Definitions, Allocations algorithm, General Provisions, Establishment of the iBudget Amount, iBudget Cost Pan

 

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

Agency for Persons with Disabilities

RULE NOS.:RULE TITLES:

65GER14-2Definitions

65GER14-3Allocations algorithm

65GER14-4General Provisions

65GER14-5Establishment of the iBudget Amount

65GER14-6iBudget Cost Pan

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: 1. The Agency for Persons with Disabilities (Agency) serves approximately 30,000 individuals with developmental disabilities through the Home and Community-Based Services (HCBS) Waiver program with approximately 21,000 individuals on a waitlist for services. All of the individuals the Agency serves, as well as those on the waitlist for services, through its HCBS waiver program meet the level of care for institutionalization. This includes some of the most vulnerable Floridians. Many of these individuals require extensive supervision, or have medical and behavioral needs that are likely to place the individual or others in immediate serious jeopardy or danger without waiver services.

2. The HCBS waiver program is implemented by the iBudget system as set forth in Section 393.0662, F.S., which requires the use of an algorithm to set an iBudget amount for each individual. Each individual served must have a properly established iBudget amount based on a properly established algorithm amount. The algorithm the Agency utilized to operate the iBudget system was promulgated in the iBudget rules.

3. The Agency’s iBudget rules were invalidated by the First District Court of Appeal (DCA) in G.B. v. Agency for Persons with Disabilities, 2014 WL 3565435 (Fla. 1st DCA, July 21, 2014). A substantial number of individuals relying on assistance from the Agency were receiving less than their algorithm amount. These emergency rules will immediately address this issue.

4. The Agency regularly receives requests for increases to individual iBudget amounts based on Significant Additional Needs. These rules create an algorithm amount, without which no additional funding can be calculated and this vulnerable population faces immediate danger to their health, safety, and welfare. Any increase of the iBudget amount begins with a calculation of the algorithm amount.

5. The Agency also regularly receives applications for eligibility for services from new individuals in crisis and in the absence of properly enrolling these individuals on the waiver, this vulnerable population faces immediate serious danger to their health, safety, and welfare as well as the risk of unnecessary institutionalization.

6. Furthermore, there is a constant need for individuals in crisis to be transitioned from the waitlist to the waiver. The 2014-15 General Appropriations Act specifically provided funds and instructions for these individuals to be taken off of the waitlist and placed into the HCBS Waiver iBudget program. See Ch. 2014-51, item 268, at 66 Laws of Fla.; Ch. 2014-53, § 9, at 8-9, Laws of Fla. These are individuals such as children in the child welfare system at the time of adoption, reunification or permanent placement with a relative in a family home; individuals with intensive behavioral or medical needs; individuals with caregivers over age 70; and individuals transitioning out of Intermediate Care Facilities for the Developmentally Disabled. The 2014-2015 General Appropriations Act went further and specifically provided funds and instructions for additional individuals to be enrolled into the HCBS Waiver iBudget program. See Ch. 2014-51, items 239-241, at 61-63, Laws of Fla. These individuals include people transitioning out of Intermediate Care Facilities for the Mentally Retarded, Intermediate Care Facilities for the Developmentally Disabled and out of nursing home care into the community. The iBudget rules are necessary to properly enroll these individuals into the waiver as directed by the General Appropriations Act.

7. An immediate need for these rules exists in order to continue to protect the health and safety of the individuals with the needs and requests listed above. In order to properly address individual needs and requests and those with an iBudget amount below the algorithm amount, the Agency has set its processes in motion to notify the individuals affected and their waiver support coordinators of the increases to their respective iBudget amounts. The Agency anticipates distributing the additional funds in the iBudget accounts of the affected individuals by September 5, 2014. The increased amounts will be effective as of August 1, 2014.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: 1. This emergency action taken by the Agency provides the rules necessary to comply with its legislatively mandated responsibilities described above. The procedure used for these emergency rules is fair under the circumstances because the emergency rules set forth the statistically validated algorithm that was previously subject to scrutiny and public comment in a lengthy rulemaking process and successfully relied upon by the Agency during the phase in of the iBudget system. The rules set forth the same algorithm that was also scrutinized and upheld by an Administrative Law Judge at the Division of Administrative Hearings. See, G.B., et. al. v. A.P.D., Case No. 14-1849RP (DOAH Sept. 9, 2013). Moreover, the same algorithm was reviewed but not invalidated by the DCA in G.B. v. APD.

2. The population served by the Agency depends on help from the Agency to meet critical needs. This rule adopts an algorithm which is necessary to accomplish that goal and which is the only choice immediately available to the Agency.

SUMMARY: These emergency rules replace the iBudget process contained in the rules recently invalidated by the Court. They are necessary for the administration and continued implementation of Section 393.0662, F.S., and to effectuate the legislative appropriations provided in the 2014-15 General Appropriations Act, Ch. 2014-51, items 239, 241, and 268, at 61-63 and 66, Laws of Fla.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: David De La Paz at [phone] or [e-mail]

 

THE FULL TEXT OF THE EMERGENCY RULE IS:

 

65GER14-2 Definitions.

