a CRP-4, the increased payment shall be effective the day after the request is received by the gatekeeper; or

(b)

Lower level is assigned by the gatekeeper with a CRP-4, the lower payment shall be effective thirty (30) days after the request is received by the gatekeeper.

(4)

If the child-caring facility, child-placing agency, or cabinet staff does not agree with the redetermination as provided by the CRP-4, an appeal may be requested in accordance with Section 16 or 17 14 or 15 of this administrative regulation.

Section 15.Section 13.

Reassignment.

(1)

If the level of care expires and the child is moved to a different child-caring facility or child-placing agency placement, a reassigned level of care shall be obtained by the:

(a)

Department completing a level of care packet for a level assignment; or

(b)

New child-caring facility or child-placing agency submitting the following within thirty (30) days of the placement:

1.

A cover letter requesting a reassignment;

2.

The most recent Child and Adolescent Needs and Strengths assessment report or a comparable An assessment of the child; and

3.

Documentation to support the level of care assignment, such as the level of care packet or discharge summary; and

4.

Material as established in Section 2(2)(l) of this administrative regulation.

(2)

The reassigned level of care rate shall be effective on the date of admission to the new placement.

(3)

If the child-caring facility or child-placing agency disagrees with the level of care assigned by the gatekeeper, the child-caring facility or child-placing agency may request a redetermination as established in Section 1412 of this administrative regulation.

Section 16.Section 14.

Informal Dispute Resolution.

(1)

A contract agent dissatisfied by a decision of the cabinet or a gatekeeper may seek informal resolution by filing a request with the secretary of the cabinet, or designee, within ten (10) days following notice of the decision.

(2)

Upon receipt of a request for informal resolution, the cabinet shall:

(a)

Review the request; and

(b)

Render a written decision on the issue raised within thirty (30) calendar days unless an extension is granted by the secretary or designee:

1.

Due to extenuating circumstances that prolong the review; and

2.

With notice provided to the contract agent.

(3)

If the dispute relates to a decrease or denial of payment, the contract agent may request an administrative hearing in accordance with Section (17)15 of this administrative regulation.

Section 17.Section 15.

Administrative Hearing Process. A child-caring facility or child-placing agency may request an administrative hearing in accordance with 922 KAR 1:320.

Section 18.Section 16.

Incorporation by Reference.

(1)

The following material is incorporated by reference:

(a)

"Child Behavior Checklist for Ages 1 1/2 - 5 (Achenbach)", 7/00;

(b)

"Child Behavior Checklist for Ages 6-18 (Achenbach)", 6/01;

(c)

"CRP-2, Children's Review Program Notice of Level of Care Payment Authorization", 01/2210/18;

(b)(d)

"CRP-4, Children's Review Program Notice of Level of Care Redetermination", 01/2211/14;

(c)(e)

"CRP-5, Children's Review Program DCBS Foster Care Utilization Review Notice of Level Assignment", 01/2210/18;

(d)(f)

"CRP-6, Children's Review Program Notice of Level of Care Payment Authorization AssignmentReassignment", 01/2210/18;

(e)(g)

"CRP-7, Children's Review Program Application for Level of Care Payment (ALP)", 07/2201/2211/14;

(f)(h)

"DPP-114T, Transitional Child Caring and Child Placing Level of Care Schedule", 07/22;

(g)

"DPP-114, Private Child Caring and Child Placing Level of Care Schedule", 02/2301/228/18; and

(h)(g)()

"DPP-886, Private Child Care Client Inter-agency Referral Form", 10/18;

(j)

"DPP-888, Kentucky Cabinet for Health and Family Services Annual Audited Cost Report and Time Study and Instructions for Completing the Annual Cost Report and Time Study for Child Caring and Child Placing Programs and Facilities", 07/2210/18; and

(k)

"Reiss Scales for Children's Dual Diagnosis (Mental Retardation and Psychopathology)", 1990.

(2)