(1) Allocation Algorithm: The mathematical formula based upon statistically validated relationships between individual characteristics (variables) and the individual’s level of need for services provided through the Waiver as set forth in Emergency Rule 65GER14-3 and as provided in Section 393.0662(1)(a), F.S.

(2) Amount Implementation Meeting Worksheet (AIM): A form used by the Agency for new waiver enrollees to:

(a) Communicate an individual’s Allocation Algorithm amount,

(b) identify proposed services based upon the Allocation Algorithm amount, and

(c) Identify additional services, if any, should the individual or their representative feel that any Significant Additional Needs of the individual cannot be met within the Allocation Algorithm amount. The Amount Implementation Meeting Worksheet (AIM), effective September 1, 2014, is hereby adopted and incorporated by reference in the rule, and may be found on the Agency’s website at http://apd.myflorida.com/ibudget/docs/AIM%20Excel%20for%20Rule.pdf,

(3) Approved Cost Plan: The document that lists all waiver services that have been authorized by the agency for the individual, including the anticipated cost of each approved waiver service, the provider of the approved service, and information regarding the provision of the approved service.

(4) Extraordinary Need: Has the same meaning as provided in Section 393.0662(1)(b), F.S.

(5) iBudget Amount: total amount of funds that have been approved by the agency, pursuant to the iBudget Rules, for an individual to expend for waiver services during a fiscal year.

(6) iBudget: The waiver service delivery system that uses individual budgets and under which the Agency for Persons with Disabilities operates the Developmental Disabilities Individual Budgeting Waiver.

(7) iBudget Rules: Emergency Rules 65GER14-2 through 65GER14-6, F.A.C., are the rules which implement and interpret iBudget Amounts Section 393.0662, F.S.

(8) Individual: a person with a developmental disability, as defined by Section 393.063, F.S., and who is enrolled in iBudget.

(9) Individual representative: The individual’s parent (for a minor), guardian, guardian advocate, person holding a power of attorney for decisions regarding health care or public benefits, healthcare surrogate, a designated representative (evidenced by a written designation), or individual’s advocate. The individual’s Waiver Support Coordinator shall ascertain whether an individual has any of these representatives and inform the agency of the identity and contact information. When the term “legal representative” is used in the iBudget Rules it means only those individuals who have legal authority to act independently for the individual, such as the individual’s parent (for a minor), guardian, guardian advocate, healthcare surrogate or person holding a power of attorney for decisions regarding health care or public benefits.

(10) Questionnaire for Situational Information (QSI) effective 2-15-08: An assessment instrument used by the Agency to determine an individual’s needs in the areas of functional, behavioral, and physical status. The QSI is adopted by the Agency as the current valid and reliable assessment instrument and is hereby incorporated by reference. The QSI is available at: http://apd.myflorida.com/waiver/qsi-version-4.pdf, or http://apd.myflorida.com/waiver/.

(11) Significant: Significant means of considerable magnitude or considerable effect.

(12) Significant Additional Needs: Need for services that if not provided would place the health and safety of the individual, the individual’s caregiver, or public in serious jeopardy which are authorized under Section 393.0662(1) (b), F.S., and categorized as extraordinary need, significant need for one time or temporary support or services, or significant increase in the need for services after the beginning of the service plan year.

(13) Support plan: An individualized plan of supports and services designed to meet the needs of an individual enrolled in the iBudget. The plan is based on the preferences, interests, talents, attributes and needs of an individual.

(14) Temporary basis: A time period of less than 12 months.

(15) Waiver: The Developmental Disabilities Individual Budgeting Medicaid Home and Community Based Services Waiver (iBudget) operated by the Agency.

(16) Waiver Support Coordinator: Abbreviated as WSC, means a person who is  selected  by the  individual to assist the individual and family in identifying their capacities, needs, and resources; finding and gaining access to necessary supports and services; coordinating the delivery of supports and services; advocating on behalf of the individual and family; maintaining relevant records; and monitoring and evaluating the delivery of supports and services to determine the extent to which they meet the needs and expectations identified by the individual, family, and others who participated in the development of the support plan.

Rulemaking Authority 393.501(1), 393.0662 FS. Law Implemented 393.0662 FS. History–New 9-3-14.

 

65GER14-3 Allocation Algorithm.

(1) To establish the Allocation Algorithm amount for any individual who has not previously had a QSI assessment, a QSI assessment must be completed prior to calculating the allocation algorithm amount under subsection (2).

(2) To calculate the Allocation Algorithm amount for each individual, the following weighted values, as applicable, shall be summed, and the resulting total then squared:

(a) The base value for all individuals, 26.7080;

(b) If the individual is age 21 or older, 53.1104;

(c) If the individual resides in supported or independent living, 62.5319;

(d) If the individual resides in an Agency-licensed foster or group home, or a non-Agency licensed congregate home, 92.1163;

(e) If the individual resides in a Residential Habilitation Center or Comprehensive Transitional Education Program, 121.5095;

(f) The sum of the scores on the individual questions in the QSI Behavioral Status Subscale (Questions 25-30), multiplied by 2.5457;

(g) The sum of the scores on the individual questions in the QSI Functional Status Subscale (Questions 14-24), multiplied by 0.4124;

(h) The individual’s score on QSI Question 18, multiplied by 7.1686;

(i) The individual’s score on QSI Question 20, multiplied by 5.8770; and

(j) The individual’s score on QSI Question 23, multiplied by 7.6807;

(2) The squared result of the sum of the applicable values of paragraphs (1)(a) through (j) above, is the individual’s Allocation Algorithm amount.