This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Community Based Services, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m. This material may also be viewed on the department's Web site at https://chfs.ky.gov/agencies/dcbs/Pages/default.aspx.
HISTORY: (23 Ky.R. 1484; Am. 1952; eff. 10-16-1996; 24 Ky.R. 2477; 25 Ky.R. 105; eff. 6-11-1998; Recodified from 905 KAR 1:360, 10-30-1998; 27 Ky.R. 1359; 1817; eff. 1-15-2001; 28 Ky.R. 2469; 29 Ky.R. 471; 725; eff. 8-21-2002; TAm eff. 10-27-2004; 31 Ky.R. 882; 1309; eff. 2-22-2005; TAm eff. 1-27-2006; 34 Ky.R. 481; 1067; 1500; eff. 12-17-2007; 35 Ky.R. 446; 845; eff. 10-15-2008; 41 Ky.R. 650; 1402; 1660; eff. 2-5-2015; 43 Ky.R. 826; eff. 2-3-2017; TAm eff. 5-4-2017; 45 Ky.R. 853, 1696, 2106; eff. 1-23-2019; 48 Ky.R. 2306, 3014; eff. 7-20-2022.)
MARTA MIRANDA-STRAUB, Commissioner
ERIC C. FRIEDLANDER, Secretary
APPROVED BY AGENCY: May 10, 2022
FILED WITH LRC: May 11, 2022 at 1:45 p.m.
CONTACT PERSON: Krista Quarles, Policy Analyst, Office of Legislative and Regulatory Affairs, 275 East Main Street 5 W-A, Frankfort, Kentucky 40621; phone 502-564-6746; fax 502-564-7091; email CHFSregs@ky.gov.
REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
Contact Person:
Laura Begin or Krista Quarles
(1) Provide a brief summary of:
(a) What this administrative regulation does:
This administrative regulation establishes levels of care based upon the needs of a child for whom the Cabinet for Health and Family Services has legal responsibility, a payment rate for each level, gatekeeper responsibilities, provider requirements, procedures for classification at the appropriate level of care, and procedures for determination of components of the model program costs analysis.
(b) The necessity of this administrative regulation:
This administrative regulation is necessary to establish the policy and procedures for placement of a child in the custody of the cabinet with a child-placing agency or child-caring facility, levels of care and related payments, responsibilities and requirements of the gatekeeper and private providers, and rate setting methodology.
(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 levels of care and associated payments for a child’s placement at a child-caring facility or child-placing agency.
(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:
This administrative regulation assists with the effective administration of the statutes through its incorporation of the methodology regarding the placement of a child in the custody of the cabinet with a child-caring facility or child-placing agency, procedures concerning the model program cost analysis, provider and gatekeeper requirements, levels of care, and payment rate for each level of care.
(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:
This amendment changes the assessment and leveling process the cabinet uses in determining the placement setting for a child in the cabinet’s custody from a behavior-based system to a system that better provides needed services and treatment. This amendment revises the standards and per diems associated with the different levels of care. The Family First Prevention Services Act (FFPSA) placed new requirements on Qualified Residential Treatment Programs (QRTPs) that ensure that children are assessed regarding treatment needs and stay in residential or institutional placement settings for only as long as their treatment requires. The FFPSA also placed many other additional requirements on these providers that will decrease the maltreatment that children experience and prevent re-entry into the cabinet’s custody. These increased requirements come at a great cost and these providers are already experience staffing crises. Documentation from the Children’s Alliance noted that in order for facilities to maintain safe staff to client ratios, they have had to increase direct care wages by over $2/hour and another $4/hour to maintain competitive wages for the intense work required of treatment staff. General funds that were appropriated to the Department for Community Based Services for the purpose of providing child welfare prevention services in fiscal year 2021-2022 will be utilized to provide part of these rate increases. This amendment also updates material incorporated by reference to reflect amendments in the administrative regulation. This administrative regulation is being further amended in response to comments received during the public comment period. In order to address concerns expressed, a transitional form has been developed for temporary use while the state and providers transition from the current levels of care and rates to the new levels and rates, a process estimated to take approximately six months. Language is being added to include therapeutic services, children assessed as level II will require counseling provided by a professional rather than a paraprofessional, and minor technical changes are being made upon request to correct names of forms and better clarify requirements. In addition to the new form, three forms are being amended in response to comments received for consistency with the administrative regulation and to delete duplicative requests for information.
(b) The necessity of the amendment to this administrative regulation:
This amendment is necessary to adjust reimbursement for the care of children placed in residential child-caring facilities to ensure children are placed in the most appropriate placement based upon their needs. The Children’s Alliance has stressed the urgent need to increase rates so that providers can maintain the staff needed to meet staff to client ratios and keep the children in their care safe. The rate increase is anticipated to assist with provider capacity, thereby better assuring placement options and quality care for children in state custody. Additional amendment was made to include qualified mental health provider placements as approved through the Family First Prevention Services Act. Without these placement options, children risk placement in more costly, restrictive settings or, conversely, in settings that do not otherwise meet the needs of the children. The health and welfare of these children are jeopardized without the payment rate increase, in addition to threats to federal child welfare funding due to an inadequate service array for children requiring out-of-home care.
(c) How the amendment conforms to the content of the authorizing statutes:
The amendment conforms to the content of the authorizing statutes by adjusting placement and level of care options for children in the custody of the cabinet for placement in child-caring facilities and child-placing agencies.
(d) How the amendment will assist in the effective administration of the statutes:
The amendment will assist in the effective administration of the statutes by enhancing placement and levels of care options and increasing some payment rates so that they are more consistent with actual provider costs, thereby better facilitating placement options and preserving the health and welfare of children in the custody of the cabinet.
(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation:
In SFY 2021, 6,430 unique children were placed in a setting according to their level established in this administrative regulation.
(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:
The children affected by this administrative regulation will have no new action required. Federal law has increased the standards that must be met for some of the entities providing care pursuant to this administrative regulation; therefore, they will be receiving increased per diems for providing care and meeting these new standards.
(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):
Meeting new standards will have a different cost for different affected entities. The cabinet utilized the Annual Audited Cost Report and Time Study to determine rates for providers based on allowable costs. This rate methodology provides for treatments as close as possible to the child’s home geographic area and ensures continuity with families, schools, and communities.
(c) As a result of compliance, what benefits will accrue to the entities identified in question (3):
Many affected entities will receive a per diem rate increase through this amendment. This rate increase is designed to offset the cost of meeting the higher standards required by recent federal legislation. The purpose of this amendment is to re-design the system through which children in the state’s custody are placed, ensuring higher standards of care and increased services and treatment provided closer to their home communities.
(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:
(a) Initially:
The cabinet projects these rate increases to cost approximately $30 Million in state General Fund dollars.
(b) On a continuing basis:
The cabinet projects the per diem increases are within appropriations; however, the administrative body will continually monitor its costs to make any adjustments necessary to maintain a comprehensive service array within available funding.
(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation:
The sources of funding include federal Title IV-E (of the Social Security Act) foster care maintenance, general funds, and agency and restricted funds derived from the Temporary Assistance for Needy Family (TANF) block grant and Medicaid. General Funds that were appropriated to the Department for Community Based Services for the specific purpose of providing child welfare prevention services in fiscal year 2021-2022 will be utilized to provide part of this rate increase.
(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:
No increase in fees or funding is necessary to implement this administrative regulation.
(8) State whether or not this administrative regulation establishes any fees or directly or indirectly increases any fees:
This administrative regulation does not establish any fees or directly or indirectly increase any fees.
(9) TIERING: Is tiering applied?
This administrative regulation does include tiering as different per diem rates and standards are associated with specific levels of care provided to children in the state’s custody.
FEDERAL MANDATE ANALYSIS COMPARISON
(1) Federal statute or regulation constituting the federal mandate.
42 U.S.C. 622, 672, 675
(2) State compliance standards.
KRS 194A.050(1), 199.641(4), 605.090(1)(d), 605.090(1)(d), 605.150(1)
(3) Minimum or uniform standards contained in the federal mandate.
42 U.S.C. 622, 672, 675
(4) Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate?
This administrative regulation does not impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate. This amendment and the increase in per diem rates associated with levels of care are necessary in order to meet the higher standards required by the Family First Prevention Services Act.
(5) Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements.
This administrative regulation does not impose a stricter standard, or additional or different responsibilities or requirements.
FISCAL NOTE
(1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation?
The Cabinet for Health and Family Services, specifically the Department for Community Based Services (DCBS), is impacted by this administrative regulation.
(2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation.
KRS 194A.050(1), 199.641(4), 605.090(1)(d), 605.150(1), 42 U.S.C. 622, 672
(3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.
(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year?
This administrative regulation will generate no new revenues.
(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years?
This administrative regulation will generate no new revenues.
(c) How much will it cost to administer this program for the first year?
The administrative body has conducted extensive analysis of its budgetary context and service demands to ensure the per diem increases are sustainable within appropriations.
(d) How much will it cost to administer this program for subsequent years?
The administrative body projects the per diem increases are within appropriations; however, the administrative body will continually monitor its costs to make any adjustments necessary to maintain a comprehensive service array within available funding.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
Revenues (+/-):
Expenditures (+/-):
Other Explanation:
(4) Estimate the effect of this administrative regulation on the expenditures and cost savings of regulated entities for the first full year the administrative regulation is to be in effect.
(a) How much cost savings will this administrative regulation generate for the regulated entities for the first year?
This administrative regulation does not generate cost savings for agencies, but does increase the per diem they receive for the care of children in cabinet custody.
(b) How much cost savings will this administrative regulation generate for the regulated entities for subsequent years?
This administrative regulation does not generate cost savings for agencies, but does increase the per diem they receive for the care of children in cabinet custody.
(c) How much will it cost the regulated entities for the first year?
Implementation of the Family First Prevention Services Act caused an increase in standards and costs to regulated entities providing care for children; this amendment increases per diems provided to the regulated entities to offset costs.
(d) How much will it cost the regulated entities for subsequent years?
Regulated entities have experienced an increase in costs in meeting the standards of the Family First Prevention Services Act. This amendment increases the per diem provided for the care of children in order to offset those costs.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.
Cost Savings (+/-):
Expenditures (+/-):
Other Explanation:
(5) Explain whether this administrative regulation will have a major economic impact, as defined below.
"Major economic impact" means an overall negative or adverse economic impact from an administrative regulation of five hundred thousand dollars ($500,000) or more on state or local government or regulated entities, in aggregate, as determined by the promulgating administrative bodies. [KRS 13A.010(13)] This administrative regulation does not have a major economic impact on regulated entities, but rather seeks to greater assist with the cost of caring for children.

7-Year Expiration: 1/11/2031

Last Updated: 1/25/2024

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