Rulemaking Authority 393.501(1), 393.0662 FS. Law Implemented 393.0662 FS. History–New 9-3-14.

 

65GER14-4 General Provisions.

(1) Medical necessity alone is not sufficient to authorize a service under the waiver.

(2) The individual must utilize all available State Plan Medicaid services, school-based services, private insurance, and any other resources which may be available to the individual before expending funds from the individual’s iBudget Amount for support or services. As an example, State Plan Medicaid services for children under the age of 21 typically include, personal care assistance, therapies, consumable medical supplies, medical services, and nursing. Failure to comply with this subsection shall result in denial of a request for additional funding.

(3) An individual shall not be provided waiver services that duplicate available State Plan Medicaid Services for which the person is eligible.

(4) WSCs shall coordinate with the individuals they serve to ensure that services are selected from all available resources to keep the annual cost of services within the individual’s iBudget Amount while maintaining the individual’s health and safety.

(5)  If an individual with documented behavioral, medical or functional needs chooses a less costly service to address those needs, the Agency will consider the need for those services in determination of the individual’s iBudget Amount.

(6) Cost Plan Flexibility. –

(a) After the individual’s proposed cost plan is approved, he or she may change the services in his or her Approved Cost Plan provided that such change does not jeopardize the health and safety of the individual and meets medical necessity.

(b) When changing the services within the Approved Cost Plan, the individual and his or her WSC shall ensure that sufficient funding remains allocated for unpaid services that were authorized and rendered prior to the effective date of this change.

(c) Individuals enrolled in iBudget will have flexibility and choice to budget or adjust funding among some services  without requiring additional authorizations from the Agency, provided the overall individuals iBudget Amount is not exceeded and all health and safety needs are met.  The Agency will authorize services in accordance with criteria identified in Section 393.0662(1)(b), F.S., medical necessity requirements of subsection 59G-1.010(166), F.A.C., and handbook limitations adopted in Rule 59G-13.083, F.A.C., and the requirements of 42 CFR 440.230(d).

(d) Retroactive application of changes to service authorizations is prohibited without written approval from the agency.

(7) Consumer Directed Care Plus (CDC+): Individuals enrolled in the CDC+ program are subject to the iBudget Rules

Rulemaking Authority 393.501(1), 393.0662 FS. Law Implemented 393.0662, 409.901-.9201 FS. History–New 9-3-14.

 

65GER14-5 Establishment of the iBudget Amount.

(1) The iBudget Amount for an individual shall be the Allocation Algorithm amount, as provided in Emergency Rule 65GER14-3, F.A.C., plus any approved Significant Additional Needs funding pursuant to Section 393.0662(1)(b), F.S.

(2) The Agency will determine the iBudget Amount consistent with the criteria and limitations contained in the following provisions: Sections 409.906(13) and 393.0662, F.S.; and Rules 59G-13.080, 59G-13.081, and 59G-13.083, F.A.C.

(3) Significant Additional Needs Review: For new waiver enrollees the Allocation Algorithm amount is calculated and provided to the individual and the individual’s WSC. The WSC will discuss the Allocation Algorithm amount with the individual, or representative in order to determine if the individual has any Significant Additional Needs. The Agency may approve an increase to the iBudget Amount if additional funding is required to meet the Significant Additional Needs. For new enrollees the AIM Worksheet form will be completed as part of the individual review.

(4) iBudget Amounts are pro-rated as appropriate based on the length of time remaining in the fiscal year.

(5) The individual or their representative will be advised of the Agency’s decision for the amount of the individual’s final iBudget Amount.

Rulemaking Authority 393.501(1), 393.0662 FS. Law Implemented 393.0662, 409.901-.9201 FS. History–New 9-3-14.

 

65GER14-6 iBudget Cost Plan.

(1) Each individual’s proposed iBudget cost plan shall be reviewed and approved by the Agency in conformance with the iBudget Rules and the Florida Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook, November 2010, available at http://www.flrules.org/Gateway/reference.asp?No=Ref-01050, as adopted by Rule 59G-13.083, F.A.C. (5-13-2012), which is hereby incorporated by reference.

(2) For an individual to begin receiving a specific waiver service, that service must have been listed in an Approved Cost Plan and the service authorization must have been issued to the provider prior to the delivery of service.

(3) Individuals must budget their funds so that their needs are met throughout the plan year. All individuals shall allocate iBudget funding each month for waiver support coordination services, which is a required service under the waiver.

Rulemaking Authority 393.501(1), 393.0662 FS. Law Implemented 393.0662, 409.901-.9201 FS. History–New 9-3-14.

 

THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A LATER TIME AND DATE IS SPECIFIED IN THE RULE.

EFFECTIVE DATE: September 3, 2014